Happy April! We are here to help you with your every day questions with Texas Workers’ Compensation. Please see the newest information below.
Lunch and Learns – First Come, First Served CEU Credits for All Adjusters
Want Some Credit? Come and Get It!
Here are more Lunch and Learns so you can get your credit early!
We are offering Lunch and Learns for 1-hour credits. See the list of classes being offered below; the first 25 adjusters to sign up will be in the course. Once you have registered, you will receive confirmation for the Webinar.
The Zoom link will be emailed the Monday before each Webinar.
April 22, 2022 from 12:00 P.M. to 1:00 P.M.: Supplemental Income Benefits Webinar (129625) with Rynn Freiling and John Fundis.
May 13, 2022 from 12:00 P.M. to 1:00 P.M.: What’s New? New Laws, Rules, Policies & Procedures Webinar ( 125375 ) with Rynn Freiling and Adrienne Gasser
May 20, 2022 from 12:00 P.M. to 1:00 P.M.: Basics of Handling Judicial Review Cases Webinar with Chris Losey and Andy Schreck
Please note if you have taken the course listed below in the last two years, you will not be eligible for credit again per Texas Administrative Code 19.1010 (7)(c).
Don’t delay! Email us today at CE@downsstanford.com.
Practice Pointer When Requesting a Designated Doctor
We are often asked to assist clients in completing a DWC- 32 requesting a Designated Doctor (“DD”). We are also often asked whether a DD should be requested. The Texas Labor Code provides statutory authority allowing parties to request a DD. Parties may request a DD to answer questions about:
(1) the impairment caused by the compensable injury;
(2) the attainment of maximum medical improvement;
(3) the extent of the employee’s compensable injury;
(4) whether the injured employee’s disability is a direct result of the work-related injury;
(5) the ability of the employee to return to work; or
(6) issues similar to those described by Subdivisions (1)-(5).
However, should Carriers request a DD simply because they have the statutory right to do so? When the issue is extent of injury, the answer is: Don’t do it!
Requesting a DD on extent injury can be fraught with peril. First, the qualifications, specialization, and the bias (if any) of the appointed DD is left to chance because DWC appoints the DD by choosing the next available doctor on its list of certified DDs whose credentials are appropriate for the area of the body affected by the injury and the Claimant’s diagnosis. See Texas Administrative Code §127.130: Qualification Standards for Designated Doctor Examinations.
Second, the DD’s opinion is given presumptive weight. If the DD’s opinion on extent of injury is adverse to the Carrier’s position, the Carrier has now provided the Claimant with evidence to support Claimant’s case. The Carrier has created a burden on itself to overcome the presumptive weight of the DD’s opinion.
Third, a DD’s opinion in the Claimant’s favor on the issue of extent of injury constitutes an order to pay medical benefits. Thus, when a Carrier requests a DD on extent of injury, there is the potential that the Carrier will owe medical benefits unless and until the DD’s opinion is overturned by CCH decision and order.
Fourth, the numbers are concerning. A chiropractor will most likely be appointed as the DD in the majority of cases. TDI updates information regarding DD appointments monthly. In March 2022, there were a total of 267 available DDs statewide. Of those 267 available DDs, 188 were chiropractors and only 68 were medical doctors. The remaining 11 available DDs were osteopathic doctors. Chiropractors may be appointed to examine injuries and diagnoses relating to the hand and upper extremities, lower extremities, spine and musculoskeletal structures of the torso, feet, toes, and heels. Thus, for a significant percentage of cases, a chiropractor will be considered qualified and thus can be appointed as DD.
Bear in mind – a Carrier does not have the burden of proof on extent of injury. With that said – why request DWC to appoint a doctor whose identity is nothing more than luck of the draw and run the risk of creating immediate liability for medical benefits and creating adverse evidence?
Now for the numbers:
- Available Designated Doctors – The number of designated doctors in the county available to be offered appointments on at least one day of the month.
- Designated Doctors with Appointments – The number of designated doctors in the county conducting appointments during the month. These doctors may have been offered the appointment in a previous month.
- Total Appointments – The total number of designated doctor appointments conducted in the county during the month.
- Initial Appointments – Initial appointments are the first appointment on a particular claim assigned to a unique designated doctor. If an injured employee is examined by more than one designated doctor, the injured employee will have an initial appointment for each.
- Subsequent Appointments – A designated doctor appointment that follows an initial appointment and is conducted by the same doctor.
Source TDI website https://wwwapps.tdi.state.tx.us/inter/perlroot/sasweb9/cgi-bin/broker.exe?_service=wcExt&_program=progext.DD_Report.sas
§ 127.130. Qualification Standards for Designated Doctor Examinations
(b) … A designated doctor’s qualification criteria are determined as follows:
(1) To examine injuries and diagnoses relating to the hand and upper extremities, a designated doctor must be a licensed medical doctor, doctor of osteopathy, or doctor of chiropractic.
(2) To examine injuries and diagnoses relating to the lower extremities excluding feet, a designated doctor must be a licensed medical doctor, doctor of osteopathy, or doctor of chiropractic.
(3) To examine injuries and diagnoses relating to the spine and musculoskeletal structures of the torso, a designated doctor must be a licensed medical doctor, doctor of osteopathy, or doctor of chiropractic.
(4) To examine injuries and diagnoses relating to feet, including toes and heel, a designated doctor must be a licensed medical doctor, doctor of osteopathy, doctor of chiropractic, or doctor of podiatric medicine.
(5) To examine injuries and diagnoses relating to the teeth and jaw, including a temporomandibular joint, a designated doctor must be a licensed medical doctor, doctor of osteopathy, or doctor of dental surgery.
(6) To examine injuries and diagnoses relating to the eyes, including the eye and adnexal structures of the eye, a designated doctor must be a licensed medical doctor, doctor of osteopathy, or doctor of optometry.
(7) To examine injuries and diagnoses relating to mental and behavioral disorders, a designated doctor must be a licensed medical doctor or doctor of osteopathy.
(8) To examine injuries and diagnoses relating to other body areas or systems, including but not limited to internal systems; ear, nose, and throat; head and face; skin; cuts to skin involving underlying structures; non-musculoskeletal structures of the torso; hernia; respiratory; endocrine; hematopoietic; and urologic; a designated doctor must be a licensed medical doctor or doctor of osteopathy.
(9) Notwithstanding paragraphs (1) – (8) of this subsection, a designated doctor must be a licensed medical doctor or doctor of osteopathy who has the required board certification to examine any of the following diagnoses. For purposes of this section, a designated doctor is “board certified” in a required specialty or subspecialty, as applicable, if the designated doctor holds or previously held a general certificate in the required specialty or a subspecialty certificate in the required subspecialty from the American Board of Medical Specialties (ABMS) or if the designated doctor holds or previously held a primary certificate in the required specialty and a certificate of special qualifications or certificate of added qualifications in the required subspecialty from the American Osteopathic Association Bureau of Osteopathic Specialists (AOABOS).
(A) To examine traumatic brain injuries, including concussion and post-concussion syndrome, a designated doctor must be board certified in neurological surgery, neurology, physical medicine and rehabilitation, or psychiatry by the ABMS or board certified in neurological surgery, neurology, physical medicine and rehabilitation, or psychiatry by the AOABOS.
(B) To examine spinal cord injuries and diagnoses, a spinal fracture with documented neurological deficit, or cauda equina syndrome, a designated doctor must be board certified in neurological surgery, neurology, physical medicine and rehabilitation, orthopaedic surgery, or occupational medicine by the ABMS or board certified in neurological surgery, neurology, physical medicine and rehabilitation, orthopedic surgery, preventive medicine/occupational-environmental medicine, or preventive medicine/occupational by the AOABOS.
(C) To examine severe burns, including chemical burns, defined as deep partial or full thickness burns, also known as 2nd, 3rd, or 4th degree burns, a designated doctor must be board certified in dermatology, physical medicine and rehabilitation, plastic surgery, orthopaedic surgery, surgery, or occupational medicine by the ABMS or board certified in dermatology, physical medicine and rehabilitation, plastic and reconstructive surgery, orthopedic surgery, surgery (general), preventive medicine/occupational-environmental medicine, or preventive medicine/occupational by the AOABOS.
(D) To examine complex regional pain syndrome (reflex sympathetic dystrophy), a designated doctor must be board certified in neurological surgery, neurology, orthopaedic surgery, plastic surgery, anesthesiology with a subspecialty in pain medicine, occupational medicine, or physical medicine and rehabilitation by the ABMS or board certified in neurological surgery, neurology, orthopedic surgery, plastic surgery, preventive medicine/occupational-environmental medicine, preventive medicine/occupational, anesthesiology with certificate of added qualifications in pain management, or physical medicine and rehabilitation by the AOABOS.
(E) To examine multiple fractures, joint dislocation, and pelvis or hip fracture, a designated doctor must be board certified in emergency medicine, orthopaedic surgery, plastic surgery, physical medicine and rehabilitation, or occupational medicine by the ABMS or board certified in emergency medicine, orthopedic surgery, plastic surgery, physical medicine and rehabilitation, preventive medicine/occupational-environmental medicine, or preventive medicine/occupational by the AOABOS.
(F) To examine complicated infectious diseases requiring hospitalization or prolonged intravenous antibiotics, including blood borne pathogens, a designated doctor must be board certified in internal medicine or occupational medicine by the ABMS or board certified in internal medicine, preventive medicine/occupational-environmental medicine, or preventive medicine/occupational by the AOABOS.
(G) To examine chemical exposure, excluding chemical burns, a designated doctor must be board certified in internal medicine, emergency medicine, or occupational medicine by the ABMS or board certified in internal medicine, emergency medicine, preventive medicine/occupational-environmental medicine, or preventive medicine/occupational by the AOABOS.
(H) To examine heart or cardiovascular conditions, a designated doctor must be board certified in internal medicine, emergency medicine, occupational medicine, thoracic and cardiac surgery, or family medicine by the ABMS or board certified in internal medicine, emergency medicine, preventive medicine/occupational-environmental medicine, preventive medicine/occupational, thoracic and cardiovascular surgery or family practice and osteopathic manipulative treatment by the AOABOS.
DWC Compliance Concerns
Are you issuing all payments timely?
Timely payment of all types of indemnity benefits is important. For Example, Compliance and Investigations (“C&I”) recently issued violations regarding failure to issue timely payments of Supplemental Income Benefits (“SIBS”). As you know, Carriers must pay SIBS on a monthly basis and the payments must be timely. Three monthly payments are issued for each quarter. The first payment is due either by the 7th day of the quarter or by the 10th day after the application is received, whichever is later, the second monthly payment must be made by the 37th day of the quarter, and the third payment must be made by the 67th day of the quarter.
C&I determined a Carrier made all three monthly payments late and the Carrier was subjected to three separate violations (one for each month) which resulted in a total penalty of $4,500.00. C&I determined another Carrier paid two monthly payments timely but the payment on one month was untimely. That Carrier was fined $2,000.00. Timely payments of indemnity benefits are not limited to Temporary Income Benefits, and failure to make any type of indemnity payment timely can result in a monetary violation.
DWC Corner
Your monthly look at what is happening at the Division and how it impacts Carriers
The Division of Workers’ Compensation was hit with a “data security event”, announced in a news release on March 24, 2022. A web application that manages workers’ compensation information was compromised, and information such as names, addresses, dates of birth, Social Security information and information about injuries and workers’ compensation claims were exposed in this data breach. TDI is offering credit monitoring services to all injured workers who had a new workers’ compensation claim between March of 2019 and January of 2022. They have also retained a forensics company to search the web for evidence of misuse of the information.
The DWC is also seeking input from stakeholders (insurance carriers, health care providers, attorneys and Claimants) regarding legislative recommendations for the 2022 Biennial Report to the Texas Legislature. In 2020, the Biennial Report recommended that flexibility be given to hold BRC’s remotely, and partially as a result of that recommendation, legislation was passed that now requires BRC’s to be held remotely, absent good cause. If you have an idea or suggestion that you think may positively impact the workers’ compensation system, please go to tdi.texas.gov/wc/dwc/legrecswc.html and fill out the form.
Mark your calendars for June 27-29, as the DWC has scheduled their 2022 Texas Workers’ Compensation Conference to be held live in Austin at the Hyatt Regency Hotel. This 2+ day event contains a number of breakout sessions addressing various issues in the workers’ compensation system, as well as provide up to 11 hours of TDI CE credit. To review the conference agenda, go to the TDI Website at https://www.tdi.texas.gov/wc/events/wcconference.html.
Finally, in the category of doctors doing bad things (and getting caught doing them), on March 24, 2022, Dr. Clinton Battle, M.D., of Arlington was sentenced to 12 years in federal prison after pleading guilty to submitting fraudulent bills for PT, office exams, and functional capacity evaluations from 2012-2016 to workers’ compensation insurance carriers. In addition to the mail fraud counts he pled guilty to, he had been convicted in July of 2021 of operating a “pill mill” and was found guilty of conspiracy to distribute controlled substances and one count of distribution of controlled substances. The investigation that ultimately resulted in his conviction involved the DWC Fraud Unit, DEA, U.S. Department of Labor, U.S. Postal Service and the IRS. He is also required to pay $376,368 in restitution for this workers’ compensation fraud. In a Department of Justice news release from 2021, it was revealed that he was trading illegal controlled substance prescriptions for cocaine, and would also receive cash payments to simply write controlled substance prescriptions. Throughout those five years, he wrote more than 50,000 controlled substance prescriptions, 17,000 of which were for hydrocodone.
Need Help with Designated Doctors, Peer Reviews, or Required Medical Examinations? You’ve Come to the Right Place!
Please contact dd-rme@downsstanford.com, and our office will be happy to assist you.
Decisions, Decisions, and More Decisions
Current Cases that You Need to Know
• APD 220260
DECISION: The Injured Worker did not appear at the Contested Case Hearing (“CCH”) but appealed the Decision and Order. The Appeals Panel (“AP”) reduced the Impairment Rating (“IR”) from 9% to 8%. The Designated Doctor (“DD”) did not read the value tables for Distal Interphalangeal Joint (“DIP”) Range of Motion (“ROM”) correctly. The AP used the component measurements found by the DD and reduced the IR accordingly.
WHAT THIS MEANS FOR YOU: A party that appeals the Decision and Order might not get the result they were looking for. And parties should consider reviewing every IR in litigation to determine if the certifying doctor calculated the IR correctly.
• APD 220255
DECISION: The DD failed to sign the DWC-69. The ALJ adopted the DD’s certification of Maximum Medical Improvement (“MMI”) and IR. The AP reversed holding the certification is invalid and could not be adopted.
WHAT THIS MEANS FOR YOU: Parties should make sure the DWC-69 is valid; that is, the DWC-69 includes a certification of MMI/IR, the MMI date is not prospective, and includes the doctor’s signature.
• APD 212106
DECISION: The Administrative Law Judge (“ALJ”) adopted the DD report based on the extent of injury findings. But the DD mistakenly assigned a 2% for upper extremity for internal rotation instead of a 3%. The AP mathematically corrected the IR.
WHAT THIS MEANS FOR YOU: Parties should consider having the IRs reviewed when proceeding to a CCH so there are no surprises when the AP finds such errors not raised by the parties and recalculates the IR.
• APD 220173
DECISION: The DD made numerous errors calculating IR from upper and lower extremities. The upper extremity IR can be mathematically corrected. The AMA Guides allow impairments based on ROM loss for lower extremities, but there is no requirement the doctor use the most severe impairment for ROM within the same Table. “The AP has held there is no specific provision in the AMA Guides in the Lower Extremity section that requires ROM deficits be utilized to increase the impairment for a single joint, and it is within the certifying doctor’s discretion as a matter of medical judgment to use or not use the different angles of loss of ROM in single joint.” In this case, the AP could not mathematically correct the IR because the doctor had discretion to use one plane or both planes of ROM.
WHAT THIS MEANS FOR YOU: Parties should consider having the IRs reviewed when proceeding to a CCH so there are no surprises when the AP finds such errors not raised by the parties and recalculates the IR.
• APD 220145
DECISION: The certifying doctor made an error converting external rotation into an IR and provided no IR for extension even though Table 40 would have provided a 2%. The doctor felt there was no right hip flexion contracture despite Table 40 describing ROM measurements for extension as degrees of flexion contracture. These conflicting statements about ROM for extension prevented the AP from providing a mathematically corrected IR.
WHAT THIS MEANS FOR YOU: Parties should consider having the IRs reviewed when proceeding to a CCH so there are no surprises when the AP finds such errors not raised by the parties and recalculates the IR.
• APD 220154
DECISION: The DWC-69 erroneously listed MMI as July 22, 2921 which was internally inconsistent with the July 22, 2021 MMI found in the narrative report. The AP does not consider internal inconsistencies as a clerical error and therefore reversed.
WHAT THIS MEANS FOR YOU: DWC will not correct MMI/IR certifications that contain an internal inconsistency.
• APD 212063
DECISION: The DD mistakenly assigned a 0% IR for ROM loss of the Upper Extremity (“UE”). Based on the DD’s ROM measurements, the AP corrected the UE IR to a 1% IR which converts to 1% whole body IR.
WHAT THIS MEANS FOR YOU: Parties should consider having the IRs reviewed when proceeding to a CCH so there are no surprises when the AP finds such errors not raised by the parties and recalculates the IR.
• APD 220214
DECISION: The ALJ described the Mechanism of Injury as opening a freezer door when the Injured Worker testified she was injured while driving a bus. Misstating the Injured Worker’s testimony is a material misstatement of the evidence requiring a reversal.
WHAT THIS MEANS FOR YOU: Misstating the Mechanism of Injury is grounds for reversal.
• APD 220150
DECISION: A certifying doctor can use all, some, or none of the ROM loss of a single joint of the lower extremities, such as a knee. Although not required to use all the ROM deficits of the Injured Worker’s knee, the doctor did not accurately reflect the impairment assessed for the flexion ROM measured.
WHAT THIS MEANS FOR YOU: If the doctor does choose to assign an IR for Lower Extremity (“LE”) ROM loss, the doctor must correctly assign the IR from the AMA Guides table.
• APD 220140
DECISION: The Injured Worker relied upon the opinions of three doctors to establish causation. The ALJ found in the Injured Worker’s favor. But none of the three doctors mentioned one of the diagnoses (L5-S1) the Injured Worker is pursuing, Thus, the Injured Worker did not meet her burden of proof as to that one diagnosis.
WHAT THIS MEANS FOR YOU: Expert opinions must address all the diagnoses in dispute that require expert medical evidence.
• APD 220175-s
DECISION: Previously, the Injured Worker lost a Lifetime Income Benefits (“LIBs”) case before DWC but won in judicial review. Now, the ALJ determined the self-inured could not redesignate paid Supplemental Income Benefits (“SIBs”) as LIBs. The AP reversed holding the Injured Worker could not receive both SIBs and LIBs for the same time period. Therefore, the self-insured could redesignate (or recharacterize) paid benefits.
WHAT THIS MEANS FOR YOU: Redesignation is a recharacterization of paid benefits and thus differs from recoupment.
• APD 212095
DECISION: The ALJ made determinations on conditions not before her and failed to make a determination on conditions that were. The AP reversed for the ALJ to make determinations on conditions, and only those conditions, which were before DWC.
WHAT THIS MEANS FOR YOU: Read your Decisions and Orders carefully.
• APD 220009
DECISION: The DD did not rate the same conditions stipulated to by the parties and thus the certification could not be adopted.
WHAT THIS MEANS FOR YOU: Parties should stipulate to the conditions found compensable and rated by the doctor whose DWC-69 you want adopted.
If you have any general questions regarding Longshore or would like a seminar regarding Longshore Claims, please email Longshore@downsstanford.com.
You’ve got WC questions? We have answers. Send your questions to Q&A.
For Employer’s Liability, General Liability, Subro, and all other areas of law, email questions here.
Want some CE credit? Come and get it! Join us for Lunch and Learns every Friday. For information and registration, email CE Department.
Have questions about Designated Doctors, RMEs, or Peer Reviews or have records for a DD, RME, or Peer? Email our DD Department.
Do you have a hearing and need help or need to send records for an already set hearing? Please send all set notices and records to DWCHearings@Downsstanford.com.