Part II.
Texas Workers' Compensation Commission
Chapter 126.
General Provisions Applicable to All Benefits
28 TAC §126.11
The Texas Workers' Compensation Commission (the commission)
adopts new §126.11, concerning Extension of the Date of Maximum Medical
Improvement for Spinal Surgery, with changes to the proposed text as published
in the September 26, 1997, issue of the
Texas Register
(22 TexReg 9630).
As required by the Government Code, §2001.033(1), the Commission's
reasoned justification for this rule is set out in this order which includes
the preamble, which in turn includes the rule. The reasoned justification
is contained in this preamble, and throughout this preamble, including how
and why the Commission reached the conclusions it did, why the rule is appropriate,
the factual, policy, and legal bases for the rule, a restatement of the factual
basis for the rule, a summary of comments received from interested parties,
names of those groups and associations who commented and whether they were
for or against adoption of the rule, and the reasons why the Commission disagrees
with some of the comments and proposals.
Changes made to the proposed rule are in response to public comment received
in writing and at a public hearing held on October 8, 1997, and as a result
of staff recommendations, and are described in the summary of comments and
responses section of this preamble and in the staff recommendations section.
Changes in the text of the rule as proposed are found in subsections (a),
(b), (c), (d), (e), (f)(3), (g), (h), (i), and (k). Subsection (f)(6) has
been added.
The rule is adopted to reflect changes to the definition of maximum medical
improvement, the application process for extending the date of maximum medical
improvement in certain circumstances, and the dispute resolution process for
disputing such extensions, contained in amendments to §401.011 and §408.104
of the Texas Labor Code.
Recent legislation (House Bill 3522, 75th legislature, 1997) amended the
Texas Labor Code, §401.011(30) and §408.104, effective January 1,
1998, to allow for an extension of the date of maximum medical improvement
after the expiration of the 104-week period if the injured employee has had
spinal surgery or has been approved for spinal surgery under §408.026
of the Texas Labor Code within 12 weeks before the expiration of the 104-week
period. This legislation specifically requires the commission to adopt rules
regarding the procedure for requesting these extensions of the date of maximum
medical improvement and the process for disputing the approval or denial of
such extensions. Prior to this amendment, the injured worker reached maximum
medical improvement no later than 104 weeks after the date income benefits
began to accrue regardless of the existence or need for spinal surgery during
the 104-week time frames.
The previous limitation of the 104-week period dramatically impacts the
receipt of temporary income benefits in cases where the injured employee has
not secured the appropriate medical or surgical intervention within the first
two years after the date income benefits began to accrue. This could occur
due to circumstances including delay by the parties or the exhaustion of conservative
medical treatment near the expiration of the 104-week period. When an injured
employee reaches maximum medical improvement, the doctor is required to assign
an impairment rating. If the injured employee had recently undergone surgery,
it is possible that the impairment rating would not be accurate due to the
unstable condition of the spine after recent spinal surgery or a period of
time required to assess the results of the spinal surgery. The amendment to
the Texas Labor Code allows the commission to extend the temporary income
benefit period to be able to secure an impairment rating after the medical
condition is stable.
Subsection (a) of new §126.11 describes the situations where an extension
may be granted and defines what is meant by an approval for spinal surgery.
The commission may approve an extension only one time during the course of
a claim. This is an administrative change in the date of maximum medical improvement
from 104 weeks after the date income benefits began to accrue to a specific
date in the future.
Subsections (b), (c), and (d) outline the general process that must be
followed in requesting an extension of the date of maximum medical improvement.
The application process includes a requirement to attempt to secure specific
information from the injured employee's treating doctor or surgeon. This information
relates to medical opinions regarding recovery times and other conditions
or factors that may impact the date that the condition may become medically
stable. These processes also require that the parties be notified of any requests
for extensions of the date of maximum medical improvement.
Subsection (e) defines when the request for the extension may be submitted
to the commission. Since the legislation limits the approval of extensions
to those cases that are either approved for surgery or that have had surgery
within the 12 weeks prior to the expiration of 104 weeks from the date income
benefits began to accrue, a person may not submit a request before this 12
week period has begun. The rule's 110-week limitation on submitting requests
allows the parties an additional six weeks to secure the treating doctor's
or surgeon's information or address other potential delays. Subsection (f)
lists the various items that the commission will consider in determining whether
to approve or deny an extension.
Subsection (g) outlines the process for disputing an approval or denial
of an extension of the date of maximum medical improvement. This subsection
requires the parties to request a benefit review conference to attempt to
informally resolve the dispute prior to a formal hearing. The parties may
dispute the approval of an extension, the denial of an extension, or the length
of time granted in an approved extension. The requirement that the standard
of review for all levels of these disputes be the abuse of discretion standard
has been removed. This deletion should not be interpreted to infer that an
abuse of discretion standard is not appropriate for particular levels of disputes.
Subsection (h) states that if a dispute is not timely filed, the parties waive
their right to dispute the order. Further, any timely disputed order will
be binding pending further resolution of the issue, thereby requiring the
insurance carrier to continue to pay temporary income benefits pursuant to
an order extending the date of maximum medical improvement as long as disability
exists.
Subsection (i) addresses the situation where a doctor certifies that an
injured employee has reached maximum medical improvement between the date
the order granting an extension is issued and the date of maximum medical
improvement contained in the extension order. This section requires such disputes
to be resolved in the normal fashion, by the selection of a designated doctor
whose report will be entitled to presumptive weight. In addition, subsection
(i) provides that if the employee reaches maximum medical improvement prior
to the date certain established in the Commission's order of extension, the
earliest date becomes the date of maximum medical improvement.
Subsection (j) addresses the situation where an extension is granted but
surgery is not performed. The Legislative Committee Bill Analysis indicates
that it was the intent of HB 3522 to provide extensions of maximum medical
improvement when spinal surgery is performed. In the event that surgery is
not performed (possibly through a finding of non-concurrence through the appeals
process or some other reason), any order granting an extension becomes null
and void. This is because the statute requires spinal surgery as a prerequisite
for the granting of an extension.
Subsection (k) clarifies the application of the statutory provision and
the new section of the rules. The effective date for the legislative change
is January 1, 1998 and applies only to a claim for workers' compensation benefits
based on a compensable injury that occurs on or after the effective date.
In addition, subsection (k) of the adopted rule has been revised as a result
of public comment to ensure that only injured employees who have compensable
claims with a date of injury on or after January 1, 1998 and who have not
reached maximum medical improvement pursuant to the Texas Labor Code, §401.011(30)(A),
prior to application for extension, are eligible for these extensions.
As long as the injured worker's disability continues, insurance carriers
will be required to continue to pay temporary income benefits from the date
income benefits began to accrue through either, the date of maximum medical
improvement specified in the Commission order granting an extension, or through
the date the employee reaches maximum medical improvement, whichever comes
first. However, this is offset by the fact that a change in this section would
not alter the statutory limit of 401 weeks of potential entitlement to income
benefits. Realistically, the impact would be that the injured employees with
an impairment rating of 15% or more may not have to prove entitlement to supplemental
income benefits at a stage where they would not be medically stable. The extension
of temporary income benefits will increase the amount paid in temporary income
benefits, but may reduce the amount paid in supplemental income benefits.
In cases where the injured employee is determined to have less than a 15%
impairment rating, the changes will result in the payment of additional temporary
income benefits. However, it is anticipated that the impairment ratings in
those cases or in cases where no spinal surgery was performed will still involve
an impairment rating based on the pathological deficits which lead to the
recommendation of surgery. The insurance carriers would be able to convert
any additional temporary income benefits paid to impairment income benefits.
There is a possibility that with these extensions, the insurance carrier may
have an increased cost in the amount paid in temporary income benefits that
are not able to be recouped when these benefits are converted to impairment
income benefits. The benefit to the injured worker will include the ability
to receive additional temporary income benefits after the expiration of the
104 week period while their medical condition becomes more stable. Finally,
it is anticipated that various parties may experience additional costs associated
with the adjudication of disputes under this section (similar to current costs
related to the resolution and adjudication of other benefit disputes).
Comments neither specifically supporting nor opposing the proposed amendment
but requesting changes to proposed §126.11 were received from the following:
Downs & Judin & Stanford, Texas Workers' Compensation Insurance Fund,
Texas Business and Chambers of Commerce.
Summaries of the comments and commission responses are as follows.
Subsection (a).
Comment: Commenters stated that the preamble clearly indicates that the
Commission may approve an extension only one time during the course of the
claim and this statement does not appear in the rule. Commenters felt this
concept is a fundamental and important aspect of the legislative changes and
should be included in the proposed rule. One commenter suggested that subsection
126.11(a) be changed to state: "The commission may only approve one extension
of the date of maximum medical improvement,..."
Texas Workers' Compensation Insurance Fund (TWCIF), Texas Association of
Business and Chambers of Commerce (TABCC)
Response: Staff agrees. The following sentence has been added to subsection
(a) of the rule: "Only one extension of the date of maximum medical improvement
pursuant to this section may be granted."
Comment: Commenters expressed concern that the proposed rule would allow
an injured employee to seek an extension of maximum medical improvement even
after the employee has been certified as having reached maximum medical improvement
under the Workers' Compensation Act. Commenters did not believe this result
was intended by the legislature or the proposed rule and offered various suggestions
for incorporating the entire definition of maximum medical improvement into
the rule or limiting the application of this section.
TWCIF, TABCC, Downs and Judin and Stanford
Response: Staff agrees that subsection (k) should be clarified. Texas Labor
Code, §408.104(a), provides a method for extending "the 104-week period
described by §401.011(30)(B)." It does not provide for extension of maximum
medical improvement which has been determined according to §401.011(30)(A),
which describes maximum medical improvement established by methods other than
the arrival of the end of the statutory 104-week period. To clarify this,
subsection (k) has been revised to add the following statement: "This section
does not apply to an employee who has reached maximum medical improvement
pursuant to the Texas Labor Code, §401.011(30)(A), prior to requesting
an extension under this section."
In addition, to address the situation where an employee is determined to
have reached maximum medical improvement in accordance with the Texas Labor
Code, §401.011(30)(A), and the date of maximum medical improvement is
different from the date of maximum medical improvement specified in a Commission
extension order, the following has been added to subsection (i): "If the certification
of maximum medical improvement during this time period is not disputed and
the date certified is prior to the date of maximum medical improvement specified
in the order for the extension, the date of maximum medical improvement from
that certification shall apply. If the certification was timely disputed and
the resolution of such a dispute determines that the injured employee reached
maximum medical improvement at a date which is different than the date of
maximum medical improvement specified in the order for the extension, the
earlier date shall apply."
Comment: Commenter questioned how the proposed rule would be applied in
a situation where the injured employee has previously reached maximum medical
improvement, but the certification has been disputed and has not yet been
formally adjudicated or decided. Commenter felt that the rule as written did
not prohibit a claimant from seeking an extension of maximum medical improvement
in this situation. Commenter suggested that additional language be included
to address this situation.
Downs and Judin and Stanford
Response: Staff agrees that the rule should be clarified. The change to
subsection (k) described previously addresses this issue. In addition, to
clarify the meaning of "reached maximum medical improvement in accordance
with the Texas Labor Code, §401.011(30)(A)," as stated in subsection
(k), the following sentence has been added to that subsection: "An employee
has reached maximum medical improvement in accordance with the Texas Labor
Code, §401.011(30)(A), when either a finding of the date of maximum medical
improvement is not disputed, or the date of maximum medical improvement has
been finally resolved." Therefore, an extension pursuant to §408.104
could be sought during the pendency of a dispute regarding whether the employee
has reached maximum medical improvement.
Subsection (b).
Comment: Commenter expressed concern that field office personnel, not medical
review personnel nor staff with medical credentials will be deciding whether
to grant extensions of the date of Maximum Medical Improvement.
TWCIF
Response: Staff disagrees. The Official Actions Officers (OAO) in the individual
field offices of the Commission will be responsible for initially approving
or denying requests for the extension of the date of maximum medical improvement.
These decisions involve the review of both medical and non-medical information,
and are consistent with other benefit determinations, often including medical
components, made by the same staff. The OAO will make the determination regarding
a requested extension based on established procedures, including medical and
other records. This information will allow the OAO to determine if the employee
has had spinal surgery or has been approved for spinal surgery under Commission
rules within twelve weeks before the 104-week statutory maximum period. This
information normally will include medical information obtained from doctors
examining the injured employee, including their recommendations concerning
any extension. Other information regarding typical recovery times of injured
employees in Texas for specific types of procedures will assist in the determination
of the length of any extension period. The decisions made by the OAO on these
requests for benefits, like other benefits requests, are subject to dispute
resolution by the interested parties using the hearings process, under the
provisions of Chapter 410 of the Texas Workers' Compensation Act.
Subsection (c).
Comment: Commenter suggested that the information from the treating doctor
or surgeon be required to be sent to the insurance carrier within ten days.
TWCIF
Response: Staff aqrees that the information from the treating doctor or
surgeon should be sent to other than just the requesting party. Subsection
(c) has been revised to require that information requested in subsection (f)
be sent to the injured employee, the injured employee's representative, and
the insurance carrier, rather than to only the requesting party.
In addition, the last sentence of subsection (c) has been changed to allow
15 days, rather than 14 days for the receipt of information requested in subsection
(f). This change makes subsection (c) consistent with §102.5 of this
title (relating to General Rules for Written Communications To and From the
Commission).
Subsection (d).
Comment: Commenter expressed concern that insurance carriers would not
receive a copy of the employee's request for extension of MMI date and suggested
that the rule require that the application, after receipt of the information
from the treating doctor or surgeon, be sent to the insurance carrier on the
same day it is sent to the Commission.
TWCIF
Response: Staff Agrees. Subsection (d) has been revised to add the sentence,
"In addition, the request shall be sent to the injured employee, the injured
employee's representative, and the insurance carrier on the same date it is
sent to the commission." To clarify where at the Commission a request for
extension of the date of maximum medical improvement should be filed, the
word "field" has been added before the word "office" and the words "delivered
to" replaced with "filed at" in the first sentence of subsection (d). To clarify
the date of filing, the sentence "A request is deemed filed upon receipt at
the appropriate field office" has also been added.
Comment: Commenter suggested that the Commission should delay any and all
action on a request for an extension of MMI for 30 days to give the insurance
carrier an opportunity to submit information regarding the requested extension
of MMI.
TWCIF
Response: Staff disagrees. The insurance carrier will be informed of the
request for the extension of MMI date at the time the information is requested
from the treating doctor or surgeon. The information from the treating doctor
or surgeon must be provided within ten days. This gives the insurance carrier
approximately two weeks to gather the information to be provided regarding
the extension. A 30 day period of inaction by the Commission does not appear
to be in the best interest of any party.
Subsection (f).
Comment: Commenter suggested that the following be added as subsection
(f)(6), "any pertinent information provided by the insurance carrier regarding
the extension being requested under this section."
TWCIF
Response: Staff agrees that all pertinent information should be considered
by the Commission. Subsection (f) has been revised to add (f)(6) as follows:
"any pertinent information provided by the insurance carrier, injured employee,
and/or the injured employee's representative regarding the extension being
requested under this section."
Comment: Commenters indicated that the Commission has not considered the
compliance of the treating doctor, surgeon, and injured employee with §134.1001
of this title (relating to Spine Treatment Guidelines), when evaluating a
request for spinal surgery. One commenter indicated that the treating doctor
or surgeon should explain any factors that caused a variance from the Spine
Treatment Guidelines and another commenter felt incorporation of the Spine
Treatment Guidelines in the rule would enhance the consistency and objectivity
of the determinations. One commenter recommended changing subsection (f)(3)
to state the following: "case specific information regarding any extenuating
circumstances that may have resulted in variances from conservative treatment
protocols and time frames specified in §134.1001 of this title (relating
to the Spine Treatment Guideline) or that may impact recovery times as provided
by the treating doctor or the surgeon."
TWCIF, TABCC
Response: Staff agrees. The suggested language has been added to subsection
(f)(3) of the rule.
Comment: Commenter stated that the proposed rule does not reference any
definition or methodology for determining typical recovery times. Commenter
suggested that the rule devise and state the method for determining the typical
recovery times for current and future determinations and to reference that
standard in the rule.
TABCC
Response: Staff disagrees. The Commission has developed the procedures
specified in this rule, together with statistical information on typical recovery
times of injured employees in Texas for specific medical procedures based
upon medical opinions of spinal surgeons. The statistical information will
be changed or revised with advances in medical technology, information resource
management, and new data. Because of the necessity for repeated revision,
a set methodology for determining typical recovery times is not included in
the rule. A summary of such statistical information will be made available
for review upon request.
Subsection (g).
Comment: Commenter requested that the language of the rule be changed to
allow for a dispute of the application not the action of the Commission (approval/denial)
based on the application. Commenter cited the statute that allows the parties
to dispute an application for an extension of MMI and expressed the belief
that the intent was to have the dispute adjudicated prior to action being
taken on the request.
TWCIF
Response: Staff disagrees. The addition of §408.104 to the Texas Labor
Code, specifically subsection (c), gives the Commission the authority to develop
and adopt rules establishing procedures for requesting "and disputing an extension."
This allows the Commission to determine the dispute resolution process and
indicates that it is the extension that may be disputed as opposed to simply
the application for an extension. In addition, the process suggested by the
commenter would result in unnecessary proceedings. The suggestion would involve
proceedings regarding the application, and then separate proceedings regarding
the actions after the application proceeding is concluded. If an extension
is granted or denied and neither party disputes the extension order, then
there is no need to schedule a proceeding. Judicial economy is served by allowing
the parties to dispute the total action taken by the Commission including
the approval, denial, or the length of an extension. Challenges to all of
these decisions can be handled during the same proceeding under the rule.
The rule as proposed does not prevent the dispute of an action taken on an
application.
Comment: Commenters suggested omitting the abuse of discretion standard
from the dispute resolution process. Commenters questioned the appropriateness
of using an abuse of discretion standard for administrative determinations
on whether to approve or deny requests for extensions. One commenter felt
the abuse of discretion standard is only appropriate if there has been a full
evidentiary hearing with an opportunity to cross-examine. The ability to consider
information from the insurance carrier was questioned in addition to questioning
whether or not the rule provided participants with due process.
TWCIF, TABCC
Response: Staff agrees that the abuse of discretion standard of review
may not be appropriate for all levels of the dispute resolution process regarding
extension of the statutory date of maximum medical improvement. This requirement
has been deleted from subsection (g). However, staff disagrees that the abuse
of discretion standard of review is inappropriate for some levels of the dispute
resolution process, for example, the Appeals Panel level. The parties are
afforded due process by the provisions of subsection (f) of the rule, including
the added subsection (f)(6), that provides insurance carriers with an opportunity
to present information to the Commission to be considered in making its initial
determination of whether to grant an extension of the date of maximum medical
improvement. In addition, at the Contested Case Hearing level of the dispute
resolution process, the parties will be afforded an opportunity for presentation
of evidence and cross-examination of witnesses.
Subsection (g) and (h).
Comment: Commenter felt that the 10-day deadline for disputing an order
under subsection (g) and the 15-day deadline for receipt of a dispute in subsection
(h) are confusing and contradictory.
TWCIF
Response: Staff agrees that the deadlines could be made consistent. Subsection
(h) has been revised to state: "If a request for benefit review conference
is not received by the commission within ten days after the date the order
granting or denying the extension was received by the disputing party, the
parties waive their right to dispute the commission order. In the event that
an order is timely disputed, the order shall remain binding pending final
resolution of the dispute." This change makes the language in subsection (g)
and (h) consistent. In addition, for clarity, the word "requesting" in the
first sentence of subsection (g) has been changed to "by filing a request."
A request for a benefit review conference must be received by the Commission
within ten days after the date the order granting or denying the extension
was received by the disputing party. When the order is mailed, §102.5(h)
of this title (relating to General Rules for Written Communications To and
From the Commission) establishes the date of receipt of the order to be five
days after the date mailed.
Section 126.11: General.
Comment: Commenters stated a concern that the statutory change potentially
may provide an opportunity under which certain individuals may fraudulently
obtain additional benefits. Commenter contended that actions by a doctor or
an injured employee to delay recommending or performing spinal surgery for
the purpose of securing additional benefits would constitute obtaining benefits
in violation of Texas Labor Code, §415.003, which provides for a Class
B administrative violation. Commenters suggested including language about
this potential for an administrative violation.
TWCIF, TABCC
Response: Staff disagrees. Penalties for the situation described by commenters
are addressed by provisions already contained in Texas Labor Code, §§415.001,
415.002, 415.003, and 418.001. Under those provisions, any person who commits
fraudulent actions is subject to both administrative violations and criminal
penalties. These potential sanctions apply to many different people; including:
injured employees, insurance carriers and health care providers. Adding a
statement in §126.11 regarding these provisions of the statute is not
necessary.
Staff Recommendations:
Subsection (b)-The reference to Texas Labor Code, §401.001(30)(B),
is incorrect and has been changed to §401.011(30)(B).
Subsection (e)-To make the language in the rule consistent, the word "submitted"
in subsection (e) has been changed to "filed." In addition, to clarify that
a request which is filed prior to 12 weeks before the expiration of the statutory
104-week period will be denied, the last sentence of subsection (e) has been
changed to read "The commission shall deny any request for an extension of
the date of maximum medical improvement that is received by the commission
prior to 12 weeks before the expiration of 104 weeks after the date income
benefits began to accrue or is received on or after the expiration of 110
weeks from the date income benefits began to accrue."
Subsection (i)-To clarify that in the event an injured employee reaches
maximum medical improvement prior to the date of maximum medical improvement
specified in a Commission extension order, the earlier date of maximum medical
improvement applies, the following has been added to subsection (i): "If the
certification of maximum medical improvement during this time period is not
disputed and the date certified is prior to the date of maximum medical improvement
specified in the order for the extension, the date of maximum medical improvement
from that certification shall apply. If the certification was timely disputed
and the resolution of such a dispute determines that the injured employee
reached maximum medical improvement at a date which is different than the
date of maximum medical improvement specified in the order for the extension,
the earlier date shall apply."
The new rule is adopted pursuant to the Texas Labor Code, §401.011(30),
which sets out the definition of maximum medical improvement; the Texas Labor
Code, §402.061, which authorizes the commission to adopt rules necessary
to administer the Act; the Texas Labor Code, §408.026, which sets out
the spinal surgery second opinion process; the Texas Labor Code, §408.083,
which sets out the provisions for termination of temporary income benefits,
impairment income benefits, and supplemental income benefits; the Texas Labor
Code, §408.101, which defines eligibility for temporary income benefits;
and the Texas Labor Code, §408.102, which sets the duration of temporary
income benefits; the Texas Labor Code, §408.104, which sets out when
the commission may approve extensions of the date of maximum medical improvement
and specifically provides for the adoption of rules regarding the process
for applying for and disputing such extensions of the date of maximum medical
improvement.
§ 126.11. Extension of theDate of Maximum Medical Improvement for Spinal Surgery.
(a)
The commission may approve an extension of the date of
maximum medical improvement, subject to subsection (f) of this section, if
the injured employee has had spinal surgery or has been approved for spinal
surgery 12 weeks or less before the expiration of 104 weeks from the date
income benefits began to accrue. Only one extension of the date of maximum
medical improvement pursuant to this section may be granted. Approval for
spinal surgery is either the notification from the spinal surgery section
of the commission or a decision from the appeal process finding the insurance
carrier liable for the reasonable costs of spinal surgery. Any extension of
the date of maximum medical improvement ordered by the commission must be
to a specific and certain date.
(b)
Upon application by either the injured employee or the
insurance carrier, the commission may by order extend the date of maximum
medical improvement past the period of 104 weeks from the date income benefits
began to accrue as described in the Texas Labor Code, §401.011 (30)(B).
The request shall be made in the form and manner prescribed by the commission.
The commission shall issue an order approving or denying the request for an
extension of the date of maximum medical improvement within ten days of the
date the request is received by the commission.
(c)
Prior to submission to the commission of a request for
an extension of the date of maximum medical improvement, the requestor shall
request from the treating doctor or surgeon the information listed in subsection
(f) of this section. The request shall also be sent to the injured employee,
the injured employee's representative, and the insurance carrier by first
class mail on the same day it is submitted to the treating doctor or surgeon.
The treating doctor or surgeon shall provide to the injured employee, the
injured employee's representative, and the insurance carrier the information
requested in subsection (f) of this section within ten days of the date the
request is received. If the requesting party has not received the information
from the treating doctor or surgeon within 15 days, the request may be submitted
to the commission without this information.
(d)
After the actions in subsection (c) have been completed,
a request for an extension of the date of maximum medical improvement shall
be filed at the commission field office managing the claim by personal delivery
or first class mail. A request is deemed filed upon receipt at the appropriate
field office. In addition, the request shall be sent to the injured employee,
the injured employee's representative, and the insurance carrier on the same
date it is sent to the commission. If the information from the treating doctor
or surgeon is absent when the request is received, commission staff may invoke
the provisions of §102.9 of this title (relating to Submission of Information
Requested by the Commission) to secure any necessary information.
(e)
A request for an extension of the date of maximum medical
improvement shall be filed no earlier than 12 weeks before the expiration
of 104 weeks after the date income benefits began to accrue. The commission
shall deny any request for an extension of the date of maximum medical improvement
that is received by the commission prior to 12 weeks before the expiration
of 104 weeks after the date income benefits began to accrue or is received
on or after the expiration of 110 weeks from the date income benefits began
to accrue.
(f)
In making the determination to approve or deny a request
for an extension of the date of maximum medical improvement, the commission
shall consider:
(1)
typical recovery times for the specific spinal surgery
procedure;
(2)
projected date and information regarding when the
condition may be medically stable as provided by the treating doctor or the
surgeon;
(3)
case specific information regarding any extenuating
circumstances that may have resulted in variances from conservative treatment
protocols and time frames specified in §134.1001 of this title (relating
to the Spine Treatment Guideline) or that may impact recovery times as provided
by the treating doctor or the surgeon;
(4)
information from any source regarding intentional
or non-intentional delays in securing the surgery or medical treatment for
the compensable injury;
(5)
any pending, unresolved disputes regarding the date
of maximum medical improvement; and
(6)
any pertinent information provided by the insurance
carrier, injured employee, and/or the injured employee's representative regarding
the extension being requested under this section.
(g)
An injured employee or an insurance carrier may dispute
the approval, denial, or the length of the extension granted by the commission
order by filing a request for a benefit review conference in accordance with
§141.1 of this title (relating to Requesting and Setting a Benefit Review
Conference) no later than ten days after the date the order is received. Any
proceedings and further appeals shall be conducted in accordance with Chapters
140-143 of this title (relating to Dispute Resolution/General Provisions,
Benefit Review Conference, Benefit Contested Case Hearing, and Review by the
Appeals Panel). Any agreement which resolves a dispute regarding extension
of the date of maximum medical improvement in accordance with this section
shall be in writing and approved by the commission. Approval shall not be
granted if any party rescinds the agreement by notifying the commission within
three working days of signing the agreement.
(h)
If a request for benefit review conference is not received
by the commission within ten days after the date the order granting or denying
the extension was received by the disputing party the parties waive their
right to dispute the commission order. In the event that an order is timely
disputed, the order shall remain binding pending final resolution of the dispute.
(i)
If the injured employee is certified by a doctor to have
reached maximum medical improvement between the date the extension order was
issued and the extended date of maximum medical improvement specified in the
order, any dispute regarding the date of maximum medical improvement shall
be resolved through the selection of a designated doctor consistent with the
provisions of the Texas Labor Code, §408.122, relating to Eligibility
for Impairment Income Benefits; Designated Doctor, and §130.6 of this
title (relating to Designated Doctor; General Provisions). If the certification
of maximum medical improvement during this time period is not disputed and
the date certified is prior to the date of maximum medical improvement specified
in the order for the extension, the date of maximum medical improvement from
that certification shall apply. If the certification was timely disputed and
the resolution of such a dispute determines that the injured employee reached
maximum medical improvement at a date which is different than the date of
maximum medical improvement specified in the order for the extension, the
earlier date shall apply.
(j)
In the event that the extension of the date of maximum
medical improvement is granted based on a finding of liability for spinal
surgery within the 12 week period and a party appeals the concurrence finding
to a benefit contested case hearing, any extension of the date of maximum
medical improvement ordered by the commission shall be conditional pending
final decision under the commission's jurisdiction of the liability for spinal
surgery. If spinal surgery is not performed within six weeks after the date
the final decision of the commission is issued, the order for the extension
of the date of maximum medical improvement shall be null and void.
(k)
This section applies only to compensable claims with a
date of injury on or after January 1, 1998. This section does not apply to
an employee who has reached maximum medical improvement prior to requesting
an extension under this section. An employee has reached maximum medical improvement
in accordance with the Texas Labor Code, §401.011(30)(A), when either
a finding of the date of maximum medical improvement is not disputed, or the
date of maximum medical improvement has been finally resolved.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on January
9, 1998.
TRD-9800337
Susan M. Cory
General Counsel
Texas Workers Compensation Commission
Effective date: January 29, 1998
Proposal publication date: September 26, 1997
For further information, please call: (512) 440-3972
Chapter 134.
Benefits-Guidelines for Medical Services, Charges, and Payments