Did someone suggest bringing back extent of injury waiver?
For about a five-year spell, the Division’s Appeals Panel interpreted Labor Code section 409.021’s 60-day compensability deadline to mean that an insurance carrier could waive its right to raise an extent of injury dispute if it did not dispute a condition within 60 days from its initial notice. This waiver theory meant that the mere utterance of a diagnosis on a medical record or even a work status report obligated an insurance carrier to dispute the condition or waive its right to do so.
This waiver theory created a new dimension to CCH evidence: the injured employee had to identify the date the diagnosis was first mentioned and the insurance carrier had to show that it had conducted a “reasonable investigation” and disputed the diagnosis at its earliest opportunity. Extent of injury disputes frequently boiled down to mere words on a page, the adjuster’s ability to scrutinize each medical report, and a hearing officer’s opinion about what is a reasonable investigation. (See APD 060233).
What’s a reasonable investigation, you ask? Well, for a real rabbit hole analysis, the Appeals Panel once stated that “reasonable investigation with the claimant’s treating doctor would have disclosed a referral, and the referral doctor’s referral for diagnostic testing.” (See APD 081222).
Then, in 2009, the Texas Supreme Court in
State Office of Risk Management v. Lawton found that the 60-day waiver in Labor Code section 409.021 should not apply to extent of injury disputes. That seemed to be waiver’s last breath.
That is, until November 2022, when
House Bill 790 was filed before the 88th Legislative Session even began. House Bill 790 would create a statutory right to the extent of injury waiver and require every first designated doctor request to include a request for an extent of injury opinion, proposing changes to Texas Labor Code 409.021 and 408.0041.
Although this seems to be designed mostly for persons covered under Gov’t Code §§607.051 (first responders), HB 790 proposes to include that an insurance carrier who fails to comply with new subsection (a) (not just the part related to first responders) within 60 days waives its right to deny the extent of the specific injury claimed by the injured worker or “reasonably reflected” in a review of the injured worker’s medical records. We will provide an update if this gets past the committee.
