FOLIO CLIENT NEWSLETTER BY FLAHIVE, OGDEN & LATSON

Significance of Post-Designated Doctor Required Medical Examinations

A PRIVILEGED ATTORNEY—CLIENT COMMUNICATION BY FLAHIVE, OGDEN & LATSON

In alarming numbers, carriers are failing to pursue their right to a post-DD RME. This is an underutilized source that can turn a case around in favor of the car-rier.

A designated doctor may provide one or more opinions that are at odds with a carrier’s position on certified is-sues. For example, the designated doctor:

- Failed to put the claimant at MMI;

- Put the claimant at MMI but did not issue multiple certifications;

- Put the claimant at MMI and gave a high impairment rating;

- Found that the compensable injury ex-tended to a specific body part (that is incon-sistent with the carrier’s position);

- Found that the claimant had no ability to return to work;

- Found that the claimant’s inability to per-form the pre-injury employment is a direct result of the compensable injury;

- Found that there is an injury from the claimed incident.

To challenge the designated doctor’s report, the carrier should pursue a medical opinion that is an alternative to the designated doctor’s opinion. The carrier should pursue a post-DD RME to counter the opinion of the designated doctor. In some cases, a peer review should also be pursued. FO&L can assist carriers in pursuing both post-DD RMEs and peer reviews. If you need assistance, please email FO&L’s Designated doctor Department at DDR@fol.com.

Letters of clarification are of limited value. DWC, in a memorandum issued May 2, 2011, severely curtailed the use of letters of clarification. Moreover, carriers seldom receive the desired result from letters of clari-fication. While LOCs remain useful in limited situa-tions, the end result is that the carrier will generally require an alternate opinion from either a post-DD RME or a peer review.

For the issues of MMI and impairment rating, if the designated doctor’s report is the first assignment of an impairment rating and the carrier disagrees with that rating, the carrier should not only challenge that report by pursuing a post-DD RME and/or a peer review, but should also raise a dispute of the impairment rating. Challenging the report results in an alternate opinion. Disputing the report suspends the running of the 90-day Rule. A party may dispute the first impairment rating assigned by a designated doctor, solely by filing a DWC-45. A request for a letter of clarification does not raise a dispute of anything.

In This Issue…

Mileage Rate Change ………......……………….. p. 4

Discount Rate and Interest Rate Change…...p. 5

2011—Flahive, Ogden & Latson June 2011 - VOLUME 16, NO.6

FOLIO CLIENT NEWSLETTER BY FLAHIVE, OGDEN & LATSON 2

Flahive, Ogden & Latson, a 19 lawyer firm, defends

contested workers’ compensation cases statewide every day. The firm has represented insurance compa-

nies and employers before the Texas Workers’ Compen-sation agency for more than 50 years. For general ques-

tions concerning the newsletter call: (512) 435-2234.

Flahive, Ogden & Latson

P.O. Box 201329

Austin, TX 78720

If you are interested in receiving FOLIO by email, please let us know. FOLIO is prepared for the exclusive use of

Flahive, Ogden & Latson clients only. It contains privi-

leged communications and further sharing of this news-letter (in either hard copy or electronic format) outside

your company without the express written consent of Flahive, Ogden & Latson is not permitted.

FO&L OFFICE HOURS

Monday—Friday

8:15 a.m.—4:45 p.m.

If you need to call after 4:45 p.m. please call Patsy Shel-

ton at (512) 435-2234. She will be on duty until 6:00 p.m. daily.

Don’t wait until the last hour of the day for deadline filing. Any faxes with information due must be received

by 3:30 p.m. for any deadline handling for same day delivery to the Division, and faxed according to the fax

directory listed on the last page of FOLIO. Furthermore, if you have a last minute deadline, call our office by

3:00 p.m. and speak with Sally Matthews or Patsy Shel-ton to advise that a last minute filing is necessary to

meet a deadline. We will be watching and waiting for

the fax. Otherwise, last minute faxes could delay re-ceipt. Our last daily run to the Division will be at 4:00

p.m., in order to get across town to meet their 5:00 p.m. closing time.

Stop-Loss Cases Turn The Corner

The stop-loss disputes pending in the Travis County District Courts and at the Medical Review Division have been abated for years, pending final resolution of the Stop-Loss Test Case. The Hospitals’ appeals of the Court of Appeals judg-ment in that case came to a halt earlier this year. The Texas Supreme Court denied the Hospitals’ Petition for Re-view. So, the Court of Appeals has now issued its mandate that to be entitled to the extraordinary stop-loss reimburse-ment, the hospitals must prove the admission required unusu-ally costly and unusually extensive services, in addition to audited charges exceeding $40,000 (the so-called “two-prong test”).

This disposes of most of the legal issues. The Hospitals still maintain there are evidentiary issues to resolve. In any event, the Court of Appeals mandate provides the opportunity for the Trial Court and the Division to begin resolving these cases.

The cases pending at the Trial Court raised other legal issues. The carriers alleged the Hospitals have to return the money carriers paid under the SOAH decisions based upon the now-incorrect one-prong test, pending retrial of the fee dispute before the Division/SOAH. The Hospitals claimed entitle-ment to judgments in their favor in spite of the Court of Ap-peals mandate.

Those issues were tried to the court on June 13th in a group of test cases. We are happy to announce that in 47 of the test cases prosecuted by Texas Mutual Insurance Co., the Trial Court agreed the Hospitals must, pending any new SOAH decision to the contrary, return the money paid by the carri-ers, and that the carriers are entitled to a remand of the cases to the Division for reconsideration of the fee disputes under the two-prong test.

The Trial Court also rejected the Hospitals’ claims of entitle-ment to judgments in their favor on other grounds in two test cases defended by FOL.

FOLIO CLIENT NEWSLETTER BY FLAHIVE, OGDEN & LATSON 3

This now sets the procedural and legal grounds for the remand of most of the stop-loss cases back to the Divi-sion and for refunds of the payments made by carriers on the SOAH orders. Eventually, these cases will make their way back to MRD or SOAH as appropriate.

There is also a group of stop-loss cases, the so-called “Direct Appeal” cases, which made their way to the Trial Court directly from MRD during the two-year pe-riod the Labor Code did not provide for an interim de novo SOAH hearing. The test case rulings above, cou-pled with rulings in another constitutional test-case brought by the Hospitals (which they also lost), has set the stage for remand of those cases to MRD/SOAH for determinations using the two-prong test.

dates of injury on or after September 1, 2011. As noted in the adopted rules, the pharmacy closed formulary applica-bility date for claims with dates of injury prior to Septem-ber 1, 2011 (also referred to as “legacy claims”), occurs on or after September 1, 2013. The TDI-DWC will not process any official requests for such an MIO submitted before September 1, 2011.

Note: Requestors are reminded that in the case of a life-threatening emergency, injured employees should be ad-vised to go to the emergency room.

The DWC Form-064 is available for download from the T DI webs it e a t www. td i . s t a te. tx .us / forms/forrm20numberic.html.

If there are any questions regarding the information in this memorandum, contact Bill Wells at 512-804-5002 or Bill.Wells@tdi.state.tx.us. The Division Revised DWC

Form-064 to Comply with Closed Formulary Rules

The DWC Form-064, Medical Interlocutory Order Re-quest Form: Continued Use of a Drug Previously Pre-scribed and Dispensed and Excluded from TDI-DWC’s Closed Formulary, (MIO) has been revised to conform with the recently adopted pharmacy closed formulary (closed formulary) rules, 28 Texas Administrative Code §§134.500, 134.506, 134.510, 134.520, 134.530, 134.540, 134.550, and 133.306.

The 79th Texas Legislature required the adoption of a closed formulary pursuant to Texas Labor Code §408.028(b). The closed formulary is anticipated to bring more uniformity and certainty when prescribing drugs in both certified workers’ compensation network (network) and non-network claims and better coordinate health care pursuant to the TDI-DWC treatment guide-lines, the Official Disability Guidelines (ODG) Treat-ment in Workers’ Comp. The rules establishing the closed formulary were adopted by the Commissioner of Workers’ Compensation Rod Bordelon on December 3, 2010 and may be viewed on the TDI website at www.tdi.state.tx.us/wc/rules/adopted/index.html.

September 1, 2011 is the applicability date for the closed formulary rules for workers’ compensation claims with

The Division Is Accepting Comments on Informally

Proposed Rules

The Texas Department of Insurance, Division of Workers’ Compensation (TDI-DWC) is accepting comment on infor-mally proposed rules to amend 28 Texas Administrative Code (TAC) §§141.2, 141.3 and 143.2 regarding cancelling or re-scheduling a benefit review conference, failure to attend a benefit review conference and description of the appeal pro-ceeding. The informal working draft was published on June 27, 2011 and may be viewed on the TDI website at http://www.tdi.state.tx.us/wc/rules/drafts.html. The comment pe-riod on the informal proposal closes on Monday, July 18, 2011 at 5 p.m. Central Standard Time. This informal working draft is not a formal rule proposal; accordingly, comments will not be treated as formal public comment for the purposes of the Texas Administrative Proce-dure Act. In addition to commenting on this informal pro-posal, there will be the opportunity to formally comment once the rules are proposed and published in the Texas Register. The informal working draft may contain drafting notes and formatting which will be changed as necessary to comply with the Texas Register formatting.

FOLIO CLIENT NEWSLETTER BY FLAHIVE, OGDEN & LATSON 4

The Division Will Conduct a Follow-up Audit of

Designated Doctor Exams

The Division of Workers’ Compensation will be engaging in a follow-up audit to the April 2010 Designated Doctor Re-view. The scope of the audit will focus on the accuracy of certifications of maximum medical improvement and impair-ment ratings assigned under the 4th edition of the AMA Guides to the Evaluation of Permanent Impairment and the basis for determining the accuracy and appropriateness of medical care under the Medical Quality Review Procedure, the Act, and the administrative rules. For this follow-up au-dit, the Division will select 11 designated doctors who re-ceived a letter of education following the April 2010 audit. The Division will not, however, review any examinations where a dispute was later raised by any party concerning the designated doctor’s certification of MMI or impairment rat-ing. The Division will be reviewing examinations that took place between November 1, 2010 through April 30, 2011.

Comments may be submitted by e-mailing Informal-RuleComments@tdi.state.tx.us or by mailing or deliv-ering the comments to:

Texas Department of Insurance, Division of Workers’ Compensation Maria Jimenez Workers’ Compensation Counsel MS - 4D 7551 Metro Center Drive, Suite 100 Austin, Texas 78744 -1645

The purpose of the informal working draft is to request input from workers’ compensation system participants regarding the formulation of rules that would imple-ment statutory amendments to the Texas Labor Code §410.028 and §410.204 under House Bill (HB) 2605, enacted by the 82nd Legislature, Regular Session, ef-fective September 1, 2011. The informal working draft defines good cause for rescheduling a benefit review conference and good cause for failing to attend a bene-fit review conference, and clarifies procedures for re-scheduling before the scheduled benefit review confer-ence and after failing to attend a benefit review confer-ence. This informal working draft also incorporates into rules governing the Appeals Panel provisions in HB 2605 regarding written decisions on affirmed cases.

If there are any questions regarding the information in this memo, contact James Dodds at (512) 804-4725 or James.Dodds@tdi.state.tx.us.

The Division Announces State Mileage Rate Change

Rule 134.110(d) requires carriers to reimburse injured employees for qualified travel based on the travel rate for state employees on the date travel occurred. On July 1, 2011, the rate of 51 cents per mile will increase to 55.5 cents per mile.

Rule 134.110 ties the rate of travel reimbursement to the travel rate for state employees. This is found on the Texas Comptroller’s website at the following address: https://fmx.cpa.state.tx.us/fm/travel/travelrates.php.

Since 2010, the maximum meal and lodging rates have been tied to the US General Services Administration’s federal do-mestic maximum per diem rates. Therefore, carriers must check the GSA’s website to determine the maximum meal and lodging rates, based on the county to which the travel takes place.

The GSA’s federal Domestic Maximum Per Diem Rates can be found at: http://www.gsa.gov/portal/category/21287. Note that these rates are considerably different than the $85 $36 rates. Lodging and meal rates for Austin, for instance, are $104 and $71.

If the city is not listed, but the county is listed; the rate of reim-bursement is the rate of the county. For areas not listed (city or county), the maximum rates are:

Lodging In-State: up to $85

Meals In-State: up to $36

This rate change is applicable to any qualified travel that oc-curs on or after July 1, 2011. For travel occurring before that date, the earlier rates apply.

FOLIO CLIENT NEWSLETTER BY FLAHIVE, OGDEN & LATSON 5

FOLIO CLIENT NEWSLETTER BY FLAHIVE, OGDEN & LATSON 6

Texas Division of Workers’ Compensation

Appeal No. 110547 In seeking Supplemental Income Benefits, under the claim that the injured employee has an inability to perform any type of work in any capacity, under Rule 130.102(d)(1), to meet the requirements of a narrative report from a doctor that spe-cifically explains how the injury causes a total inability to work, the medical report must specifically explain how the injury caused a total inability to work.

In seeking Supplemental Income Benefits, under the claim of an inability to perform any type of work in any capacity, under Rule 130.102(d)(1), if there is any medical evidence of an ability to work, any subsequent report from a doctor must explain how the claimant’s compensable injury caused a total inability to work after his earlier release to return to work in some capacity, to explain why the injured worker can no longer work.

Facts: Claimant sustained severe traumatic injuries, including a head injury, for which he was assigned 42% impair-ment rating, and he applied for supplemental income benefits (SIBs). The claimant sought entitlement to SIBs based on a total inability to work. A dispute arose on claimant’s entitlement to the 6th, 8th, and 9th quarters of SIBs. At the CCH on the issues of entitlement to SIBs for these three quarters, the claimant testified he had not worked since the date of the injury. The hearing officer found claimant was unable to perform any type of work in any capacity during the 6th quarter qualifying period, and noted in the Background Information section of his decision that the claimant’s inability to work is reflected in the medical records of Dr. H, Dr. P, and from the testimony from Dr. A. The Decision and Order did not identify which medical record constituted a narrative report that explains how the work injury caused a total inability to work during any of the quarters. The hearing officer determined that 1) claimant is entitled to SIBs for the 6th, 8th and 9th quarters, and that Dr. P was properly appointed as the designated doctor. The carrier appealed the hearing officer’s deter-minations. Claimant responded, urging affirmance.

Holding: Affirmed in part and reversed and rendered in part. The Appeals Panel affirmed the determinations that Dr. P was properly appointed as the designated doctor and that claimant was entitled to the 8th quarter of SIBs. On the 6th and 9th quarters of SIBs, the Appeals Panel reversed and rendered on the following grounds. The Appeals Panel noted that the eligibility criteria for SIBs entitlement set forth in §408.142, effective September 1, 2005, references the require-ments of §408.1415 regarding work search compliance standards. Pursuant to §408.1415(a), the Division adopted Rules 130.100-130.109 for compliance for SIBs recipients. These rules are effective for all periods in question in this hearing.

In its pertinent part, Rule 130.102(d)(1), states that an injured employee demonstrates an active effort to obtain employ-ment by meeting at least one or any combination of the following work search requirements each week during the entire qualifying period: (E) has been unable to perform any type of work in any capacity, has provided a narrative report from a doctor that specifically explains how the injury causes a total inability to work, and no other records show that the in-jured employee is able to return to work. The Appeals Panel reviewed Dr. H’s and Dr. T’s medical reports, and noted that each doctor stated the following:

Claimant continues to have worsening cognitive function. He is noted to have repetition of the same questions without being able to retain the information. He also continues to have balance and vestibular problems and continues to intermittently use a single-point cane. We await approval from Workers’ Com-pensation for neuropsychological testing. This will provide objective data for complaints of cognitive de-cline. It is my opinion that claimant is not able to return to competitive employment now or in the future.

FOLIO CLIENT NEWSLETTER BY FLAHIVE, OGDEN & LATSON 7

The Appeals Panel concluded that neither letter specifically explained how the injury caused a total inability to work, so neither letter was sufficient to meet requirements of Rule 130.102(d)(4). These were the only records in existence during the 6th quarter qualifying period. Therefore, the Appeals Panel reversed the hearing officer’s determination that claimant was entitled to the 6th quarter of SIBs, and rendered a new decision that the claimant is not entitled to SIBs for the 6th quarter.

For the 9th quarter qualifying period from June 27, 2010 through September 25, 2010, claimant argued entitlement to SIBs based on a total inability to work, and in the alternative that he made job searches. The Appeals Panel reviewed the medical evidence and noted Dr. T’s September 20, 2010, report, which discussed claimant’s inability to work as follows:

I had previously recommended return to work with restrictions, as the claimant had been doing better clinically. At the time of his most recent visit with me on 9/20/10, it appears that the claimant has worsened clinically to the point where I do not believe he should attempt work re-entry. Given his head injury, claimant is more sensitive to other medical issues that may arise, for which the net effect has been a decrease in functional status. For this reason, I have placed him on a ‘no-work restriction’ and will plan on re-evaluating this status at the time of our next appointment in 3 months.

The Appeals Panel noted an earlier letter from Dr. T dated June 18, 2010, just before the 8th quarter qualifying period, stating claimant can return to work with the following restrictions: 1) Work in a non-stress single-minded focused task work setting as opposed to a multitask environment; 2) No driving or operating heavy machinery due to seizure precau-tions; 3) No climbing heights; and 4) No activity that would put claimant or others at risk should claimant have a seizure.

The Appeals Panel found that although Dr. T’s September 2010 letter constituted a narrative meeting the requirements of Rule 130.102(d)(4), Dr. T’s June 2010 letter, issued just 9 days prior to the start of the 9th quarter qualifying period, was an other record, as discussed in Rule 130.102(d)(1), that shows the claimant had an ability to work for at least part of the 9th quarter qualifying period. The Appeals Panel found that Dr. T did not explain in his September 2010 letter how the claimant’s compensable injury caused a total inability to work from June 18 through September 20, 2010, the date he opined the claimant could no longer work.

The Appeals Panel therefore found that because the evidence contained a record showing the claimant had some ability to work during the 9th quarter qualifying period and because the claimant failed to make the required number of job searches for the 9th quarter qualifying period, the claimant has not met the eligibility requirements for the 9th quarter SIBs. The Appeals Panel reversed the hearing officer’s determination that the claimant is entitled to SIBs for the 9th quarter, and rendered a new decision that the claimant is not entitled to SIBs for the 9th quarter.

Texas Division of Workers’ Compensation

Appeal No. 110509 Under §408.125(c) and Rule 130.1(c)(3), if the report of the designated doctor fails to provide and to document the re-quired objective and clinical and laboratory findings on which an impairment rating is assigned, then the designated doctor’s report shall not have presumptive weight and the Division shall adopt the impairment rating of one of the other doctors.

Facts: Claimant had an undisputed head injury and undisputed date of MMI, October 2, 2009. The Division appointed Dr. I to determine MMI and impairment rating. Dr. I examined the claimant in January 2010. Dr. I diagnosed claimant

FOLIO CLIENT NEWSLETTER BY FLAHIVE, OGDEN & LATSON 8

with 1) facial contusions; 2) status post root canal of teeth; 3) headaches; and 4) head concussion with brain contusion and mental impairment/continual confusion (change in mental status). Dr. I certified that the claimant reached MMI on October 2, 2009, and assigned a 5% impairment for a Class II impairment for mental status regarding the claimant’s head trauma. In her narrative report, Dr. I stated that her impairment rating was based on the AMA Guides “Change in mental status-Class 2 for 5% impairment, assigning 0% impairment for headaches or the other conditions. Dr. I did not include in her narrative report a list of what medical records she reviewed or any testing done or reviewed in connection with the claimant’s mental status. Dr. I did not provide any explanation for assigning 5% impairment for a change in mental status.

In March 2010, a Neuropsychological Evaluation was conducted by Dr. M, a clinical neuropsychologist, and this lead to the diagnoses of cognitive disorder, major depressive disorder, and traumatic brain injury.

In August 2010, Dr. P, a doctor selected by the treating doctor, examined the claimant and certified claimant reached MMI on October 2, 2009. Dr. P assigned a 20% impairment rating, based upon a finding of traumatic brain injury, under Table 2 Mental Status Impairments, due to claimant’s need for supervision of daily living activities.

A dispute arose regarding the impairment. The above-referenced medical evidence was included in the hearing evidence. The hearing officer determined that the claimant’s impairment rating is 5%. The claimant appealed. The carrier re-sponded, urging affirmance.

Holding: Reversed and rendered. The Appeals Panel noted that under §408.125(c), the report of the designated doctor shall have presumptive weight, and the Division shall base the impairment rating on that report unless the preponderance of the other medical evidence is to the contrary, and that, if the preponderance of the medical evidence contradicts the impairment rating of the designated doctor, the Division shall adopt the impairment rating of one of the other doctors. The Appeals Panel also noted that under Rule 130.1(c)(3), the assignment of an impairment rating shall be based on the medical records and the certifying examination, and the doctor assigning the impairment rating shall: a) identify objec-tive clinical or laboratory findings of permanent impairment; b) document specific laboratory or clinical findings of an impairment; c) analyze specific clinical and laboratory findings of an impairment; and d) compare the results of the analysis with the impairment criteria and provide the following: (i) a description and explanation of specific clinical findings related to each impairment, including a zero percent (0%) impairment; and (ii) a description of how the findings relate to and compare with the criteria described in the applicable chapter of the AMA Guides. The doctor’s inability to obtain required measurements must be explained.

The Appeals Panel found that Dr. I did not include in her narrative report a list of what medical records were reviewed or any testing done or reviewed in connection with the claimant’s mental status. The Appeals Panel also noted that Dr. I did not provide any explanation for assigning 5% impairment rating for a change in mental status. The Appeals Panel there-fore concluded that Dr. I failed to provide and to document the required objective and clinical and laboratory findings on which her 5% impairment rating was based as required under Rule 130.1(c)(3)(citing to its prior rulings, APD No. 951447 and APD No. 030622).

The Appeals Panel concluded that the hearing officer erred in finding that the preponderance of the medical evidence was not contrary to the designated doctor’s impairment rating because Dr. I did not explain what rating criteria under the AMA Guides were utilized in rating the claimant’s mental status. The Appeals Panel therefore reversed the hearing offi-cer’s determination that the impairment rating is 5%, and determined that Dr. P’s assigned 20% impairment rating was in accordance with the AMA Guides and could be adopted. The Appeals Panel rendered a new decision that the claimant’s IR is 20%.

Q: The injured worker was sent to a referral doctor

for an evaluation of maximum medical improvement and impairment. The exam took place on May 15, 2011, but the carrier has not received the report yet. Are refer-ral doctors required to issue a report within a certain period of time following the exam?

A: Yes. The report of medical evaluation

shall be filed with the Division, the employee, and the carrier no later than the seventh working day after the later of the date of the certifying examination or the re-ceipt of all of the medical information. See Rules 130.3(a) and 130.1(d)(2).

Q: The carrier receives many calls from healthcare

providers attempting to get a verbal approval from the carrier for healthcare services. What information should the carrier convey to the healthcare provider?

A: The Division’s Advisory 98-06 pro-

vided the following guidance: If a health care provider or pharmacy contacts a carrier before services are pro-vided, and preauthorization is not required for the spe-cific services, the carrier must confirm whether or not coverage exists and should inform the requestor that preauthorization is not required. The confirmation of coverage can be accomplished by informing the request-ing person that (1) the carrier will pay for the reasonable and necessary medical treatment if it is related to the compensable injury, or (2) a workers’ compensation policy (was/was not) in effect for the date of injury. Unless the specific service or treatment requires preau-thorization under Rule 134.600, a carrier shall not file prospective disputes on the reasonableness or necessity of the treatment being requested. Verification of cover-age does not bind the carrier or limit the carrier’s ability

G Q CORNER to retrospectively dispute the reasonableness or necessity of treatment after the carrier receives a bill for the services. A carrier should inform a health care provider about a dispute, and the status of the dispute, when the insurance carrier has already filed a notice of dispute (PLN-1 or PLN-11) with the Division which disputes compensability or the extent of the compensable injury.

Although not in the Advisory, we further recommend that in those circumstances where a designated doctor has ren-dered an opinion concerning the extent of the compensable injury that is contrary to the carrier’s position, the carrier should acknowledge that it will pay benefits according to the designated doctor’s report until or unless it is over-turned by an administrative decision by the Division.

Q: Is there a Division rule that requires the carrier to

issue to the injured worker the PLN-2 (Notification of First Temporary Income Benefit Payment) in the same envelope as the physical check?

A: There is no such requirement. Sending

payment and sending notice of payment are two separate actions required by the carrier and these actions actually have different deadlines. Compare Rules 124.2(e)(1) and (f) (Carrier Reporting and Notification Requirements) with 124.7(c) (Initial Payment of Temporary Income Benefits).

Q: A healthcare provider asserts that the carrier im-properly denied its medical bill for services performed in July of 2008. Can the carrier now assert that it does not have to pay the bill because the provider failed to file a re-quest for medical dispute resolution within one year of the date of service?

A: The carrier will want to ensure that its

reasons for the denial listed in its Explanation of Benefits (EOB) are correct and supported by the evidence. Re-gardless of any statute of limitations defense, the carrier may still be liable for an administrative violation if it im-properly denied a medical bill. The one-year statute of limitations defense found in Rule 133.307(c)(1)(A) (MDR of Fee Disputes) is not a defense against the re-quested payment of a medical bill, but rather it prohibits the provider from requesting the Division to review and to render a decision concerning the dispute. The carrier must still have a legitimate defense against the request for reimbursement listed in its EOB.

Q: The injured worker suffered a compensable in-jury to his left knee. The employer requires a drug screen test after each reported work-related injury. The injured worker did not comply with this requirement and he was ultimately terminated 3 weeks later. The injured worker was released to light-duty which he was performing at the same hourly rate but reduced hours as compared to his pre-injury hours. Does the carrier owe the full amount of temporary income benefits or can the carrier argue that the injured worker’s lost wages were caused by removing himself from employment by failing to comply with the employer’s policy?

A: The carrier owes the full amount of tem-

porary income benefits as long as the compensable injury limits the injured worker’s ability to perform his pre-injury job. Even when the injured worker was working light-duty, he still had disability because he was working reduced hours. In other words, the injured worker had lost time from work due to the compensable injury be-cause his post-injury earnings (PIE) were less than his average weekly wage (AWW). There is no statutory or

case law authority which would allow the carrier to take as a credit the injured worker’s PIE beyond the date the employer terminated the employment relationship. See Rule 129.2.

Q: The carrier has difficulty with getting the em-

ployers to complete the wage statement (DWC-3). Often, they will send the wage information without completing the wage statement. Is there any requirement that the employer must complete a wage statement, DWC-3?

A: Section 408.063(b) provides that within 30 days after the date the employer receives notice of injury, the employer shall file a wage statement. It is an administrative violation if the employer fails to file a wage statement. See § 408.063(c). By agreement be-tween the parties, however, Rule 120.4(b) permits the employer to orally file the wage statement with the car-rier. The carrier may also agree to provide the wage statement to the injured worker and his representative. Ultimately, it is the employer who remains responsible for ensuring timely delivery of the wage statement and who has the burden to prove that it was timely filed.

G Q CORNER

FOLIO CLIENT NEWSLETTER BY FLAHIVE, OGDEN & LATSON 11

ATTORNEY& PARALEGAL DIRECTORY

Attorneys

Attorney Direct Dial

(512)

Direct Fax (512)

E-Mail Initials@fol.com

Paralegal Initials @fol.com

Paralegal Direct Dial

(512)

Bobby Stokes 435-2150 241-3305 RDS Anita Drake 435-2249

Carlos Acosta 435-2177 241-3312 CA1 Marilyn Mueller 435-2229

Chuck Finch 435-2158 241-3313 CCF Kristi Wilson 435-2263

Greg Solcher 435-2175 241-3318 GDS Shannon Burgess 435-2298

Jack Latson

(Of Counsel)

435-2156 241-3301 JWL Patsy Shelton 435-2234

James Sheffield 435-2169 241-3303 JRS Sharissa Karol 435-2224

Jeremy Lord 435-2184 241-3311 JXL Anita Drake 435-2249

Kevin MacEwan 435-2166 241-3306 KEM Sharon Barton 435-2233

Kevin Poteete 435-2163 241-3328 KSP Brandi Senters 435-2219

Lynette Phillips 435-2165 241-3308 LLP Sharon Barton 435-2233

Nancy Ippolito 435-2181 241-3321 NHI Kristi Wilson 435-2263

Paul Stone 435-2157 241-3316 PBS Karen Vanloo 435-2240

Pamela Pierce 435-2152 241-3336 PEP Shannon Burgess 435-2298

Rebecca Strandwitz 435-2160 241-3320 RMS Gina Flowers 435-2241

Rhett Robinson 435-2154 241-3309 SRR Marilyn Mueller 435-2229

Roy Leatherberry 435-2179 241-3314 RJL Gina Flowers 435-2241

Scott Bouton 435-2153 241-3337 SDB Brandi Senters 435-2219

Steve Tipton 435-2162 241-3304 SMT1 Mary Casebier 435-2275

Tricia Blackshear 435-2180 241-3323 PHB Mary Casebier 435-2275

FOLIO CLIENT NEWSLETTER BY FLAHIVE, OGDEN & LATSON 12

Task Contact Person Direct Dial

(512)

Fax No.

(512)

E-Mail

Admin. Violations - Compliance

Insurance Coverage - DWC-20s

Seminar Coordinator

Patsy Shelton

FO&L Office Manager 435-2234 241-3301 pgs@fol.com

Client Consultant

Web Vendor Billing Contact

Trina DeCecco

Client Consultant 435-2239 241-3300 tad@fol.com

Designated Doctor Services

A-G: Gayle Lowe

H-Q: Kim Turko

R-Z: Brian Lam

435-2294

435-2262

435-2299

241-3349

pgl@fol.com

krt@fol.com

btl@fol.com

Docketing - BRC Coordinator Cindi Friedel

Docketing Manager 435-2244 241-3347 caf@fol.com

DWC Filings - PLNs - DWC-45

Set Notices for Upcoming

BRC & CCH Notices

Sally Matthews

DATA Manager

435-2237 477-4996

slm@fol.com

IRO Requests Katie Foster

MRD Manager 435-2266 241-3333 ktf@fol.com

Medical Dispute Resolution Kim Lunday 435-2267 241-3333

ksl@fol.com

Personnel - FOL Support Staff Sharissa Karol

Personnel Manager 435-2224 241-3303 sdk@fol.com

Records Request/Photostats Emily Crim 435-2220 241-3317 recordsrequest@fol.com

Texas Workers’ Compensation Manual Sales

Jordan Kazmann 482-9710 472-9160 jpk@cov-press.com

General Questions

(DWC Rep. Clients) Receptionist 477-4405 241-3300 gqs@fol.com

RME Service Brian Lam 435-2299 241-3332 blt@fol.com

KEY TASK DIRECTORY To help expedite your email or faxed information to the correct area within FO&L and get it to the responsible person at the earliest time, use the following fax directory. Please remember the 3:30 p.m. receipt deadline for material required to be date stamped at the Division. Material received after 4:00 p.m. does not permit time to deliver it across town prior to the DWC close.