I see a lot of claimants who have been taking advice from Division Ombudsmen.  While they serve a great purpose, they do not always understand the finer points of the workers' comp system.  Today I saw a injured worker whose claim is about to be turned upside down because of the action of an Ombudsman.

The claimant was scheduled to see a designated doctor to determine whether she had reached MMI, and if so to get a impairment rating.  After that appointment was scheduled, the treating doctor placed the claimant at MMI and gaver her an impairment rating.  A week later she attended the DD appointment and was found to not be at MMI (the DD was never provided the treating doctor's impairment rating report), which means she can continue to collect benefits for her lost wages while she cannot work.

However, because the treating doctor's rating was first in time, it has to be disputed within 90 days or it becomes final (ninety day rule).  She tells the Ombudsman that she wants to dispute it and they tell her she doesn't need to because the DD says she is not at MMI.  This is bad advice because she must dispute that first rating or it won't matter what the DD said - that first rating will become final and her benefits for lost wages will end.

There are two ways to dispute the rating.  A claimant can either request a DD appointment, or request a benefit review conference.  The injured worker demanded that the first impairment rating be disputed.  So, the Ombudsman requested another DD appointment, just one month after the initial DD report.  If the Ombudsman had simply requested a benefit review conference to note the claimant's disptue of the first impairment rating, everything would have just continued as it was, with the claimant receiving temporary income benefits.  But instead, by going back to the DD for another appointment, it gave the DD a chance to change his opinion.  This time, by reviewing the treating doctor's opinion that the claimant had reached MMI, the DD found that the claimant was at MMI and her benefits were cut off.

This claimant lost her benefits because the Ombudsman either didn't know the dispute options available in these circumstances or didn't understand and appreciate the risk of allowing a DD to reconsider his opinion.  The DD's first report said he didn't need to see the claimant again for 6 months.  Because of the Ombudsman's actions, the DD saw the claimant within 6 weeks, and the injured work lost out on 4.5 months of benefits.

Now tell me whether it was cheaper for this claimant to use the free ombudsman who helped her lose her benefits, or an attorney who could have kept her benefits continuing with only a temporary 25% reduction to pay for attorney fees.

To make matters worse, this is not a mistake that an attorney can fix.  It is now too late for anything to be done for this claimant.  The "fix" would have been avoiding the mistake in the first place.

Designated Doctors have a role, and they are to be considered strategically.  However, Ombudsmen seem to resolve most disputes by just sending the question to a DD to resolve.  The problem with that approach is that who a claimant gets for a DD is just the luck of the draw.  And with the weight the Division gives to a DD's opinion, relying on the luck of the draw can be costly. 

     I reviewed a letter the other day from the Texas Division of Workers' Compensation notifying a doctor that the DWC intended to issue an order that he is not allowed to perform certain services in the workers' compensation system because they were ruling that he provided these services unnecessarily in the past.  The doctor had always gotten preauthorization for the services he provided.  That means that the insurance company reviewed the treatment request before it was provided and agreed that the treatment was necessary. 

     Preauthorization, by law, means that a procedure is medically necessary.  For the DWC to come back later and say that treatment was not medically necessary and then discipline the doctor for providing preauthorized services is mind-boggling.  This is scary stuff. 

     The DWC has said that many letters are going out to doctors to request copies of files for review.  The letters I have seen all ask specific questions about the medical decisions made in each file.  There is no indication as to how a doctor is selected for such an investigation.  Published material suggests it is random, however the letters seem to be specifically targeted based on their content. 

     Is it any wonder why so many doctors are not willing to treat a workers' compensation patient?