State News : Texas

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Three Appeals Panel cases of interest in the past couple of months include:
APD 160228 (decided 3/24/16) - the hearing officer erred in appointing a new designated doctor
after a CCH. The Appeals Panel noted the Rule 127.5(d) provision that a previously assigned
designated doctor is on the claim unless and until the DWC authorizes or requires the doctor to stop
providing services on a claim. The rules set out the reasons the DWC can authorize or require a
doctor to get off a claim, none of which applied in this case. The Appeals Panel looked at the DRIS
notes that the self-insured introduced during the CCH, and determined that those notes did not reveal
any exception to the requirement that the initially appointed designated doctor should remain on the
claim. The hearing officer appointed the second designated doctor because he exercised his
discretion in appointing a new designated doctor because he was concerned that the initial doctor
might “take umbrage in being instructed that his opinion of extent was rejected.” The Appeals panel
held that the hearing officer’s reason for appointing a new doctor was not one of those set out in the
rules and reversed the decision that the second designated doctor was properly appointed and held
that the doctor was not properly appointed.
APD 160074 (decided 3/21/16) - the hearing officer erred in admitting testimony of a doctor whose
identity was not timely exchanged and the decision on extent of injury, disability, MMI and IR was
reversed and remanded for the hearing officer to make a decision without consideration of that
doctor’s evidence. The Appeals Panel determined that the doctor’s name was received by the
claimant after the normal business hours (10:00 p.m.) on the 15th day following the BRC, it was not
timely exchanged (because it must be exchanged within 15 days of the BRC) and the hearing officer
did not discuss the reasons for the late exchange or make a determination of good cause to allow
the testimony despite the lack of timely exchange. The Appeals Panel excluded that doctor’s
testimony completely. The decision is silent on whether there was a report from that doctor in
APD 160057 (decided 3/10/16) - Sure hope this is a trend ! The hearing officer erred in holding that
the claimant had not reached MMI per the treating doctor referral’s alternate certification, where that
doctor’s opinion was based on the fact that the claimant needed further treatment (injections) but
the compensable injury was limited to a lumbar sprain/strain (the other lumbar spine conditions
having been determined not to be compensable and not having been appealed). As the designated
doctor had rendered multiple certifications, one of which was for the lumbar sprain/strain only, the
Appeals Panel reversed and rendered an decision using the designated doctor’s certification that
claimant had reached MMI and assigned an impairment rating based on the DWC-determined
compensable injury. Of special significance to the Appeals Panel was the fact that there was no
evidence establishing that the recommended injections were treatment for the lumbar sprain/strain,
which was the only compensable condition.