State News : Texas

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

2

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.

The US Drug Enforcement Administration (DEA) has reclassified hydrocodone combination

drugs from Schedule III to Schedule II in the Schedule of Controlled Substances, effective

October 6, 2014. This reclassification change impacts all physicians and pharmacies, including

drugs prescribed and dispensed in the Texas workers’ compensation system. Hydrocodone

combinations are the most frequently prescribed drugs in the Texas workers’ compensation

system.

This change has no direct impact on the application of DWC’s pharmacy closed formulary.

However, prescriptions for Schedule II drugs have specific requirements, and the

reclassification will result in changes to the physician prescription process for hydrocodone

combinations. For example, physicians may not delegate to advance practice nurses and

physician assistant’s authority to prescribe these drugs outside of a hospital or hospice setting,

nor may they “call in” prescriptions for these medications to pharmacies (except in

emergencies, in which case oral transmission must be followed up with written prescription

within seven days). In addition, physicians must use official prescription pads from the Texas

Department of Public Safety (DPS) for written prescriptions; or if e‐prescribing, must use a

certified Electronic Prescribing of Controlled Substances (EPCS) vendor. Most significantly in

our context, physicians may not refill prescriptions of these drugs without a patient visit or

consultation, and prescriptions may be issued for a maximum 90‐day period (three 30‐day

prescriptions to be written at one time). Refills are to be filled on a “not before date” written

on the prescription note by the prescriber. Claimants and pharmacies are encouraged to work

with the physician to resolve any issues regarding these changes when prescribing or

attempting to fill prescriptions for hydrocodone combinations.

Takeaway: Hydrocodone medications will become triple‐script medications, and an injured

worker will have to have a doctor’s office visit to get the script.

The Division has increased the maximum weekly benefit rate for income benefits from $850

to $861, and has increased the minimum weekly benefit rate from $127 to $129. The new

weekly benefit rate maximums and minimums are applicable for dates of injury from

October 1, 2014 through September 30, 2015.

The new maximum and minimum weekly benefit rates will not affect dates of injury prior to

October 1, 2014, as the maximum weekly income benefit in effect on the date of injury is

applicable for the entire time that the benefit is payable. Tex. Lab. Code Section 408.061(g).

A table showing maximum and minimum weekly benefit amounts for dates of injury occurring

from January 1, 1991 through the present is available on the Texas Department of Insurance

website at http://www.tdi.texas.gov/wc/employee/maxminbens.html.

It is a generally recognized fact that the statute and Division rules provide insurance carriers

an absolute right to an RME to address an opinion of a designated doctor. Tex. Lab. Code

Section 408.0041(f); 28 Tex. Admin. Code Section 126.5. However, in some cases, Hearing

Officers are declining to keep the record open to allow opportunity for the insurance carrier

to obtain a post‐DD RME to address a newly amended DD report (received in response to a

Hearing Officer’s request for clarification made in the course of an ongoing proceeding), on the

basis that the carrier “failed to use due diligence.”

For example, a recent Appeals Panel decision addressed a situation in which the self‐insured

had tried to obtain an RME addressing a DD’s amended report. The Hearing Officer has sent

the DD a letter of clarification, which led to the DD re‐examining the Claimant and amending

his prior report with respect to MMI/IR. The Hearing Officer gave the parties the opportunity

to respond to the DD’s report, and the self‐insured responded and requested additional time

so that an RME doctor could be obtained. The Hearing Officer denied the self‐insured’s request

to hold the record open for an RME report, citing that the self‐insured “failed to exercise due

diligence in seeking and obtaining an alternate IR although the self‐insured was fully aware

that the designated doctor had not rated the entire compensable injury prior to the CCH.” The

self‐insured appealed, contending it was denied procedural due process because it was not

granted additional time to obtain an RME doctor to opine on the DD’s amended report. The

Appeals Panel found the Hearing Officer did not abuse his/her discretion in denying the selfinsured’s

request to leave the record open to obtain the RME. Appeals Panel Decision (APD)

140722, decided June 5, 2014.

We could not find any “due diligence standard” in the rules or statute allowing for post‐DD

RMEs. We know, because we looked. Nevertheless, we must live with the cards we are dealt,

and are including this case in this month’s newsletter as a cautionary tale: in any case in which

you believe a post‐DD RME will be necessary or helpful to the carrier’s case, it’s best to

proceed with the request as soon as possible to ensure the carrier’s statutory right to an RME

is preserved. This is always good practice, regardless.

The Office of Injured Employee Counsel is holding its annual stakeholder meeting in a few days.  A key part of the agenda is OIEC’s legislative agenda for the 2015 Legislative Session. Not surprisingly, OIEC’s wish list would create considerable expense to Carriers. Here are the changes OIEC wants –

Expand LIBs – OIEC wants a statutory amendment clarifying that a Claimant qualifies for LIBs if he or she loses use of a body part as a result of a compensable injury even if the Claimant’s compensable injury was not to that body part. 

Increase TIBs Amount – OIEC wants increases in TIBs calculations: (1) increase in the benchmark earning rate from $8.50 an hour to $12.40 an hour, (2) increase TIBs from 70 percent to 75 percent of the AWW for a Claimant that earn $12.40 an hour or more, and (3) increase TIBs from 75 percent to 80 percent of AWW for a Claimant that earn less than $12.40 an hour.

Limit Carrier Ability to Dispute Extent of Injury – OIEC wants a deadline to dispute extent of injury placed in the statute. It wants a Carrier to have to dispute extent of injury within 60 days of receiving written notice that the injury extends to include a certain body part or that defense would be waived. The intention of this legislative change is to codify a 60 day waiver period in extent of injury cases, contrary to the Supreme Court’s decision inState Office of Risk Mgmt. v. Lawton.

Same Venue for Judicial Review of Medical Fee Dispute Decisions and BenefitDecisions

– OIEC wants the venue to be the same for judicial review of a medical fee dispute decision as it is for a benefit decision. That is, judicial review of both types of proceedings should be filed in county where the employee lived at the time of injury or death.

Provide Attorney’s Fees to Claimants for Medical Necessity Dispute Cases–

OIEC wants Carriers be liable for Claimants’ attorneys’ fees incurred when a Claimant prevails in a judicial review of a medical necessity dispute, if the injured employee prevailed administratively at the Appeals Panel.

Carriers Should Pay for Claimant’s Expert Evidence of Causation– OIEC wants to require Carriers to pay for treating doctors to provide opinions on causation through reports or testimony at the CCH, or if the treating doctor is not available, to pay adesignated doctor to provide such report or testimony. Alternatively, OIEC wants a legislative grant to give OIEC money to hire experts.