DWC assesses status of transition of legacy claims to Pharmacy Closed Formulary

DWC Commissioner Rod Bordelon met with insurers and others last month to assess their progress in transitioning to the closed drug formulary for claims with dates of injury prior to 09/01/11 ("legacy claims"). Although Division rules do not require carriers to start the transition process until March 1, 2013, Bordelon has urged carriers to have preliminary discussions with providers before then.

At the meeting on November 15, several carriers reported to Bordelon that they had begun the process of sending contact letters to physicians. Other carriers reported that they had not yet sent out contact letters but planned to do so before the end of 2012.

The closed formulary will apply to legacy claims beginning September 1, 2013. Division Rule 134.510 sets March 1, 2013 as the deadline by which carriers must provide written notification of that fact to affected injured employees, prescribing doctors, and participating pharmacies (if known). The Division website includes a sample notification that carriers may use for that purpose.

Reminder: New employee notice requirements effective January 1

The Division has revised the notices that employers must give to employees regarding workers' compensation insurance coverage.

Specifically, the Division has made minor changes to the written notice that must be given to new employees at the time of hire. It also has slightly changed the notice that must be posted in the employer's personnel office (if any) and in the workplace (Notice 6, Notice 7, or Notice 10 as appropriate).

The new notice forms are available for download on the Division's web site.

Effective January 1, employers must post the new notice in the workplace and they must provide the new notice to employees hired after that date.

New post-DD examination rule effective January 6

Division Rule 126.17 becomes effective on January 6. The rule provides guidelines for an examination by a treating doctor or referral doctor after a designated doctor examination to address issues other than certification of Maximum Medical Improvement and evaluation of permanent impairment.

The rule provides that such an exam may be appropriate if (1) the designated doctor provided an opinion on the issue, (2) the worker is not satisfied with the designated doctor's opinion, and (3) the treating doctor or referral doctor has not already provided the worker with a written report that meets the standard set out in the rule. The rule also provides that the narrative report should include objective findings of the examination and an analysis that explains how the objective findings lead to the conclusion reached by the doctor. It requires the reporting doctor to file the report with the carrier, the worker, and the worker's representative.

In the preamble to the rule, the Division said that the rule was necessary to provide guidelines for examinations that were already being performed by treating and referral doctors under authority of Labor Code § 408.0041(f-4).

Court of appeals: UT not liable for worker's attorney's fees on judicial review

The Third Court of Appeals in Austin ruled this month that the University of Texas is not required to reimburse a worker for attorney's fees incurred on judicial review of an Appeals Panel decision.

In The University of Texas System v. Ochoa, the university sought judicial review of a decision of the Division Appeals Panel which found that the worker had disability. The university subsequently non-suited and the worker sought reimbursement for her attorney's fees. The university objected, arguing that the worker's claims were barred by sovereign immunity. Although the district court did not agree with the university, the court of appeals did. It concluded that the Labor Code does not waive sovereign immunity for attorney's fees claims against agencies of the state.

Division revises DWC Form-057, Request for Extension of MMI Date for Spinal Surgery

The Division has revamped DWC Form-057 for requesting an extension of the date of Maximum Medical Improvement due to spinal surgery. The new form becomes effective on 02/01/13 and is available for download now on the Division website. Among other changes, the new form does not include space for the Division to approve or deny the request. Instead, in response to a request on the new form, the Division will issue an order on a separate document.

Prison guard charged with $2.7 million in workers' comp fraud

A prison guard in Florida is awaiting trial on charges that he faked illness to fraudulently collect more than $2.7 million in workers' compensation benefits. Authorities said David Brownell claimed that he suffered respiratory problems and was dependent on an oxygen cannister due to exposure to rats and their feces at Glades Correctional Institution.

Investigators with the Florida Division of Insurance Fraud disputed Brownell's claim. They said that surveillance video captured him smoking and playing guitar in a band. Brownell reportedly was arrested wearing his oxygen mask.

NMA - No more acronyms for BDAs (at least at one FO)

At least one field office has begun disapproving Benefit Dispute Agreements that contain acronyms.

Personnel at that field office - Houston West - have informed system participants that the agreements should contain no such shorthand references.