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FOLIO CLIENT NEWSLETTER BY FLAHIVE, OGDEN & LATSON NEW LINE-OF-DUTY PAY CASE IS A BIG DIEHL FOR CITIES A PRIVILEGED ATTORNEY—CLIENT COMMUNICATION BY FLAHIVE, OGDEN & LATSON The El Paso Court of Appeals has issued an important opinion for governmental entities who are required to pro- vide line of duty pay to police officers and firefighters under § 143.073 of the Texas Local Government Code. In City of San Antonio v. Diehl, the court considered the interplay between a self-insured city’s obligation to pay workers’ compensation benefits to an injured employee who might also be entitled to line of duty pay under the Local Government Code. The court recognizes a right of recoupment of overpaid line of duty payments, and de- scribes how that recoupment can be taken. The case construes an earlier decision from the San Anto- nio court of appeals, The City of San Antonio v. Vakey, 123 S.W.3d 497 (Tex.App.--San Antonio 2003, no pet.). As the Diehl court noted, in Vakey, the City paid line of duty pay equal to Vakey’s full pay for one year pursuant to Section 143.073 of the Local Government Code. The City also paid Vakey temporary income benefits in accor- dance with the workers’ compensation statutes. After Vakey returned to work, the City began making deduc- tions from his paycheck. Vakey obtained a temporary re- straining order preventing the City from making any fur- ther deductions. The City argued that overpayments to Vakey were overpayments of workers’ compensation benefits. In upholding the injunction, the San Antonio Court of Appeals construed Section 504.051 as follows: Section 504.051 permits the City to off- set the amounts paid for temporary in- come benefits under the workers’ com- pensation statutes by the amounts paid for line of duty pay under section 143.073. See TEX.LAB.CODE ANN. § 504.051 (Vernon 1996). In applying the offset, the amount paid under sec- tion 143.073 is reduced, not the work- ers’ compensation benefits. Texas Workers’ Compensation Commission, Appeal No. 931084, 1994 WL 20165 (Jan. 12, 1994). The court continued by noting that if the City failed to make the offset by reducing the amount paid pursuant to Section 143.073, “the question becomes whether the City can later reduce an employee’s wages to recoup the overpayment.” The court then answered the question in the affirmative: Section 504.051(b) states, ‘If benefits are offset, the employer may not with- hold the offset portion of the employee’s wages until the time that benefits under this chapter are received.’ See TEX.LABOR CODE ANN. § 504.051 (b)(Vernon 1996). This appears to permit an employer to withhold wages on a later date after benefits are received, ‘if benefits are offset.’ Diehl describes whether that offset can be accomplished and, if so, how it should be taken: 2012—Flahive, Ogden & Latson APRIL 2012 - VOLUME 17, NO. 4 In This Issue… Get to Know FO&L …………………………..p. 5 General Q&A ...…………………….... p. 15

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  • FOLIO CLIENT NEWSLETTER BY FLAHIVE, OGDEN & LATSON

    NEW LINE-OF-DUTY PAY CASE IS A BIG DIEHL FOR CITIES

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

    The El Paso Court of Appeals has issued an important opinion for governmental entities who are required to pro-vide line of duty pay to police officers and firefighters under § 143.073 of the Texas Local Government Code.

    In City of San Antonio v. Diehl, the court considered the interplay between a self-insured city’s obligation to pay workers’ compensation benefits to an injured employee who might also be entitled to line of duty pay under the Local Government Code. The court recognizes a right of recoupment of overpaid line of duty payments, and de-scribes how that recoupment can be taken.

    The case construes an earlier decision from the San Anto-nio court of appeals, The City of San Antonio v. Vakey, 123 S.W.3d 497 (Tex.App.--San Antonio 2003, no pet.).

    As the Diehl court noted, in Vakey, the City paid line of duty pay equal to Vakey’s full pay for one year pursuant to Section 143.073 of the Local Government Code. The City also paid Vakey temporary income benefits in accor-dance with the workers’ compensation statutes. After Vakey returned to work, the City began making deduc-tions from his paycheck. Vakey obtained a temporary re-straining order preventing the City from making any fur-ther deductions. The City argued that overpayments to Vakey were overpayments of workers’ compensation benefits. In upholding the injunction, the San Antonio Court of Appeals construed Section 504.051 as follows:

    Section 504.051 permits the City to off-set the amounts paid for temporary in-come benefits under the workers’ com-pensation statutes by the amounts paid for line of duty pay under section 143.073. See TEX.LAB.CODE ANN. § 504.051 (Vernon 1996). In applying the offset, the amount paid under sec-tion 143.073 is reduced, not the work-ers’ compensation benefits. Texas Workers’ Compensation Commission, Appeal No. 931084, 1994 WL 20165 (Jan. 12, 1994).

    The court continued by noting that if the City failed to make the offset by reducing the amount paid pursuant to Section 143.073, “the question becomes whether the City can later reduce an employee’s wages to recoup the overpayment.” The court then answered the question in the affirmative:

    Section 504.051(b) states, ‘If benefits are offset, the employer may not with-hold the offset portion of the employee’s wages until the time that benefits under this chapter are received.’ See TEX.LABOR CODE ANN. § 504.051(b)(Vernon 1996). This appears to permit an employer to withhold wages on a later date after benefits are received, ‘if benefits are offset.’

    Diehl describes whether that offset can be accomplished and, if so, how it should be taken:

    2012—Flahive, Ogden & Latson APRIL 2012 - VOLUME 17, NO. 4

    In This Issue…

    Get to Know FO&L …………………………..p. 5

    General Q&A ...…………………….... p. 15

  • 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.

    The City construes Vakey to mean that all pay-ments above and beyond Diehl’s full salary are necessarily overpayments of line of duty pay. This appears to be a logical conclusion. It is clear from Vakey that workers’ compensation benefits are paid first, and the difference be-tween the TIBs and the employee’s full salary is supplemented by line of duty pay.

    The court goes on to hold that a city may adopt a policy that pays an officer full salary during the period in which the offi-cer also receives full workers’ compensation benefits, so as to prevent the officer from encountering hardships based on auto-matic deductions from his pay checks. The court also holds that a City is not prohibited from recouping those overpay-ments at a later date. Any overpayments of line of duty pay-ments may be recouped to the extent that the employee re-ceives 100 percent of his full salary.

    The San Antonio court’s holding in Vakey has been questioned by other courts. However, the El Paso Court of Appeals was not free to question the Vakey holding because it heard the case under a docket equalization transfer from the San Antonio Court of Appeals. Because the El Paso court was so con-strained, the Diehl opinion does not reconsider whether Vakey was correctly decided. Similarly, the Diehl opinion does not explore the limits of a city’s right to reimbursement for line of duty overpayments (assuming the correctness of the Vakey holding) or reimbursement for workers’ compensation benefits overpayments (assuming that Vakey was incorrectly decided).

    Diehl is also notable for its treatment of the claimant’s attempt to appeal from a Division decision with which it essentially agreed. The court agreed with the City that Diehl could not file suit for judicial review of a decision in which the claimant had prevailed.

    Only a party that has exhausted all its administrative remedies and that is aggrieved by a final decision of the appeals panel may seek judicial review. TEX.LAB.CODE ANN. § 410.251 (West 2006). A party is aggrieved only when the loss result-ing from the final decision is actual and immediate. Insurance Company of the State of Pennsylvania v. Orosco, 170 S.W.3d 129, 133 (Tex.App.--San Antonio 2005, no pet.). The future defense of a personal injury lawsuit is not an actual and imme-diate loss. See Orosco, 170 S.W.3d at 133 (the possibility of a future loss is not an actual and immediate loss).

  • FOLIO CLIENT NEWSLETTER BY FLAHIVE, OGDEN & LATSON 3

    Health Care Providers Pain Management Services

    (Opioids) Plan-Based Audit

    Here, the TDI-DWC, determined that Diehl was enti-tled to receive workers’ compensation benefits, did receive such benefits, and that there were no overpay-ments of those benefits. The Division’s decision did not require Diehl to pay any money nor did it author-ize the City to recoup funds. In fact, it could not have done so, as the panel duly noted. Therefore, Diehl was not aggrieved by the Appeals Panel decision and lacked standing to appeal. See In re Texas Mutual Insurance Company, 331 S.W.3d 70 (Tex.App.--Eastland 2010, orig. proceeding). Because the trial court erred in denying the City’s plea to the jurisdic-tion, we sustain Issue One.

    Overview

    The Texas Department of Insurance, Division of Workers’ Compensation (TDI-DWC) is required by Texas Labor Code §413.002 to “monitor health care providers, insurance carriers, independent review or-ganizations, and workers’ compensation claimants who receive medical services to ensure the compliance of those persons with rules adopted by the commis-sioner relating to health care, including medical poli-cies and fee guidelines.”

    Medical quality reviews may be initiated from either a complaint, a plan-based audit, or monitoring resulting from a consent order. The TDI-DWC’s Medical Advi-sor oversees the medical quality review process con-ducted by the Medical Quality Review Panel (MQRP). Medical quality reviews performed by the MQRP Ex-perts (Expert) aid the TDI-DWC both to monitor com-pliance with the Texas Workers’ Compensation Act (Act) and Rules and to help ensure that injured em-ployees in the workers’ compensation system receive medically necessary and appropriate health care that is

    timely and cost-effective, and facilitates functional recovery and appropriate return-to-work outcomes.

    The TDI-DWC acknowledges that prescription drug abuse and misuse, including opioids, is a serious issue in all health care delivery systems, including workers’ compensation. In an ef-fort to promote prompt, high quality health care to injured em-ployees while ensuring effective cost control, the TDI-DWC, based on legislative authority granted to it by the Texas Legis-lature, has adopted and implemented several rules that provide the tools necessary for the TDI-DWC and other system partici-pants to track prescription drug utilization and curb unneces-sary medical care. These tools include the adoption of evi-dence-based treatment guidelines, a closed pharmacy formu-lary, pre-authorization procedures for medical treatment/services, medical dispute resolution processes/procedures, medical billing and coding requirements for pharmacy ser-vices, a pharmacy fee guideline, medical data reporting re-quirements and doctor monitoring procedures through the MQRP. This proposed plan-based audit is designed to focus attention on the issue of opioid utilization in the Texas work-ers’ compensation system through the review of the initial pre-scribing doctor.

    Purpose for Plan-Based Audit

    Promote the delivery of quality health care in a cost-effective manner, including protection of injured em-ployee safety;

    Ensure that health care providers adhere to the Official Disability Guides and medically accepted standards of care for prescribing pain management services including opioids; and

    Assess return-to-work outcomes.

    Scope and Methodology for Plan-Based Audit

    Health care providers who have prescribed opioids to in-jured employees:

    where the initial prescribing doctor prescribed an opioid less than 10 days from the date of injury; and

    where the total day supply of opioids on a claim from any health care provider is greater than 30 days.

    The basis for determining the medical necessity and ap-propriateness of health care services is outlined in Section

  • FOLIO CLIENT NEWSLETTER BY FLAHIVE, OGDEN & LATSON 4

    II of the Medical Quality Review Procedure. See also Texas Labor Code Section 413.002.

    Selection Criteria for Plan-Based Audit

    The statistical toolbox developed by the State Auditor’s Office (may) be used to determine:

    Subject Selection--Select the top 15 health care providers who served as the first pre-scribing doctor for opioids.

    Select a sample size at a 95% confidence level with a minimum of 5 cases selected.

    Time frame to select data--Dates of injury of 1/1/10 through 12/31/10 and Opioid prescrip-tions dispensed during 1/1/10 through 8/31/11.

    Exclusions:

    Health care providers previously reviewed in FY11 or currently under review by the MQRP in FY 11 for this issue as outlined in Section III.

    Health care providers currently undergo-ing a quality of care complaint investiga-tion for this issue as outlined in Section III.

    Injured employees with dates of injury prior to 1/1/10 and after 1/1/11.

    Injuries prior to 1/1/10 will be ex-cluded as a result of unreliable data in identifying the prescribing doctor re-ported to the TDI-DWC.

    Injuries after 1/1/11 will be excluded as a result of the Medical State Re-porting data (i.e., Medical EDI data) not having matured for these claims.

    Prescriptions dispensed after 8/31/11 (excluded as a result of the Medical State Reporting data not having matured for these claims).

    Health care providers who have less than 5 injured employees that meet the selection criteria.

    TDI-DWC Accepting Comments on Rules

    134.803, 134.804, and 134.807

    The Texas Department of Insurance, Division of Workers’ Compensation (TDI-DWC) is accepting comment on infor-mally proposed rules to amend Rules 134.803, 134.804, and 134.807 of Title 28 of the Texas Administrative Code regard-ing Medical Bill Reporting. The informal proposal was pub-lished on April 24, 2012 and may be viewed on the TDI web-site at http://www.tdi.texas.gov/wc/rules/drafts.html. The com-ment period on the informal proposal closes Thursday, May 24, 2012.

    The purpose of the informal proposal is to request input from workers’ compensation system participants regarding modifi-cations to the existing rules relating to Medical Bill Reporting. The current rules related to medical electronic data inter-change (EDI) reporting adopt a standard which utilizes Inter-national Classification of Diseases, 9th Revision, Clinical Modification (ICD-9-CM codes). Current federal regulations require utilization of International Classification of Diseases, 10th Revision, Clinical Modification and Procedural Coding System (ICD-10-CM and ICD-10-PCS) by October 1, 2013, however, the federal Department of Health and Human Ser-vices (HHS) has published a formal rule proposal that pro-poses a new compliance date of October 1, 2014. In order to allow for compliance with the federal regulation, TDI-DWC is seeking comment from system participants to determine which of the two proposed options would be preferred.

    Option 1 is identified as Draft Rule Changes for Retaining the IAIABC EDI Implementation Guide, Release 1. This first op-tion retains the use of the IAIABC EDI Implementation Guide,

    Any prescribing doctor other than an MD or DO as re-ported through Medical State Reporting.

    Claims where a surgical procedure was billed through Pro-fessional Billing as reported through Medical State Report-ing.

  • FOLIO CLIENT NEWSLETTER BY FLAHIVE, OGDEN & LATSON 5

    Release 1, but requires insurance carriers to populate ICD-10-CM and ICD-10-PCS codes in the data ele-ments for the ICD-9 data elements using the ICD-10 codes when appropriate.

    Option 2 is identified as Draft Rule Changes for Adopting the IAIABC EDI Implementation Guide, Release 2. This second option adopts by reference the IAIABC Workers’ Compensation Medical Bill Data Reporting EDI Implementation Guide, Release 2.0, dated February 1, 2012 (IAIABC EDI Implementation Guide, Release 2). The IAIABC EDI Implementation Guide, Release 2, and the underlying ASC X12 005010 standard, supports the reporting of ICD-10-CM and ICD-10-PCS codes.

    The IAIABC EDI Implementation Guides may be ob-tained from the IAIABC’s online store at http://www. ia iabc.org/ i4a/ams/amsstor e/stor e. cfm?product_id=0.

    Since the informal proposal contains two different options to address this issue, the TDI-DWC requests that system participants clearly indicate their preferred option and the reasons supporting that option.

    Who is your favorite collegiate sports team? Longhorns.

    What is your favorite holiday? Christmas.

    What is the last movie you watched? Traffic.

    What makes you unique? I work for FOL.

    Are you afraid of the dark? Yes.

    What are your nicknames? None.

    What is your favorite TV commercial? Geico Caveman.

    What did you want to be when you were a kid? A business owner.

    Would you rather be a Supreme Court Justice or a Day Time TV Judge? Day Time TV Judge.

    If you had to volunteer for disaster relief work, what would you select? Flood Rescue.

    What was the name of your favorite coach? I don’t know.

    Favorite get away? Europe.

    Best advice someone ever gave you? Work hard.

    What are your three favorite movies? Papillon, The Great Escape, The Good, The Bad and the Ugly.

    What celebrity, living or dead, would you choose to be for a day? Gandhi.

    What is your favorite song to sing in the shower? I never really sang in the shower.

    If you were on death row, what would your last meal be? BBQ.

    What is your biggest fear? Not working.

    What is one item you can’t live without? Internet.

    What is your favorite book? Things Fall Apart.

    Get to Know FO&L Staff Profile

    Elohe Roba: Data Department

  • FOLIO CLIENT NEWSLETTER BY FLAHIVE, OGDEN & LATSON 6

    Who is your favorite collegiate sports team? Longhorns.

    What is your favorite holiday? Anything with cake.

    What is the last movie you watched? Saving Private Ryan (again).

    Are you afraid of the dark? Nope.

    What are your nicknames? Really?

    What did you want to be when you were a kid? A professional Putt-Putt golfer.

    If you were not an attorney, what profession interests you? Rancher.

    Would you rather be a Supreme Court Justice or a Day Time TV Judge? Justice.

    What was your favorite subject in law school? There are no favorites in law school. Just wanted to survive.

    What was the name of your favorite coach? Wayne McClean.

    Favorite get away? Northern New Mexico.

    Best advice someone ever gave you? Read your email twice before you send it (I try, but don’t always comply).

    What are your three favorite movies? Cool Hand Luke, Saving Private Ryan, and Body Heat.

    What celebrity, living or dead, would you choose to be for a day? Elvis.

    What is your favorite song to sing in the shower? Can’t sing.

    If you were on death row, what would your last meal be? Pizza and Mac & Cheese.

    What is your biggest fear? Some of this information getting out.

    What is your favorite book? Robert Caro’s Master of the Senate (vol. 2 of the LBJ series).

    If you were a super hero, what would your super power be? Flying.

    Get to Know FO&L Attorney Profile: Bobby Stokes-Shareholder

  • FOLIO CLIENT NEWSLETTER BY FLAHIVE, OGDEN & LATSON 7

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    Texas Division of Workers’ Compensation Appeal No. 120311-s

    The Appeals Panel remanded extent of injury finding with instruction that the hearing officer apply the correct legal standard from Crump. The Appeals Panel stated that an expert is not required to use a differential diagnosis to establish causation. The Appeals Panel failed to comment upon the statement in Crump that if the evidence presents other plausi-ble causes, the proponent of the testimony must offer evidence excluding other causes with reasonable certainty, to es-tablish with medical certainty that the compensable injury caused the condition.

    Facts: The claimant fell off a stage and fractured her left ankle, resulting in two surgeries, one to implant screws and hardware into the left ankle and one later to remove some of the screws. The claimant was diagnosed with a stress frac-ture of the left second metatarsal on April 28, 2011. The claimant contends that the compensable injury extend to a stress fracture of the left second metatarsal as opined by her treating surgeon, Dr. D. The self-insured contends that this is a follow-on injury and not related to the compensable injury. The hearing officer commented regarding the claim-ant’s treating doctor’s opinion: “While he does not use magic words, Dr. D does believe the stress fracture is a direct result of initiation of weight bearing after a period of prolonged non-weightbearing and was the direct result of the in-jury. What is missing and is required under Crump is the treating doctor’s analysis ruling out other causes of the stress fracture, such as osteoporosis or diabetes. Claimant did not meet her burden of proof.”

    The hearing officer resolved the sole disputed issue by deciding that the compensable injury did not include the stress fracture. The claimant appealed the hearing officer’s extent-of-injury determination. The self-insured responded, urging affirmance.

    Holding: Reversed and remanded. The Appeals Panel noted that proof of causation must be established to a reasonable medical probability by expert evidence where the subject is so complex that a fact finder lacks the ability from common knowledge to find a causal connection, citing Guevara v. Ferrer, 247 S.W.3d 662 (Tex. 2007) and City of Laredo v. Garza, 293 S.W.3d 625 (Tex. App.-San Antonio 2009, no pet.). The Appeals Panel reviewed the medical evidence of Dr. D, and did note that Dr. D did not rule out other causes of the stress fracture—osteoporoses and her diabetes. The Appeals Panel interpreted the Supreme Court Transcontinental Ins. Co. v. Crump, 330 S.W.3d 211 (Tex. 2010)] deci-sion. It noted that Crump’s definition of differential diagnosis is: “a clinical process whereby a doctor determines which of several potential diseases or injuries is causing the patient’s symptoms by ruling out possible causes—by comparing the patient’s symptoms to symptoms associated with known diseases, conducting physical examinations, collecting data on the patient’s history and illness, and analyzing that data—until a final diagnosis for proper treatment is reached.”

    The Appeals Panel noted that in Crump, the Texas Supreme Court considered the issue of whether a treating doctor’s reliance on a differential diagnosis was reliable and legally sufficient expert medical opinion to support the jury’s ver-dict, and the Crump court held that the physician’s opinion was based on a reliable foundation. The Appeals Panel opined that a remand to the hearing officer was necessary because the hearing officer misinterpreted and misapplied the law under the Crump decision by finding that an expert was required to use a differential diagnosis to establish causa-tion. Accordingly, the Appeals Panel reversed the hearing officer’s determination that the injury did not include the stress fracture of the left second metatarsal and remanded the extent-of-injury issue to the hearing officer for further ac-tion consistent with this decision. The Appeals Panel’s instructions on remand are that the hearing officer must utilize the proper legal standard in analyzing and weighing the evidence. The hearing officer is to determine the extent-of-injury issue based on the evidence already admitted at the CCH.

  • FOLIO CLIENT NEWSLETTER BY FLAHIVE, OGDEN & LATSON 16

    Q: The treating doctor released the employee to work with modified duties. Is there a statute or rule that prevents an employee from taking vacation or annual leave while he is on modified work duties?

    A: No. As long as the employee’s com-pensable injury continues to cause work restrictions that prevent the employee from performing all pre-injury job duties at pre-injury wages, the employee has disability. If the employee elects to receive income from his sick leave or annual leave benefits, then the carrier may char-acterize those payments as post-injury earnings and re-duce temporary income benefit payments accordingly. See Rule 129.2(c)(4).

    Q: Prior to the compensable injury, the employee worked one day per week for the employer as an aero-bics instructor earning $30 each week. The employee also had a full time job with another employer as a teacher. After the 3/1/12 compensable injury, the em-ployee was unable to work as an aerobics instructor, but she was able to work as a teacher. How does the carrier calculate the accrual date and is the employee entitled to the minimum temporary income benefit for each week of disability?

    A: The claimant has multiple employment and should file a wage statement for her other job. If the post injury earnings from her other job are less than the AWW from both jobs, then the claimant is disabled. Rule 124.7 provides that it is days of "disability" which are cumulated to calculate the 8th day, not just days of lost work. See also Appeal Panel Decision No. 002671. Thus, the accrual date would be 3/9/12. The employee is not likely entitled to the minimum temporary income

    G Q CORNER

    benefits due to the fact that the claimant is likely still earn-ing in excess of the minimum compensation rate.

    Q: The Division issued a Notice of Injury dated 3/22/12. The carrier’s Austin Representative received the Division’s Notice of Injury on 3/23/12. The third party administrator received the Division’s Notice of Injury on 3/27/12. What date is considered the 15th day after re-ceipt of written notice of injury pursuant to Rule 124.3(a)?

    A: Assuming that the Division’s Notice of Injury is the first written notice of injury received by the carrier, the carrier is deemed to have received the first written notice of injury on 3/23/12, assuming that the date of the “Notice of Injury” is also the date that the DWC placed the document in the Austin Representative’s box. See Rule 102.5(d) (For purposes of determining the date of receipt for those written communications sent by the Commission which require the recipient to perform an action by a specific date after receipt, unless the great weight of evidence indicates otherwise, the Commission shall deem the received date to be . . . the first working day after the date the written communication was placed in a carrier’s Austin representative box). Following Rule 102.3(a)(1), the 15th day is 4/9/12, because the true 15th day falls on a weekend.

  • FOLIO CLIENT NEWSLETTER BY FLAHIVE, OGDEN & LATSON 17

    G Q CORNER Question: The carrier received a DWC-69 and medical narrative for maximum medical improvement (MMI) and impairment rating (IR) certified by a nurse practitioner. Is this a valid certification?

    Answer: No. Section 408.123(a) of the Texas Labor Code provides that a certification of MMI and IR is to be performed by a “doctor,” and section 401.011(17) defines “doctor” as a doctor of medicine, osteopathic medicine, optometry, dentistry, podiatry, or chiropractic who is licensed and authorized to practice. Nurse practi-tioners are not included within the definition of “doctor,” and therefore, they cannot provide a valid certification of MMI and IR.

    Question: The employee filed a DWC-45 request-ing a benefit review conference (BRC). Does the carrier have to send a BRC exchange, and if so, is it limited to 15 pages?

    Answer: Rule 141.4(d) requires the party who did not request the BRC to send all pertinent information in its possession, not previously exchanged, to the request-ing party, and any other parties, within 10 working days after receiving a copy of the request for a BRC. The 15-page limit only applies to documents submitted with the DWC-45 requesting a BRC. The 15-page limit does not apply to the BRC exchanges, which the parties are re-quired to execute in preparation for the BRC.

    Question: A pilot reported that she sits on a hard seat in the cockpit of an aircraft. During domestic flights, the pilot may be required to sit up to 5 hours. The pilot does have a history of two previous back surgeries. Does sitting in a chair without bending, twisting, or jarring re-sult in a compensable injury?

    Answer: This is a fact question--meaning that it could be or it could not be compensable depending upon the facts. Many adjusters recall the situation highlighted in APD No. 931142 where a sewing machine operator's herniated disc was determined to be non-compensable. Standing, walking, or sitting are ordinary functions of life, and that activity, without anything more and without specific medical evidence establishing that the activity during the course of employment caused the complained of injury, will generally not be compensable. The key to a finding of non-compensability in APD 931142 comes from the fact that there was no credible expert medical opinion explaining that the employee's work-related ac-tivities were a producing cause of his or her herniated disc. On the other hand, in Decision No. 991009, the Appeals Panel held that although the hearing officer stated that injuries from sitting are not compensable, we should clarify that the Appeals Panel has never entirely ruled out that a claim could ever be made for an injury resulting from a strained posture over an extended period of time.

  • FOLIO CLIENT NEWSLETTER BY FLAHIVE, OGDEN & LATSON 18

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    BRC & CCH Notices

    Sally Matthews

    DATA Manager

    435-2237 477-4996

    [email protected]

    IRO Requests Katie Foster

    MRD Manager 435-2266 241-3333 [email protected]

    Medical Dispute Resolution Kim Lunday 435-2267 241-3333

    [email protected]

    Personnel - FOL Support Staff Sharissa Karol

    Personnel Manager 435-2224 241-3303 [email protected]

    Records Request/Photostats Jasmin Lott 435-2220 241-3317 [email protected]

    Texas Workers’ Compensation Manual Sales

    Jordan Kazmann 482-9710 472-9160 [email protected]

    General Questions

    (DWC Rep. Clients) Receptionist 477-4405 241-3300 [email protected]

    RME Service Brian Lam 435-2299 241-3332 [email protected]

    KEY TASK DIRECTORY To help expedite your email or faxed information to the correct area within FO&L and get it to the re-sponsible 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.

  • FOLIO CLIENT NEWSLETTER BY FLAHIVE, OGDEN & LATSON 19

    ATTORNEY& PARALEGAL DIRECTORY

    Attorneys

    Attorney Direct Dial

    (512)

    Direct Fax (512)

    E-Mail [email protected]

    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

    Christina Mayfield 435-2178 241-3322 CLM Sharissa Karol 435-2224

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

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

    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 LXT Karen Vanloo 435-2240

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

    Nancy Ippolito 435-2181 241-3321 NHI Andrea Phleger 435-2219

    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 Kristi Wilson 435-2263

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

    Roy Leatherberry 435-2179 241-3314 RJL Halie Pratt 435-2260

    Scott Bouton 435-2153 241-3337 ADB Anita Drake 435-2249

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

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