State News : Texas

The Legislature is Back in Town - Take Heed!

The Legislature is considering a number of bills involving changes to comp – some minor, somenot so minor. The bills which would have the greatest impact on system participants if passed include:

• HB 3022 - Creates a deadline for disputing extent of injury, requiring the carrier to dispute the treating doctor’s determination of the extent of the compensable injury by requesting a DD exam or BRC within 90 days of receiving the treating doctor’s report.

• HB 2630 - Provides that the right to dispute extent of injury is waived if not contested within 60 days of the date that the carrier receives written noticeof a "new manifestation of the original injury, an additional injury, or an additional diagnosis." The bill does not clarify what constitutes written notice for the purposes of this section. If passed, this will have a huge impact on carriers, as every medical bill and report received will need to be carefully reviewed immediately upon receipt for any mention of a new diagnosis or condition.

• HB 2627 - Provides that a party need only "contest" the first valid certification of MMI and IR within 90 days to prevent it from becoming final, clarifying thatcontesting the certification only requires the party to file a written notice with the Division, which shall not serve as a request for a BRC, and expressly stating that a BRC should be requested when the party is fully prepared to enter into the dispute resolution process.

• HB 2660 - Provides that a party may not call an expert to testify on an issue during a CCH or in court unless the party exchanged a report of the expert witness in accordance with the exchange rules.

• HB 2629 - Provides that the Division shall use the range of motion model from the 4^th edition of the AMA Guides to determine impairment for all lumbar injuries, instead of the injury or diagnosis-related estimates model.

• HB 1468 - Provides that communications between the carrier and the employer are confidential and privileged if the communication is: (1) in furtherance of the employer’s rights under chapter 408, 409, or 410; (2) in anticipation of an administrative or judicial proceeding; or (3) for the purpose of facilitating the provision of professional services by the carrier to the employer.

• HB 1155 - Removes the word "temporary," so that the statute would allow a carrier to suspend payment of any kind of income benefits if an employee fails to submit to a designated doctor exam.

• HB 2249 - Provides that a claimant is also entitled to LIBs for a whole person IR of 85% or higherbased on the 6^th edition or a subsequent edition of the AMA Guides that is the result of compensable injuries suffered in a single incident.

• HB 3280 - Provides that a health care provider cannot seek reimbursement for health care from the injured worker unless the injury has been finally adjudicated not compensable,or the employee fails to request a BRC to dispute the carrier’s denial of compensability within 45 days after receipt of the denial.

Participants Weigh In On Proposed Change To Rule 130.1

WorkCompCentral.com reports that based on the comments received by the Division, carriers and defense attorneys are largely supportive of proposed changes to Rule 130.1, which would clarify that certifications of impairment ratings based on dates other than the date of MMI are barred from evidence. The Division proposed the changes in response to a ruling by the Court of Appeals for the 6^th Appellate District inSORM v. Joiner that a hearing officer could consider a doctor’s report that based the claimant’s IR on his condition as of July 5, 2006, even though the claimant did not reach MMI until five days later. The OIEC is opposing the proposal.

A Reminder Never Hurts - Medical Fee Dispute Process

For medical fee disputes filed on or after June 1, 2012, a party may appeal the decision by requesting a BRC within 20 days of receipt in accordance with 133.307(g). In the absence of a timely request for a BRC, the decision becomes final. If the dispute is not resolved at the BRC, a party may elect to resolve the dispute through binding arbitration, or the party can request a SOAH hearing by filing a written request with the Division’s Chief Clerk of Proceedings no later than 20 days after the BRC. However, the losing party is required to reimburse the Division for the costs of SOAH’s services and any applicable interest. Information on SOAH costs can be found athttp://www.tdi.texas.gov/wc/mfdr/documents/soahmfdcchcosts.pdf.

2013 Disciplinary Actions

Disciplinary orders were entered against doctors John Gray Andrew, Howard Thomas Douglas III, George Howell Johnson, Sr., Charles W. Kennedy, Jr., and Asra Oberoi for failure to comply with requirements for designated doctor examination and reporting. Dr. Darey Allen Philbrick was removed from the workers’ compensation system and no longer has a medical license.

Another system participant, Dr. Ernest Roman, permanently surrendered his license to practice medicine per the terms of an agreed order in lieu of further disciplinary proceedings against him before the Texas Medical Board for alleged improper operation of a pain management clinic.

Governmental Immunity May...Or May Not Cover Third-Party Administrators

The Amarillo Court of Appeals recently affirmed the trial court’s summary judgment disposing of claims for damages alleged by the injured worker to be the result of tortious conduct by MHMR, the Risk Management Fund, and the Division. The Court of Appeals agreed that the trial court lacked subject matter jurisdiction because the defendants are immune from suit, finding no clear or unambiguous waiver of that immunity in the Labor Code or Texas Tort Claims Act that would permit suit against them for intentional torts. However, the Court reversed the judgment with respect to defendant JI Specialty Services, holding that the record did not establish that governmental immunity precluded the trial court’s jurisdiction over the claims against MHMR’s third party administrator. The Court found the cases relied on by Specialty Services inapplicable, as they were decided on other grounds rather than any finding that the third-party administrator shared the government entity’s immunity. The Court noted that an Austin Court of Appeals opinion not cited by either party holding that the third party administrator for a state agency was entitled to assert sovereign immunity was based on the relationship between the administrator and the agency as defined by the terms of their contract, while there was no contract in evidence in this case, but cautioned the parties not to read into the discussion any suggestion of the Court’s opinion regarding whether a more developed record might support Specialty Services’ claim of immunity.Taylor v. Lubbock Regional MHMR, JI Specialty Services, Inc., Texas Council Risk Management Fund and TDI-DWC, issued January 8, 2013.