D&S Straight Out of CompTown – July 2022

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. 

July 22, 2022 from 12:00 P.M. to 1:00 P.M.:  Summer Appeals Panel and Case Law Updates Webinar with Stuart Colburn and Adrienne Gasser

August 5, 2022 from 12:00 P.M. to 1:00 P.M.:  Effectively Using Designated Doctors (130707) with Wendy Schrock and Rynn Freiling

August 19, 2022 from 12:00 P.M. to 1:00 P.M.:  Mechanism of Injury: Why and How? (125369) with Chris Losey and Adrienne Gasser

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.

Compliance and Investigations Corner

Pursuant to Division Rule 133.240, if a medical bill is denied based on extent of injury, the PLN-11 disputing extent of injury must be sent with the Carrier’s Explanation of Benefits (EOB), or the Carrier must have proof the PLN-11 was sent to the same Health Care Provider prior to the EOB being completed.  Failure to follow this procedure can have dire consequences. 

Medical Fee Dispute Resolution recently ruled in favor of a Health Care Provider in the Findings & Decision on matter M4-22-2043-01 because the Carrier did not do the following: 

(1) provide documentation to support the Carrier had filed a PLN-11 on extent of injury regarding the disputed conditions; and

(2)  the Carrier did not provide documentation indicating the PLN-11 had been sent to the Health Care Provider or otherwise informed the Health Care Provider of the PLN-11. 

Because this procedure was not followed, Medical Fee Dispute Resolution would not allow the extent of injury dispute to be used to support the Carrier’s denial of reimbursement, and the Health Care Provider was awarded the disputed medical fee amount. 

DWC Corner

Your monthly look at what is happening at the Division and how it impacts Carriers

Once again, it has been a relatively slow month in DWC Land, so this month we are going to do something a little different and take a look at everyone’s favorite aspect of Workers’ Compensation:   Disciplinary Orders!!  More specifically, there are a few medical practitioners that have run afoul of the DWC in recent months that should be highlighted here so Carriers know what to look for when doctors decide to treat in an unnecessary fashion.

First off, we have the Commissioner’s Order for Anthony Owusu, MD.  Dr. Owusu came under fire from the DWC for ordering unnecessary referrals of neuromuscular testing for injured employees.  The DWC found that these tests were not supported by the ODG Guidelines, and Dr. Owusu failed to document the results in his files or review them with the injured workers.  As a result, he was required to pay an $8,000 fine and attend two courses within the next six months concerning ethics and medical recordkeeping.

Next up, we have the case of William Francis, MD, the medical director for Trail Blazer Diagnostic in the Woodlands.  Dr. Francis admitted to billing for services that he did not supervise, even though he submitted FCE’s and other test results under his medical license number.  He admitted that he was not in the room when the testing occurred, and he did not supervise the technicians. For these violations, he was fined $12,000 by the DWC and ordered to undergo further training.

The most recent disciplinary orders from the DWC against doctors were for unnecessary MRI testing orders.  Michael Flores, MD, and C. Lynn Anderson, M.D., both out of South Texas, were found to have ordered MRIs of the lumbar spine without medical justification in nearly all of the cases audited by the DWC. (80% of Dr. Anderson’s were without justification, and 100% of Dr. Flores’ MRIs were without adequate medical justification). In both cases, the doctors were ordering MRIs of the lumbar spine without showing that the injured worker had received at least one month of conservative therapy prior to the MRI.  Both doctors received significant fines, and were ordered to purchase and maintain current subscriptions to the ODG in order to continue to be allowed to treat in the workers’ compensation system.

As far as doctors are concerned, it appears that the DWC is going to focus on the application of the ODG Guidelines to an injured workers’ treatment protocol.  If this continues to be the case, it should provide greater certainty to the Carrier’s about the anticipated treatment plan for injured workers.

Subsequent Injury Fund Deadlines

•    If you are requesting reimbursement from the Subsequent Injury Fund for the payment of TIBs pursuant to a DWC-3ME, the requester must submit the request on an annual basis for the payments made during the same or previous fiscal year. The fiscal year begins each September 1 and ends on August 31 of the next calendar year. For example, insurance carrier payments made during the fiscal year from September 1, 2009, through August 31, 2010, must be submitted by August 31, 2011. Any claims for insurance carrier payments related to multiple employment that are not submitted within the required timeframe will not be reviewed for reimbursement.

•    If you are requesting reimbursement from the Subsequent Injury Fund for the overpayment of benefits pursuant to a Designated Doctor’s opinion that was later overturned by a Contested Case Hearing Decision and Order, there is no time limit.  You may want to review older files to see if you are eligible for reimbursement.

•    If you are requesting reimbursement from the Subsequent Injury Fund for the overpayment of benefits pursuant to a Decision and Order that was later overturned by the Appeals Panel, there is no time limit.  Again, you may want to review older files to see if you are eligible for reimbursement.

•    If you are requesting reimbursement from the Subsequent Injury Fund for the overpayment of benefits pursuant to a Decision and Order that was later overturned by a District Court Judicial Review case, there is no time limit.  You may want to review older files to see if you are eligible for reimbursement.

We would be happy to assist you with any questions regarding possible Subsequent Injury Fund recoveries.  Please email us at Q&A.

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

•  In re YRC Inc., __ S.W.3d __, 2022 Tex. LEXIS 541 (Texas 2022)

DECISION: Defendant in third party case designated the Injured Worker (IW)’s employer as a responsible third party 5 years after the injury and beyond the statute of limitations. The Texas Supreme Court held that since the worker sought and received workers’ compensation benefits, he had no tort action to pursue against the employer. Without a tort action, there is no limitation.

WHAT THIS MEANS FOR YOU: A defendant can designate a responsible third party against a IW’s employer without fear of the stature of limitation.

• APD 220745

DECISION: The certifying doctor rounded radial ROM loss to the nearest 5 degrees relying upon Figure 29 of the AMA Guides. The Appeals Panel (AP) reverses stating that Chapter 2 page 9 states that the Range of Motion (ROM) loss should be rounded to the nearest 10 degrees. The AP stated, “Figure 29 uses increments of 5°, whereas the general directions on page 3/37 state to round the measurements of radial deviation to the nearest 10°”.

WHAT THIS MEANS FOR YOU: The general direction found in Chapter 2 trumps the direction in the figure.

• APD 220683

DECISION: The Administrative Law Judge (ALJ) determined the injury did not extent to include lumbar radiculopathy. The ALJ found the IW was not at Maximum Medical Improvement (MMI) until the Statutory Maximum Medical Improvement (SMMI) date since he was pending lumbar surgery. The AP reversed the certification since the ALJ considered a condition (radiculopathy) that is not part of the compensable injury. The AP went on to state, “There was no evidence in the record to indicate that any pending lumbar surgery was due to a lumbar strain”.

WHAT THIS MEANS FOR YOU: In determining MMI, the evidence must establish the past or proposed treatment is for the compensable injury.  

• APD 220632

DECISION: The ALJ determined the IW satisfied the Individualized Plan of Employement (IPE) because he was originally enrolled as a full time student and only after the quarter ended was it discovered he was not a full time student and did not meet the requirement of a 2.0 GPA. The AP held the IW met neither the full time or GPA requirement during the qualifying period.

WHAT THIS MEANS FOR YOU: IPE requiring a 2.0 GPA and enrolled as a full time student must be met for the qualifying period.

• APD 220608

DECISION: The Designated Doctor (DD) certified a 14% Impairment Rating (IR). However, the AP noted the DD improperly applied the AMA Guides to calculate loss of ROM. The doctor awarded 0% IR for adduction when the AMA Guides indicated the appropriate impairment is 2%. The AP performed a mathematical calculation and raised the IR to 15%.

WHAT THIS MEANS FOR YOU: Consider having any IR near 15% reviewed before entering the dispute resolution process.

• APD 220579

DECISION: The DD examined the IW before his DD certification lapsed. But the DD did not draft his report certifying MMI until after his DD certification lapsed. The AP help that report could not become final because the DD was not authorized by DWC to serve as a certifying doctor at the time he signed the DWC-69 and narrative report. Thus, the MMI/IR certification could not become final.

WHAT THIS MEANS FOR YOU: With DD’s certifications lapsing, parties should be careful when there is a substantial amount of time between the date of examination and the date of the report.  

• APD 220528

DECISION: The DD did not correcty apply the AMA Guides when calculating ROM loss of external rotation of bilateral hips. The ROM measurements qualified the IW for a 2% IR for each hip for external rotation instead of the 1% given. Thus, the AP recalculated the 14% IR to 16%.

WHAT THIS MEANS FOR YOU:  Consider having any IR near 15% reviewed before entering the dispute resolution process.

• APD 220504

DECISION: The adjuster sent an email and attached a DWC-45 to the IW’s attorney but did not make attempts to resolve the dispute before requesting a Benefit Review Conference (BRC). The ALJ held the DWC-45 met the requirements of the rule. The AP reversed holding the requirements of Rule 141.1(d) were not met and thus it is as if the request for a BRC to dispute SIBs within 10 days was never filed.

WHAT THIS MEANS FOR YOU: Parties requesting a BRC must go thru the motions and prove they attempted contact with the other side before filing a request for a BRC.

• APD 220761

DECISION: The parties stipulated to MMI and IR at the CCH. The parties then litigated extent. The ALJ did not make findings on all the extent issues. The IW appealed certain extent findings and MMI/IR. The AP upheld the stipulations and reversed for proper findings on the various extent issues. Interestingly, the AP allowed the stipulations on MMI/IR even though the DWC-69 would not rate all the extent findings.

WHAT THIS MEANS FOR YOU: Parties may apparently enter into stipulations as to MMI/IR even as they litigate extent.

• APD 220754

DECISION: The ALJ found the IW was entitled to Temporary Income Benefits (TIBs) after the MMI date. TIBs are paid while the IW suffers disability and has not reached MMI. Thus, the AP reversed the finding the IW was entitled to TIBs after the date of MMI.

WHAT THIS MEANS FOR YOU:  TIBs and disability are not synonymous.

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.