DWC Adopts Amended Rule 130 - FOL

FOLIO CLIENT NEWSLETTER BY FLAHIVE, OGDEN & LATSON

DWC Adopts Amended Rule 130.1

A PRIVILEGED ATTORNEY—CLIENT COMMUNICATION BY FLAHIVE, OGDEN & LATSON

2013—Flahive, Ogden & Latson August/September 2013 - VOLUME 18

In This Issue…

The Texas Closed Formulary Takes Effect…...... .p. 3

PRECEDENTS: The Origin of Medical Causation…...p. 32

Workers' compensation hearing officers will no longer be

allowed to consider impairment ratings that are not based

on the date of maximum medical improvement, under a

rule change adopted by the Division of Workers' Compen-

sation last week.

The amendments to Rule 130.1 clarify that an impairment

rating is invalid if it is based on a date that is not the maxi-

mum medical improvement date, which is the Division’s

longstanding interpretation of the rule. The amendments

also clarify that an impairment rating and its corresponding

MMI date must be included in the DWC Form-069, Report

of Medical Evaluation, to be valid.

The new rule will affect impairment ratings adopted after

August 25, 2013, the effective date of the rule amend-

ments.

Elsewhere in this issue of FOLIO, you will find a copy of

the Division’s memo explaining that the Division changed

the rule to clarify what happens when medical experts fail

to comply with Rule §130.1(c)(3), which requires impair-

ment ratings to be based on the date of MMI. However, as

a part of the rulemaking process, the Division explained

the amendments in the following way:

The amendments to §130.1 update and

clarify the rule. First, the adopted amend-

ments include changes made for con-

sistency, clarity, editorial reasons, and to

correct typographical and/or grammati-

cal errors.

Second, the amendments clarify §130.1

(b)(2) by stating the impairment rating

must be assigned for the injured em-

ployee's condition on the date of MMI.

An impairment rating is invalid if it is

based on the injured employee's condi-

tion on a date that is not the MMI date.

This is necessary to make clear that an

impairment rating cannot be adopted

unless the impairment rating is based

on the employee's condition on the date

of MMI as determined by the certifying

doctor. An impairment rating assigned

to a date other than the date of MMI as

determined by the certifying doctor is

not adoptable.

Section 130.1(b)(2) is amended to state

that an impairment rating and the cor-

responding MMI date must be included

in the report to be valid. This is neces-

sary because the requirements in

§130.12(c)(1) - (3) regarding the Report

of Medical Evaluation also affect the

validity and finality of an MMI date and

impairment rating. If an impairment

rating is not specified on a Report of

Medical Evaluation, which is completed

by the certifying doctor, then the im-

pairment rating is invalid.

FOLIO CLIENT NEWSLETTER BY FLAHIVE, OGDEN & LATSON 2

1. Timely payment of initial Temporary In-

come Benefits by the insurance carrier – 40% weight

2. Timely processing of medical bills by the

insurance carrier – 40% weight

3. Timely submission of Initial Payment data via Elec-

tronic Data Interchange (EDI) – 10% weight

4. Timely submission of Medical Bill Processing data

via EDI – 10% weight

Carriers were evenly divided between high-tier designa-

tions and average tier designations in that process.

For the 2014 review, the agency is considering sev-

eral new potential assessment measures. Many po-

tential new measures have been considered, but have

been rejected in past years. For example, in 2012, the

agency declined to add the following measures, each

of which had been suggested by some system partici-

pants.

Carrier’s timely payment of initial IIBs

Carrier’s timely payment of initial SIBs

Carrier’s denial rate of preauthorized services

Timeliness of carrier in responding to preauthoriza-tion requests

Carrier’s Return to Work Outcome

Carrier’s Return to Work Rate

Carrier’s self-assessment of RTW activities

PBO Planning Set

to Commence

The Division of Workers’ Compensation will

soon be considering whether to add new

measures to next year’s Performance Based

Oversight insurance carrier report cards. A PBO

working group has been appointed to provide the

Division with stakeholder input.

The 2014 PBO data evaluation window is ex-

pected to run from January 1, 2014 through June

30, 2014. The Division’s System Monitoring and

Oversight program area designs and implements

PBO evaluations. Insurance carriers are evaluat-

ed in even numbered years; health care providers

are evaluated in odd numbered years.

Following their respective evaluations, insurance

carriers and health care providers are placed in

three tiers: High, Average, and Poor. PBO re-

sults are announced near the end of each calen-

dar year.

In 2012 the selected insurance carriers were as-

sessed on the following measures:

Performance

Categories

All carriers were

assessed on the

same measures

Number of

Insurance

Carriers

110

High-Tier

Performers

56

Average-Tier

Performers

53

Poor-Tier

Performers

1


Reminder: On September 1,

2013 the Texas Closed

Formulary Takes Effect

On or after September 1, 2013, all out-patient

certified network and non-network injured em-

ployee claims are subject to the closed formu-

lary. Carriers, health care providers and all ven-

dors whose responsibilities touch upon the pre-

scription drug delivery process should be aware

of this deadline.

The Division of Workers’ Compensation rules

related to pharmacy benefits are found in Rules

134.500 through 134.550. These rules cover

commonly used definitions, initial pharmaceuti-

cal coverage, prescribing of generics and over-

the-counter drugs in addition to brand name

drugs, a pharmacy fee guideline, open and closed

formularies, rules pertaining to the transition to a

closed formulary from an open formulary, and other

pharmaceutical provisions.

Understanding the rules for pharmacy services and

related resources, including the requirements for

pharmacy informal and voluntary network online

registration, are crucial to the successful processing

of claims subject to certified networks, and claims

not subject to certified networks.

The Division has created a page on the agency’s

website that contains the statutory authority for the

formulary, the adopted rules governing implementa-

tion of the formulary, and agency communications

leading up to the September 1, 2013 deadline.

For all claims (certified network

and non-network), pre-

authorization of prescription medi-

cations will be required for:

1. Drugs identified with a status of “N” in the cur-

rent edition of ODG Treatment in Workers’

Comp / Appendix A, ODG Workers’ Compen-

sation Drug Formulary and any updates;

2. A compound that contains an “N” drug; and

3. Any investigational or experimental drugs.

Health care providers can obtain the

most recent edition of ODG’s Appen-

dix A by ordering ODG’s treatment

guidelines from the Work Loss Data

Institute website at http://odg-

disability.com.


The Division has also posted the entire list of “N”

drugs as published by ODG in Appendix A free of

charge on the TDI website at http://

www.tdi.texas.gov/wc/dm/documents/ndruglist.xls

and will update the listing monthly upon receipt

from ODG; however, the official online edition of

ODG’s Appendix A is updated by ODG as new evi-

dence becomes available and is the official source

for Division actions.

Rule 134.550 allows a prescribing doctor or pharma-

cy the ability to obtain a medical interlocutory order

(MIO) in instances where pre-authorization denials

of a previously prescribed and dispensed drug(s) ex-

cluded from the closed formulary poses an unreason-

able risk of a medical emergency.

A request for an MIO may be submitted to the Divi-

sion on the new DWC Form-064, Medical Interlocu-

tory Order Request: Continued Use of a Drug Previ-

ously Prescribed and Dispensed and Excluded from

the Division’s Closed Formulary.

The Division will issue an MIO in each instance where

a complete request is made by the prescribing doctor

or the pharmacy. The DWC Form 064 is available for

download from the TDI website at

www.tdi.texas.gov/forms/form20.html.

When the Division issues the MIO, it will require the

insurance carrier to reimburse a pharmacy for pre-

scriptions dispensed in accordance with the MIO. In

addition, the disputed medical necessity of the pre-

scription at issue will continue through the utilization

review and medical dispute resolution processes until

the issue is resolved.

The Division has received very few requests for MIO

at this stage. We anticipate that we will begin seeing

MIOs with more frequency as more providers be-

come familiar with the MIO process. MIOs are orders

from the Division, and must be complied with in a

timely fashion. Your staff should become familiar

with the MIO process and you should have a system

in place to identify MIOs immediately and to act up-

on those orders in a timely manner.

What Else Do You Need To Know About The Texas

Closed

Formulary???


Commissioner of Workers’ Compensation, Rod Bordelon, has appointed Dr. David Davis as

the Medical Advisor for the Texas Department of Insurance, Division of Workers’

Compensation, effective August 26, 2013.

* * * In accordance with the Texas Labor Code the TDI-DWC employs a medical director to advise the Commissioner of Workers’

Compensation on the adoption of rules and policies. The Medical Advisor also reviews complaints on quality of care and serves

as the chair of the Medical Quality Review Panel (MQRP), which reviews the actions of doctors, other health care providers,

insurance carriers, utilization review agents and independent review organizations in the workers’ compensation system.

Dr. Davis has more than 40 years of experience in orthopedic surgery including orthopedic reconstructive surgery, hand sur-

gery and sports medicine. He retired from his 20 year Austin-based practice in 2012. Previously, he practiced as an orthopedic

surgeon in California from 1979 to 1992, and is a member of the American Academy of Orthopaedic Surgeons. Dr. Davis at-

tended medical school at the University of Texas Medical School at San Antonio and received additional Orthopedic Surgery

training at Loma Linda University Medical Center in Loma Linda, California.

During this past year, he has served as a member of the TDI-DWC MQRP as a case reviewer, participated in informal settle-

ment conferences, attended quarterly arbiter meetings, provided MQRP training and assisted in the development of plan-based

audits. Dr. Davis has also reviewed designated doctor applications for certification and recertification and assisted with desig-

nated doctor questions. He has participated in the designated doctor program since 2004.

Former TDI-DWC Medical Advisor Dr. Donald Patrick, who was appointed in July 2010, will continue his service at the TDI-

DWC as a Special Advisor to the Commissioner of Workers’ Compensation.

For more information contact: [email protected]

Commissioner of Workers’ Compensation Commissioner of Workers’ Compensation Appoints New Medical

Advisor


"The modeled rating factor is an optional factor that

insurance carriers can file with the Texas Department

of Insurance and apply when calculating workers'

compensation premium," the commissioner's order

states. "The modeled rating factor takes into considera-

tion individual risk characteristics and loss experience

of an insured. Insurers may use predictive modeling to

determine the modeled rating factor. The term mod-

eled rating factor can include tier rating and other

similar terms."

Commissioner Rathgeber's order advises insurers not

to apply the modeled rating factor in ways that will

duplicate the effects of other factors, such as schedule

and experience rating factors. Once the carrier has

filed a modeled rating factor with the Department, the

factor will apply during the entire policy period. For

renewal policies, carriers must evaluate each policy's

characteristics and experience during each renewal, to

determine the modeled rating factor for each renewal

policy.

The order is described in greater detail in Commission-

er's Bulletin No. B-0021-13, which can be found else-

where in this issue of FOLIO.

Carriers wishing to file model rating factors must de-

scribe the characteristics, variables or criteria used to

determine the model rating factors. The commission-

er's order also calls for carriers to provide actuarial

support for the model rating factors and other support-

ing documentation.

The order says that the filing requirement will help

promote transparency and accountability in the use of

model rating factors. The Department of Insurance

adopted the factors, after one carrier and its group af-

filiates petitioned the agency to allow carriers to use

the factors.

In one of her first actions affecting workers’ com-

pensation, newly appointed Insurance Commis-

sioner Julia Rathgeber issued an order allowing

carriers to file and use modeled rating factors to

calculate their premiums.

On August 7, 2013, Commissioner Rathgeber ap-

proved changes to the "Texas Basic Manual of

Rules, Classifications and Experience Rating Plan

for Workers' Compensation and Employers' Lia-

bility Insurance." The amendments added text to

several sections of the rules, and the new language

allows carriers to use modeled rating factors in the

calculation of premiums.

"The modeled rating factor is an optional factor

that insurance carriers can file with the Texas De-

partment of Insurance and apply when calculating

workers' compensation premium," the commission-

er's order states. "The modeled rating factor takes

into consideration individual risk characteristics

and loss experience of an insured. Insurers may use

predictive modeling to determine the modeled rat-

ing factor. The term modeled rating factor can in-

clude tier rating and other similar terms."

TDI Authorizes the Use of

Modeled Rating

Factors in Premiums

"The modeled rating factor takes into con-

sideration individual risk characteristics

and loss experience of an insured.”


Rule: The fact that the person making the termination decision has knowledge of the worker’s compensation

claim, standing alone, is not evidence sufficient to establish a causal connection that would support a discrim-

inatory discharge claim.

Facts: The employee, Michael Love, sued his former employer, The Geo Group, Inc., claiming he was un-

lawfully terminated for filing a worker’s compensation claim. On December 21, 2007, Love was injured while

riding in a company van and filed a workers’ compensation claim. Love returned to work with restrictions.

After working in this position for several months, a human resources representative determined that, accord-

ing to company policy, Love should have been placed in the temporary alternate position (“TAP”) program as

soon as he returned to work which is limited to ninety days. Love was placed in the TAP program and at the

expiration of the ninety days, he was unable to return to work without restrictions. Love was placed on perma-

nent worker’s compensation leave and did not return to work. He was formally terminated nearly two years

later. Geo Group introduced an affidavit of its human resource generalist, Colleen Schultz, who stated, “My

decision [to terminate Mr. Love] was based on the information I received from his physician and Mr. Love’s

inability to meet minimum job responsibilities and physical requirements of being a detention officer.”

The Court of Appeals noted that an element of a prima facie case for retaliatory discharge is a causal connec-

tion between the filing of a worker’s compensation claim and the termination. Cont’l Coffee Prod. Co. v. Cas-

arez, 937 S.W.2d 444, 450 (Tex. 1996). Circumstantial evidence sufficient to establish a causal connection

between the filing of a worker’s compensation claim and a termination includes: (1) knowledge of the work-

er’s compensation claim by those making the decision on termination; (2) expression of a negative attitude

toward the employee’s injured condition; (3) failure to adhere to established company policies; (4) discrimina-

tory treatment in comparison to similarly situated employees; and (5) evidence that the stated reason for the

discharge was false. Id. There is no requirement that evidence be presented on each and every category listed

above. See id.; City of Univ. Park v. Van Doren, 65 S.W.3d 240, 250 (Tex. App.—Dallas 2001, pet. denied).

Continued on next page

Love v. Geo Group, Inc., 2013 00231 (Tex.App—San Antonio).


(Cont’d from previous page)

Holding: Knowledge of a claimant's worker’s compensation claim prior to termination alone is insuffi-

cient: "the fact that the person making the termination decision has knowledge of the worker’s compensation

claim, standing alone, is not evidence sufficient to establish a causal connection. Willis v. Nucor Corp., 282

S.W.3d 536, 546 (Tex. App.—Waco 2008, no pet.); Garcia v. Allen, 28 S.W.3d 587, 601 (Tex. App.—Corpus

Christi 2000, pet. denied). The Court found that Love did not produce any evidence of probative value as to

the remaining categories. To be probative of retaliation, negative remarks must be made by an individual with

authority over the employment decision at issue. Wal-Mart Stores, Inc. v. Amos, 79 S.W.3d 178, 187 (Tex.

App.—Texarkana 2002, no pet.). In this case, evidence that the claimant's three immediate supervisors would

get “frustrated” and “upset” because he was unable to work in excess of eight hours failed to establish that the

supervisors were involved in the decision to terminate the claimant. The Court concluded that Love failed to

produce evidence that the stated reason for his termination was false. The reason provided for Love's termina-

tion was that he was unable to perform the essential functions of his position. The only evidence cited by Love

to show the falsity of this reason was the deposition of a human resources representative and a supplemental

report of injury signed by the same representative. The evidence did not contradict the reason provided for the

termination. Love was unable to return to work without restrictions and he was unable to meet minimum job

responsibilities and physical requirements of a detention officer position, explaining that, "[a]n employer is

permitted to terminate an employee who sustains a job-related injury if it ultimately appears that, due to the

nature of the injury, the employee can no longer perform the essential functions of his position.” Garcia, 28

S.W.3d at 601. For these reasons, the Court held that Love failed to meet his burden to produce evidence of a

causal connection between the filing of his worker’s compensation claim and his termination.

Love v. Geo Group, Inc., 2013 00231 (Tex.App—San Antonio).


Facts: Appellant alleged he sustained a broken tooth and broken jaw bone in the course and scope of his em-

ployment on February 15, 2009. Appellant worked as a guard at one of Geo Group’s facilities, and he was in-

jured when an inmate punched him in the face. It was undisputed that appellant’s facial swelling after the inci-

dent was a compensable injury, but the extent of the injury was disputed. A contested case hearing was held

on August 26, 2010. At the hearing, appellant produced no medical evidence. The hearing officer ruled that

appellant’s injury did not extend to or include a broken tooth or a broken jaw bone. Appellant sought judicial

review of the administrative decision. Appellee filed a no-evidence summary judgment motion asserting that

no medical evidence supported appellant's claim of a broken tooth or broken jaw bone or that these injuries

were an extension of appellant's compensable injury. Appellee asserted that an adequate time for discovery

had passed. Appellant did not file any evidence in response to appellee’s motion. He did not request additional

time for discovery. The trial court signed a final summary judgment, and the court subsequently denied appel-

lant’s motion for new trial. This appeal followed.

The Fourteenth Court of Appeals cited Rule 166a(i) which provides that the trial court must grant a no-

evidence motion for summary judgment unless the respondent produces summary judgment evidence raising a

genuine issue of material fact. Tex. R. Civ. P. 166a(i). Appellant filed only a hand-written response to the mo-

tion

Holding: The Court of Appeals held that the trial court did not err in granting appellee’s motion for no-

evidence summary judgment. Accordingly, the judgment was affirmed. The Court of Appeals found that it is

well-settled that a party may not rely on his own pleadings as summary judgment evidence. See Hidalgo v.

Surety Sav. & Loan Ass’n, 462 S.W.2d 540, 545 (Tex. 1971); Quanaim v. Frasco Rest. & Catering, 17 S.W.3d

30, 42 (Tex. App.—Houston [14th Dist.] 2000, pet. denied). The Court of Appeals found that appellant pro-

vided no medical or other evidence to support his claims; he offered no evidence that he sustained an injury to

his tooth or jaw, or that any such injury resulted from the work-related incident at issue; and that he offered

nothing to show that he suffered a disability as a result of the compensable injury sustained February 15,

2009.

Adumekwe v. New Hampshire Ins. Co., 2003 1501428 (Tex.App.--


Rule: In selecting a specific date on which to certify maximum medical improvement, a certifying doctor must base her conclusion

on more than the Medical Disability Advisor alone. Selection of a valid date must be premised upon review of the medical records

and physical examination of the claimant.

Facts: The claimant reported that she injured her right shoulder when she under-hand tossed a bag of saline onto a

chair at work. The carrier accepted a compensable injury in the form of a right shoulder sprain/strain but disputed a rotator cuff tear. The designated doctor appointed to address maximum medical improvement (MMI) and impairment rating determined that the claimant reached MMI on October 10, 2011 with a 5% impairment rating.

A Contested Case Hearing was convened to resolve the disputed issues of extent of injury, MMI, impairment rating,

and disability. The Hearing Officer determined that the compensable injury did not extend to a right shoulder rotator

cuff tear; that the claimant reached MMI on October 10, 2011 with a 5% impairment rating; and that the claimant did not

have disability resulting from the compensable injury for any period of time. The claimant appealed these determina-

tions.

Holding: Affirmed in part and reversed and remanded in part.

The Appeals Panel affirmed the determinations of the Hearing Officer with regard to extent of injury and disability. However, it scrutinized the report of the designated doctor to evaluate the validity of the certification of MMI and im-pairment rating based upon the rationale provided.

The narrative report of the designated doctor stated, in pertinent part:

The date of MMI according to the [Medical Disability Advisor] for heavy work return to work after conservative

treatment is twelve weeks from the date of her injury . . . this would be October 11, 2011.

Thus, the Medical Disability Advisor (MDA) furnished the sole basis for the date of MMI selected; no further justifica-tion for this date was offered. The Appeals Panel echoed recent holdings in which it stated that the MDA may not be used alone, without considering review of the medical records and physical examination of the claimant, to certify a spe-cific date of MMI. See APD 130191, decided March 13, 2013; see also APD 130187, decided March 18, 2013.

Because the designated doctor in this case selected a date of MMI based upon consideration of the MDA alone, without

referencing medical records or physical examination of the claimant, the Appeals Panel reversed the determination of

the Hearing Officer that the claimant reached MMI as of October 11, 2011 with a 5% impairment rating pursuant to this

certification. It remanded the case to the Hearing Officer with instructions to advise the designated doctor to issue a

new certification of MMI and impairment rating based upon consideration of the medical records and the certifying

examination.

Texas Division of Workers’ Compensation

Appeal No. 131056—Filed June 21, 2013


Rule: In order to establish entitlement to supplemental income benefits for a given quarter based upon a total inability to work, a claimant must provide a narrative report from a doctor that specifically explains how the injury caused a total inability to work and there must be no other records demonstrating an ability to return to work. Facts: The claimant asserted entitlement to supplemental income benefits (SIBs) for the 1st quarter based upon a total

inability to work throughout each week of the qualifying period. A designated doctor appointed by the Division to ad-dress her ability to return to work determined that she was unable to return to work in any capacity throughout a por-tion of the qualifying period. Her treating doctor also provided a report stating that she was unable to return to work in her former capacity, or in an “unencumbered” capacity, throughout the entirety of the qualifying period.

A Contested Case Hearing (CCH) was convened to resolve the sole disputed issue of entitlement to SIBs for the 1st quarter. The Hearing Officer determined that the claimant was unable to perform any type of work in any capacity dur-ing the 1st quarter of the qualifying period and was therefore so entitled.

Holding: Reversed and rendered. The Appeals Panel began its analysis with a recitation of Rule 130.102(d)(1) setting out the criteria through which a claimant may establish entitlement to SIBs. The Rule provides that an injured employee may demonstrate an active ef-fort to obtain employment, and thus establish SIBs entitlement, by meeting at least one or any combination of the work search requirements each week during the entire qualifying period. Subpart (E) indicates that the injured employee may make this showing by demonstrating that she has been unable to perform any type of work in any capacity, that she has provided a narrative report from a doctor that specifically explains how the injury causes a total inability to work, and that no other records show that the injured employee is able to return to work. See APD 012286, decided November 14, 2001; see also APD 032173, decided October 9, 2011, and APD 111188, decided October 10, 2011.

The claimant relied upon the findings of the designated doctor to support her assertion that she was unable to work in any capacity throughout the qualifying period. The report of the designated doctor stated: After examining the claimant, and reviewing the medical records available to me, I determined that she has been unable to return to work in any capacity [throughout most of the qualifying period] . .

The Appeals Panel determined that this narrative failed to specifically explain how the compensable injury caused a total inability to work, in accordance with the Rule. Furthermore, while the opinion addressed most of the qualifying period, it did not cover the entire qualifying period. The claimant also relied upon the findings of her treating doctor to establish a total inability to work. The report of the treating doctor stated:

The claimant presented to me with swelling, hyperesthesia, and allodynia, all consistent with the diagnosis of CRPS . . . as

a result, her left upper extremity would be considered completely disabled. Unfortunately, her pain progressed to include her right shoulder, arm, and hand whereby today she is unable to engage in her former work status [for the entirety of the qualifying period] . . . the claimant requires continuous steady state levels of a weak narcotic analgesic, essentially acting antispasmodic as well as a neuropathic and a benzodiazepine at night. This combination of medications in conjunc-tion with interventional injection therapy in the form of stellate or central sympathetic blockade ameliorates [her] condi-tion; however, it does not cure nor alleviate most of the functional limitations, which would be required in order for her to return to work in an unencumbered capacity.

Continued next pg.


Appeal No. 130881—Filed June 6, 2013


(Cont’d from previous page)

The Appeals Panel noted that this report never expressly provides that the claimant had a total inability to work, but merely suggested an inability to work “in her former work status” or in an “unencumbered capacity” throughout the qualifying period. As such, the Appeal Panel determined that this document did not constitute a narrative report specif-ically explaining how the compensable injury caused a total inability to work in any capacity. Finally, the Appeals Panel cited various other medical reports in evidence documenting objective and subjective indicia of improvement throughout the qualifying period to suggest that the claimant was able to return to work, at least in some capacity, during the qualifying period. Though not expressly stated, the Appeals Panel implied that such records provided positive evidence of an ability to work, which would, standing alone, bar the claimant from entitlement to SIBs in a case premised upon a claimed total inability to work. Having determined that there was no narrative report from a doctor that specifically explains how the compensable

injury caused a total inability to work in any capacity, and having identified other medical records suggesting an ability

to return to work, the Appeals Panel concluded that the determination of the Hearing Officer that the claimant was enti-

tled to SIBs for the 1st quarter was so against the great weight and preponderance of the evidence as to be clearly wrong

and manifestly unjust. As a result, it reversed this determination and rendered a new decision that the claimant was not

so entitled.


Appeal No. 130881 (cont’d)


CORNER A:

The problem lies in justifying a denial if you don’t

know what the facts are?

You have 15 days following the carrier’s first written

notice to decide before the carrier is liable for any

benefits. After that and up to 60 days, you may deny

the claim while you conduct an investigation. During

that period, the carrier is liable for any benefits that

accrue.

If you do file a PLN-1, you must list all of your de-

fenses that would apply. If it is not on your initial

PLN-1, and a later PLN-1 is filed that adds defenses,

you face a potential waiver for the new defenses

raised on the second PLN-1. The point is, before fil-

ing a PLN-1, a thorough investigation should be

done. Otherwise, to protect the carrier, you would

probably need to raise every possible defense that

might apply.

As to the facts that you have given me, the claimant

was in a motor vehicle accident while on business. It

might or might not be covered, depending upon the

facts. But without knowing what happened, the time

it occurred, where the claimant was going, the pur-

pose of the driving and of course whether he had

been drinking, you cannot determine if it was com-

pensable. The only way to get around this problem is

to take the position that no report of injury has been

made in the first place, i.e., no one has reported to the

carrier that there was an injury. All you know is that

there was an incident.

1. Q:

I have a Texas fatality claim. The child dependent is

currently 17 years old and will turn 18 in May of

2014. I have not been able to reach the child or her

mother. I know she is eligible for benefits until the

age of 18. If she has still not responded to my letters

by the time she turns 18, and I do not have proof of

enrollment can I terminate benefits or should I wait 2

consecutive semesters after she turns 18 to stop the

benefits?

A:

The child has the burden of proof, so when she turns

18 the benefits will stop unless she establishes that

they should continue due to her enrollment status.

2. Q:

Need Legal Opinion - no medical treatment sought &

unable to get either employee rep or injured worker to

speak to me (reference claim 001689-003368-WC-

01)

TX Jurisdiction. IW was allegedly involved in a mo-

tor vehicle accident while out of town in California

on business. However, I have not been able to get in

touch w/ either the ER or IW to discuss this alleged

incident and I have no police report to tell me what

happened. Intake notes indicate no medical treatment,

so I have no medical evidence of any injury. I cannot

rule out intoxication or deviation due to my inability

to get in contact with any one.

Based on the above, I am recommending a full claim

denial.

Please let me know if you concur.

G.Q.


CORNER (cont’d)

In other words, PIE are based on either actual wages

following the injury or offered wages. If the current

restrictions are more restrictive than what the 4-5-13

offer letter was based on, then you no longer have a

BFO and you need a new one. If you have no BFO in

place, then you cannot rely upon offered wages from

that offer. In your situation, you have a claimant who

has not been released to return to work without re-

strictions. If the claimant is not earning his pre-injury

AWW, then the Division will treat the claimant as

disabled. You cannot change that fact, but you can

have some impact on the amount of TIBs that are

paid. Without a BFO, the claimant does not have to

show up for work and he will almost certainly be en-

titled to full TIBs as long as he is not released to re-

turn to work without restrictions. Thus, what you

need is a BFO based on the claimant's current re-

strictions. Once again, if there has been no change in

those restrictions since the 4-5-13 offer letter, then

there is no need for a new one AND you can continue

to rely upon the offered wages in that offer letter to

determine the amount of TIBs to pay. If, however, the

4-5-13 offer is no longer based on the current re-

strictions, then you need a new BFO letter AND until

you get it out and and give the claimant up to 7 days

to respond, you cannot reduce TIBs based upon of-

fered wages. If the claimant is going to school, then it

suggests that he could be working during that time.

However, that is a separate argument and at this

point, I don’t have enough information to determine

how to make the argument or how it would play out.

(cont’d)

On that basis, you might file a PLN-1 wherein you

take the position that there has been no report of inju-

ry, that the claimant has not pursued benefits, that he

has not contacted the carrier and that neither he nor

anyone else has provided any medical report or rec-

ords indicating any injuries. But, if you are going to

file a PLN-1, you are once again faced with identify-

ing all of the defenses that you intend to raise.

3. Q:

I have a claimant who is working light duty 30 hours

per week with no bona fide job offer in place current-

ly. There was, however, a BFO offered on 4-5-13. He

is now choosing to work even more reduced hours to

attend school and I want to know whether we owe

continued TIBs. I did pay him 2 weeks of TIBs be-

cause the manager was not working him the 30 hours

for a 2-week period; now, however, the claimant has

removed himself from work.

Restrictions are 5/24/13 to 6/24/13.

A:

First, if you are going to try and reduce the claimant's

TIBs based on post-injury earnings, you need him to

either be working or you need a BFO letter consistent

with Rule 129.6. Your first sentence indicates that

you have no current BFO but that there is one from 4-

5-13. If it is consistent with the current DWC-73,

then you are ok. You would continue to pay the

claimant TIBs based on the offered wages regardless

of whether the claimant is working or not. .

G.Q.


CORNER A:

Unless you have a DWC-24, DWC-25, or CCH Deci-

sion stating that you are liable for CRPS, then it is not

“accepted” as part of the compensable injury. CRPS

is one of those conditions that is nearly always mis-

diagnosed. Further, as a diagnosis of exclusion, it

cannot be made in the absence of full psychological

testing. At this point you should definitely request a

designated doctor to address whether the compensa-

ble injury is a producing cause of CRPS.

You are correct that the DD cannot address treatment

recommendations. The claimant cannot request a post

-DD RME. Medical management is a URA function,

not an adjuster function. Even if you were able to

have a medical necessity RME, as the adjuster you

could do nothing with it. It can only be used to the

extent that the URA decides to use it. Further, you

cannot have a “peer review” address medical necessi-

ty unless the “peer review” is a URA. That said, a

good physical examination by either a designated

doctor or a post-designated doctor required medical

examination can provide a great deal of insight into

the need for medical treatment.

5. Q:

I have a claimant who was injured on 8-11-11 and

returned to work on 8-16-11. He began to lose time

again on 7-1-13. The 8th day of disability is 7-3-13.

That would put the 105-week date on 6-30-15 even

though it has been almost two years from the date of

injury. Do I have that correct?

4. Q:

A network provider stated the worker has chronic re-

gional pain syndrome after carpal tunnel syndrome

repair in 2006. She reached MMI and was assigned

an impairment rating a long time ago, which has been

paid out. The issue is the ongoing medical care and

accompanying narcotic pain medications. I cannot get

an RME because it’s a network claim.

Would getting a DD to evaluate whether the claimant

still has CRPS be a viable strategy? MMI and IR is-

sues passed a long time ago. I know that, theoretical-

ly, the worker could walk into a doctor’s office icing

her arm or complaining of pain, and the DD could

state she still has CRPS. CRPS is already an accepted

condition, so I do not see that a DD reasserting that

condition will alter the claim or enhance our exposure

to further issues. A DD cannot address medical care

or medications and we have a peer review and an

IRO that recommends weaning in regards to her nar-

cotic medications. The claimant’s treating MD is re-

fusing to wean.

So if we get a DD, regardless of whether he/she states

that the claimant has CRPS still or not, would the

claimant be able to request a post-DD RME to ad-

dress?? They can’t address anything other than what

the DD did – extent. So a post-DD RME can’t ad-

dress medical care/medications for a possible adverse

finding that she needs all these narcotic meds, be-

cause that’s not part of the DD, right?

What would be the harm in getting a DD to address

whether the worker still has CRPS or not? What do

you see that might be an issue that I have failed to

identify?

G.Q.


CORNER A:

The only inquiry is whether the claimant is unable to

obtain or retain employment at the pre-injury wage.

His ability or non-ability to work at the new employer

is only a factor. If he is disabled but receiving sick

leave from the new employer, then this (along with

any other insurance or other benefits from that em-

ployer) would constitute PIE and can be used in your

calculation of the amount of TIBs due.

7. Q:

The claimant is a DOT driver for the insured. They

provide mobile home trailers for the drivers as need-

ed. It is not mandatory that the employees stay in the

trailers but they are available at no cost to the work-

ers so that the drivers don’t have to drive back and

forth to their homes. The claimant was off duty on the

evening of 7/22/13. At approx. 8:00 pm he came out

through the front door of the mobile home and was

descending the front steps to smoke a cigarette and to

retrieve something from his car. On the second step

he slipped and fell onto his left knee. He went to the

hospital on that date and was advised to follow up

with an orthopedic surgeon in 1-2 days. He was diag-

nosed with Patella dislocation and avulsion fracture

of tibial tubercle.

We have the work status release, his Employee State-

ment and a witness statement. At this time we would

ask that a full investigation take place to determine if

this is a compensable claim in Texas.

A:

Your question involves the issue whether a claimant

can suffer disability on the date of the injury. Differ-

ent sections of the Division have taken contrary posi-

tions on the question. The Appeals Panel has, on sev-

eral occasions, suggested that a claimant can be disa-

bled, and entitled to TIBs, on the date of injury. Con-

versely, the Division’s Audits and Investigations unit

within the System Monitoring and Oversight section

has taken a firm position for many years that disabil-

ity begins on the day after the injury. The two posi-

tions cannot be reconciled. For a detailed discussion

of this point, please see the editor’s comments to

Rule 124.7 in FOL’s Texas Worker’s Compensation

Manual. If you go by the Appeals Panel’s doubtful

interpretation of the law, then the 8th day of disability

is 7/3/13 and the “statutory” date of maximum medi-

cal improvement is 6/30/15.

6. Q:

The claimant was injured 2/4/12. He resigned later to

go to a new job. He had a hemiarthroplasty to his

knee today. It was done for our injury of 2/4/12. Do

we owe additional TIBs based on his lost wages from

his new employment? I have increased his TIB rate

because the employer is no longer paying towards his

health insurance. Would sick leave pay from the new

employer count as wages that we can deduct from the

AWW?

G.Q.


CORNER (cont’d)

are provided to ensure the availability of employees.

A factor against that would be if they were provided

as a mere accommodation.

8. Q:

Are the recently adopted/repealed accident prevention

services rules applicable with a self-insured program?

Also, would they apply to carriers only, or to TPAs,

as well? [see below]

Recently Adopted/Repealed Accident Prevention

Services Rules (Texas Administrative Code, Chap-

ter 166)

On March 11, 2013, Commissioner of Workers’

Compensation Rod Bordelon adopted new 28 Texas

Administrative Code (TAC) §166.2, amended

§§166.1, 166.3, and 166.5, and repealed §§166.2,

166.4, and 166.6 - 166.9 regarding Texas Workers’

Compensation Accident Prevention Services. The

purpose of these changes is to update various notice,

service, and reporting requirements imposed upon

insurance companies regarding accident prevention

services associated with Texas Labor Code provi-

sions in Chapter 411, Subchapter E, Accident Preven-

tion Services.

About the Accident Prevention Services Program

The Accident Prevention Services Program inspects

insurance companies that provide workers' compensa-

tion coverage to Texas employers to ensure that they

provide required accident prevention services

(cont’d)

Could we please get a legal opinion in regards to

whether the state of Texas would view this as com-

pensable since the claimant was off of the clock and

going outside to smoke but was on the premises paid

for by the employer?

A:

This is generally a fact issue but sometimes it is a le-

gal question. The claimant must demonstrate that at

the time of the injury he was both furthering the af-

fairs of the employer and that such injury arose out of

such furthering. In Gray Ins. v. Jones, the claimant

worked as a roughneck on a drilling rig. He worked a

seven-day period on the job; then he was off seven

days. During his seven days on the job, he worked a

twelve-hour shift each day. When he was working,

Jones had the option of commuting to work each day

from his home or staying at the rig, but the drive from

his house to work was approximately two-and-one-

half to three hours. Usually, Jones stayed at the quar-

ters at the drill site rather than commuting home.

Jones went into the kitchen and fixed himself some-

thing to eat. After finishing his meal, he got up to

throw away his garbage. He dropped a food packet on

the floor, bent over, and picked it up. At that point, he

injured himself. This was not compensable as a mat-

ter of law because he was doing nothing for the em-

ployer immediately prior to eating. You provide no

facts to suggest that at the time of the injury he was

doing so. A factor suggestive of that would be that

the trailers

G.Q.


CORNER (cont’d)

statutes that ought to be included in the letter. We

acknowledge that the claimant is still owed IIBs.

However, due to a large dollar amount of TIBs and

attorneys’ fees overpayments, we are now taking the

position that we will not pay any additional monies to

either party based upon the fact that between the at-

torney’s office and claimant, the sum of those over-

payments can cover the amount of IIBs due to the

claimant.

We want to state in our letter (addressed to both par-

ties) that the claimant should recoup his remaining

IIBs funds from the attorney’s office and demand that

the attorney’s office refund us all leftover monies.

A:

There is no legal basis to do what you propose. If, in

fact, you are pursuing recoupment, then you must fol-

low certain procedures. Recoupment does not cover

attorney fees. They are not benefits but rather a lien.

Recoupment is limited to income benefits. Any over-

payments made to the attorney should be pursued di-

rectly against that attorney. You should send the at-

torney a letter explaining what the attorney was enti-

tled to and what he was paid and then make a demand

for repayment of the overpayment of attorney fees.

Rule 126.16 provides the methodology to recoup

overpayments. The one exception would be if the

claimant committed fraud. If that were the case, then

it would not be a recoupment issue but rather a recov-

ery of benefits that were paid based on the claimant's

fraud. See Sec. 415.008(c).

(cont’d)

to policyholders, such as surveys, consultations,

recommendations, industrial hygiene/health ser-

vices, claims history and accident analysis, and

training. The program also conducts policyhold-

er visits to ensure the adequacy of the accident

prevention services that are provided by insur-

ance carriers. Items reviewed during policyhold-

er inspections include written safety programs,

written drug policies, safety hazards, and confir-

mation of services provided by the carrier. The

program is operated under the provisions of the

Texas Workers' Compensation Act, Chapter 411,

Subchapter E.

A:

This is NOT applicable to self-insured employ-

ers. Sec. 411.061(a) mandates the Accident Pre-

vention Services of Chapter 411 to an insurance

company. Then, you look at the definition sec-

tion of the Act, Sec. 401.011. Specifically, Sec.

401.011(27) and (28) distinguish insurance

“carrier” from insurance “company”. When the

Act references insurance “company”, that is a

conventional insurance carrier and NOT a self-

insured employer.

9. Q:

I need your assistance with drafting some lan-

guage for a letter to be sent directly to the claim-

ant and to claimant’s attorney regarding a re-

quest for a refund of TIBs overpayment. Please

notify me all of appropriate

G.Q.


CORNER (cont’d)

raise this affirmative defense in a PLN-11 with lan-

guage such as, "Carrier asserts that it is relieved of

liability under Tex. Lab. Code § 406.032(1)(A) be-

cause claimant was intoxicated at the time of the inju-

ry."

11. Q:

I have a claimant who works in the yard for my in-

sured in the Rio Grande Valley. They had sent their

yard mule off to a local company to be repaired. The

repair company brought the yard mule back on a flat

bed trailer and the claimant noticed just by looking at

it that the exhaust was not repaired properly. Claim-

ant was standing next to the vehicle on the bed taking

pictures of the parts still in disrepair when he fell and

landed on his head. He suffered a neck injury, which

will require fusion and a concussion. 11. Q:

I have a claimant who works in the yard for my in-

sured in the Rio Grande Valley. They had sent their

yard mule off to a local company to be repaired. The

repair company brought the yard mule back on a flat

bed trailer and the claimant noticed just by looking at

it that the exhaust was not repaired properly. Claim-

ant was standing next to the vehicle on the bed taking

pictures of the parts still in disrepair when he fell and

landed on his head. He suffered a neck injury, which

will require fusion and a concussion. He does not

know how he fell, does not recall tripping. The per-

son driving the vehicle w/ the repair company was on

the other side and did not see him fall but walked

around and saw him on the ground. The claimant said

that there were about three feet of edge next to the

10. Q:

There is an employee who was moving some spools

of wire and sustained a dislocated shoulder when he

tried to catch them as they began to tip over. He has

tested positive for marijuana. How does that affect his

claim? Can it be denied in its entirety because he test-

ed positive for drugs or does some criteria need to be

met in order to deny?

A:

In Texas, if the employee was intoxicated at the time

of the injury, that may be raised as a total defense to

the claimant. Texas Labor Code section 406.032(1)

(A). It does not matter whether intoxication played

any role in the accident. It is total defense to the

claim.

For marijuana there is no numerical test for intoxica-

tion, but rather the general definition of intoxication

applies: "lack of the normal use of the physical or

mental faculties" at the time of the injury. Tex. Lab.

Code § 401.013.

It is often suggested that there is a shifting burden of

proof. Once the carrier presents probative evidence

that the IW may have been intoxicated, then the bur-

den is said to shift to the IW to prove that they were

not intoxicated. Further, if the carrier can present a

post-injury urinalysis or blood test that shows intoxi-

cation, that evidence creates a refutable presumption

that the IW was intoxicated. Tex. Lab. Code §

401.013(c).So, the post-accident drug test does create

a reasonable basis on which to dispute the claim

based on an assertion that the IW was intoxicated at

the time of the accident. You do need to specifically

G.Q.


CORNER 13. Q:

I have an old file (1982) where claimant is a paraple-

gic due to his injury and we have supplied handi-

capped vans to him in the past. He is 82 years old and

his current van is 17 years old and he needs a new

one. I would like to know whether there is any case

law or APD’s on buying a conversion van for this

injured worker. Might we only be responsible for

mileage to doctor’s offices, etc.? The claimant is 82

years old now and is only asking that we pay for the

conversion part of the van (not the van itself, just the

part to make it handicapped accessible). However,

even the cost for just the conversion part is over

$20,000.00.

Let me know your opinion and if you know of any

case law on ones like this.

A:

There is no case law to support the notion that the

carrier would be liable for a Conversion Van. There

is authority for the proposition that you’d be liable for

modifications to a van purchased by the claimant.

These are often sensitive cases, however, because of

the perception that the carrier is refusing to provide

requested care to an employee with such significant

injuries. Some carriers will be guided on this issue by

a cost-benefit analysis.

(cont’d)

yard mule on the trailer so there was plenty of room

for him to walk around. Does the fact that he fell off

the trailer of a 3rd party give us reason to pursue them

for recovery?

A:

For liability to exist, there would have to be negli-

gence on the part of some third party that led to the

injury. The facts provided are very limited but you do

not describe any negligence on the part of the third-

party.

12. Q:

I have this claim, where the provider sent us some

bills for dos 2/17/12 for a DOI of 2/17/12 earlier this

week. After we got the bills, the employer sent over a

First Report of Injury.

We got notice when we received the bills, employee

went to doctor in 2012 and told the doctor it was

Workers’ Compensation related. However, employee

never reported workers’ comp injury to employer.

Have we waived our right to dispute?

A:

The timeframe for disputing the claim does not start

to run until written notice is provided the carrier.

G.Q.


CORNER (cont’d)

her preinjury wages to the same extent as she current-

ly is, then she is not disabled.

15. Q:

I am in receipt of a DWC-69 from designated doctor,

and the IR is missing. However, the IR is clearly in

the narrative. Is this a valid DWC-69 that must be

acted upon within 5 days of receipt?

A:

The DWC-69 is not valid. You should contact the

DWC so that they can get a corrected copy .Whether

you pay or not should be based upon what is reasona-

ble under the circumstances, factoring in your risk

tolerance and willingness to defend your actions.

16. Q:

Claimant is receiving TIBs and may retire from the

City:

Q: If the claimant receives a monthly "retirement"

check will this affect the amount of his weekly TIBs

check? Does it matter if he voluntary retires or if he is

terminated?

Would this be PIE?

A:

A claimant’s voluntary retirement is a factor for the

hearing officer to consider, but is not necessarily con-

trolling on the issue of disability. If the retirement

was voluntary, and the claimant was working at his

pre-injury wage prior to the retirement, then the

14. Q:

DOI: 7/5/2013

Initial Medical Treatment: 7/5/2013 Return to Work,

Light Duty.

7/8/2013 Claimant informed employer she was going

to get a second opinion, but never mentioned any re-

strictions.

7/10/2013 to 7/31/2013, claimant was approved for

Family Medical Leave Act (FMLA) for her lupus.

Employer said they are not able to accommodate re-

strictions, because doctor noted meds may make

claimant drowsy.

No bona fide job offer was presented to claimant.

Do we owe TIBs 7/6/2013 to present (even during

FLMA for non-work-related condition). I would say

yes, because employer was not able to accommodate

restrictions.

ALSO, claimant is very upset, because she normally

works 10 hours/day and she only worked 5 hours on

the date of injury. She said her employer should have

to pay her for the 5 hours she lost, because she had to

go to the doctor.

A:

A claimant cannot be disabled on the date of injury.

A claimant is disabled if the compensable injury is a

substantial factor in the inability to obtain and retain

employment at the pre-injury wage and the claimant

would not otherwise have such loss of wages in the

absence of the compensable injury. If, in the absence

of the compensable injury, the claimant’s Lupus

G.Q.


CORNER Or am I required to pay the partial TIBs due to him

and she may take credit against her TTD payment?

A:

I cannot address California law at all, but in Texas,

the payment of TIBs on two claims at the same time

is not allowed. However, it is going to depend on the

type of benefits that are being paid. For instance, he

could be getting IIBs on one claim and TIBs on an-

other at the same time. If the CA benefits are also in-

come replacement (as TIBs in Texas are) are they are

being paid concurrently, I would suggest that the two

carriers split the amount paid. In your scenario for

just the one day of benefits, I think you do not owe

full TIBs for that day. He was not earning his partial

salary due to the other claim, NOT due to the injury;

thus he was not entitled to additional benefits from

you on that single day. Since he was only working

light duty for partial pay, however, you must pay still

the partial amount for that day. The other car r ier

for the other claim can pay him for that day if they

want; that's up to them, but were I you, I would only

pay the partial amount as if he had worked, not the

full day of benefits. Let the other adjuster know the

amount you paid, and she can do whatever she wants

with that information.

18. Q:

If a claim has been denied at the CCH and Appeals

Panel level, and the claimant takes it into District

Court, can you then settle the entire claim as a

“disputed” claim, or can you only settle the indemnity

portion, leaving the medical open?

claimant is not likely disabled. Additionally, a claim-

ant is only disabled if the compensable injury is a

substantial factor in the inability to obtain and retain

employment at the preinjury wage and the claimant

would not otherwise have such loss of wages in the

absence of the compensable injury. If independent

evidence indicates that the claimant would have re-

tired anyway, with no expectations of additional earn-

ings absent the compensable injury, then he is like-

wise not disabled. Retirement benefits are post-injury

earnings to the same extent that the employer’s con-

tribution to the retirement fund are included in the

claimant’s AWW. If the AWW should properly re-

flect such contributions, then you may consider the

vested payments as PIE.

17. Q:

I have an injured worker who is released to light duty

status. The employer is able to accommodate but at a

lesser wage. He is entitled to TIBs at a reduced rate.

He has an earlier active claim in California. He flew

to California 7/29/13 for a doctor's exam. The claim

rep advised she might pay TTD for that day out of

work to fly from Texas to California for the exam. He

is not receiving TTD on a weekly basis from that

claim. She wants to know if I am going to pay him on

my claim.

I need to know if he can receive comp on both claims

at the same time. TTD and partial TIBs?

Am I allowed to take credit for the TTD she may pay

him?

G.Q.


CORNER

(cont’d)

The issues at the CCH were as follows:

1. Did the claimed injury arise out of an act of a third

person intended to injure the Claimant because of

personal reasons and not directed at the Claimant as

an employee or because of the employment thereby

relieving the Carrier of liability for compensation?

2. Was the Claimant’s horseplay a producing cause of

the claimed injury, thereby relieving the Carrier of

liability for compensation?

3. Did the Claimant have disability resulting from an

injury sustained on June 11, 2012, from June 12,

2012 through the present?

A:

If you agree that the claim is compensable and reach

a settlement to that effect, you can only reach an

agreement with respect to the period of disability at

issue at the Contested Case Hearing. You cannot ad-

dress medical benefits, which were not at issue at the

hearing below.

G.Q.

Flahive, Ogden & Latson, a 21 lawyer firm, defends contested

workers’ compensation cases statewide every day. The firm has

represented insurance companies and employers before the

Texas Workers’ Compensation agency for more than 50 years.

For general questions concerning the newsletter call: (512) 435-

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P.O. Box 201329

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Precedents: The Origins of Medical Causation

It’s summer 1975, and three blue-collar Boston kids’ lives will never be the same after one of them is kid-

napped. Years later, haunted by the incident, the three friends’ lives intersect again when one of their children

is murdered. The case looks like it is going to be broken when ballistics links a gun to the crime. But the gun

owner passes a polygraph test!

Did you recognize the plot to the 2003 mystery thriller, Mystic River? And do you know that modern-day Tex-

as extent of injury cases trace the rule that they follow to a criminal case involving the use of the polygraph,

otherwise known as the lie detector?

Here’s how that happened.

In Texas Workers’ Compensation Appeals Panel Decision No. 120311-S, the Appeals Panel’s resolution of an

extent of injury dispute relies on precedent that originates from a case adjudicating whether polygraph testing

results are admissible.

The issue in APD No. 120311-S? Whether the claimant’s compensable injury extended to a stress fracture of

the left second metatarsal, as argued by the claimant and her treating surgeon, or whether the injury was a non-

compensable a follow-on injury as contended by the carrier.

The carrier won the CCH. The hearing officer concluded that the treating doctor’s opinion was unreliable un-

der Texas law because it failed to adequately rule out other possible causes of the stress fracture, such as the

claimant’s preexisting osteoporosis or her diabetes. The hearing officer concluded that the treating doctor erred

in failing to apply this “differential diagnosis” analysis to the case.

The appeals panel disagreed, concluding that the hearing officer’s analysis “misapplied the law” and that the

error required a remand.

So, where does the lie detector come in?

Relying upon the 1993 United States Supreme Court opinion, Daubert v. Merrell Dow Pharmaceuticals, and its

1995 Texas Supreme Court counterpart, E. I. du Pont de Nemours & Co., Inc. v. Robinson, the Appeals Panel

wrote, “An analysis of other possible causes of an injury or illness is a factor to consider when determining

causation.”

But Daubert overturned a 1923 federal case that said that excluded expert opinions that were based on a scien-

tific technique unless the technique was “generally accepted” as reliable in the relevant scientific community.


PRECEDENTS: The Origins of Medical Causation

(cont’d from previous page)

This decision established the “Frye” test and ruled that evidence offered by James Alphonzo Frye, an alleged

murderer, that he had passed a “systolic blood pressure deception test” - a lie detector test– was not admissible

to establish his innocence. The court wrote:

Just when a scientific principle or discovery crosses the line between the experimental and demonstra-

ble stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle

must be recognized, and while courts will go a long way in admitting expert testimony deduced from a

well-recognized scientific principle or discovery, the thing from which the deduction is made must be

sufficiently established to have gained general acceptance in the particular field in which it belongs.

We think the systolic blood pressure deception test has not yet gained such standing and scientific

recognition among physiological and psychological authorities as would justify the courts in admitting

expert testimony deduced from the discovery, development, and experiments thus far made.

The Frye test was the law of the land for 70 years. But Daubert and Robinson replaced it with a more modern

causation standard. And the appeals panel has applied that newer standard to Texas workers’ compensation

cases.

The hearing officer must utilize the proper legal standard in analyzing and weighing the evidence in this case,

which includes the medical opinion of Dr. D, the claimant’s treating surgeon, who causally related the claimed

stress fracture of the left second metatarsal to the work injury of [date of injury], as well as the claimant’s bone

scan.

In analyzing medical causation issues, the Appeals Panel does not require a physician to rule out every possi-

ble cause of a condition. We wouldn’t lie to you about that.


ATTORNEY& PARALEGAL DIRECTORY

Attorneys

Attorney

Direct Dial

(512)

Direct Fax

(512)

E-Mail

[email protected]

Paralegal

Initials @fol.com

Paralegal

Direct Dial

(512)

Bobby Stokes 435-2150 241-3305 RDS Anita Drake 435-2249

Carlos Acosta 435-2177 241-3312 CA1 Katie Frank 435-2274

Christina Mayfield 435-2178 241-3322 CLM Melanie Nielson 435-2219

Chuck Finch 435-2158 241-3313 CCF Kristi Collins 435-2263

David Cluck

Of Counsel

435-2155 241-3344 DOC Marilyn Mueller 435-2229

Greg Solcher 435-2175 241-3318 GDS Shannon Lockridge 435-2298

James Sheffield 435-2169 241-3303 JRS Sharissa Karol 435-2224

Jeremy Lord 435-2184 241-3311 JXL Anita Drake 435-2249

Jessica MacCarty 435-2164 241-3339 JMM Kristi Collins 435-2263

Kevin MacEwan 435-2166 241-3306 KEM Sharon Zarriello 435-2233

Kevin Poteete 435-2163 241-3328 KSP Karen VanLoo 435-2240

Lynette Phillips 435-2165 241-3308 LLP Sharon Zarriello 435-2233

Nancy Ippolito 435-2181 241-3321 NHI Melanie Nielson 435-2219

Paul Stone 435-2157 241-3316 PBS Karen VanLoo 435-2240

Pamela Pierce 435-2152 241-3336 PEP Quincy Smith 435-2223

Rebecca Strandwitz 435-2160 241-3320 RMS Kristi Collins 435-2263

Rhett Robinson 435-2154 241-3309 SRR Melanie Nielsen 435-2219

Roy Leatherberry 435-2179 241-3314 RJL Katie Frank 435-2274

Ryan Reed 435-2151 241-3310 RWR Anita Drake 435-2249

Steve Tipton 435-2162 241-3304 SMT1 Mary Casebier 435-2275

Tricia Blackshear 435-2180 241-3323 PHB Shannon Lockridge 435-2298


Task Contact Person Direct Dial

(512)

Fax No.

(512)

E-Mail

Admin. Violations - Compliance

Insurance Coverage - DWC-20s

Seminar Coordinator

Patsy Shelton

FO&L Office Manager 435-2234 241-3301 [email protected]

Client Consultant

Web Vendor Billing Contact

Trina DeCecco

Client Consultant 435-2239 241-3300 [email protected]

Designated Doctor Services

Gayle Lowe [A-G]

Joe Morales [H-M]

Brian Lam [N-Z]

435-2294

435-2289

435-2299

241-3349

[email protected]

[email protected]

[email protected]

Docketing Manager Heather Terrones 435-2217 241-3347 [email protected]

DWC Filings - PLNs - DWC-45

Set Notices for Upcoming

BRC & CCH Notices

Sally Matthews

DATA Manager

435-2237 477-4996 [email protected]

*No DWC filings, please.

General Questions

(DWC Rep. Clients) Receptionist 477-4405 241-3300 [email protected]

IRO Requests & Medical Dispute

Resolution

Katie Foster

MRD Manager 435-2266 241-3333 [email protected]

Personnel - FOL Support Staff Sharissa Karol

Personnel Manager 435-2224 241-3303 [email protected]

Records Request/Photostats Jasmin Lott 435-2220 241-3317 [email protected]

RME Service Brian Lam 435-2299 241-3332 [email protected]

Texas Workers’ Compensation

Manual Sales Jordan Kazmann 482-9710 472-9160 [email protected]

KEY TASK DIRECTORY

To help expedite your email or faxed information to the correct area within FO&L and get it to the re-

sponsible person at the earliest time, use the following fax directory. Please remember the 3:30 p.m.

receipt deadline for material required to be date stamped at the Division. Material received after 4:00

p.m. does not permit time to deliver it across town prior to the DWC close.

DWC Adopts Amended Rule 130 - FOL

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Transcript of DWC Adopts Amended Rule 130 - FOL