NWCDN Members regularly post articles and summary judgements in workers’ compensations law in your state.
Select a state from the dropdown menu below to scroll through the state specific archives for updates and opinions on various workers’ compensation laws in your state.
Contact information for NWCDN members is also located on the state specific links in the event you have additional questions or your company is seeking a workers’ compensation lawyer in your state.
Surprise. DWC may be on the enforcement war path in regard to BRC exchanges required by Rule 141.4 (b). There has been a rule in effect since 1991 governing when parties to a dispute must exchange pertinent claim information with one another. The rule was tightened up in 2010 but to date has not been strictly enforced. We recently became aware that BROs are being asked to inform DWC of instances when the rule was not followed. Monitoring letters are now being issued. As carrier attorneys are aware, and most likely plaintiff attorneys as well, it can be logistically difficult (and sometimes impossible) to comply with the rule which requires all “pertinent” information in a party’s possession to be sent to DWC and the other parties to a dispute no later than 14 days before a BRC, or not later than 5 days before an expedited BRC. And, as we all know, time flies.
The rule does not expressly provide for punitive consequence to the parties for failure to timely exchange, but it does give the BRO the power to schedule a second BRC if she determines that pertinent necessary information necessary to resolve the dispute was not submitted or exchanged. But beware – a violation of any provision of the Labor Code or DWC rules can be the basis for a monetary penalty or other sanction.
There is a second part to the rule – Rule 141.4(c)(d). This part requires that whenever a party requests a BRC, it must send the opposing party all pertinent informationbefore filing a BRC request with the DWC. The responding party then has an obligation to send all pertinent information in its possession to the other party within 10 working days after receiving the BRC request.
DWCreleased itsbiennial reportto the84th LegislatureinDecember. Accordingto thereport, injury rates,insurance rates,and premiumsand claimscosts aredown andemployerparticipation, return-to-work outcomes,access tocare, andmedicaldispute resolutionare betterthan ever.DWC didnote that there isroom forimprovementin reducingthe numberof designated doctor disputes, injuredemployee educationand outreachand reducingthe numberof work-related fatalities. DWC included two legislative recommendations in thereport: 1)increase themaximumreimbursement for burial benefits; and 2) establish a pilot safety reimbursement programfor small employers.
TDI alsopublishedan Analysis ofthe Impact ofthe 2005Legislative Reformson theTexas Workers’CompensationSystem inDecember– this wasthe “network” legislation. Thatreport also favorablyreports thestate ofworkers’ compensationin Texas.Highlights from the reportinclude:
1) workers’compensation insurancehas beenprofitable eachyear from2005-2013 (asmeasured by theindustry’s combinedratios andreturn onnet worth);2) thenumberof employersparticipating in networksand employeesbeing treatedby network providershas increased (approximately42% of new claims are network claims); 3) injured employeesatisfactionwithcare andhealth-related outcomes increased since 2005 (according to recent injured employee surveys); 4)total medical costsforprofessionalservices decreasedfrom itspeak in 2002until2007,buttherewasan increasing trend beginning in 2008, which seems to haveleveled off since 2011; and 5) overall wholeclaim denials,medical disputesand thenumberof claimswith disputesare atthe lowestlevel since 2008.
Accordingto arecent TDIreport resultingfrom aOpen RecordsRequest bythe Insurance Council of Texas, insurancecarriers prevailedthe majority ofthe timein bothprospective and retrospective medical necessityIndependent ReviewOrganizationreviews. Thereport coversthe years2009-2013. These numbers are not surprising since the adoption of the Official DisabilityGuidelines (effective 5/1/07),but itis goodto knowthattheIRO reviewsystem appears tobe producing consistent outcomes applying evidence-based guidelines fromthe ODG.
BeginningJune 1,2015, Carriersare requiredto usethe revisedDWCForm PLN-11 to disputea workers’ compensation claimand provide the factual basis of the dispute.
TheDivision’s statedreason forthe revision isto help theagency andinjured employeesclarify whether acarrier isdisputing extentof injury, disabilityand/or eligibilityto receivedeath benefits. In itsmemorandumannouncing the finalized form,theDivision alsowarned against usingthe PLN-11 for issues outside the
scope of the PLN-11.
Carriers haveuntil June1, 2015to begin usingthe newform,but there isno harm in practicing to doso nowin order toget used to using it. The finalizedform isavailable nowon theDWCwebsite at http://www.tdi.texas.gov/forms/form20numeric.html.
December ushered in a DWC effort to providemuch needed education to workers’ compensation treatingdoctors. Theeducation is aimedat teaching treatingdoctors theappropriate wayto address and report oncausation ofa claimedcompensableinjuryin hopesthat thereport willaid indispute resolution.
Wewelcomebetter reportsfrom treatingdoctors. Butthe training materialsfocus onthe formof the report over the substance of the opinion and the underlying science a doctor should use to formulate his or her opinion. The use of templates andmagic words should not replace a well- reasonedopinion thataddresses causationin thecontextof theclinical recordand evidence-based medicine relevantto thespecifics ofa given case.Weare awareof atleast onecase where ahearing officer under the guise of an LOC mid-hearing sent the trainingmaterials to a designated doctor where thedesignated doctorhad notprovided acausation opinion that met evidentiary standards. The expectation was that the doctor would then issue an “amended” report.
Ofnote isthe factthat thereis norequirementthat atreating doctorreview allthe medicalrecords and list what hehas reviewed. Thatis notthe casefor peerreview doctors,RMEdoctorsand designated doctors who are held to amuch more stringent standard.
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.