State News : Texas

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Most doctors who take the Designated Doctor test fail.  At least, that is what data recently obtained from the Division via an open records request revealed.  For instance, in 2018 the failure rate was 56% on the first attempt, 64% on the second, and 61% on the third. 

The 2011 Legislature mandated more stringent testing requirements on designated doctors, with the goal of addressing the increasing discrepancy in the number of physicians versus chiropractors on the designated doctor list.  However, that doesn’t appear to have happened.  When broken out by provider type, data reveal that medical doctors (MDs) and doctors of osteopathy (DOs) have lower failure rates than chiropractors.  The percentage of chiropractor DDs rose from 20% to 49% between 2010 and 2015.  By contrast, the number of MDs and DOs dropped from 70% to 55% during the same timeframe.  And overall, the number of DDs continues to drop—in April 2017 there were 586, compared to 475 in March 2019.  Of those, just 133 are MDs.  Chiropractors take a different test containing more questions on musculoskeletal injuries.  (The Division maintains two lists of designated doctors—one for musculoskeletal conditions, and one for all other injuries; chiropractors fall into the first category, as they are only allowed to address musculoskeletal conditions.) 

The data and discouraging pass rates leave some doctors to conclude that the test is impassable.  Complaints run the gamut, including allegations that the test asks irrelevant questions, questions that have not been validated, and questions that have more than one correct answer.  An article from WorkCompCentral earlier this month provided an example of one such question said to have been on the DD test: “Who determines compensability?”  The choices, reportedly, were: (1) the Division, (2) the designated doctor, and (3) the insurance carrier.  The “correct” answer was both (1) and (2).  However, this isn’t entirely true, as the carrier could ultimately make the decision if it denies a claim and there has been no challenge to the denial.  The question is also confusing, as DDs are told when assessing MMI/IR to rate the carrier-accepted injury, which is noted in Box 37 of the DWC-32 Request for Designated Doctor form provided to the DD in advance of the exam.  If there is no dispute as to the compensability of any specific diagnoses, and the DD is not being asked to address extent of injury, then effectively the insurance carrier has determined which diagnoses are compensable.

Another case of good intentions gone bad?  We’ll plead the Fifth.

-  Copyright 2019, Erin ShanleyStone Loughlin & Swanson, LLP.