If it has been more than two weeks since you sustained a work-related injury in Texas, then you probably have heard about ODG, or the Official Disability Guidelines.  This is the book that is used to determine what treatment is automatically approved without asking, and what treatment has to be preauthorized because it is generally not recommended.  You've probably also noticed that there isn't very much treatment that is available without preauthorization, and sometimes it is hard to get preauthorization.

The ODG book itself indicates that it is a book of recommendations based on the averages, and that each person will respond differently to treatment and may need more or less than the recommended treatments for any given condition.  The book suggests flexibility, but the Division of Workers' Compensation requires "expert medical evidence" to deviate from these guidelines.  Expert medical evidence is more than what your doctor says - it is usually some other treatment guideline recommendation or a medical journal article addressing the requested treatment and your condition and symptoms.

Because of the conflict between the book and various states' requirements for deviation from the guidelines, the ODG publisher issued a new chapter on "exception protocols."  This is a how-to section on deviating from the guidelines.

According to the chapter on exception protocols, there is a study of over 600 instances of deviation from the ODG guidelines finding that 94% of the deviations were medically appropriate.  This suggests that deviation is not uncommon and is often the right thing to do.

Now ODG has given us five things to consider before deviating from the guidelines.  When medical care is an exception to the ODG guidelines, the health care provider should document (in your medical records):

            1.         the extenuating circumstances that warrant the treatment

            2.         co-morbidities (other health factors)

            3.         objective signs of functional improvement from the prior treatment provided

            4.         measureable goals and progress points expected from additional treatment, and

            5.         any additional evidence that supports the request

The most significant factors are co-morbidities and the documented functional improvement of prior treatment.  For instance, if the request is for additional physical therapy, then the records should show how the prior therapy helped.  There is no need to repeat treatment that didn't result in improving your condition.

Now with some guidance on deviating from the guidelines, maybe a few more injured workers can get the treatment they need.

As always, if you are not getting the treatment that you need, get help immediately.  If you have questions about your individual situation, feel free to call me at (972) 644-1111.

I just sat down with a man who is trying to pursue a dispute of his impairment rating.  The impairment rating had been given by a designated doctor.  He had filed a request for a Benefit Review Conference, which protected his rights, and then had been assigned an ombudsman.  This ombudsman got the case set for BRC and attended the BRC with the claimant.  At the conclusion of the BRC, the ombudsman got the case set for a Contested Case Hearing, which is now pending.

This is the normal track for an impairment rating dispute in the Texas workers' compensation dispute resolution system.  There is one major problem though - no other impairment ratings have been done for this man.  There is no alternate impairment rating!

When this claimant appears before a judge at the Contested Case Hearing, he will argue that the impairment rating he received is incorrect for whatever reason.  But the judge will not have any other options before him.  There will not be any other impairment ratings from which the judge could choose to determine the proper impairment rating.

In order to have any chance at getting an impairment rating other than the one provided by the designated doctor, the claimant must obtain a second impairment rating that he can argue is the correct rating.  The judge has to be given a choice other than the designated doctor's opinion.  If there is only one choice, then there is only one possible outcome.

The lesson here is that it is always necessary to get an alternate impairment rating if you want to dispute the one you already have.  Never schedule a CCH without first obtaining the alternate rating.  Treating doctors should be willing to provide one.  If they won't, you must find a way to get one.  I can always find a way to obtain an alternate rating for my clients, so I know there are ways to get it done.

I have referred my clients to the Community Enrichment Center in Tarrant County over the years when they have been in need of financial assistance.  Here is one person's story from the current newsletter:

Crystal and her children came to the Adopt-A-Family program from a homeless shelter in 2008.

She had seperated from her husband and tried to support her family but didn't have enough work experience to get a job that provided enough income. Crystal eventually ended up at the shelter with her kids when she couldn't afford housing any longer. 

After arriving at the shelter, she applied to the Adopt-A-Family program for long-term housing and services to help her become self-sufficient. She knew she needed to get a degree in a field that she enjoyed that would provide enough income to support her family.  After entering Adopt-A-Family, she and her kids moved into a home provided by the CEC. She soon found a full-time job at a day care center and enrolled in a nursing program at Tarrant County College. When she felt overwhelmed she relied on her case manager and CEC staff to provide support and encourage her to focus on her goals. Counseling, life skills classes and case management helped Crystal overcome barriers to success along the way. 

Since then Crystal has worked very hard to maintain a 4.0 grade point average while working and attending school full-time. She has learned how to manage her money, reduce her debt and save for the future. Last month she graduated from Adopt-A-Family. Her case manager Stacy Adelstein said, "Crystal has been determined to make positive changes in her life. She has focused on paying off debt and saving money as well as working towards her degree. Crystal's strong faith guides her and she appreciates all the help she has received from the CEC." 

Crystal will be recognized for successfully completing the program at a graduation ceremony at the Back-to-School Carnival in August. She and her kids have found a house to rent, she has purchased a car and she continues to work full-time to complete her nursing degree. She credits the Adopt-A-Family program with helping her become a better parent and provider for her children. Crystal's faith sustained her in difficult times over the two years but her determination to succeed has given her hope for a better life. The CEC works with dedicated Adopt-A-Family "sponsors" who provide financial support to help families move from homelessness to economic self-sufficiency.

You can contact the Community Enrichment Center for assistance at:

 

Community Enrichment Center
6250 NE Loop 820
North Richland Hills, Texas 76180
817-281-1164

 

I handled a CCH today in Fort Worth on a Texas workers' compensation claim with a 1999 date of injury.  Now, I can't do something with every old claim that walks in the door, but some folks were seriously underpaid.  There are a lot of reasons why a claim would have been underpaid, and there is usually a solution, even if the claim is ten years old.

In this particular case, I was able to determine that the impairment rating was not properly calculated.  The designated doctor had screwed it up.  I was able to get the workers' comp insurance company to accept a higher impairment rating of 15%.  This made my client eligible for supplemental income benefits, and we were able to get a settlement on the unpaid SIBs too.  My client ended up getting more than a years' worth of benefits out of the agreement.

Before 2005, impairment rating methods and calculations were one of the most common mistakes made in a Texas work comp claim.  These mistakes can still be corrected today in many cases.  There aren't that many attorneys that represent injured workers today who had a lot of experience in impairment ratings prior to 2005.  If you can find one, you might see if you can get your older claim reviewed too.

 

I got a call today from a client that was alarming.  The adjuster had mailed a form to my client behind my back offering to pay her 37% impairment rating in a lump sum if she would just "sign the enclosed form."  The form was a DWC-51, Employee's Election For Commuted (Lump Sum) Impairment Income Benefits.

That sounds great and all.  Who wouldn't want to get 111 weeks of benefits paid in one lump sum?  The problem is the effects of electing to commute impairment income benefits.

Commuting benefits in the Texas workers' compensation system is a big deal, especially if the impairment rating is over 15%.  Remember, anyone that has an impairment rating of at least 15% is eligible to apply for supplemental income benefits - payments that can go on for up to about 7.5 years from the date of injury (401 weeks).  Commuting benefits means that the injured worker accepts the lump sum payment and then is no longer eligible for any additional income benefits.  There is no way out of it once the commutation is made.  There is no coming back later and saying, "I didn't know what that meant," or "I thought I was healed and wouldn't need benefits later but now I do." 

Once the impairment income benefits are commuted, that is the last payment ever on the claim.  End of story.

The reason I was so alarmed is because the client that received the form from the adjuster is being scheduled for surgery - her third one.  There is no telling what benefits this client would be giving up if she signed the form and sent it back.  It is clear though that it would probably cost her a lot of future benefits to commute the IIBs.

Thank goodness my client called me when she got the letter from the adjuster.  While there are criteria in place to be eligible to commute benefits, it is not uncommon for a commutation to occur without a claimant meeting the eligibility criteria.  It only takes a signature to get approved.

Anyone who receives such a letter from an adjuster should consult an attorney immediately.  Maybe commuting impairment income benefits is good for you, but a free consultation with a Texas workers' compensation attorney could keep you from making a big mistake just because you didn't understand the effects of an adjuster recommended action.

 

I haven't posted anything in awhile and I want to change that and get a little more regular with this blog.  In addition to the issue-oriented posts, I will start to mix in more regular observations of things that I see in the Texas workers' compensation system.

In case you don't know, Texas uses a book called the AMA Guides To The Evaluation of Permanent Impairment, 4^th Edition, to assess impairment ratings resulting from on-the-job injuries.  I mention this because today I received the new catalog from the AMA for impairment related texts.  They have all sorts of books available:  the AMA Guides themselves, books about the AMA Guides, books about legal issues and the AMA Guides, books about functional ability, etc.  You can buy all of these books as they relate to both the 5^th Edition of the AMA Guides and now the 6^th Edition of the AMA Guides.  BUT, the catalog had nothing at all related to the 4^th Edition, including the 4^th Edition itself.

Does that make you wonder a little bit?

I had a gentleman come in to see me about handling his Texas workers' compensation claim.  He was injured 5 months ago...and he has yet to see a doctor. 

Getting to a doctor to document your physical condition, diagnose your injuries and comment on your work ability should be one of the very first things you do if you have been injured.  Failing to do so can cause many problems with your claim.  For instance, the insurance carrier might argue that you really weren't hurt.  If you were hurt, you would have gone to the doctor!  Isn't that what a reasonable person would do?

Additionally, there will be no evidence about what your initial complaints were.  What if you injured your shoulder and low back and the insurance company says a witness did note that you complained of low back pain after an injury event but you never mentioned your shoulder to the employer?  Well, you didn't go see a doctor and tell him either!  That makes it real hard to show what the full extent of your injuries are.

If you have been injured at work in Texas and have a Texas workers' comp claim, make sure you see a doctor as soon as possible.  And remember, you have the right to choose your own doctor...you don't have to see a company doctor.

Let’s review a neat little trick pulled by a Texas workers’ compensation insurance company this week.  Luckily, it was sniffed out and snuffed out before any harm could be done.

 

Another attorney in my office was handling this case.  One of the good things about an office like ours, with four Texas workers’ compensation attorneys, is that we get to discuss situations as they come up and use the collective knowledge of the group to plan our attacks and defenses.

 

Following a Benefit Review Conference, each side has 15 days to make an “exchange.”  An exchange is when you provide the opposing party a copy of all of the documents that you intend to use at the Contested Case Hearing.  Rule 142.13, which governs these exchanges, also requires that each side list all witnesses with knowledge of relevant facts.  Not just the witnesses intended to be called to testify, but anyone that knows something that might be relevant to the case.

 

The insurance company exchanged the name of a witness that didn’t seem to matter and that our client did not know.  In fact, our client did not even recognize the name, had never heard of them.  Later, after the 15 day deadline had passed, the carrier exchanged the name again, but corrected the name...you know, made it a whole different name.  Still later, the carrier filed a motion to have this person testify by phone because they were from West Texas and it was not economically feasible to have them show up in Denton to testify.  The motion indicated that this person had performed an investigation and talked to co-workers at the time of our client’s accident and would testify about the findings of this investigation.

 

This raised a red flag.  Especially since the only other names of witnesses exchanged by the carrier were a supervisor and an HR rep.  No co-workers names had been exchanged as people with knowledge of relevant facts.  The question was what we could do about that.

 

At the hearing, the insurance company’s attorney called this investigator to testify.  Our attorney objected to the testimony because the witness’s name had not been exchanged within 15 days of the BRC, a different name had been exchanged, a whole different non-existent person’s name.  The judge overruled the objection and allowed the witness to testify anyway.  This is a typical and expected ruling.

 

As the testimony began, the carrier’s attorney asked the investigator to share who he talked to and what information he obtained from his investigation.  At this point our attorney objected again, this time objecting to the particular testimony about to be offered as hearsay derived from sources whose names had not been exchanged at all.  Testimony from witnesses whose names have not been exchanged should not be allowed.  This time, the judge ruled that the investigator could not testify about anything he heard or learned from a person whose name was not exchanged.  There was no other reason for the person to testify, so he was excused.  His only purpose had been to deliver hearsay evidence against our client.

 

Hearsay evidence is admissible at the Division of Workers’ Compensation.  It could be potentially damaging.  The reason is that the witness can say anything, even make stuff up and the source of the information is not there to be cross-examined.  It is unreliable.  Now if all 5 of the co-workers interviewed by the investigator had come to the hearing and testified and they all had something to say that was bad for our client and the testimony was consistent, then it would probably be considered very likely to be the truth.  But if all 5 showed up and under cross-examination the stories were different and inconsistent, then all of their testimony would most likely have no bearing on the case at all.  The point is that having them show up to be questioned by both sides is fair.  The hearsay route is not fair and is easily manipulated.

 

Consider this scenario:  what if all five witnesses told the investigator that they saw our client fall off of a ladder; then, four of them tell the investigator that our client said he was hurt real bad and might need an ambulance; then, the fifth man tells the investigator that he never heard the man say he was hurt because he had run to the phone when the man fell to call 911 and was not around to hear what he had to say immediately after the fall.  Then what if the investigator came to the CCH and testified that his investigation showed that somebody saw our client fall off the ladder but another witness said he never heard the man say he was hurt.  The judge could believe that an accident happened but no injury occurred because our client didn’t complain about being hurt.  This is wholly contrary to the stories told by the five witnesses to the investigator, but technically the truth because one of the five witnesses didn’t hear our client say he was hurt because he had run off to call 911!

 

That is the problem with hearsay.  The judge never gets to hear directly from the source of the information, but only hears it through the lens of the person re-telling the story.  The reason that the exchange requirement exists is so that each party has the ability to either contact potential witnesses and find out what the story is, or subpoena them to testify.  If the co-workers’ names had been exchanged, then our office could have subpoenaed them to attend the hearing and give testimony.  If those names had been exchanged, then the hearsay evidence probably would have been allowed because we would have been given notice that these co-workers existed and would have failed to subpoena them.  But that was not the case.  The names were not exchanged and the carrier attempted to get potentially manipulated and unchecked hearsay evidence into the record.

 

The genius move here was our attorney objecting to the investigator’s testimony at the very beginning.  The judge overruled that objection when it might should have been sustained.  The judge even commented later on the record that he had already allowed the carrier to call the witness to testify even though his name had not been exchanged but a non-existent person’s name had been exchanged in his place.  The judge conceded that he had already allowed the carrier some leeway.  Our attorney gave the judge the chance to grant the carrier this leeway by allowing the investigator to testify over her objection.  That move increased the odds that the judge would not allow the carrier even more leeway to use the investigator as a conduit of unchecked hearsay evidence.  To do so would have seemed really unfair at that point.  Even if the first objection had not been made, I don’t think it would have mattered.  A good judge would not allow the hearsay evidence under these circumstances and the judge in this case is a very good judge.

 

We don’t yet know the outcome of this case.  The case could go either way based on the other evidence entered into the record, but our client will not lose due to a carrier trick or manipulated evidence.  Our client got a fair hearing.  The chips will fall where they may.

I have been pursuing issues arising out of older claims lately.  Many of these are from the 1990’s, but it is clear that the injured worker was undercompensated.  There are a couple of issues that I am looking at in particular.  If you think any of these might apply to a case like yours, then we can discuss your situation privately.

 

Until 2002, the Division allowed insurance companies to recoup overpaid benefits from future benefits.  This means that if for some reason a claimant received too much money for temporary income benefits, the insurance company could reduce impairment income benefits to get its money back.  It was a matter of fairness.  Insurance companies routinely performed this recoupment at will, even up to the present day.  But that is not how those rules are interpreted today.  The rule is interpreted today to mean that the law must specifically allow an insurance carrier the right to a recoupment before it can take money away from a claimant.  It is in very rare circumstances that this is allowed, and then only at a certain percentage reduction of benefits.  Therefore, if a Texas workers’ compensation insurance company ever reduced your benefits to get back a perceived overpayment of benefits from you, that money could be yours today with interest from whenever the recoupment occurred.  I signed an agreement yesterday where an insurance carrier agreed to pay this money back to the claimant with 12 years worth of interest.  For more information on recoupment, read my article entitled Recoupment: Its Limitations & Procedural Pitfalls.

 

Another issue from way back when concerns impairment ratings for lumbar, thoracic, and cervical spine injuries.  Before October of 2001, Texas used the 3^rd Edition of the AMA Guides To The Evaluation of Permanent Impairment to assign impairment ratings.  The majority of spinal impairment ratings were done incorrectly during that time period.  If you have a spinal injury from back then with an impairment rating that has never been litigated or finalized by an agreement with the insurance carrier, then you might be eligible to have your impairment rating increased.  This means you would be owed more benefits, even today.  It only takes a second to review one of these impairment ratings, and it could be done via fax or email.

 

A third issue is the ongoing denial of lifetime medical benefits.  If you had a serious Texas workers’ compensation injury even as far back as the 1990’s, you are entitled to lifetime medical benefits.  Most of the time the insurance company attempts to stop providing these benefits after awhile.  If you are being denied medical treatment that is related to your workers’ compensation injuries, then we can help you determine how to get those benefits reinstated, and we can determine whether or not the insurance company has acted in bad faith towards you, which could result in a monetary award above and beyond the cost of health care.

 

It’s never too late to make sure you were paid everything you were entitled to receive under the law.

I received an interesting decision this week regarding a claimant’s failure to attend her designated doctor appointment.  The appointment was scheduled for August 20, 2009.  My client missed the appointment.  She is a young woman, who lives with her Dad.  She testified that she does not have a car, and neither of her parents have a car.  She depends on friends and public transportation to get around.  Her designated doctor appointment was scheduled in Arlington, a city without public transportation.  She lined up several rides that day and everybody let her down…all the rides fell through.  So, she missed her appointment.

 

Rule 126.7(g) indicates that if a claimant misses a designated doctor’s appointment, the workers’ compensation insurance carrier can stop paying temporary income benefits, and the claimant will lose entitlement to temporary income benefits, unless the insurance carrier or the Division of Workers’ Compensation finds that the claimant had “good cause” for her failure to attend the appointment.  This rule exists to force claimants to comply with the Division’s Order to attend a designated doctor examination.

 

Good Cause is typically some kind of emergency or situation that can’t be controlled that results in a claimant’s failure to do something.  For instance, if a claimant had a heart attack and was rushed to the hospital just prior to the designated doctor exam, then she would have good cause for failing to attend the appointment.  The question in this case was whether a lack of transportation would be enough to support a finding of good cause.  The question had not been answered before, at least in any way that had been published for others to know.

 

The judge ruled that the lack of transportation was good cause for failing to attend the appointment.  However, Rule 126.7(f) indicates that if a claimant is going to miss the appointment, she has to call the designated doctor and reschedule the appointment.  My client did not do this until September 8, 2009, more than two weeks after the scheduled exam.  So, while a lack of transportation would have been good cause in this instance, the claimant did not have good cause for failing to pick up the phone and call the designated doctor to get the exam rescheduled for over two weeks.

 

That is a pretty straightforward finding.  And the claimant would have lost if that was the only argument we had.  But in an interesting turn, the claimant prevailed.

 

When we got to the contested case hearing, neither party had a copy of the letter notifying the claimant of the appointment with the designated doctor.  The first thing we did at the CCH was ask the Hearing Officer to look up the internal computer file notes on this claim and tell us when the Division mailed out the notice of the designated doctor appointment.  The file notes indicated that while the letter notifying the claimant of the appointment was printed on August 6, 2009, it was not mailed until August 7, 2009.  This is significant because Rule 126.7(e) requires that a claimant be given 14 days notice of a designated doctor appointment.   Had the letter in this case been mailed on the day it was printed, which was the day the appointment was made, then the notice to the claimant would have been timely.  By mailing the letter to the claimant the next day, the notice only allowed 13 days notice to the claimant.  This violated the Rule.

 

The judge ruled that “the notice was inadequate.”  The carrier still argued that while the notice may be inadequate, the Rule does not provide a remedy.  But the judge ruled that the language of the Rule requires adequate notice and because it was inadequate, the claimant had good cause for failing to attend the designated doctor appointment.

 

The result of the case is that the insurance company has to pay the claimant the temporary income benefits that had been withheld from her for failing to attend the designated doctor appointment.

 

The practice lesson learned here is that just having the notice of the designated doctor appointment to determine whether adequate notice has been given is not enough.  The Division’s computer file notes indicate the date the notice letter is mailed, which may be different from the date on the notice letter when it is printed.  The mailing date is the date notice is given, not the printing date.  The difference in those two dates may be the difference between winning and losing.

 

This decision can still be appealed by the insurance company.  If it is, and the Appeals Panel comments in any meaningful way, I will post the results.