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.

I ran across a new angle today on average weekly wage that affects employees of airline companies.  As always, non-pecuniary wages are supposed to be included in a claimant’s average weekly wage.  Average weekly wage is the income amount from which benefit amounts are calculated, so the higher it is, the higher workers’ compensation benefits will be.  Airline employees usually get flight privileges that allow them to fly on domestic flights anytime they want if space is available.  This is a valuable employee benefit.  If the cost of airline tickets is included in the wages considered for an average weekly wage determination, it could significantly increase the amount of benefits the injured worker receives.

In a case I handled today, the injured worker used these benefits regularly, like every other week.  To calculate average weekly wage in the most common formula, you just add up the wages earned during the 13 weeks prior to the date of injury and divide by 13.  If you throw in the value of a couple of flights, that adds a little gravy to the benefit calculation.

Anytime you want to figure out if you are being paid the proper benefit rate, you must determine the value of all of the employee benefits.  Even uniforms and meals should be included if provided by the employer.

If you have a question about average weekly wage, or any other workers’ compensation issue, you can email me at matt.lewis@dallasworkcomp.com

Rule 142.13 requires each party to exchange all records that will be used at a CCH as evidence no later than 15 days after the BRC.  For years, an exchange made at a BRC was considered to be in compliance with this rule.  However, one judge in Dallas just ruled that because the records were not exchanged after the BRC, but at the BRC, this did not comply with the rule.  The result was that the claimant's evidence was not allowed into the record at the CCH.

This is likely to get reversed on appeal.  However, it is a cautionary tale.  In the meantime, everyone should make sure to send all exchanges after the BRC, and include anything that has been previously exchanged.  Do not assume that just because the opposing party has the document that you will be allowed to offer it into evidence at the CCH.