State News : Texas

DWC Targets Doctor in Five Year Battle But Misses Its Mark

The opinion piece below describes events that should make us all pause.  The point is that although it is admirable that cooler heads prevailed at the Division and they withdrew their case, in regard to the actual costs to the doctor the relief is too little, and far too late. The greater cost is to the system that can ill afford to lose qualified doctors willing to travel across the state to provide quality examinations and reports that benefit all system participants at every stage of the dispute resolution process.  Excellence is rarely rewarded.
 

One Girl’s Opinion – Editorial by Erika Copeland

As we begin the new year, we all tend to do some reflection and I am no exception. I certainly had not intended to make the editorial a permanent fixture when my number was up for newsletter contribution, but I felt compelled to take at least one more stab at it when we at SLS received a bit of a surprise “gift” in the form of the Division’s Motion to Dismiss a disciplinary action before the State Office of Administrative Hearings against Dr. Steven Doores.  

First a little context. For those of you who know me only as lawyer at SLS, my first exposure to Texas workers’ compensation was working for the Division back when they called Administrative Law Judges “Hearing Officers.”  I did that job for almost 15 years in Abilene and San Angelo.  As an ALJ in hundreds of cases I regularly read peer review, RME and DD reports from Dr. Doores.  By 2011, I had moved to Austin and headed a team of people charged with making sweeping changes to the designated doctor program as part of a legislative mandate.  As part of that process, we enlisted the help of several subject matter experts– which is just a fancy way of saying “doctors” – one of whom was Dr. Doores.  

At that time, Dr. Doores was no stranger to the eagle eye of the Division, having been called on the carpet (via letter of education) – along with numerous other doctors performing MMI/IR certification examinations – following a performance-based audit. Following that audit, rather than getting his proverbial knickers in a twist, Dr. Doores went to great lengths to meet personally with staff at the Office of the Medical Advisor (OMA) to find out what exactly the Division wanted and expected with regard to MMI/IR examinations at a time when the Division had farmed out all training and testing to an outside vendor, not bothering to oversee the curriculum or testing administered by the vendor. Determined to make sure he knew exactly what the Division wanted, Dr. Doores had numerous discussions and meetings with OMA staff to ensure he knew how to evaluate MMI and impairment ratings in accordance with the Division’s expectations. 

With that backdrop, it should come as no surprise that when the Division took over development, implementation and oversight of designated doctor training and testing, Dr. Doores was on the top of the list of providers tapped to provide his expertise. To be clear, those experts were “compensated” by the Division much like the Hearing Officers and lawyers were compensated – at a much lower rate than anyone doing the same kind of work in the private sector.   

As the Director of that program at the Division, I personally witnessed his participation meetings in Austin to develop a completely new three-day training program for designated doctors that had never been undertaken by the Division before. I was also there when he attended meetings in Austin with a private test development company that put us through the rigorous process of writing, vetting and approving hundreds of test questions for those doctors seeking to be certified by the Division. (Dr. Doores was responsible for personally writing the lion’s share of the upper extremity and MMI questions and there were hundreds needed for the question bank). I was there in the early stages when we took our show on the road and provided the Division training to doctors in Houston and Dallas for three days at a time. I was there when Division executives decided we needed to include some supplemental training that involved the Hearing Officers in other locations around the state to teach extent of injury to a larger number of doctors who had never heard of that concept, much less been tested on it or written a meaningful report addressing it. I was also there for phone conferences and in-person meetings too numerous to count with other Division staff, subject matter experts and attorneys in which Dr. Doores spent hours for which he received no compensation from the Division.  I was NOT there for what could only have been hundreds of hours Dr. Doores spent developing training materials and test questions, traveling and meeting with various Division employees and system participants and doctors for which he received no compensation at all.

What I can speak to personally is the fact that Dr. Doores was a dedicated colleague and true believer in the necessity to make designated doctor training and testing better for the doctors, the Division and the system as a whole. It is with that context that you could have knocked me over with a feather when I became aware that the Division launched a campaign to remove Dr. Doores from participating in the system that he worked so hard to improve.  

It started slowly – after I left the Division.  Dr. Doores was not asked to speak at as many training sessions and stopped being asked to provide test questions for the new versions of the certification examination.  Eventually he was politely uninvited to participate in any of his prior Division duties, including his role as an MQRP arbiter – but that was only the beginning.  

Soon, Dr. Doores found himself on the receiving end of numerous complaints and investigations – with no notice or knowledge of the source of the complaints.  Each time, Dr. Doores was able to show he complied with applicable rules. 

The latest disciplinary action began as an incomprehensible laundry list of wrongs Dr. Doores received through the Division’s Medical Quality Review “process.”  What started with a seemingly shotgun approach was eventually whittled down to five allegations stemming from one examination that took place almost eight years ago.  

At its core the Division’s position involved its disapproval of Dr. Doores’ opinion and conclusions in an addendum post-DD RME report (which had been mislabeled a peer review due to a typographical error).  For example, although the document was clearly NOT a peer review the Division fashioned a series of allegations against Dr. Doores for doing things he could not – under the Act or Rules – do as a peer reviewer – even though a plain reading of his report made it clear that it was not, in fact a peer review.  At the Contested Case Hearing, the Administrative Law Judge admitted Dr. Doores’ post-DD RME addendum, with an explanation by the attorney offering it that it was mislabeled. Every participant in the workers’ compensation system – with the exception, apparently, of the people involved in the Division’s MQRP process – understood the nature and intent of that report. The right hand, in this particular case, definitely had no idea what the left hand was doing.  This action was just the final step in a concerted effort to get Dr. Doores out of the system by any means available and – unfortunately it has for all intents and purposes been successful. 

If you have been doing this work for a while you know there are very few qualified doctors who provide quality examinations and reports as either a designated doctor or post-DD or treatment RME provider in the Texas workers’ compensation system.  Even fewer are willing to travel to under-served or hard to get to counties.  Dr. Doores was a provider who would travel to almost any location and provide quality examinations, reports and testimony if necessary. Due, in no small part, to the relentless harassment by those in charge of the system he worked so hard to help improve, Dr. Doores has taken the target off his back by declining to provide certifying examinations for MMI/IR.  

For anyone who may take the position that Dr. Doores is a Carrier-paid mouthpiece and the system is better off without him, I say: 1) you have an agenda that needs further scrutiny; or 2) you are not aware that the number of cases that actually end up disputed, much less in a contested case hearing, in the Texas workers’ compensation system is actually quite small. The reports penned by Dr. Doores you may have seen from our office likely support the Carrier’s position. There are, I assure you, any number of reports from Dr. Doores in which he found injuries compensable, conditions caused by a work incident and impairment ratings well in excess of 0% - in fact, well in excess of 15%. Those reports, do not end up in dispute – so you won’t see them in hearings, AP Decisions or PLN-11s.

This latest barrage by the Division has taken an unforgiveable toll in this girl’s opinion. Full disclosure, I consider Steven Doores a friend and am deeply troubled by the financial and personal cost to the man who gave so much of himself and his time to a project that also meant so much to me. Most frustrating is that we may never know the real reason agency personnel were willing to spend so much time and money on a case that from the start clearly had no legal merit.

Copyright 2024, Stone Loughlin & Swanson, LLP