State News : Texas

The Division recently issued a memo “reminding” insurance carriers and treating doctors that
medical records must be provided to designated doctors no later than three business days prior to
the exam. The memo also includes a “reminder” that the failure to do so is an administrative
violation. The Division has established a new email address DD’s can use to ask for help from the
Division in obtaining records, presumably when the records are not timely received:
DDRecords@tdi.texas.gov. Therefore, carriers and treating doctors who do not get the records to
the DD timely should not be surprised if they receive a violation notice.

On June 26, 2015, the U.S. Supreme Court held that the Fourteenth Amendment requires a State to
license a marriage between two people of the same sex and to recognize a marriage between two
people of the same sex when their marriage was lawfully licensed and performed out-of-State.
Obergefell v. Hodges, __ U.S. __ (No. 14-556, June 26, 2015).
The surviving spouse is entitled to receive death benefits under the Workers’ Compensation Act.
The surviving spouse must provide a marriage license or satisfactory evidence of common-law
marriage. Section 2.401 of the Texas Family Code limits the definition of a common law marriage
to a relationship between a man and a woman.
However, Texas courts will likely hold that this statute was modified by the Due Process and Equal
Protection Clauses of the Fourteenth Amendment to the Constitution of the United States as
interpreted by the Supreme Court in Obergefell. Therefore, expect to see same-sex surviving
spouses seeking death benefits in the not too distant future.

Citing procedural difficulty in hearings involving simultaneous issues of MMI/IR and extent of injury (EOI), Deputy Commissioner of Hearings Kerry Sullivan has implemented a limited and voluntary pilot project assessing a two-step (“bifurcated”) approach to resolve these disputes.  If the parties agree during the BRC that: (1) the EOI determination will likely lead to an agreement on MMI/IR, or (2) the EOI dispute has so many variables that deciding it first will lead to a better outcome and a more efficient hearing, they will sign an “Election” to bifurcate the hearing, and the EOI issue will be tried first, followed by a hearing on the MMI/IR issue (if necessary).  After the EOI hearing, the Hearing Officer will issue an Interlocutory Order including findings of fact on the EOI issue, after which the parties will have a reasonable period of time to reach an agreement.  If no agreement is reached, a second hearing will be held on the issues of MMI and IR based on the Hearing Officer’s EOI determination.  The Hearing Officer will then issue a Decision and Order incorporating the earlier interlocutory EOI findings, also making determinations on MMI and IR.

Sullivan cites that potential benefits of this approach include: (1) more agreements; (2) establishing correct medical benefits sooner based on the interlocutory order; (3) more control by parties over developing their evidence on MMI and IR; and (4) better, more accurate decisions, as the Hearing Officer will have a better range of adoptable options matching the EOI determination from which to choose.  

The Division anticipates that most cases in the pilot project will be ready for the CCH on EOI after only one BRC.  This is because in cases included in the pilot project, the parties will not be asked at the BRC to obtain alternate certifications or RME reports prior to the resolution of the EOI issue, as this evidence can be more efficiently obtained after that determination. 

The determination of whether the bifurcated approach will be used will be made at the BRC, only at the request of the parties, and will not be imposed over the objection of any party.  At this time, the pilot project is limited to proceedings conducted in the Division’s Weslaco field office. The Division plans to closely track the success of the project and make adjustments to improve it and correct any problems prior to expanding the program. Sullivan invites feedback, ideas, and suggestions by email: Kerry.Sullivan@tdi.texas.gov

The Commissioner fined James David Key, Sr., MD and Thomas Dunn, PT and ordered them to remove themselves as practitioners in the Texas Workers’ Compensation system.  Key was cited for submitting bills for hand or limb muscle testing that he did not perform, and for submitting a charge for health care that was not furnished.  Dunn was cited for improperly listing his NPI number on billing when he was not the rendering provider, for not including the correct billing codes when submitting medical bills, and for improperly  appending modifier “GP” to CPT Codes, which are limited to services provided by a physical therapist or a non-therapist pursuant to an outpatient physical therapy plan of care.

The Division is accepting public comment on revisions to the DWC-48, the form used to request travel reimbursement from Carriers for certain travel expenses to attend a DD exam, RME, post-DD RME, or  for travel expenses incurred for medical treatment not reasonably available within 30 miles if the distance traveled is greater than 30 miles one way. These revisions update the format and style for consistency with other Division forms, and add an “FAQ” to provide additional information about travel reimbursement.  The form also provides a section for the Carrier to respond to the request, indicating approval, denial, or partial denial of the claim.  A response is due within 45 days of receipt, pursuant to Rule 134.110.  If the Carrier denies or partially denies the request, the Carrier must provide a plain language explanation to the injured employee, explaining the reasons for the denial or partial denial, without “unnecessary use of technical terms, acronyms, and/or abbreviations.”  The form includes a notice to the Claimant stating that he/she may request a BRC to dispute denials or partial denials.

Revisions to the DWC-48 would incorporate amendments to 28 TAC §134.110(a), effective March 30, 2014. 

The revised form is currently available on the Texas Department of Insurance website at http://www.tdi.texas.gov/wc/rules/drafts.html.  The public comment period closes June 1, 2015  at 5:00 p.m., and public comments may be submitted by email: InformalRuleComments@tdi.texas.gov

On May 3, 2015, the U.S. Food and Drug Administration announced the filing of a consent decree against Medtronic, Inc. for repeatedly failing to correct violations related to the manufacture of Synchromed II Implantable Infusion Pump Systems.   The consent decree cites violations of the quality system regulation for medical devices, and requires the company to stop manufacturing, designing, and distributing new Synchromed II Implantable Infusion Pump Systems except in very limited cases.  The consent decree also requires Medtronic to retain a third-party expert to help develop and submit plans to the FDA to correct violations. 

The FDA first identified problems with the manufacture of these pumps in 2006, including over-infusion,  under-infusion, and delays in therapy for patients.  The FDA issued three warning letters notifying the company of major violations, including inadequate processes for identifying, investigating, and correcting quality problems, failure to document design changes, and failure to ensure the finished products met design specifications.

The agency notes that patients who are implanted with a Synchromed II Implantable Infusion Pump System should maintain regular follow-up appointments with their physicians, and should contact their physician immediately if they experience a change or return of symptoms, or hear a device alarm.

The Division recently updated the DWC Form-042 (Beneficiary Claim for Death Benefits) to include a notice in Spanish providing instruction on how to contact DWC regarding questions about the form or claims and how to locate the Spanish version of the DWC Form-042 on the Texas Department of Insurance website.  Due to this revision, Carriers will need to update any automated notification systems currently in place, as well as any additional communication notices sent to potential claim beneficiaries, to reflect this change.

On May 22, 2015, Governor Abbott signed Senate Bill 901, which amends Texas Labor Code Section 408.103 to reflect that an employee receives 75% (versus 70%) of the difference between his post-injury earnings and his average weekly wage if the employee is making less than $10 per hour.  (Previously, an injured employee was entitled to 75% of the difference between his post-injury earnings and his AWW if making less than $8.50 per hour.)  This change is effective for dates of injury on or after September 1, 2015.  

 New Division Rule 131.1 and Form PLN-04 become effective June 1, 2015.   The new Rule requires Carriers to review a Claimant’s eligibility for lifetime income benefits (LIBs) in a timely fashion, including when a Claimant requests LIBs, and review all of the statutory criteria for determining entitlement.  The new Rule also outlines the time frames for determining LIBs eligibility in situations where a Claimant requests LIBs in writing, as well as the time frames for the payment of LIBs after the Carrier reasonably believes the Claimant is eligible for LIBs.  The Carrier shall either initiate LIBs or deny the Claimant’s eligibility for LIBs within 60 days from the receipt of the injured employee’s written request.  In addition, Carriers must initiate payment of LIBs without a final decision, order, or other action of the commissioner if a Claimant meets the eligibility criteria for LIBs listed under Section 408.161 of the Texas Labor Code as a result of the compensable injury.  The Division noted in the rule adoption preamble that the initiation of LIBs without a final decision, order, or other action of the commissioner does not waive the Carrier’s right to contest the compensability of the claim in accordance with Texas Labor Code Section 409.021. The first payment of LIBs must be issued on or before the 15th day after the date the Carrier reasonably believes that the Claimant is eligible for LIBs. 

Beginning June 1, 2015, Carriers must also use the new, June 2015 version of the Form PLN-04 (Notice Regarding Eligibility for Lifetime Income Benefits) to advise Claimants whether the Carrier is initiating LIBs or denying LIBs eligibility.  If the Carrier denies LIBs eligibility, the Carrier must do so within 60 days’ receipt of the Claimant’s written request by sending the PLN-04 to Claimant, the Claimant’s attorney (if any), and the Division, providing a full and complete explanation of the reasons for the denial.  Carriers are reminded that the statement must contain sufficient claim-specific substantive information to enable the injured employee to understand the insurance carrier’s position or action taken on the claim, and to explain the reasons for disputing the issue in plain language without unnecessary use of technical terms, acronyms, and/or abbreviations.  Denials should be based on the information the Carrier has obtained or verified.  A Claimant may contest the Carrier’s denial by requesting a BRC.

Carriers may use only the Form PLN-04 for initiating or denying LIBs, as provided under Rule 124.2(e)(1) and 131.1(d).  Claimants requesting LIBs are not required to use a particular form; any manner of written request for LIBs by Claimant is permitted.   A Carrier’s failure to respond to a Claimant’s request for LIBs within 60 days from the receipt of the written request does not constitute a waiver of the Carrier’s right to dispute eligibility to LIBs.  

New Rule 131.1 does not limit the Carrier’s duty to initiate LIBs on or before the 15th day after the date the Carrier reasonably believes that the Claimant is eligible for LIBs as a result of the compensable injury. For example, if a Carrier receives a written request for LIBs, and then five days later has a reasonable belief that the Claimant is entitled to LIBs, Rule 131.1 requires the Carrier to initiate payment of LIBs within 15 days.  In other words, the deadline to initiate LIBs is not extended to the 60th day after receipt of Claimant’s written request. 

Note that the new Rule retains the Labor Code §408.161’s statutory eligibility requirements for LIBs.  

Additional information relating to the PLN-04 is available in the instructions on the form, and in the Division’s memo dated February 19, 2015. 

A claimant’s testimony that pain caused by his compensable injury led to his resignation is sufficient to support disability, but only up until such time as the claimant retains new employment earning at least as much as his preinjury wage. APD 141958, decided November 24, 2014.

The Appeals Panel has authority to recalculate an impairment rating based on the figures provided by the certifying doctor in order to correct a mathematical error. APD 141980, decided November 10, 2014.

Where a Hearing Officer finds a Designated Doctor’s certification of MMI/IR is contrary to the preponderance of the evidence based on a misinterpretation of the Designated Doctor’s opinion, the Appeals Panel will remand the issue if there is more than one certification in the record that could be adopted.  APD 141917, decided November 4, 2014.

A Claimant can show good cause for failing to appear at a CCH, even after the 10 day period, if they also have good cause for failing to respond to the 10-day letter. APD 141918, decided November 3, 2014.

A finding that lumbar radiculitis is part of the compensable injury requires expert medical evidence explaining how the mechanism of injury caused that condition. APD 141973, decided November 3, 2014.