Spring is in the Air
For a few weeks at least, we have some nice weather, and then summer comes along with the normal Texas heat. So while we are enjoying the cool spring air, what is going on in the Workers’ Comp world?
DWC to Resume In-Person Contested Case Hearings on August 2, 2021
On April 15, 2021, DWC announced in-person CCHs will resume Monday, August 2, 2021. DWC has been monitoring the latest developments related to COVID-19. Due to increasing vaccine availability and ongoing safety improvements to field offices, DWC determined in-person contested case hearings can resume.
DWC encourages all system participants to begin preparing for these in-person contested case hearings. In the coming weeks, dockets will begin to reflect this future change. Parties should continue to file and exchange documents electronically.
This is great news for Carriers as we can more effectively present our cases at in-person Contested Case Hearings, especially for Compensability and Disability issues since these are judged more on the Claimant’s credibility. With the Claimant being in person as opposed to being on the phone, the Judge has a greater ability to evaluate the Claimant, and we have a better opportunity to argue the Carrier’s position.
The DWC Memo can be found at:
Why Are the Majority of Designated Doctors Chiropractors?
From September 2012 to December 2020, the number of doctors available to serve as designated doctors has precipitously dropped from 1,247 to 340. The drop in the number of designated doctors is problematic for all system participants. The relative scarcity of designated doctors has resulted in scheduling delays, a lack of doctors serving certain geographic areas, and doctors with needed specialties being unavailable.
The table below represents the changes in Designated Doctors over the last eight years.
Of the 2,443 examinations completed in December 2020, 1,425 of those examinations were performed by chiropractors.
Why did the list change so drastically? More likely than not it was House Bill 2605 implemented on September 1, 2011.
Prior to December 6, 2018, DWC allowed a doctor up to five examinations for most designated doctor exams in a county. After conducting up to five exams, the doctor would be moved to the bottom of the list for that county. Doctors qualified to evaluate conditions other than musculoskeletal conditions would be selected for such “specialized” exams and then be moved to the bottom of the list. Depending on the county, doctors with specialties could wait months before being appointed another designated doctor exam. This practice resulted in chiropractors being appointed in the majority of cases and medical doctors or osteopaths being appointed primarily in complex cases.
As of December 6, 2018, a designated doctor is qualified to perform a designated doctor exam only if the doctor meets the appropriate qualification criteria for the area of the body affected by the injury and the injury diagnosis. As a result, DWC created lists designating the type of doctor who may be appointed as a designated doctor for certain injuries.
MDs, DOs, and DCs may be appointed for the following injuries:
- spine and musculoskeletal structures of the torso,
- hands and upper extremities,
- lower extremities, and
- feet. (Doctors of podiatry may also be appointed for injuries involving feet.)
MDs and DOs (but not DCs) may be appointed for the following injuries:
- mental and behavioral disorders,
- heart or cardiovascular conditions,
- chemical exposure,
- infectious disease,
- multiple fractures, joint dislocations, and hip or pelvis fractures,
- severe burns,
- spinal cord injuries,
- traumatic brain injuries,
- tooth and jaw injuries, (Dental surgeons may also be appointed for such injuries.)
- eyes, and (Doctors of optometry may also be appointed for such injuries.)
- any other body systems.
Under Rule 127.5, examination requests for each county are assorted and distributed to the appropriate list each working day. DWC may assign up to five examinations to the next doctor on the designated doctor list. After a doctor receives up to five examinations from a list, that doctor moves to the bottom of that list. The goal is that MDs and DOs will receive more appointments each year. However, it appears the majority of doctors performing designated doctor exams remain chiropractors.
For Some Doctors, Crime Definitely Does Not Pay
Criminal sentences were handed down for a number of prominent health care providers, including several doctors who practiced in the workers’ compensation field, in a major medical kickback case in Dallas. In 2016, the federal government issued indictments against a number of providers who allegedly were involved in a bribery and kickback scheme through Forest Park Medical Center, a specialty surgical hospital in Dallas. The doctors were provided significant sums for “marketing” their practices in exchange for sending patients to the facility, thus boosting the facility’s bottom line and perpetuating health care fraud on insurance carriers and federal government. Several doctors and associates pled guilty prior to trial, with the remaining convicted at trial in 2019.
Of interest to practitioners in the workers’ compensation field were providers who were convicted and will have to serve prison sentences. Dallas pain management doctor, “Mike” Shah, was found guilty on four counts (conspiracy and commercial bribery among others) and was sentenced to 42 months in prison. Dr. Shawn Henry, a spinal surgeon primarily based out of Fort Worth, was found guilty of conspiracy, money laundering and commercial bribery, and sentenced to ninety months in federal prison. Dr. Frank Gonzalez, a chiropractor from Midland/Odessa, pled guilty to conspiracy to pay and receive healthcare bribes and was sentenced to 21 months in prison. Other spinal surgeons who received prison sentences included Dr. Michael Rimlawi and Dr. Douglas Won.
In addition to doctors who received prison sentences, two individuals involved in the workers’ compensation preauthorization process were also sentenced to prison. Israel Ortiz, the founder of Kortmed (a company that fills out preauthorization for workers’ compensation patients), was sentenced to twelve months in prison after pleading guilty. Iris Forrest, a nurse who recruited and preauthorized workers’ compensation requests, was found guilty at trial and sentenced to thirty six months in federal prison.
This is not the only ongoing federal action against Texas doctors who actively participate in workers’ compensation matters. In 2017, a federal indictment alleged $158 million in health care fraud through a conspiracy of doctors and pharmacies. Dr. Kevin Williams, Dr. Michael Taba, and Dr. Leslie Benson, along with a number of compounding pharmacies, were alleged to have engaged in a massive healthcare fraud scheme involving prescribing very expensive compound medications. According to the Department of Justice, in the period from 2014-2017, approximately $158 million in false claims were submitted for these compound medications, and over $82 million paid out through the Federal Office of Workers’ Compensation. Currently, both Dr. Williams and Dr. Benson have surrendered their licenses to practice medicine to the Texas Medical Board, and trial of their case has been set for January of 2022. Downs & Stanford, P.C. will continue to monitor this and provide updates to our readers as events develop.
A Reminder of the Difference Between Disability and Entitlement to Temporary Income Benefits
Appeals Panel Decision 201642 reminds parties that disability and eligibility for TIBs are distinct and not mutually exclusive. For example, an employee who does not work because of a compensable injury, but receives earnings equivalent to his pre-injury wage has disability, but is not entitled to TIBs.
In APD 201642, the Administrative Law Judge (ALJ) determined the Injured Worker (IW) did not suffer disability because the employer paid full wages while the IW was off work for his injuries. The Appeals Panel noted the employer paid full wages (or salary continuation) to the IW, but those monies were not in exchange for personal services performed.
The definition of disability is “the inability because of a compensable injury to obtain and retain employment at wages equivalent to the preinjury wage.” Unlike other states, Texas defines disability as an economic concept.
An employee is entitled to temporary income benefits (TIBs) if the employee (1) has a disability; and (2) has not obtained maximum medical improvement. See Texas Labor Code §408.101. The payment of TIBs is calculated using the following formula: average weekly wage minus post injury earnings (AWW-PIE=LOST WAGES).
Salary continuation and other-like payments are not wages because they are not in exchange for personal services rendered. An IW who receives monies but did not perform any services because the compensable injury prevented the IW from working meets the definition of disability: the injury is a producing cause of an inability earn the pre-injury wage. However, this IW, who suffers disability, is not entitled to TIBs because the monies paid (that are not wages exchanged for personal services) are still considered post injury earnings (PIE) which are equal to or greater than the AWW.
This distinction can have profound effects. For example, Texas law places much importance on the accrual date, which is the 8th day of disability. From the accrual date, the TIBs are now due and the statutory date of maximum medical improvement is calculated. DWC auditors use the 8th day to ascertain if a carrier timely initiated benefits. DWC believes any day an IW does not earn full wages due to working the full amount of hours is one day of disability. So, an IW who leaves early for a PT appointment suffers a day of disability. The accrual date is reached once 8 days are identified. From the accrual date, disability is calculated weekly.
The distinction between disability and entitlement to TIBs also comes into play when an IW is receiving salary continuation after the accrual date. The Appeals Panel holds an IW receiving salary continuation has disability because the IW is not earning wages for personal services. Notwithstanding disability, TIBs are not owed unless all forms of remuneration including salary continuation is less than pre-injury AWW.
TAKEAWAY: Carriers should re-examine their procedures and training for proper calculation of the accrual date. We all should be more precise with our verbiage: an employee who receives salary continuation has disability, but may not be owed TIBs. And when setting issues for a CCH, parties should include the issue of “entitlement to TIBs” instead of the “disability” issue when resolution of that issue is intended.
Did you know…
If the Carrier is paying a Claimant for wages earned by the Claim Employer and a Non-Claim Employer, the Carrier can be eligible for reimbursement of TIBs paid pursuant to the Non-Claim Employer’s DWC-3ME from the Subsequent Injury Fund (SIF).
Please contact any of our attorneys at Downs & Stanford for assistance with handling a Subsequent Injury Fund request or any other Texas Workers’ Compensation questions.
Attorney Spotlight: Stuart Colburn
Mr. Colburn is a shareholder of Downs & Stanford, P.C. with over twenty five years of experience in workers’ compensation. He is board certified in Workers’ Compensation Law by the Texas Board of Legal Specialization. Stuart is a certified lobbyist, serves as the firm’s representative at Division of Workers’ Compensation conferences and attends legislative meetings and hearings. He has extensive experience in all phases of dispute resolution before the Division of Workers’ Compensation and in district court.
Stuart was the founder and first Chair of the State Bar of Texas Workers’ Compensation Section. He co-authors the Texas Workers’ Compensation Handbook published by LexisNexis and serves on the executive committe of the LexisNexis Advisory Board for Larson’s on Workers’ Compensation. Stuart served as a contributing editor for the Texas Insurance Code Annotated and was a contributor for The Complete Guide to Medicare Secondary Payer Compliance. He founded and was first Chair of the executive committee for the workers’ compensation subgroup for the Primerus Defense Institute. Stuart is active in the education of attorneys, adjusters, and employers regarding workers’ compensation. He is certified by the Texas Department of Insurance as a continuing education provider.
A sought after speaker, Stuart has delivered over five hundred speeches regarding workers’ compensation nationwide. He has served as the course director for numerous programs including the Texas State Bar’s Advanced Workers’ Compensation Seminar and the Texas Workers’ Compensation Forum.
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