State News : Texas

The Division is about to take aim at insurance carrier peer reviewers.

The agency is in the process of creating a Peer Review Plan-Based Audit, which it says will define

the scope, methodology, and selection criteria of its review process. A draft of the Plan Based Audit

is posted it on the Division website. It says that its purpose is to:

• Promote the delivery of quality healthcare in a cost-effective manner;

• Ensure peer reviewers adhere to requirements when issuing peer review reports for extent

of injury and/or medical necessity issues;

• Ensure peer reviewers review and maintain records when performing peer review; and

• Ensure that peer reviewers hold the appropriate credentials when performing peer review.

Once the Plan-Based Audit is finalized, the Division will begin collecting and reviewing select peer

reviews that address extent of injury and medical necessity issues. It appears that the Division will

be focusing on (among other things) whether peer reviewers (1) rely on evidence-based medicine,

(2) use Division treatment guidelines, and (3) comply with Division Rule 180.28 which governs peer

review requirements, reporting, and sanctions.

The Division seeks comment from stakeholders on the current draft. Suggestions for improvement

can be emailed to OMA@tdi.texas.gov by 5 p.m. Central Time on November 4.

The Division has published the results of disciplinary action taken last month and, as usual, they

look a little – uh – lopsided.

In September the agency disciplined twice as many carriers (8) as providers (4). Furthermore, the

Division took a lot more hide from the carriers’ backside. The largest monetary penalty it assessed

against a provider was $7,500. In contrast, the Division assessed a penalty of $40,000 against one

carrier and a penalty of $47,000 against another.

This is in keeping with the trend. The Division’s statistics show that since January 1, 2014, it has

assessed penalties totaling $1,658,245 for insurance carriers and only $65,600 for health care

providers.

The Dallas Court of Appeals has denied rehearing of a decision that we first mentioned in our

August newsletter. The decision explains that the “continuous coverage rule” is not exactly what the

name implies. The court held that a Texas-based worker was not covered when killed while on a

business trip to New York City.

Ronald Davis worked in Texas but had a business meeting in New York scheduled for a Monday.

He flew to New York on the previous Saturday and checked into a hotel. The next day, Sunday, he

was crossing a street near Central Park at 10:30 a.m. when he was hit by a bicyclist and killed. He

was 10 blocks away from his hotel. No one knows where he had been or where he was going.

Mr. Davis’ family argued that he was covered under the continuous coverage rule. Under that rule,

an employee whose work entails travel away from the employer’s premises is in the course of his

employment when the injury has its origin in a risk created by the necessity of sleeping or eating

away from home, except when a distinct departure on a personal errand is shown.

The Division of Workers’ Compensation found the injury to be non-compensable, so the Davis

family had the burden of proof on judicial review. Although there was no evidence that Mr. Davis

was on a personal errand at the time of the accident, the court found the injury to be noncompensable.

It reasoned that the Davis family had the burden of showing that Mr. Davis wasnot

on a personal errand or mission at the time of the accident and, because they could make no such

showing, they could not meet their burden of proof.

Davis v. Texas Mutual Insurance Company, ___ S. W.3d ___, 2014 WL 3705130 (Tex. App. –

Dallas 2104).

We in Texas are at ground zero in the Ebola scare. The first person to test positive for the disease

in the United States treated at Texas Health Presbyterian Hospital, and two of his nurses contracted

the virus and were quarantined. These events have raised questions regarding the interplay between

Ebola and workers’ compensation insurance coverage. Specifically, under what circumstances is a

worker covered under a workers’ compensation insurance policy if the worker tests positive for the

Ebola virus or is quarantined for monitoring?

This question has no bright-line answer. On the one hand, a compensable injury includes an

occupational disease. On the other hand, the term occupational disease does not include an ordinary

disease of life to which the general public is exposed outside of employment.

Generally speaking, to prove a compensable occupational disease, a worker must show that the

disease is indigenous to the work or present in an increased degree in that work as compared with

employment generally. Using that standard, the two quarantined hospital nurses probably can meet

their burden of proof to show that their conditions are compensable. The same is true for others on

the front line, such as laboratory workers and emergency responders.

But what about those who are not on the front lines but still face possible exposure, such as airline

flight attendants? Or workers who travel on airlines for business? Would they be covered?

The blogosphere is red hot with discussions of questions like these as insurance carriers, employers,

and state regulators scramble to find answers.

So, remember this: To get a DD to address MMI or IR after a BRC or CCH the BRO or HO will

send a PODODDE, not a DWC-32. Capisce?

It’s called the Presiding Officer’s Directive to Order a Designated Doctor Exam, and it’s the

newest thing at Division field offices. You’ll start seeing it come across your desk, because the

Division now uses it when Benefit Review Officers and Hearing Officers (now collectively

called “Presiding Officers”) order designated doctor exams.

In the past, a Presiding Officer ordered a designated doctor exam like the rest of us – by filling

out a Form DWC-32 (Request for Designated Doctor Exam). Not any more. Effective 10/01/14,

Presiding Officers are to use the new form.

Accordingly to a memo from Kerry Sullivan, the Division’s Deputy Commissioner of Hearings,

“the purpose of this change is to clarify when an examination is ordered by a Presiding Officer

and to identify clearly what the Presiding Officer is ordering the DD to address.” (Why that

requires a new, special form we’re not sure.)

The Division is accepting public comment on planned revisions to the PLN‐11 (Notice of

Disputed Issue(s) and Refusal to Pay Benefits). The proposed new form provides an area for

the insurance carrier to check the appropriate box to indicate which issue (extent of injury,

disability, or entitlement to death benefits) that is being disputed. The form also provides a

definition for “disability” for the injured worker. There are also minor revisions to update and

clarify the instructions, including a “caution” for insurance carriers to “explain the reason(s)

for disputing the issue in plain language without unnecessary use of technical terms,

acronyms, and/or abbreviations.” The instructions also include the following cautionary

statement: “Disputes must be based on the information the carrier has obtained or verified.”

While relatively minor, the above changes exhibit an apparent effort by the Division to

encourage carriers to provide more clear and concise language in its disputes so that the

injured worker understands exactly what is being disputed. We have always discouraged the

use of acronyms in a PLN‐11; best practice is to always use full terms so that a claimant is on

notice of what, exactly, the carrier is disputing. For example, instead of disputing extent of

injury to “CTS” or “lumbar DDD,” the carrier should spell out that it is disputing carpal tunnel

syndrome and lumbar degenerative disc disease. Likewise, instead of disputing disability

based on a “valid BFOE,” the carrier should state it is disputing disability pursuant to a bona

fide offer of employment tendered by the employer. As for the Division’s instructions

requiring that “disputes must be based on the information the carrier has obtained or

verified,” we should take this as a reminder that it is best practice for the carrier to document

its claim file as early as possible with written and verified evidence supporting the basis for

its dispute. In other words, don’t wait until a BRC is set to take and transcribe a recorded

statement, obtain medical records for a pre‐existing injury, or obtain a hard copy of a

toxicology report.

The revised form is currently available on the Texas Department of Insurance website, and the

public comment period closes Wednesday, October 1, 2014 at 5 p.m. Public comments may

be submitted by e‐mail, snail mail, or personal delivery to: Texas Department of Insurance,

Division of Workers’ Compensation, Maria Jimenez, Workers’ Compensation Counsel MS‐4D,

7551 Metro Center Drive, Suite 100, Austin, Texas 78744‐1645; Email:

InformalRuleComments@tdi.texas.gov.

The Division made minor changes to its DWC‐26 (Request for Reimbursement of Payment

Made by Health Care Insurer) and DWC‐69 (Report of Medical Evaluation). The revisions to

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the DWC‐26 replace the term “ICD‐9” with the term “diagnosis code,” in order to facilitate

transition from ICD‐9 coding to ICD‐10 coding for workers’ compensation medical billing,

processing, and reporting. (ICD‐9 and ICD‐10 refer to the 9th edition and the 10th edition,

respectively, of the International Classification of Diseases, Clinical Modification and

Procedure Coding System.) Regarding the DWC‐69, the Division has added instructions for

injured employees.

The finalized forms are available on the Texas Department of Insurance website and are

effective January 1, 2015.