TITLE insurance

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

28 TAC §134.1002

The Texas Workers' Compensation Commission (Commission) adopts an amendment to §134.1002, concerning the Upper Extremities Treatment Guideline, without changes to the proposed text as published in the October 24, 1997, issue of the Texas Register (22 TexReg 10498).

As required by the Government Code §2001.033(1), the Commission's reasoned justification for the amendment to 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, and a restatement of the factual basis for the rule.

The sole change to the rule is a revision of the expiration or "Sunset" date in subsection (b)(1) of the rule from February 1, 1998 to July 1, 1998. The proposed revision of the text of the Upper Extremities Treatment Guideline is also available from the Publications Department of the Texas Workers' Compensation Commission, 4000 South IH 35, Southfield Building, Austin, Texas 78704-7491.

No comments were received regarding adoption of the amendment.

The Upper Extremities Treatment Guideline clarifies those services that are reasonable and necessary for operative and nonoperative care of the upper extremities for the injured workers of Texas. The guideline is not to be used as a fixed treatment protocol, but rather identifies a normal course of treatment and reflects typical courses of intervention, while recognizing that there will be injured workers who will require less or more treatment than is outlined. The guideline also acknowledges that in atypical cases, treatment falling outside the guideline will occasionally be necessary. However, those cases that exceed the guideline level of treatment are subject to more careful scrutiny and review and require documentation of the special circumstances that justify the treatment. The guideline does not prescribe the type and frequency of treatment; treatment must be based on patient need and professional judgement. The rule was designed to function as a guideline and is not to be used as the sole reason for denial of treatments and services.

The clinical and diagnostic treatment guidelines contained in the rule were developed in conjunction with health care providers and other parties in the workers' compensation system. The guideline was designed to achieve the following goals: (1) to assist all parties with regard to the appropriate treatment and management of upper extremities injuries; (2) to establish elements against which aspects of care can be compared; (3) to establish a guideline to identify clinically acceptable courses of treatment for specific disorders; (4) to establish documentation standards which support the appropriateness of the level of service; and (5) to provide a mechanism of prospective, concurrent, and retrospective review for efficient and effective health care utilization.

The guideline promotes quality health care, injury specific treatment and appropriateness of care, by identifying clinically acceptable courses of care for specific upper extremities injuries, and by facilitating communication between all parties in order to achieve rapid recovery from the effects of an injury. This communication also promotes a timely return to modified or full duty work that takes into account the job demands and the functional capabilities of the injured worker.

Subsection (b)(1) has been amended to provide that the rule will remain in effect until July 1, 1998. This will allow the Commission to continue to monitor and analyze the effectiveness of the rule and to receive input from affected parties with regard to whether any portion of the substantive provisions of the rule should be revised. At this time, the Commission believes that the rule is functioning as intended and the Commission is not aware of any concerns or problems on the part of parties affected by the rule. This is therefore the only revision to the rule which is being adopted.

The amendment is adopted under the Texas Labor Code, §402.061, which authorizes the commission to adopt rules necessary to administer the Act, the Texas Labor Code, §413.011, which authorizes the commission to establish by rule medical policies and guidelines relating to necessary treatments for injuries, and the Texas Labor Code, §413.013, which authorizes the commission to establish by rule a program for prospective, concurrent, and retrospective review and resolution of a dispute regarding health care treatments and services; and to establish by rule a program for the systematic monitoring of the necessity of treatments administered and fees charged and paid for medical treatments or services, including the authorization of prospective, concurrent, or retrospective review under the medical policies of the commission to ensure that the medical policies or guidelines are not exceeded.

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-9800338

Susan M. Cory

General Counsel

Texas Workers Compensation Commission

Effective date: January 29, 1998

Proposal publication date: October 24, 1997

For further information, please call: (512) 440-3972