NWCDN Members regularly post articles and summary judgements in workers’ compensations law in your state.
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Dr. Gant was an integral member of the very small group of qualified doctors who were willing to provide objective and fair psychological evaluations and opinions for injured workers. We were saddened to hear that he died on December 4th. He was buried among three generations of Texas family at Cana Cemetery near Willis Point, Texas. He was a friend to many in the comp system and gained our respect over the many years we worked with him on cases, and in reading the many reports he wrote on behalf of his patients. His obituary describing his remarkable path through life is at https://www.hlfhs.com/obituary/Bobby-GantPhD
Copyright 2024, Stone Loughlin & Swanson, LLP
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
The moment many
designated doctors have long awaited and lobbied (dare we say begged) for has
finally arrived. The Division has proposed changes to the billing and
reimbursement structure for certain workers’ compensation services that will
also benefit RME providers as well as treating and referral doctors. Who
knows, maybe the promise of greater financial incentive is responsible for the
recent bump in the number of designated doctors on the Division’s list that has
swollen from the 238 reported in March to a whopping 288 in November (all but
12 of the 50 being chiropractors).
The proposal includes adjusting fees once by applying the Medicare Economic
Index (MEI) adjustment factor for examinations performed 2009-2024; adjusting
the fees annually on January 1st by applying that factor in Section
134.203(c)(2); rounding the fees to whole dollars; creating a specialist fee of
$300.00 and including the much longed for $100.00 missed appointment fee.
The proposal also eliminates the current tiering structure so that for DD
and RME examinations, all issues addressed in one exam are paid at the
established fee and not reduced. An assignment number in the prior
authorization field of medical billing forms will be required to identify
DD-associated billing.
For more information about the proposed rule amendments, click here.
You can view the proposed changes here: Chapter 133 and Chapter 134.
A public hearing on the rules is scheduled for 11:00 a.m. on January 23,
2024.
Copyright 2024, Stone Loughlin & Swanson, LLP
The Division has revised the DWC-42 and PLN12 in connection with amendments to
the death benefits legislation out of the 88th Legislative Session. The
forms are designed to help eligible beneficiaries file claims for death
benefits with the Division or the Carrier. The new rule was effective
December 11, 2023 and the forms are available on the Division’s website here.
Copyright 2024, Stone Loughlin & Swanson, LLP
The Workers’
Compensation Research and Evaluation Group (REG) released a new report on
health care cost and utilization in the Texas workers’ compensation system
between 2012 and 2022 that shows total health care declined 30% during that
period. Key findings include claims are down 20%, professional service
costs down 26%, hospital costs down 20%, and pharmacy service costs down 71%.
Click here for a drill-down analysis of the claim,
provider, service and drug types, among other categories.
Copyright 2024, Stone Loughlin & Swanson, LLP
The Merriam-Webster Dictionary defines “decision” as an authoritative
determination (as a decree or judgment) made after consideration of facts or
law. Each month, the Division posts to its website a comprehensive list of “decisions” made by the
Division’s Appeals Panel and lists them by date filed and issue
addressed. In December, you will find two such decisions on the issues of
SIBs-Permanent Loss of Entitlement and Extent of Injury. If you are
hoping to find any insight or guidance on either of those topics, alas, you
will have to look elsewhere. Further investigation will reveal those
decisions to be of the “affirmed as reformed” variety. In other words, the
ALJ made a typographical error that was corrected by the Appeals Panel and no
substantive change was made. In AP No. 231626, the Appeals Panel corrected the
name of the claimant’s county of residence and in AP No. 231546, the Appeals Panel corrected the
name of the carrier’s registered agent. Perhaps a separate column entitled
“clerical correction” or “oops I did it again” would save participants valuable
legal research time.
Copyright 2024, Stone Loughlin & Swanson, LLP
The Division will hold the first Carrier Quarterly Meeting of 2024 on January
10, 2024 from 2 to 3:30 p.m. Updates will be provided from the usual
departments including Claims and Customer Service, Health and Safety, Business
Process and Operations and External Relations as well as a chance to hear from
the new Deputy Commissioner of Compliance & Investigations. For Zoom
Info and Agenda, click here.
Copyright 2024, Stone Loughlin & Swanson, LLP
