On September 15, 2011, the Appeals Panel of the Texas DWC significantly stacked the deck against injured workers who disagree with their impairment rating.  And when the Texas workers compensation law didn't help them do it, the Division made up their own law. 

In Appeal Panel Decision 111006, the Division changed one of the methods to "dispute" an impairment rating.  The law has always been that there are only two ways to dispute an impairment rating - request a designated doctor or request a benefit review conference.  If a designated doctor has already been appointed, the only method available to dispute the impairment rating was the request of a benefit review conference.  The change occurred when the Appeals Panel determined that not only must the benefit review conference be requested, but the Division has to schedule the BRC for the dispute to become effective. 

The main problem with this is that the Division denies BRC requests all the time for insignificant reasons.  So if the Division fails to set your benefit review conference, you failed to dispute your impairment rating.  This means that everybody must ignore the 90 day deadline to file impairment rating disputes and treat it as a 45 day or 60 day deadline - you must leave extra time for the Division's denial of the BRC so you can resubmit the request and "correct" any of the alleged shortcomings of the BRC request. 

The legal problem with this decision was that the Appeals Panel used the Preamble to the rule about requesting benefit review conferences (Rule 141.1) to come up with this conclusion.  The actual rule does not specify the requirement that the Division actually set the BRC for hearing, just that the claimant file the request.  By adding in this requirement, it became apparent that the Division tricked everybody when they wrote Rule 141.1 and put it out for comment before adopting it as a Rule.  Who knew that the Rule was not the rule, but what they didn't put in the Rule would be the rule?  By leaving out the most important part of the actual rule, the Division found a way to adopt a crazy and unfair rule that could be used against injured workers and avoid the public outcry and debate that would have resulted by putting its actual intentions into the actual Rule to start with.  This is shameful. 

So beware that the ninety day rule is not a true ninety day rule.  If you file your request for BRC on the 89^th day and the DWC denies the request because you spelled your employer's name wrong on the form, you will be told that you failed to dispute your impairment rating.  Nevermind that your intentions were clear.  You must file for the BRC at least by the 60^th day to allow enough time for the Division to process the request so that if it is denied you will still have time to re-file your dispute. 

Just remember, in Texas workers' compensation law, the law is never really the law.  You have to know what laws are real, what made-up laws are real, and what real laws are not followed.

     In a follow-up to my last post, I wanted to reprint an article I wrote for a newsletter that went out to doctors.  It explains how designated doctors are saying that injured workers have reached maximum medical improvement because there is no expectation that the impairment rating will change by 3% in the future.  When a designated doctor says something like this in a report, it demonstrates that they don't know anything about MMI and how to determine whether it has been acheived.  If a designated doctor says that in your impairment rating report, you need to get legal help immediately. 

 

MMI Is Not A Function Of A Change In Impairment Rating 

     While the Division has significantly limited claimants' impairment ratings with its interpretation of the AMA Guides, it has not allowed the concept of maximum medical improvement to erode from its statutory definition.  The concept of MMI had been in flux, and even recently was under attack by the Medical Quality Review Panel and the Office of the Medical Advisor who began advising doctors that they should not use the date of the exam as the date of MMI, but should use some prior date to backdate MMI.  The concept of MMI began to be based on outcomes only, not expected outcomes.

     In a prior edition of this newsletter we highlighted Appeals Panel Decision (APD) 072242 where the Division made it clear that the full statutory definition of MMI was to be used.  Texas Labor Code Section 401.011(30) defines maximum medical improvement as the earliest date after which further material recovery from or lasting improvement to an injury can no longer reasonably be anticipated.  In that case, the Appeals Panel noted that the question of MMI is not whether the claimant actually recovered, but whether the claimant expected recovery from upcoming treatment.  Prior to that time, MMI had been reduced to a question of whether the claimant did in fact recover from additional treatment, not whether the claimant expected to recover from additional treatment.

     Since we wrote about this concept several months ago, the Appeals Panel has continued to confirm that the expectation of recovery from treatment is tantamount to the question of MMI.  In Appeals Panel Decisions 110670 and 110896 the panel declared that the expected recovery from surgery and chronic pain management following a designated doctor's certification of MMI was enough to overturn that doctor's opinion.  In 110896, though, we get further clarification that other concepts of MMI will not be allowed to water down the statutory definition prescribed by the Legislature.

     In APD 110896, the claimant went through both surgery and a chronic pain management program following a designated doctor's certification that he had reached MMI.  When questioned as to whether the surgery and additional treatment affected MMI, the doctor declared it did not because that treatment "would not increase or decrease the claimant's impairment rating by more than 3%." The Panel was clear that this is not the standard for MMI, and reversed the Hearing Officer's decision that had rubber-stamped the designated doctor's opinion.

     Many designated doctor reports have language in them about MMI being tied to a 3% or greater change in impairment.  This has no basis in the law and may taint the doctor's entire opinion.  All of these reports are, therefore, suspect and should be reviewed for other errors also.  Remember that MMI is never dependent on the impairment rating.  Impairment ratings are dependent on the attainment of MMI. 

 

     Recent changes in Texas workers compensation law make it important to do something right now if you have one of these 3 situations happening in your case: 

1.  You have been placed at maximum medical improvement or received an impairment rating in the last 60 days

2.  You have had treatment since being placed at maximum medical improvement or receiving an impairment rating, or

3.  Your designated doctor report contains language about maximum medical improvement meaning your impairment rating will not change by more than 3%.

     Every case is different, but too many times injured workers are being placed at MMI prematurely.  There are deadlines that affect your rights.  These doctors are affecting your rights, and they are being used to reduce your benefits, or even cut them off completely. 

     In the next several posts I'll explain what is happening in each of these situations.  If these have happened to you, get help now.

     Post-Injury Earnings (PIE) are wages that are earned after your injury.  It is important to save paystubs or other documentation of your earnings following your injury.  If you are earning less than your average weekly wage (AWW) because of your injury, you may qualify for Temporary Income Benefits (TIBs).  The PIE that you earn must be accounted for in the calculation of any TIBs that you may be owed. 

     To calculate your benefit rate, simply subtract PIE from your AWW and multiply by .70.  You are owed 70% of your lost wages in TIBs (75% if you earned less than $8.50 per hour).  This benefit rate is always subject to the maximum benefit table.

     PIE includes all wages earned after the date of injury; the value of any continuing fringe benefits; the premium the employer pays for continuing health insurance; any wages offered as part of a bona fide job offer that is not accepted;  the value of any full days of sick leave or vacation pay that you use voluntarily following your injury; the value of any partial sick leave or vacation pay that you use that, when combined with your TIBs benefits, exceeds your AWW; and any salary continuation your employer pays following your injury.

     PIE does not include things like severance pay, retirement benefits, or sick leave and vacation time that the employer required you to use.

       Temporary Income Benefits, or TIBs, are the very first benefit available to an injured worker.  These benefits are paid if your injury causes you to have disability.  If you are not able to earn your regular wages because of your injury, then you have disability.  Once you miss work or earn less than your regular pay for eight days, you are entitled to TIBs.

       These benefits are meant to replace your lost wages.  TIBs typically equal 70% of your average weekly wage (AWW), unless you have post-injury earnings, or PIE.  If you continue to earn some wages but not your full wages, then you should be paid 70% of your lost wages. 

       If you earn less than $8.50 per hour, then your TIBs payment should be 75% of your AWW for the first twenty-six weeks of disability.  High wage earners may not get a full 70% of their AWW because these benefits are capped.  Click here to view the maximum benefit rates based on your date of injury.

       TIBs are paid weekly until you no longer have disability, or until you reach maximum medical improvement (MMI), whichever comes first.  They can be paid up to 104 weeks, or two years.  There is an exception to this rule if you have surgery right before the two year mark from the date your disability began that may allow you to receive these benefits for more than 104 weeks.

Maximum Medical Improvement and the certification of an impairment rating are two of the most important events that occur in a Texas workers compensation claim.  In the linked video, I address what these are, what they mean, and what you can do about it.

 Video:  Basics of MMI and Impairment Rating in Texas Workers' Compensation Injury Claims 

In a conversation with a doctor the other day I learned that his office was directing all patients with extent of injury disputes (when the insurance company says a particular diagnosis is not covered) to a designated doctor to resolve the dispute.  I disagree with this approach.  I think if the patient has a good treating doctor who takes the treating doctor responsibility seriously, the designated doctor is never needed and poses unnecessary risk.  Here's my response: 

Q:  If the carrier disputes extent of injury, don't we just need to have the patient file a request for a designated doctor?

A:  While designated doctors can be used to resolve an extent of injury issue, they are not always the best option for doing so...and they should never be your first choice.  There is a bit of an art to determining when to use a designated doctor and when not to. 

The best way to resolve such a dispute is for the treating doctor to obtain all of the relevant and necessary clinical and diagnostic data needed to make a diagnosis and establish a cause of injury. Sometimes a referral is necessary, like if a radiologist needs to compare pre- and post-injury MRI's to see if any additional damage or harm has occurred that was not present before an accident.

Once all of this data is collected, the treating doctor should prepare a report explaining the cause of the injury. At a minimum this report should demonstrate that the doctor understands the details of the injury event, should explain what the diagnosis is (not just give a diagnosis), and then explain how this injury could result from the injury event described. Beyond stating that the injury could be caused by the described event, this report should explain how the doctor knows, within reasonable medical probability, that this diagnosis was in fact caused by the injury event.

The opinion about the cause of injury should take into account degenerative changes and explain their significance, or lack thereof, to the causation question. If they are integral to the question of injury or cause, the doctor should address aggravation of these pre-existing conditions. Aggravation of an injury is more than a recurrence of symptoms. An aggravated condition becomes compensable only if the injury event caused additional damage or harm that was not already present.   This type of opinion must be clearly explained. Another way to say this is "how do you know this injury resulted from the event?". Give us a good medical school explanation.

Why is this the best way to handle extent of injury questions?  Because you don't know who the designated doctor is going to be in most cases. All of the usual RME suspects also serve as designated doctors.  Although theoretically the cause of injury should be determined the same by a large percentage of doctors that review the same data, we know that bias does play a role. The DWC and AMA think that a patient's impairment rating should be the same no matter who examines the patient, but we know that doesn't happen either. 

Sometimes there is no alternative and a designated doctor must be requested. This would be true if the treating doctor refuses to assist in the causation question. Unfortunately, this happens. Most employer and carrier-recommended doctors will not address causation. There are also a lot of patient-advocate doctors that will not help either. In these situations, the designated doctor is probably necessary.

Other times, this question can be manipulated. Not all extent of injury disputes arise at the very beginning of a claim. Most arise later, occasionally even around maximum medical improvement. If this is the case, it is likely that the patient has already seen the designated doctor. If so, you will already know who the designated doctor is.  More importantly, you will know the DD's opinion about diagnosis and treatment options.  If the DD report appears favorable on the question of injury and it's cause, it may be a good situation to request a designated doctor on extent of injury. Most of the time the designated doctor will hint at or state his thoughts on the issue.  Of course, this requires a detailed reading of the report and not just a glance at the end result. This method requires an educated guess at the outcome, and should not be left to clinical personnel who do not possess the education and experience to make these decisions.

Requesting a designated doctor on any issue should rarely be done without careful thought. There is nothing a designated doctor can do that a treating doctor can't do. The patient has too much at stake to gamble with the luck of the draw.

A treating doctor submitted the following question about problems he has had referring injured workers to specialists for surgical consultations.  My answer follows:

Q:  I keep having problems making referrals for orthopedic or surgical consults when taking over as treating doctor after the patient first treats at an employer or carrier-recommended facility.  That facility made a previous referral but the patient doesn’t want to continue care with these doctors. What can I do?

 

A:   This is a preauthorization issue.  The Official Disability Guidelines do recommend orthopedic and surgical consultations.  For a low back injury, the ODG suggests such a referral on the second visit in some cases; for a neck injury the referral is recommended as early as the first visit if there are neurological symptoms.  The issue here is not whether the consult itself is necessary.  The problem is that it has already occurred as a referral from the company doctor.

 

Division Rule 137.100 indicates that insurance companies are not liable for treatment that exceeds the ODG recommendations unless they are preauthorized.  The ODG allows for a consult, say for the necessity of spinal surgery, but it does not allow for two such consults.  The second consult must be preauthorized.

 

Most of the time, the second treating doctor makes the referral and the referral doctor can’t get the adjuster to “approve” the office visit.  Someone at the doctor’s office keeps calling the adjuster to see if the carrier will pay for the visit.  When the doctor is told no, or is ignored, the referral doctor tells the treating doctor and the patient that they can’t do the exam because it is not approved. 

 

The problem with this scenario is that there is no way to resolve the situation, and the patient suffers as a result.  The patient is left in limbo, often for long periods of time and there is nothing that can be done for them.  The next step in the treatment plan is usually riding on the question of surgery.

 

The solution to this problem is to submit a written request for preauthorization of the referral for the surgical consult.  Rule 134.600 requires the carrier to respond to this request within three business days, and send written notice of the decision within one day of making the decision.  This approach allows for the use of the IRO process to obtain the surgical consult, and a hearing after that if necessary. 

 

The important part of this process will be the explanation for the referral.  There should be more than a prescription pad referral.  There should be a chart note of some kind to explain the reason for the referral, ODG criteria for the referral, and the medical necessity of the referral pursuant to ODG and the doctor’s own clinical judgment.

 

No longer is the patient left in limbo, complaining to the doctor about the lack of treatment.  There is a decision with a defined appeals process.  There is a response for the treating doctor to give the patient when asked about status of the referral.  There’s no angst for the patient over weeks of calling the carrier with no response while they sit in pain, waiting to see a doctor.  There can be a solution other than the patient looking for a new treating doctor, one who can make a referral happen.

In my last post I discussed the importance of knowing the Division Rules that affect impairment ratings (or at least knowing someone else that knows the Rules). They often make the difference in your case.  This time, let me illustrate the importance of knowing the AMA Guides To The Evaluation of Permanent Impairment, 4th Edition, the book that Texas workers' compensation law requires that we use to assign an impairment rating.

The AMA Guides have chapter after chapter about how to give an impairment rating for each body part and various diagnoses. The small print matters too. One of the interesting things about impairment ratings is how different body parts are rated and then added together. There is a table at the back of the book that we use to add up impairments, and 1+1 does not always equal 2.

Sometimes, though, 1+1 does equal 2 but the doctor just adds it up wrong. That happened to a man that came to see me last week. The designated doctor had given him a 14% impairment rating. This is potentially a big deal because, in Texas, if you get a 15% rating then you are eligible for additional monetary benefits called supplemental income benefits.  So he decided to have the 14% impairment rating checked out.

When I reviewed the impairment rating, it was obviously wrong. When the doctor added up the impairment ratings for each area of the body, he just added wrong. I plugged everything into the chart to add it up and it actually came out to 19%! 

This man had been shorted by a simple mistake. But the error was potentially disastrous. An injury resulting in a 14% impairment rating is limited to a maximum of only 182 weeks of benefits. But any injury with a rating over that is eligible for up to 401 weeks of benefits. By correcting this error we could potentially double this man's recovery!

I doubt the insurance company would have told this injured worker about the error of the designated doctor.  And I know that the Division does not review these ratings for accuracy and correct them. He would have just been one of those folks that got screwed by the system without ever knowing it.

Don't be the person that gets screwed by the system without ever knowing it. Get your entire claim reviewed by someone who knows what to look for.