Part 2.
TEXAS WORKERS' COMPENSATION COMMISSION
Chapter 124.
CARRIERS: REQUIRED NOTICES AND MODE OF PAYMENT
28 TAC §124.1
The Texas Workers' Compensation Commission (the commission)
adopts an amendment to §124.1 (regarding notice of injury) with changes
to the proposed text published in the October 31, 2003, issue of the
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. This preamble contains a summary
of the factual basis of 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
agrees or disagrees with some of the comments and proposals.
Changes made to the proposed rule were made for consistency. No changes
were made in response to public comment.
Changes in the proposed text are found at §124.1(g).
Adopted 124.1. Notice of Injury.
Amended §124.1 is adopted in response to legislation enacted by the
78th Legislature, 2003. The amendment addresses changes made to Texas Labor
Code §§409.021 and 504.002. The amendments to §124.1 describe
what constitutes "written notice" for a certified self-insurer, a political
subdivision that self-insures, or other type of carrier. Written notice of
injury is an important concept in the workers' compensation system because
receipt of this notice triggers claims administration duties regarding the
claim.
The commission amends §124.1 by adding new subsection (b) to address
written notice to a certified self-insurer. This amendment provides that "written
notice" to a certified self-insurer occurs only upon written notice to the
qualified claims servicing contractor designated by the certified self-insurer
under Texas Labor Code §407.061(c). This complies with the statutory
revisions.
The commission amends §124.1 by adding new subsection (c) to address
written notice to a political subdivision. This amendment provides that "written
notice" to a political subdivision that self-insures, either individually
or collectively through an interlocal agreement as described by Section 504.011,
occurs only upon written notice to the intergovernmental risk pool or other
entity responsible for administering the claim. This also complies with the
statutory revisions.
The remaining subsections, as proposed, are re-designated as subsections
(d) - (f).
A new subsection (g) has been added that was not part of the rule as proposed.
This subsection was added to clarify that subsections (b) and (c) of this
rule are effective only for claims with a date of injury on or after September
1, 2003.
Comments indicating support of the proposed amendment to §124.1 were
received from the following groups and associations: Insurance Council of
Texas.
Comments neither specifically opposing or in favor of the proposed amendment
to §124.1, but offering suggestions, were received from the following
groups and associations: Lockheed Martin Aeronautics Co. and Accupro Services
LTD.
Summaries of the comments and commission responses are as follows:
Comment: Commenter suggests that the notice requirement should remain with
TWCC as a failsafe mechanism and should not be given to other entities.
Response: The commission disagrees. The adopted amendments are required
to implement the statutory revisions, and the provisions commenter refers
to are not part of the proposed or adopted amendments. Section 124.1 refers
to notice to an insurance carrier that an injury has occurred. Notice of injury
is of primary importance in that it starts the "clock" for a number of administrative
requirements that ultimately allow an injured employee to receive benefits.
To require notice to come only from the commission would be contrary to statutory
provisions and would delay the process and delay the injured employee's receipt
of benefits. Commenter's suggestion would require injured employees to report
all injuries to the commission. It is much more efficient to have injured
employees report to their employers and have the employer forward the notice
to the proper carrier, as required by the statute.
Comment: Commenter indicates that subsection (a) refers to "written notice,"
while (a)(3) refers only to communication and does not specify "written" communication.
Commenter indicates this subsection should also give some limits regarding
source. The suggested change is, "...any other written communication received
from an identifiable source..."
Response: This comment also falls outside the scope of the proposed and
adopted amendments. The commission disagrees with the suggested language.
The statements referred to by the commenter fall under subsection (a). Notice
does not need to come exclusively from the employer. This is to ensure that
the workers' compensation process is initiated promptly so an injured employee
may obtain the necessary care and compensation (if applicable) as quickly
as possible.
Comment: Commenter questions the information in the fiscal/cost note that
was included in the proposed rule. Commenter questions why there would be
no financial implications for a certified self-insurer for 5 years, and asks
what motivation they would have to comply with the rule until five years has
lapsed.
Response: The commission disagrees with the commenter's interpretation
of the cost note. The intention was to point out that there is no expected
increase or decrease in current costs as a result of implementation of this
rule. Further, insurance carriers must comply with the requirements of the
statute and this rule upon its effective date for compensable injuries which
occur on or after September 1, 2003.
Comment: Commenters supported the adoption of the amendments. Commenter
stated that the amendments are appropriate and implement the provisions of
HB 2199 and SB 1282 passed by the 78th Legislature.
Response: The commission agrees.
The amendments are adopted under the Texas Labor Code §402.061,
which authorizes the commission to adopt rules necessary to administer the
Act; Texas Labor Code §406.010, which authorizes the Commission to adopt
rules regarding claims service; Texas Labor Code §407.001 which defines
qualified claims servicing contractors; Texas Labor Code §407.061, which
sets out the general requirements for eligibility for a certificate of authority
to self-insure; Texas Labor Code §409.021, which requires the insurance
carrier to notify the Commission and employee of the initiation of compensation
or the insurance carrier's refusal to initiate payment; Texas Labor Code §504.002,
which establishes the applicability of general workers' compensation laws
to political subdivisions; and Texas Labor Code §504.011, which sets
out the methods by which a political subdivision shall extend workers' compensation
benefits to employees.
§124.1.Notice of Injury.
(a)
Except as provided in subsections (b) and (c) of this section,
written notice of injury, as used in the Texas Workers' Compensation Act, §409.021,
consists of the insurance carrier's earliest receipt of:
(1)
the Employer's First Report of Injury as described in §120.2
of this title (relating to Employer's First Report of Injury);
(2)
the notification provided by the Commission under subsection
(e) of this section; or
(3)
if no Employer's First Report of Injury has been filed,
any other communication regardless of source, which fairly informs the carrier
of the name of the injured employee, the identity of the employer, the approximate
date of the injury and information which asserts the injury is work related.
(b)
Written notice of injury for a certified self-insurer is
received on the date the qualified claims servicing contractor designated
by the self-insurer under Texas Labor Code §407.061(c) receives the notice.
(c)
Written notice of injury for a political subdivision that
self-insures under Texas Labor Code §504.011, either individually or
through an interlocal agreement with other political subdivisions, is received
on the date the intergovernmental risk pool or other entity responsible for
administering the claim receives the notice.
(d)
The carrier shall immediately create a written record on
paper or in an electronic format of the earliest notice of injury as defined
in subsection (a) of this section that is not received in writing. The date
of receipt of a written notice of injury shall be deemed to be the earliest
date the carrier receives the information identified in subsections (a)(1),
(2), or (3) of this section. Upon request of the Commission, a carrier shall
provide an affidavit indicating the receipt or non-receipt of a notice of
injury received and the receipt date.
(e)
The Commission shall furnish written notification to the
carrier when a source other than the carrier reports:
(1)
an injury that may cause the employee eight days or more
of disability or has resulted in an impairment;
(2)
a death; or
(3)
an occupational disease.
(f)
If a carrier is notified of an injury for which it has
not received an Employer's First Report of Injury, from the employer, the
carrier shall contact the employer regarding the injury within seven days
of notification.
(g)
Subsections (b) and (c) of this section apply only to compensable
injuries with a date of injury on or after September 1, 2003.
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 February 23, 2004.
TRD-200401260
Susan Cory
General Counsel
Texas Workers' Compensation Commission
Effective date: March 14, 2004
Proposal publication date: October 31, 2003
For further information, please call: (512) 804-4287
28 TAC §124.3
The Texas Workers' Compensation Commission (the commission)
adopts amendments to §124.3 (relating to Investigation of Injury and
Notice of Denial/Dispute), with changes to the proposed text published in
the September 5, 2003, issue of the
Texas Register
(28 TexReg 7505).
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. This preamble contains a summary
of the factual basis of 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 15, 2003, and are described
in the summary of comments and responses section of this preamble. Other changes
were made for consistency or to correct typographical or grammatical errors.
Changes in the proposed text include §§124.3(a)(2), 124.3(a)(2)(B),
124.3(c)(2), and 124.3(f).
These rule changes are adopted to comply with statutory mandates in the
Texas Labor Code. The statutory changes from the 2003 legislative session
were in response to the Texas Supreme Court's decision in
Continental Casualty Company v. Downs
, 81 S.W.3d 803 (Tex. 2002). The
court's decision changed the long-standing interpretation of when a carrier
has waived the right to contest compensability and liability of a claim. The
Legislature's changes provide statutorily specific timeframes and penalties.
There were two changes with respect to time frames. One further supported
the previous §409.021(c) in clarifying that carriers have 60 days to
contest compensability of a claim after receiving written notice. The other
is that the time for carriers to contest compensability of a claim or begin
benefit payments was increased from seven to 15 days. Related to the 15-day
period are new violations with fixed penalty amounts.
Adopted §124.3 - Investigation of an Injury and Notice of Denial/Dispute.
Amendments to §124.3 (a) (1) and (2) change the seven-day period to
fifteen days in accordance with the revised statute. This legislative change
allows the insurance carrier more time to investigate a claim before the initial
deadline for indicating if it will accept and pay benefits or deny a claim
for compensation. It also resolves the problem of the carrier having to begin
payment of benefits prior to the actual accrual of benefits in order to avoid
being subject to a violation. It should be noted that this change does not
affect the date the carrier must initiate payment of income benefits, if benefits
begin to accrue. The carrier is still required to make initial payment within
seven days of the accrual date (the eighth day of disability) if it does not
deny the claim by the 15th day.
As a result of public comments, a change was made to the rule's text as
it was proposed for subsection (a)(2), to clarify the timeframe for filing
notices of denial. Without restriction, a carrier may file a notice of denial
with the commission after the 15-day deadline up to and including the 60-day
deadline. However, the amendment to §124.3(a)(2) makes it clear that
if a carrier does not file a notice of denial with the commission during the
15-day period, the carrier is liable for all benefits that accrue up to the
date that a notice of denial is filed with the commission. For medical benefits,
this includes medical services provided up to the date of the denial. For
example, if a carrier receives a bill from the health care provider after
a denial is filed, if the dates of service were prior to the date of the denial,
payment is required. For income and death benefits, it includes the benefits
that have accrued and were payable prior to the date the notice of denial
is filed.
Based on public comments, an additional change was made to §124.3
(a)(2)(B). Public comment indicated that the language could be construed as
requiring the insurance carrier to pay for all medical services regardless
of the relatedness to the injury or whether the treatment was reasonable and
necessary for treatment of the injury. While the commission finds it inappropriate
to define all treatments that fall into this area, it did add to the rule
language indicating that the insurance carrier is liable for payment, in accordance
with the Act and rules, affirming that the insurance carrier is to pay for
all medical services provided prior to the filing of a denial pursuant to
the Act and commission rules.
Another change was made to the rule as proposed with respect to §124.3(a)(4)
and (a)(4)(B). The reference to income or death benefits has been replaced
with the reference only to benefits. This change was made to comply with the
language as proposed in HB2199, which makes reference only to benefits and
does not specifically differentiate a type of benefit. Texas Labor Code §401.011
(5) defines "benefit" as a medical, income, or death or burial benefit.
Section 124.3 (a) (4) is added to set forth the specific administrative
penalties outlined in Texas Labor Code §409.021(e). Prior to the statutory
change, the commission had latitude to consider mitigating and aggravating
factors when determining the amount of penalty assessed when a carrier failed
to meet the pay or dispute deadlines established by §409.021(e). The
statute and the rule now provide specific penalties that must be paid when
such a violation occurs.
For processing efficiency under the rules, carriers are no longer permitted
to file with the commission "cert 21s" (Form TWCC 21 Payment of Compensation
or Notice of Refused or Disputed Claim), agreeing to pay benefits as they
accrue and are due. This processing portion of the amended rule is consistent
with §124.2(j), which prohibits carriers from filing a notice with the
commission explaining that benefits will be paid as they accrue.
After consideration of public comment and a thorough review of the processing
requirements, the commission has removed the provisions related to automatic
payment of penalties and self-reporting for late initiation of benefit violations
from the rule. Insurance carriers self-report late payment violations already
through the electronic data interchange (EDI) process. Under §124.2,
carriers are required to report when they begin payment of benefits. Based
on the EDI data, the commission is able to ascertain whether payments have
been issued timely or not. The commission requires carriers to report data
accurately so the commission can reliably monitor timeliness of initial payments.
In order to monitor a carrier's overall performance in timely initiating benefits,
the commission will continue to conduct performance reviews in this area.
The scope of these audits includes an analysis of the accuracy of the data
reported by carriers; this helps to ensure the integrity of EDI data. In cases
where system data inaccurately produces a violation finding of a late payment,
a carrier could appeal the finding in accordance with Texas Labor Code §415.032.
Some additional programming by the commission will assist the Division of
Compliance and Practices (C&P) in quickly identifying late payments and
the violation tier into which they fall. The commission will periodically
send an invoice out to each carrier that indicates the amount of penalty due
as well as the proper way to document and send the payment to the commission
for processing.
This decision that the commission shall bill the carriers came from the
anticipated cost to both insurance carriers and the commission associated
with individual payments. There would be a considerable increased cost to
carriers, as well as significant accounting problems for the commission, associated
with having to process numerous individual payments. A periodic invoice will
also allow better tracking by C&P for the purpose of audits. Changes from
the proposed text include deleting subparagraphs (A) and (B); re-designating
subparagraphs (C) and (D) as subparagraphs (A) and (B) respectively, and adding
a new subparagraph (C) stating that the commission will periodically send
invoices to insurance carriers for administrative penalties associated with
late payment violations.
Instead of allowing the continued practice of considering mitigating and
aggravating factors by the commission in determining how much carriers are
penalized for violations, the legislature chose to set up mandatory, specific
amounts for each late payment violation. The penalty amounts are set out in
the Act and the rule in increasing amounts ($500, $1,500, $2,500, $5,000)
for longer periods of noncompliance after the 15th day. The word, "working,"
has also been added to §124.3(a)(4)(C)(iv) to establish that the $5,000
administrative penalty is to be assessed for violations occurring more than
30 "working" days after the 15th day. That is to make it clear that there
is no overlap between the $2,500 and $5,000 violation periods; the $2,500
and $5,000 violations do not combine for a total of $7,500; and the $5,000
violation period does not begin before the $2,500 violation period ends. Although
the term, "working," is absent from the statutory language referring to the
$5,000 violation period, including it in the rule will harmonize what might
otherwise be construed as irreconcilable language, so as to give effect to
all portions of the statutory amendment. Section 124.3(a)(4)(D), as amended,
provides that the violations are not cumulative and a violation occurs only
for the initial late payment of benefits.
A new subsection (b) is added. Carriers have 60 days to file a notice of
denial of a claim with the commission. If a carrier does not file a denial
within that 60-day period, it waives its right to contest compensability of
the claim, except as specified in subsection (c).
Subsection (c) explains the provisions for reopening the issue of compensability
after the 60th day. This language, presently found in §124.3(a)(3) of
the current rule, is re-designated as subsection (c). There are very limited
exceptions that the carrier must affirmatively prove in order to re-open the
issue of compensability after the 60th day. Also, the carrier is required
to pay benefits, if it fails to dispute a claim before the 60th day, until
the commission makes a determination that the carrier could re-open the issue
and the claim is determined to not be compensable. The language of (c)(2)
was amended from the text as proposed to clarify that the carrier shall pay
benefits until a commission decision and order is rendered on the issue and
not until a final, non-appealable decision has been reached.
Subsections (b) and (c) of the current rule are re-designated as subsections
(d) and (e) respectively, as a result of the new subsection (b) and the re-designation
of §124.3(a)(3) as subsection (c).
Subsection (f) is added to the rule as proposed, to specify that the 15-day
time frame provided for in subsection (a) and the administrative penalty provisions
of subsection (a)(4) apply only to claims for benefits based on compensable
injuries occurring on or after September 1, 2003. Subsection provides, further,
that the applicable time frame is seven days and the administrative penalty
provisions of subsection (a)(4) are inapplicable for claims based on compensable
injuries occurring prior to September 1, 2003. The administrative penalty
provisions found elsewhere in the commission's rules and in provisions of
the Act other than §409.021 will continue to apply to claims based on
compensable injuries occurring before September 1, 2003.
The following groups or associations submitted comments recommending delaying
adoption at this time: Insurance Council of Texas; the law firm of Burns,
Anderson, Jury & Brenner; and Liberty Mutual Group.
The following groups or association submitted comments making recommendations,
and/or supporting portions and opposing portions of §124.3: Texas Dept.
of Transportation; American Ins. Association; Alliance of American Insurers;
Texas Assn. Of School Boards Risk Management Fund; Harris & Harris Law
Firm; Lockheed Martin Aeronautics Co.; Attorney Daniel Morris; Texas Association
of Business; Texas Mutual Insurance Company; and the law firm of Flahive,
Ogden & Latson.
Summaries of the comments and commission responses are as follows:
Comment: Commenters assert that the rule does not make it clear that a
carrier is not liable for benefits that have accrued up to the date the carrier
files its contest of compensability if its contest of compensability is filed
with the commission on or before the 15th day after it received written notice
of the claim. One commenter suggested changing the rule to, "If the carrier
files a notice of denial by the 15th day after receipt of the written notice
of injury, the carrier is not obligated to initiate benefits in accordance
with this title."
Response: The commission disagrees. A carrier is only liable for benefits
that have accrued when it contests compensability more than 15 days after
it receives written notice of the claim. The suggested change is just another
way of stating what was proposed, but it could be argued that it relieves
carriers from initiating benefits at any time thereafter as well.
Comment: Commenters state there is no statutory authority for the current
rule that a carrier that fails to deny within 15 days is liable for any benefits
that accrue. Further, commenter asserts a carrier is liable for benefits only
for compensable injuries; therefore, the commission does not have the authority
to require payment of benefits until there is a confirmed compensable injury.
Response: The commission disagrees. Under the rule, such claims are considered
compensable until denied by the carrier and adjudicated otherwise. A carrier
is obligated during the 15-day period after receiving written notice of the
claimed injury to investigate the claim and begin payment of benefits or deny.
If a carrier does not deny a claim within the 15 day period, that carrier
is liable for all accrued benefits, as specifically stated in subsection (a)(2)(A)
and (B) and by statute. In the 78th legislative session, 2003, the legislature
made several substantive changes to section 409.021 to ameliorate unreasonable
requirements imposed on carriers. They made no change with respect to a carrier's
requirement to contest compensability or begin payment of benefits; they only
changed the time period from seven to fifteen days. No change was made with
respect to carrier liability for benefits if the claim is not contested in
the 15-day period. Therefore, the rule, as it relates to carrier liability
for accrued benefits, is not being amended.
Comment: Commenter suggests adding a statement in the preamble "to indicate
medical benefits have always been included respective to the rule."
Response: The commission agrees that because the statute and the rule address
"benefits," it necessarily includes medical benefits in accordance with §401.011(5).
Therefore, the commission does not agree that there is a need for additional
language to that effect in this adoption preamble, other than to acknowledge
and affirm the comment here.
Comment: A Commenter suggests two changes. First, he points out that the
wording of §124.3(a)(3) would end the denial period before the 60th day.
Commenter suggests changing "but before the 60th day" to "but on or before
the 60th day". The commenter further indicates that the last phrase in §124.3(a)(2)
is unnecessary because the subsections clarify what should be paid. Commenter
suggests changing the language to "the carrier is liable for and shall pay
all benefits due after receipt of written notice of an injury."
Response: The Commission agrees with the concept, but has changed the subsection
using different language than that suggested in order to address concerns
related to other problems associated with the suggested language. The text
is amended to read as follows:
(1) If the carrier files a notice of denial after the 15th day but on or
before the 60th day after receipt of written notice of the injury:
(A) The insurance carrier is liable for and shall pay all income benefits
that had accrued and were payable prior to the date the carrier filed the
notice of denial and only then is it permitted to suspend payment of benefits;
and
(B) The insurance carrier is liable for and shall pay for all medical services,
in accordance with the Act and rules, provided prior to the filing of the
notice of denial.
Comment: Commenters asserted that if a carrier chooses to delay filing
a contest of compensability up until the 60th day, it should not be liable
for benefits that have accrued after the 15th day through the day it files
its contest of compensability with the commission. Commenters suggest that
requiring the payment of accrued benefits constitutes an additional penalty
not authorized by the Act.
Response: The commission disagrees. The requirement to properly pay benefits
as they accrue is a long-standing principle under the provisions of Texas
Labor Code §409.021 and §408.081. The legislature's intent regarding
this requirement was not part of the changes made to the Act in the 2003 legislative
session. Based on these provisions in the Act and §124.3, carriers have
been liable for benefits if they did not contest compensability or begin payment
of benefits within seven days within receiving notice of the injury. Under
amended rule 124.3, the timeframe is being changed from seven days to 15 days
in accordance with HB 2199. Payment of accrued benefits under the rule is
not an administrative penalty or sanction; it is statutory carrier liability
that continues to remain in effect subject to dispute by the carrier by filing
a contest of compensability with the commission.
Comment: Commenters disagree with language of §124.3(a)(3) stating
that a failure to file a notice of denial by the 15th day after receipt of
written notice constitutes acceptance of the claim. Commenters argue that
payment of accrued benefits does not imply a waiver of the right to later
deny that claim. Commenters assert that a carrier does not waive its right
to contest compensability until the 60th day after the carrier receives notice
of the injury, and to state otherwise is contrary to the legislative intent
of HB 2199.
Response: The Commission agrees that a carrier has 60 days from receipt
of written notice of injury to contest compensability of the claim. As the
commenters assert, acceptance of the claim as compensable does not prevent
a carrier from later contesting compensability within that 60 day period.
Therefore, language is added to §124.3(a)(3) to clarify that the carrier's
acceptance of the claim as compensable is nevertheless subject to the carrier's
ability to contest compensability on or before the 60th day after receipt
of written notice of the injury.
The language to which commenters object is included in the rule to address
the new statutory provision of Texas Labor Code §409.021(a-2), which
provides that a carrier is not required to comply with the 15-day "pay or
dispute" requirements of §409.021(a) "if the carrier has
accepted the claim as a compensable injury
and income or death benefits
have not yet accrued but will be paid by the insurance carrier when the benefits
accrue and are due" (emphasis added).
Comment: Commenters have stated that liability for medical benefits should
be limited to care that is related to the compensable injury and care that
is reasonable and necessary. They recommend that such language be added to
the rule.
Response: The commission agrees in part. While the Commission agrees with
the principle stated by the commenter, it does not agree with adding the suggested
language. Insurance carrier liability for medical benefits under this section
is the same as it would be for any compensable injury. Therefore, insurance
carrier liability would necessarily be limited to medical care that is related
to the injury and medical care that is reasonable and necessary. It would
be inappropriate to attempt in this section to summarize the limits of insurance
carrier liability for medical benefits that are covered throughout the Act
and rules.
Comment: Several commenters assert that failure to begin to pay benefits
or contest compensability in the 15-day period does not constitute acceptance
of the claim by the carrier as compensable as is provided in the rule. Other
commenters specifically questioned situations when a carrier chooses not to
deny a claim within 15 days but no benefits are accruing.
Response: The commission disagrees. Under the rule, such claims are compensable
until denied by the insurance carrier and adjudicated otherwise. An insurance
carrier is obligated within 15 days of receiving written notice of the claimed
injury to investigate. If an insurance carrier does not deny a claim within
the 15 day period, that insurance carrier is liable for all benefits as specifically
stated in subsection (a)(2)(A) and (B) and the statute. In changing the statute,
the 2003 legislature specifically provided that in those instances where the
carrier does not within the 15 day period contest compensability of the claim
or begin payment of benefits because no benefits are due, a carrier is not
subject to a violation if it agrees the claim is compensable and will pay
benefits as they accrue and are due. No commenter gave a reason why a carrier
should accept a claim as compensable if no benefits are accruing, while in
all other claims they must accept only liability.
Comment: Several commenters stated that it appears the rule's requirements
would result in an automatic violation even if the carrier has accepted the
claim but no benefits were accruing and payable. They assert the a carrier
should not be subject to a violation when it does not deny a claim by the
15th day after receipt of written notice of an injury, but no benefits are
accruing because the employee has not lost time from work or sought medical
treatment.
Response: The Commission disagrees in part. The commission disagrees that
clarification is required because that is what is provided in subsection (a)(4).
For carriers who have accepted the claim as compensable and will pay future
benefits if they accrue and are due, the commission agrees that a Carrier
does not commit a violation. A violation occurs in this situation only if
benefits later accrue and are not paid when due if no dispute has been filed.
This subsection of the rule is based on subsection (a-2) of §409.021.
Comment: A commenter requests clarification regarding liability when an
employee does not immediately notify the carrier or employer of an injury.
An example is given of a worker that is hospitalized after a heart attack.
Twenty-eight days later, he notifies the employer that this was an on-the-job
injury. The carrier denies the claim the day after it receives written notice.
The commenter suggests that the rule and preamble indicate the carrier must
pay 4 weeks of TIBs and all the hospital bills even though the employer and
carrier acted promptly and even though this may not be a compensable claim.
This situation will result in all cases in which the claimant reports a claim
more than 8 days after the date of injury, driving an increased cost burden
for carriers that have not been dilatory in their responsibilities.
Response: The commission disagrees. The carrier has up to 15 days after
its receipt of written notice of injury to either pay or dispute the claim.
In this example, the carrier did not receive written notice until 28 days
after the date of injury but contested compensability the day after it received
written notice of the claim. As a result, Carrier contested compensability
within the 15 days as required by subsection (a). The carrier is not liable
for any benefits unless it is later determined by agreement of the parties
or in the dispute resolution process that the claim is compensable.
Comment: Commenters suggest there should be a violation exception when
a carrier is unaware there has been lost time from work and benefits have
accrued and are payable.
Response: The Commission disagrees. It is the carrier's responsibility
to monitor claims for disability. The preamble to rule 124.7 clarified that
"the carrier must monitor claims and pay benefits when it finds benefits are
due rather than when an outside source provides notice that benefits are probably
due." Because audits indicate this is a rare occurrence and, an exception
would be inconsistent with §124.7, the requested change would be inappropriate.
Comment: Commenters points out that there are numerous reasons why a claimant
may not be due temporary income benefits. Commenter asserts that the rule
could be read in such a way that the notification of refusal to pay benefits
for these reasons might constitute a waiver of the right to subsequently dispute
compensability. A commenter suggested language to be inserted in the rule.
Response: The commission disagrees in part. It is provided in §124.2
(h) of commission rules, that carriers,
in appropriate
cases
, may dispute benefit entitlement, i.e. disability and entitlement
to temporary income benefits. A dispute of benefit entitlement is not a dispute
of compensability/liability. In filing a dispute of benefit entitlement, the
insurance carrier retains the right to contest compensability and liability
of the claim within the 60-day period after receiving written notice. Because
this is provided for by statute and rule, there is no need to add the suggested
language to this rule. However, it should be noted that §409.021, §409.022, §124.2
and §124.3 do not provide a carrier opportunity to dispute disability
simply to avoid payment of accruing income benefits while it continues its
compensability investigation after the initial 15-day period.
Comment: Commenters object to the provision that carriers are to self-report
violations. Several reasons were given. First, it would result in inconsistent
enforcement. Second, it would create a great burden on carriers. Third, carriers
are being treated differently than all other system participants because they
are the only ones who are required to self-report. One commenter suggested
making self-reporting voluntary.
Response: The commission agrees in part. Carriers already self-report late
initial payments through the EDI process. Assuming carriers provide accurate
information, the commission's monitoring program will identify each late payment.
This will also give C&P an additional focus when performing audits to
ensure accurate information is being provided through EDI. In addition, C&P
will continue to review violation referrals for alleged non-compliance with
the statute and rules.
After further consideration, the requirement for automatic payment of penalties
as and when they occur was deleted. The commission will provide a periodic
invoice with instructions for proper documentation and submission of payments.
With a commission process for sending invoices there is no greater burden
for either the carrier or the commission in documenting or processing the
violations or payments.
Comment: Commenters asked what Compliance & Practices' role would be
if carriers must self-report violations.
Response: Compliance & Practices' role is to monitor carrier performance
for the timely initiation of accrued benefits or denial of claims. The Division
accomplishes this through ongoing review of electronic data interchange (EDI)
information that carriers are required to report to the commission. In addition,
the Division reviews violation referrals for alleged non-compliance with the
statue and rules.
Comment: Several commenters have indicated that the rule would require
a second level of administrative penalties to address violations by carriers
that fail to comply with the 15-day pay or dispute requirement and also fail
to pay the penalty without notice from the Commission.
Response: The Commission agrees. However, the proposed 'automatic payment
of violation penalties' aspect has been deleted from the adopted rule.
Comment: A commenter states that requiring self-reporting of violations
for failing to begin benefit payments to employees is inadequate protection
for employees to insure benefits are paid promptly. As a further protection,
carriers should not be allowed to deny compensability of the claim or entitlement
to benefits until it pays and certifies it has paid all benefits due at the
time of filling a denial with the commission.
Response: The commission disagrees. Prompt payment of benefits to injured
employees is safeguarded by the statutory mandate in HB 2199 to timely initiate
any accrued benefits. Failure to do so subjects the carriers to prescribed
penalties stated in the statute. The enforceability of amended rule 124.3
should be sufficient to ensure that carriers pay all benefits owed to an employee,
without necessitating the carrier's certification that benefits have been
paid. Further, the clear thrust of the statutory provision is that carriers
will have 60 days to contest compensability without restrictions.
Comment: Commenters suggest two changes to §124.3(c). First, a commenter
points out there should be a colon rather than semicolon at the end of the
last line of §124.3(c) prior to paragraph (1); and that there should
be a semicolon after the text of subsection (c)(1) rather than a period as
well as the word "and". Second, a commenter points out the proposed rule requires
payment of benefits to continue to be made until all final appeals are made.
Commenter states this will guarantee that overpayments are made. Also, this
change violates §410.168 that provides that a hearing officer's order
is binding during an appeal. The commenter states the amendment should be
withdrawn and the current rule allowing a carrier to suspend benefits after
a hearing officer's ruling to stand should be retained.
Response: The commission agrees. §124.3(c) is changed to read as follows:
(c) If the carrier wants to deny compensability of or liability for the
injury after the 60th day after it received written notice of the injury:
(1) the carrier must establish that it is basing its denial on evidence
that could not have reasonably been discovered earlier; and
(2) the carrier is liable for and shall pay all benefits that were payable
prior to and after filing the notice of denial until the Commission has made
a finding that the evidence could not have been reasonably discovered earlier.
Comment: A commenter recommends adding a new paragraph (3) to 124.3(c)
stating, "In no instance shall the 60 day limit apply to bar dispute of a
claim based on false or misleading information regardless of the date of discovery."
Response: The Commission disagrees. There are two different provisions
that already cover the circumstances inferred by the commenter. First, under §409.021(d)
and Rule 124.3(c) if a carrier establishes that there is newly discovered
evidence that could not have reasonably been discovered earlier, a carrier
may re-open the issue of compensability after 60 days. Second, under §415.008,
a person commits a violation if that person obtains benefits by knowingly
making false or misleading statements or misrepresents or conceals material
facts. Texas Labor Code §415.008(e) prohibits the commission from taking
final action on benefits if such an administrative proceeding is pending.
The amended rule is adopted under the Texas Labor Code §402.061,
which authorizes the commission to adopt rules as necessary for the implementation
and enforcement of the Texas Workers' Compensation Act, Texas Labor Code §401.001
et seq.; Texas Labor Code §401.011, which provides definitions used in
the Texas Workers' Compensation Act; Texas Labor Code §402.042, which
authorizes the Executive Directors to enter orders as authorized by the statute
as well as to prescribe the form, manner, and procedure for transmission of
information to the Commission; Texas Labor Code §406.010, which authorizes
the Commission to adopt rules regarding claims service; Texas Labor Code §408.003,
which allows an employer to initiate benefits or to pay salary continuation;
Texas Labor Code §408.021, which describes an injured worker's entitlement
to medical benefits; Texas Labor Code §408.081, which provides for proper
payment of income benefits; Texas Labor Code §408.082, related to the
accrual of the right to income benefits; Texas Labor Code, §409.021,
relating to an insurer's right to contest the compensability of an injury
in a workers' compensation case; Texas Labor Code, §409.022, which requires
the insurance carrier's notice of refusal to specify the grounds for the refusal,
and specifies that the grounds for the refusal specified in the notice are
the only basis for the insurance carrier's defense on the issue of compensability,
unless the defense is based on newly discovered evidence that could not reasonable
have been discovered at an earlier date; Texas Labor Code, §409.024,
which requires the insurance carrier to file with the Commission a notice
of termination or reduction of benefits, including the reason for the termination
or reduction, not later than the tenth day after the date on which benefits
are terminated or reduced; and Texas Labor Code, §415.002, which set
forth certain administrative violations of an insurance carrier.
§124.3.Investigation of an Injury and Notice of Denial/Dispute.
(a)
Except as provided in subsection (b) of this section, upon
receipt of written notice of injury as provided in §124.1 of this title
(relating to Notice of Injury) the carrier shall conduct an investigation
relating to the compensability of the injury, the carrier's liability for
the injury, and the accrual of benefits. If the carrier believes that it is
not liable for the injury or that the injury was not compensable, the carrier
shall file the notice of denial of a claim (notice of denial) in the form
and manner required by §124.2 of this title (relating to Carrier Reporting
and Notification Requirements).
(1)
If the carrier does not file a notice of denial by the
15th day after receipt of the written notice of injury, the carrier is liable
for any benefits that accrue and shall initiate benefits in accordance with
this section.
(2)
If the carrier files a notice of denial after the 15th
day but on or before the 60th day after receipt of written notice of the injury:
(A)
The insurance carrier is liable for and shall pay all income
benefits that had accrued and were payable prior to the date the carrier filed
the notice of denial and only then is it permitted to suspend payment of benefits;
and
(B)
The insurance carrier is liable for and shall pay for all
medical services, in accordance with the Act and rules, provided prior to
the filing of the notice of denial.
(3)
The carrier shall not file notice with the commission that
benefits will be paid as and when they accrue. A carrier's failure to file
a notice of denial of a claim by the 15th day after it receives written notice
of an injury constitutes the carrier's acceptance of the claim as a compensable
injury, subject to the carrier's ability to contest compensability on or before
the 60th day after receipt of written notice of the injury.
(4)
The carrier commits a violation if, not later than the
15th day after it receives written notice of the injury, it does not begin
to pay benefits as required or file a notice of denial of the compensability
of a claim in the form and manner required by §124.2.
(A)
An administrative penalty under this subsection shall be
assessed at:
(i)
$500 if the carrier initiates compensation or files a notice
of refusal within five working days of the date required by subsection (a);
(ii)
$1,500 if the carrier initiates compensation or files
a notice of refusal more than five and less than 16 working days of the date
required by subsection (a);
(iii)
$2,500 if the carrier initiates compensation or files
a notice of refusal more than 15 and less than 31 working days of the date
required by subsection (a); or
(iv)
$5,000 if the carrier initiates compensation or files
a notice of refusal more than 30 working days after the date required by subsection
(a).
(B)
The administrative penalties provided for in this subsection
are not cumulative and a violation occurs only with respect to the initial
late payment of benefits.
(C)
The commission will send periodic notifications to all
carriers regarding the amount of penalties owed and the proper way to submit
and document the payments.
(b)
Except as provided by subsection (c), the carrier waives
the right to contest compensability of or liability for the injury, if it
does not contest compensability on or before the 60th day after the date on
which the insurance carrier receives written notice of the injury.
(c)
If the carrier wants to deny compensability of or liability
for the injury after the 60th day after it received written notice of the
injury:
(1)
the carrier must establish that it is basing its denial
on evidence that could not have reasonably been discovered earlier; and
(2)
the carrier is liable for and shall pay all benefits that
were payable prior to and after filing the notice of denial until the Commission
has made a finding that the evidence could not have been reasonably discovered
earlier.
(d)
If the claim involves the death of an injured employee,
investigations, denials of compensability or liability, and disputes of the
eligibility of a potential beneficiary to receive death benefits are governed
by §132.17 of this title (relating to Denial, Dispute, and Payment of
Death Benefits).
(e)
Texas Labor Code, §409.021 and subsection (a) of this
section do not apply to disputes of extent of injury. If a carrier receives
a medical bill that involves treatment(s) or service(s) that the carrier believes
is not related to the compensable injury, the carrier shall file a notice
of dispute of extent of injury (notice of dispute). The notice of dispute
shall be filed in accordance with §124.2 of this title (relating to Carrier
Reporting and Notification Requirements) and be filed not later than the earlier
of:
(1)
the date the carrier denied the medical bill; or
(2)
the due date for the carrier to pay or deny the medical
bill as provided in Chapter 133 of this title (relating to General Medical
Provisions).
(f)
The 15-day time frame provided for in subsection (a) and
the administrative penalty provisions of subsection (a)(4) apply to a claim
for benefits based on a compensable injury occurring on or after September
1, 2003. For claims based on a compensable injury occurring prior to September
1, 2003, the applicable time frame is seven days and the administrative penalty
provisions of subsection (a)(4) are inapplicable.
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 February 23, 2004.
TRD-200401261
Susan Cory
General Counsel
Texas Workers' Compensation Commission
Effective date: March 14, 2004
Proposal publication date: September 5, 2003
For further information, please call: (512) 804-4287
The Texas Workers' Compensation Commission (the commission) adopts
amendments to §§130.1, 130.5, 130.6 and 130.110, and new §130.12,
with changes to the proposed text published in the September 5, 2003, issue
of the
Texas Register
(28 TexReg 7604).
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. This preamble contains a summary
of the factual basis of 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 rules are in response to public comment received
in writing and at a public hearing held on October 15, 2003, and are described
in the summary of comments and responses section of this preamble. Other changes
were made for consistency with the Texas Workers' Compensation and other commission
rules, or to correct typographical or grammatical errors.
Changes in the text as proposed include §§130.5(d)(3)(B) and
(D), 130.6(c)(1)(A)(ii), 130.110(h), 130.110(i), 130.12(a), 130.12(b), 130.12(c),
and 130.12(d).
Adopted §130.1 Certification of Maximum Medical Improvement and Evaluation
of Permanent Impairment
The new language in §130.1(c)(3) states that an IR assessment for
an injured employee must be based on the injured employee's condition as of
the MMI date. This change clarifies that IR assessments must be based on the
injured employee's condition as of the date of MMI and shall not be based
on changes in the injured employee's condition occurring after that date,
such as when the injured employee's condition changes as a result of surgery
that takes place after the date of MMI. This may not be interpreted to mean
the changes in the injured employee's condition after a certified MMI date
may not result in a revision of the MMI date. In the event the MMI date is
changed, the IR would have to be based on the injured employee's condition
as of the changed MMI date. A change in the MMI date may also result in a
change in the IR when the injured employee's conditions are different as of
the new MMI date.
Adopted §130.5. Entitlement and Procedure for Requesting Designated
Doctor Examinations Related to Maximum Medical Improvement and Impairment
Rating
New language in §130.5(d)(3)(B) clarifies that a videotape of an injured
employee's activities may be included as part of the records forwarded to
the designated doctor by the treating doctor or by the insurance carrier.
This language is intended to address confusion about whether a videotape is
considered part of the "analysis" that can be forwarded to the designated
doctor. Section 130.110 of this title (relating to Return to Work Disputes
During Supplemental Income Benefits; Designated Doctor) currently allows videotapes
to be used as part of the supplemental income benefits (SIBs) designated doctor
exam process. It is anticipated that this new language will result in greater
consistency between the two rules, thereby resolving this issue as it relates
to MMI and IR examinations. The text has been changed from what was proposed
to also clarify that while the original unmarked medical record must be sent,
the analysis may also contain copies of medical documents with markings to
emphasize any point the insurance carrier or treating doctor wishes to bring
to the designated doctor's attention.
Language added to subsection (d)(3)(B) requires copies of analyses to be
sent to the injured employee and injured employee's representative (if any).
The rule currently requires the treating doctor and the insurance carrier
to exchange copies of analyses sent to the designated doctor; however, the
rule does not currently provide for the injured employee and injured employee's
representative (if any) to receive the information. The analysis sent to the
designated doctor (DD) by the treating doctor and the insurance carrier is
necessary for an adequate assessment regarding a potential dispute of the
DD's certification of MMI and/or assignment of an IR.
Earlier amendments to §130.5 added provisions intended to ensure that
the designated doctor had received the medical records prior to the examination.
Specifically, the rule was changed to require a designated doctor to contact
the commission if the doctor has not received the insurance carrier's or treating
doctor's records three working days prior to the examination. Despite this
change, anecdotal information indicates that designated doctors continue to
not receive the records before the examination. Many doctors do not notify
the commission when records are late or missing, as required by the current
rule; therefore, the commission is unable to estimate how widespread this
problem is due to lack of violation referrals. The commission believes the
records are important for a quality examination, and that performing the exam
prior to reviewing the records could negatively impact the quality of the
exam. These records may be critical to both the determination of MMI and the
assignment of an impairment rating (especially with the diagnosis related
estimate (DRE) model that is often used in the 4th Edition of the AMA Guides).
Further, if the doctor does not have the records, the doctor may be more likely
to evaluate additional body systems that are not related to the compensable
injury, thus increasing costs for an MMI evaluation and leading to unnecessary
dispute resolution.
Given that the receipt of records by designated doctors continues to be
a problem, the commission moved some language currently contained in subsection
(d)(3)(C) to new subsection (d)(3)(D) for clarity. For purposes of reporting
this type of violation, the commission recommends that the designated doctor
report the violation to the commission's Compliance and Practices division
in writing or via telephone. Further documentation to support the allegations
may be required. It is anticipated that in the future, system participants
will file violation referrals via the commission website. When this capability
is available, it will be the preferred method of filing violation referrals.
Subsection (d)(3)(D) allows the designated doctor to elect to reschedule
the examination if the medical records or any part thereof have not been received
at least three working days prior to the examination. It is the responsibility
of the designated doctor to decide whether or not sufficient records have
been received to conduct a quality examination. If the designated doctor elects
to reschedule the examination, it is the responsibility of the doctor to reschedule
the examination to occur within fourteen days of the originally scheduled
examination. Within 24 hours of rescheduling, the doctor shall contact the
insurance carrier and the commission field office with the date and time of
the rescheduled examination. While the medical records are important for a
quality examination, the designated doctor examination should not be postponed
multiple times due to a party's failure to comply with timeframes. This could
result in delayed benefits to the injured employee or overpayments of benefits
by the insurance carrier. Therefore, the commission proposes allowing only
one rescheduling of the examination due to insufficient records. This is reflected
in the new language requiring the designated doctor to conduct the re-scheduled
exam, even if the complete medical record has not been received as of that
date.
Added is a new paragraph (d)(5) to clarify that contact with the designated
doctor's non-medical office staff is permitted for the purposes of inquiring
about administrative matters, but that discussion regarding the injured employee's
condition, MMI status, impairment rating, return to work abilities, or similar
issues is prohibited. Given that insurance carriers are to suspend temporary
income benefits should an injured employee fail to attend a designated doctor
examination if certain conditions exist, insurance carriers need the ability
to contact the doctor's office staff to verify that the examination took place.
In addition, the parties may not have received a copy of the Report of Medical
Evaluation (TWCC-69) and/or narrative and it would be appropriate for them
to contact the doctor's staff for that purpose.
The commission deleted the word, "request," from subsection (e) to clarify
that a designated doctor examination cannot occur more frequently than every
60 days unless good cause for more frequent examinations exists, as provided
by §408.0041 of the Texas Labor Code. Additionally, the commission deleted
the word, "appointment," and replaced it with the word, "examination," for
consistency in terminology.
The commission added the language, "requires clarification concerning,"
to subsection (f), replacing "wishes to dispute." Also in subsection (f),
the commission changed the requirement for a party to file "a dispute" to
a requirement that a party file a "request for clarification." These terms
are the more appropriate terms for this subsection because a dispute does
not have to be filed with the commission for the items in paragraphs (1) and
(2) to occur. The commission also added language to subsection (f)(1) to clarify
the name of the rule that is being referenced. Finally, the commission added
language to subsection (f)(3) to clarify that the filing of a request for
a benefit review conference initiates the dispute resolution process with
respect to issues of MMI and IR after a designated doctor has made MMI/IR
certification.
Adopted §130.6. Designated Doctor Examinations for Maximum Medical
Improvement and/or Impairment Ratings
The commission amended subsection (b) by extending the amount of time a
designated doctor has to reschedule an examination from seven days to fourteen
days when there is a scheduling conflict between the designated doctor and
the injured employee. Doctors often have difficulty meeting the seven-day
timeframe to reschedule exams due to booked appointments or other conflicts.
Recognizing the difficulty of rescheduling an examination to occur within
a seven-day period, the commission has changed the timeframe to fourteen days
to assist in accommodating the designated doctors' needs. Although this proposal
would add seven days to the period allowed for rescheduling a designated doctor
exam, it is less time than that required for the commission to select another
doctor to conduct the exam when a scheduling conflict arises under the current
rule.
The amendment to subsection (b) necessitated the same change from seven
days to fourteen days for §130.6(c)(1)(A)(ii). Therefore, §130.6(c)(1)(A)(ii)
was amended in the rule as adopted to change seven days to fourteen days.
The commission amended subsection (g) to extend the amount of time a designated
doctor has to complete additional testing from seven calendar days to seven
working days. Sometimes, particularly in rural areas, the designated doctor
is either unable to arrange for the testing or unable to receive the results
within a reasonable period of time. Additional testing described in this subsection
does not include standard range of motion and strength training and is therefore
expected to be infrequent.
Subsection (h) currently references §130.1 of this title (relating
to Certification of Maximum Medical Improvement and Evaluation of Permanent
Impairment) as the rule in accordance with which designated doctors are required
to file their reports. However, designated doctors are also required to file
reports in accordance with §130.3 of this title (relating to Certification
of Maximum Medical Improvement and Evaluation of Permanent Impairment by a
Doctor Other Than the Treating Doctor), which requires filing a copy of the
report with the treating doctor. Therefore, a reference to §130.3 is
added to subsection (h).
The commission amended subsection (i) by re-organizing existing language
into new subsection (i)(1) and (i)(2) and by adding language to clarify, in
subsection (i)(1), that the designated doctor is required to make him/herself
available to conduct a re-examination even though this may require the designated
doctor to travel back to the location of the original examination.
The commission adds language to §130.6 (j) that sets forth the records
that a designated doctor is required to keep after an examination. With the
changes to the statute that have resulted in more designated doctor examinations
being held per claim, it is likely that a designated doctor will see the same
claimant more than once. As such, to save time and money for treating doctors
and insurance carriers submitting records to the doctor for review, the proposed
amendment requires designated doctors to keep the records used in the examination.
An additional benefit of this proposed change will be to facilitate the commission's
review of the quality of doctors' evaluations. Doctors' retention periods
for medical records is governed by their licensing boards.
Adopted new §130.12. Finality of the First Certification of Maximum
Medical Improvement (MMI) and/or First Assignment of Impairment Rating (IR)
The commission adds a new section, §130.12, to address recent statutory
changes brought about by the 78th Legislature, 2003, to address the finality
of certain MMI/IR certifications. These changes were the result of three similar
bills. June 18, 2003 was the earliest effective date for the applicable statutory
changes and it is the effective date for this rule. In 1991, provisions were
added to §130.5(e) for finality of assignment of an IR if not disputed
within 90 days of the certification. These provisions were amended in March
2000 to allow for exceptions to the 90-day deadline. However, the court decision
in
Fulton v. Associated Indemnity Corporation
,
46 S.W. 3d 364 (Tex. App. -- Austin 2001, pet. denied), overturned this provision
citing that the 90-day limit was at odds with the 104-week period provided
under the Act for an injured employee's medical condition to stabilize. The
78th Legislature, 2003, amended the Act to allow for an earlier finality,
which is consistent with existing statutory provisions that provide that MMI
should be certified when further material recovery is no longer anticipated.
The commission has re-arranged the adopted text in §130.12 (a) and
(b) from the proposed text. Subsection (a) now addresses only the types of
MMI/IR that may become final. The text that addressed aspects of the dispute
process was moved to subsection (b). The text was re-arranged to give a more
logical progression of ideas by grouping all aspects of dispute into the same
subsection, rather than providing guidance in both subsections. Another change
from the text of the rule as proposed is the addition of language to §130.12(a)(1)
and (3) to clarify that the certifications and assignments that may become
final include determinations of no impairment.
The amended §408.123 provides three circumstances when an MMI/IR certification
may become final. The provisions in §130.12(a) regarding the initial
certifications, both pre- and post-104 weeks, and MMI date extension for spinal
surgery under §408.104 are self-explanatory. There can be only one first
certification and assignment; however, unlike in the former Rule 130.5(e),
there is now a provision for finality of a subsequent MMI certification and/or
IR assignment if the first is overturned by a final decision (a decision that
may no longer be appealed) of the Commission or a court. If there is another
valid rating in evidence when the dispute is adjudicated at the contested
case hearing level, then §408.125(c) would apply and in most cases the
commission will be able to resolve the MMI/IR dispute by adopting a valid
rating provided by another authorized certifying doctor as provided by 130.1(a)
(1) (A). There may, however, be instances in which the dispute is not resolved,
even though the first MMI/IR has been overturned, modified, or withdrawn.
To address these instances, the text of what is now subsection (a)(3) has
been revised from the text as proposed. Further rationale for allowing the
commission to adopt another rating lies with the concept of presumptive weight
of the designated doctor. Also, with the passage of House Bill 2600 by the
77th Legislative session, 2000, a change was made to mandate a designated
doctor evaluation be held prior to the use of a Required Medical Exam for
an MMI certification to reduce the number of doctor appointments that the
injured employee potentially had to attend thus avoiding an undue burden on
the injured employee and the employer, if the injured employee had returned
to work. It should also save insurance carriers the cost of unnecessary added
examinations.
130.12(b)(5) was moved to (a)(4) for continuity and the language was amended
from the proposal to provide additional clarification of this infrequent situation
of multiple certifications. A designated doctor's MMI/IR certification with
multiple IRs may become final if it is the first certification and is not
disputed within the 90-day period. As with all other first certifications,
the 90-day period begins the day after the written notice is delivered to
the party wishing to dispute a MMI/IR certification. A party that wishes to
dispute the certification or any of the ratings should not wait until after
the extent of injury dispute is resolved as this resolution may occur after
the 90-day period expires and the certification may have already become final.
If not disputed, the MMI/IR question is "resolved" when there is an agreement
or final decision of the injured employee's extent of injury consistent with
the injuries noted for one of the assigned IRs. Participants need to understand
that disputing the extent of injury does not constitute a dispute of the impairment
ratings or the certification. The parties need to review the certifications
and multiple ratings upon receipt to ensure that the MMI/IR provided for the
various interpretations of the injury are correct. If the final decision regarding
the extent of the injured employee's injuries is not consistent with the injuries
of one of the assigned IRs, the designated doctor's MMI/IR certification with
multiple impairments cannot become final.
Section 130.12(b) provides a 90-day time period within which to dispute
a certification of MMI, in accordance with amended §408.123 of the Texas
Labor Code. This 90-day period will apply separately to the insurance carrier
and the injured employee. The period for each party begins when that party
receives verifiable written notice of the MMI/IR certification. The verifiable
written notice need not come from the commission. Regardless of the source,
written notice must include a copy of a valid TWCC 69 form as described in
subsection (c).
Written notice is verifiable when it is provided from any source in a manner
that reasonably confirms delivery to the party. This may include acknowledged
receipt by the injured employee or insurance carrier, a statement of personal
delivery, confirmed delivery by email, confirmed delivery by facsimile, or
some other confirmed delivery to the home or business address. The goal of
this requirement is not to regulate how a system participant makes delivery
of a report or other information to another system participant, but to ensure
that the system participant filing the report or providing the information
has verifiable proof that it was delivered. Rather than specifying methods
for a system participant to ensure verifiability, however, the commission
recognizes that this should be an individual or business decision. Therefore,
the rule leaves to each system participant the decision of what means of delivery
and level of expense it will incur to ensure that delivery of documentation
is verifiable. Also a party may not prevent verifiable delivery. For example,
a party who refuses to take personal delivery or certified mail has still
been given verifiable written notice. If requested, the injured employee or
insurance carrier should promptly acknowledge receipt or non-receipt of written
notice to the other.
The language now in subsection (b) of the adopted rule has been revised
from the rule as proposed to distinguish between notice being "provided" from
notice being "received."
There is no requirement under the Act that the injured employee be advised
of the potential that a first MMI/IR certification will become final if not
disputed. However, because of the significance of finality of MMI/IR, the
Commission intends to include this information in a "Plain Language Notice"
currently being developed.
In order to avoid past problems associated with allowing various methods
to communicate a dispute, the commission is requiring that a dispute of an
MMI/IR certification shall only be made by the insurance carrier, the injured
employee, or the injured employee's attorney or §150.3(a) representative.
A dispute must be filed with the commission under §141.1 of this title
(related to Requesting and Setting a Benefit Review Conference) or by a request
for a designated doctor, if one has not been appointed. An unrepresented injured
employee may contact the commission in any manner to indicate an MMI/IR dispute
is being raised. However, it will be the responsibility of an unrepresented
injured employee providing oral notice of a dispute to affirmatively prove
that communication with the commission took place and is noted in commission
records. It is required that all disputes be filed with or otherwise communicated
directly to the commission to avoid past problems when the injured employee
contacted the insurance carrier, but the Commission was not notified and a
dispute was not initiated. The text was revised in the adopted rule to reference §150.3(a)
for clarity regarding who may be a "representative" of an injured employee.
Section 130.12(b)(2) provides that a notice of non-concurrence on a TWCC-69
or other communication from the treating doctor is not a dispute for the purposes
of stopping the 90-day clock. The treating doctor's opinion regarding the
MMI/IR certification of another doctor may be important. Therefore, the injured
employee and the treating doctor may decide to remain in contact throughout
this process so the injured employee may make a determination on whether to
dispute a MMI/IR certification. If disputing is appropriate, the injured employee
must file a dispute with the Commission directly or, if represented, through
the injured employee's representative. Unless the treating doctor becomes
the representative of the injured employee as provided in §150.3 of this
title (related to Representatives: Written Authorization Required), the treating
doctor does not have authority to dispute a MMI/IR certification on behalf
of the injured employee.
The amended §408.123 also provides for exceptions to the 90-day time
period. The exceptions provide a means for allowing a dispute beyond the 90-day
period in the event of "significant error," "clear misdiagnosis," and "improper
or inadequate treatment." These exceptions are the same exceptions noted in
the March 2000 changes to §130.5(e) as previously established by the
Commission's Appeals Panel on an ad hoc basis over the years. These exceptions
are noted to be a basis for dispute of an MMI/IR certification after the 90-day
period in subsection (b)(4).
Section 130.12(c) addresses the issue of validity of the first certification
of MMI and/or IR assignment. A certification of MMI and/or IR assignment must
meet certain requirements to be considered a valid certification. An MMI/IR
certification is valid for purposes of this rule if it is on a TWCC 69 form
with an MMI date that is not prospective, an impairment determination of no
impairment or the impairment percentage, and the signature of a doctor authorized
by the commission to make the MMI/IR certification stated on the form. The
text has been revised from the rule as proposed to correct an inadvertent
error, and for clarity. In addition, subsection (c)(2) has been revised to
note that there may be an impairment determination of either "no impairment"
or an assignment of a percentage of impairment.
Section 130.12(d) is added from the proposed text to indicate that this
rule applies only to those claims where the initial MMI/IR certification is
made on or after June 18, 2003. This date is the effective date as HB 2198,
one of three bills addressing these issues, which was the first to become
effective.
Proposed Amendments to §130.110. Return to Work Disputes During Supplemental
Income Benefits; Designated Doctor
The commission made several changes to language in subsection (h) as it
was proposed in the Texas Register. To eliminate a typographical error, a
repeated "to return" was removed from the second sentence. Another change
includes the reintroduction of the language prohibiting the marking of medical
documents. After additional consideration, it was determined that the need
for unmarked, unprejudicial records remained, even with the provision allowing
for an analysis. Provided that an unmarked medical record is sent to the designated
doctor, the analysis may also contain copies of medical documents with markings
to emphasize any point the insurance carrier or treating doctor wishes to
bring to the designated doctor's attention.
Finally, the rule was amended to allow for the provision of sending an
analysis in addition to videotape and physical evidence in return-to-work
disputes. This will provide consistency regarding what evidence may be forwarded
to a designated doctor.
The commission added language to subsection (i) that includes peer reviewers
in the list of persons that the designated doctor could contact regarding
an examination. Peer reviewers are mentioned in §130.5(d)(4)(C) and are
being added to this rule for consistency. The proposed rule included the phrase
"peer review doctors". As it is possible that peer reviews may come from other
sources, such as a pharmacist or physical therapist, the term was changed
in the adopted version. Additionally, the commission added language clarifying
that, after the examination, contact with the designated doctor's non-medical
office staff is permitted for the purposes of inquiring about administrative
matters, but that discussion regarding the injured employee's condition, return
to work abilities, or similar issues is prohibited. A similar clarification
is added to §130.5 of this title (related to Entitlement and Procedure
for Requesting Designated Doctor Examinations Related to Maximum Medical Improvement
and Impairment Rating).
The commission adds language to subsection (m) that sets forth the records
that a designated doctor is required to keep after an examination. With the
changes to the statute that have resulted in more designated doctor examinations
being held per claim, it is likely that a designated doctor will see the same
claimant more than once. As such, to save time and money for treating doctors
and insurance carriers which are required to submit records multiple times
to the doctor for review, the amendment requires designated doctors to keep
the records used in the examination. This should also resolve the problems
of designated doctors needing to sort through numerous copies to remove duplicates
or in storing multiple duplicate records. An additional benefit of this change
will be to facilitate the commission's review of the quality of doctors' evaluations.
Doctors' retention periods for medical records is governed by their licensing
boards.
The following groups submitted comments making recommendations, and/or
supporting portions and opposing portions: Lockheed Martin Aeronautics; Christian
Hill and Associates Law Firm; Glen Brasseur, D.C.; J.A. Davis and Associates
Law Firm; Law offices of Bruce Dunham; Attorney Caryn Cailleteau; Attorney
Lona Maxson; Melissa Tonn, M.D.; Texas Mutual Ins. Co.; Insurance Council
of Texas; Adam Leonard; Texas Assn. of School Boards; Attorney Daniel Morris;
Doug Pruett; Texas. Dept. of Transportation; Burns, Anderson, Jury & Brenner
Law Firm; and the law firm of Flahive, Ogden & Latson Law.
Summaries of the comments and commission responses are as follows:
§130.1
Comment: The commenter suggests adding the language, "provided the referral
doctor is otherwise authorized to certify maximum medical improvement and
assign impairment ratings," to §130.1(a)(1)(A)(i).
Response: The Commission disagrees. §130.1(a)(1)(A) is the beginning
of the list of doctors who may be authorized to make MMI/IR certifications. §130.1(a)(2)
provides that if a treating doctor "finds that the injured employee has permanent
impairment but is not authorized to assign an impairment rating, the doctor
is also not authorized to certify MMI and shall refer the injured employee
to a doctor who is so authorized." Adding the proposed language would be redundant.
Comment: Commenter suggests adding language to §130.1(c)(3) to read
as follows:
Assignment of an impairment rating for the current compensable injury shall
be based on the injured employee's condition as of the MMI date as defined
by the Texas Labor Code Section 401.011(30) considering the medical record
and the certifying examination.
This change is recommended to encourage designated doctors to consider
that MMI may have been reached prior to the date of the designated doctor's
exam and result in more accurate determinations of MMI.
Response: The commission disagrees. The provisions of Texas Labor Code §401.011(30)
are reflected in §130.1(b)(1) where MMI is addressed. Subsection (c)
refers to the assignment of impairment ratings and it would not be appropriate
or necessary to further address the MMI date in this subsection.
Comment: The commenter suggests that the language of §130.1(c)(3),
which provides that an impairment rating "shall be based on the employee's
Response: The commission disagrees. Other than cases with a final decision
establishing the IR, the IR is subject to change and to dispute resolution.
However, the IR must be based on the injured worker's condition as of the
MMI date. In situations where a claimant reaches MMI clinically, rather than
with the expiration of 104-weeks or the extended date in the event of spinal
surgery, future changes in the injured workers condition may cause the MMI
date to change. In the event the MMI date is changed due to a post-MMI change
in the injured employee's conditions, there should be a re-evaluation of the
IR as of the new MMI date. In the event the post-MMI date changes indicate
the injured employee's conditions were different than the MMI date impairment
rated conditions, there should be a re-evaluation of the IR as of the new
MMI date. In the event the post-MMI date changes do not result in a change
in the MMI date, or show the injured employee's conditions were not different
than the MMI date impairment rated conditions, there can be no change to the
IR. In other words, an established IR, associated with a specific MMI date,
may not change unless the MMI date also changes. Where the IR is based on
MMI as of the expiration of 104-weeks or an extended date, later changes in
condition cannot be considered, as the MMI date can no longer be changed pursuant
to the statute.
Comment: The commenter recommends eliminating section 130.1(c)(3) altogether,
as it does not allow injured workers to receive benefits for all permanent
impairment in all situations that occur after the MMI date.
Response: The Commission disagrees with the suggestion. While the commission
attempts to ensure that injured employees receive the benefits to which they
are entitled, there are situations when MMI/IR may not be reopened. As noted
in the prior response, the legislature has established that the impairment
rating must be tied to the MMI date. The fact that there is a statutory MMI
date (104-weeks) and its constitutionality was upheld by the Texas Supreme
Court in
Texas Workers' Compensation Commission v.
Garcia
, 893 S.W.2d 504 (Tex. 1995), makes it clear that post-statutory
MMI date changes cannot affect the impairment rating because the MMI date
cannot change. For MMI certifications prior to the expiration of 104-weeks
or an extended date in the event of spinal surgery, changes may be considered
and the MMI/IR amended where appropriate.
Comment: Commenter suggests that some conditions may come and go and clarification
needs to be made in §130.1(c)(3) that an injured employee may be credited
for an intermittent condition that is not apparent at the time of the examination.
For example, Category II under the spine injury model states following: "...
the findings may include significant intermittent or continuous muscle guarding...."
Commenter observed that the muscle spasm may not be present on the date of
evaluation but according to the medical records the condition is recurring
and should be taken into account.
Response: The commission disagrees that any such clarifying language is
necessary. In this example, muscle guarding should have been noted in the
medical records and will be taken into account by the certifying doctor where
appropriate, as provided by the
Guides to Evaluation
of Permanent Impairment
. The statement that the impairment rating should
be based on the employee's condition as of the MMI date is intended to go
hand in hand with the idea that the impairment must be based upon both the
certifying examination and the condition as detailed in the medical records.
§130.5
Comment: Commenter asserts that §130.5(d)(3)(B) is duplicative and
drives an unnecessary paperwork burden for physicians and carriers that will
also increase workers' compensation administrative costs. This section requires
that any analysis sent to the designated doctor by the insurance carrier and
the treating doctor also be sent to the employee and the employee's representative
(if any). Commenter suggests, instead, that the commission only require a
complete copy of records to be forwarded in the event of a dispute related
to MMI/IR and/or a subsequent inquiry regarding completeness of the records.
Response: The commission disagrees. The treating doctor and the insurance
carrier are only required to send to the other parties copies of any analysis
they choose to send to the designated doctor. They are not required to send
medical records to the other parties unless they elect to make copies of original
medical records for marking and incorporating them into their analysis. This
duplication would be necessary because original medical records should not
be marked. Also, not requiring both the treating doctor and the insurance
carrier to send records to the designated doctor would precipitate an increase
in disputes regarding the accuracy of the MMI/IR and completeness of records
the designated doctor used in making the MMI/IR certification.
Comment: The commenter suggests that since the medical records are important
for a proper examination, the rule should prohibit a designated doctor examination
from taking place if the records are incomplete.
Response: The commission disagrees. There are issues as to who determines
the records are incomplete. The doctor may feel there are missing records
because of a six-month break in the records, but the claimant actually may
not have sought treatment. Further, it cannot be assumed that just because
the doctor received records from only one side, that not all records have
been received. Additionally, it is conceivable that a party could indefinitely
postpone an examination by ensuring that not all records are sent. Thereby,
causing delayed benefits to the injured employee or overpayments that cause
unnecessary extra expense to the system. The amended rule appropriately leaves
it to the designated doctor's discretion to determine whether additional medical
records are needed.
Comment: The commenter suggests adding a new subsection §130.5(d)(3)(D)(iii)
with the language, "if the examination is rescheduled due to non-receipt of
records from the treating doctor, temporary income benefits, if due, shall
be suspended until the date of the rescheduled examination."
Response: The commission disagrees. The commission recognizes the potential
problems with allowing repeated rescheduling of examinations due to the non-receipt
of records; therefore, there is a provision that a designated doctor examination
may only be rescheduled once due to absence of records. Moreover, the injured
worker should not be penalized for a treating doctor's or an insurance carrier's
errors and omissions.
Comment: The commenter states that a designated doctor examination should
not be postponed due to the absence of records. The records are not required
to conduct the physical examination, and rather the doctor should be given
the option of delayed reporting to allow for proper receipt of records. Commenter
further suggests that an administrative violation be assessed on parties that
do not provide the required records on a timely basis.
Response: The commission agrees in part. The commission agrees that a violation
should be considered and reporting the absence of records is covered in subsection
(d)(3)(D)(i). However, rescheduling the examination is at the election of
the designated doctor. This strikes an appropriate balance because the examining
doctor is in the best position to determine whether the exam should be rescheduled.
Comment: Commenter indicates that requiring notice to TWCC and the insurance
carrier of a re-scheduled examination within 24 hours is too short a period
of time and suggests extending the period to three business days.
Response: The commission disagrees. The requirement is simply for notification
to the commission and the insurance carrier that there is a new date and time
for the designated doctor examination; this is an administrative task that
should be easily accomplished after the rescheduled appointment has been set.
Comment: Commenter asserts there are abusive practices and misunderstandings
regarding revisiting MMI/IR certification and requesting designated doctor
clarification letters. Based on that proposition, the proposed remedy is to
delay a designated doctor examination of the injured worker until after a
determination is made by the designated doctor that there has been a substantial
change in the injured worker's condition from the compensable injuries and
a Benefit Contested Case Hearing decision and order affirms the determination.
Response: The commission disagrees. Until there is a final decision, MMI/IR
certifications are subject to dispute resolution. The dispute resolution process
necessarily includes reasonable opportunities for discovery. Requiring a hearing,
in addition to the dispute resolution process, would not correct any perceived
problems and would lengthen and be potentially disruptive to the dispute resolution
process.
§130.6
Comment: The commenter suggests redesigning the TWCC-69, Report of Medical
Examination to provide the designated doctor with the opportunity to give
multiple ratings for extent of injury disputes, and to remind designated doctors
to follow the rules regarding multiple certifications.
Response: The commission disagrees. It should be noted that only a designated
doctor in limited circumstances regarding extent of injury disputes may make
multiple certifications. The TWCC-69 is to be used in all cases, and adding
a section for this specific situation would be potentially confusing.
Comment: Commenter recommends changing §130.6(c)(1)(A)(ii) to allow
fourteen days rather than seven for a rescheduled examination to occur, asserting
that this would provide consistency with the amendment to §130.6(b) adopted
herein.
Response: The commission agrees. The language of §130.6(c)(1)(A)(ii)
is changed as suggested.
Comment: Commenter suggests development of a TWCC form similar to the TWCC-24
for clarification letters that would allow all parties to review the questions
and verify that the right questions are being forwarded to the designated
doctor in as clear and concise manner as possible.
Response: The commission disagrees. Clarification questions for the designated
doctor vary based on the nature of the injuries and circumstances in each
case. The wide variety of circumstances from case to case does not lend itself
to a set checkbox-type form. If a form required questions to be written in,
having all parties concur on the exact language and content of the questions
would possibly prevent clarification letters from ever being sent, thereby
leaving the questions regarding MMI/IR unresolved indefinitely. Because any
clarification request or questions for a designated doctor must be sent through
the commission, which first reviews or often drafts the letter, this process
is sufficient to ensure that proper, thorough, and concise questions are being
posed.
Comment: Commenter requests clarification as to whether, in amending §130.6(i)(1),
the Commission intended to remove the 'proper reason' requirement from the
question of whether clarification letters should be sent to a designated doctor.
Commenter further inquires whether the provision still applies to the question
of whether an amendment or clarification should be given presumptive weight.
Commenter suggests requiring a contested case hearing regarding the merits
of any alleged change of condition prior to allowing any clarification letter
or re-examination to take place.
Response: The commission disagrees with the suggestion that a hearing on
the merits be required before any clarification letter or re-examination can
occur. The revision to §130.6(i)(1) clarifies that when a designated
doctor responds to a request for clarification under the rule, the response
is a part of the designated doctor's report and is entitled to presumptive
weight in resolving MMI/IR disputes. To add a requirement for a contested
case hearing prior to allowing this to happen would lengthen and add a potentially
disruptive procedure to the dispute resolution process.
Comment: The commenter indicates that the requirement of a ten-day period
for conducting a re-evaluation is an unreasonably short time, especially for
doctors that travel.
Response: The Commission disagrees. The provision in the rule is ten working
days, generally a two-week period, in order to conduct the re-evaluation.
While the Commission understands the possible burden of this requirement for
doctors who participate in the system, it must balance those concerns with
the concerns of the insurance carriers, regarding possible overpayment of
benefits not owed an injured worker, and the injured employees, regarding
prompt payment of benefits owed to them.
Comment: Commenters suggest that §130.6(j) should be amended to indicate
a specific time frame for maintaining records from a designated doctor examination
and one commenter suggests a seven-year period. Commenters interpret the current
wording to suggest that the records are to be kept indefinitely. Commenter
asserts that the proposed savings to the carrier and treating doctor for copy
costs in scheduling an additional examination are outweighed by the storage
costs to be borne by the designated doctor. Commenter further asserts that
because the treating doctor and insurance carrier are "much larger stakeholders"
in the workers' compensation system, they, not designated doctors, should
be responsible for the administrative costs.
Response: The commission disagrees that a specific time frame for maintaining
records should be added to the rule. While the Commission understands the
burden placed on designated doctors in storing records from examinations,
it must also consider the burden placed on insurance carriers and treating
doctors in the multiple reproduction and delivery of those same records for
the purpose of addressing clarification questions or re-examinations. Also,
each licensing board directs physicians in how long medical records should
be kept. For example, a physician may destroy medical records related to any
civil or administrative proceeding only if the physician knows there has been
final resolution.
Comment: Commenter recommends amending the rule language to require designated
doctors to forward copies of a Report of Medical Evaluation to the treating
doctor, in addition to the insurance carrier and injured employee.
Response: Although the commission agrees that it is necessary for the designated
doctor's Report of Medical Evaluation to be sent to the treating doctor, no
amendment is necessary because this is already required by §130.3(a)
of the commission's rules. Rule 130.6(h) states that a designated doctor must
file the report in accordance with §130.3, and subsection (a) of that
rule specifically requires that the report be sent to the treating doctor.
§130.12
Comment: The commenter suggested clarifying that written notice refers
to written notice of a certification of MMI/assignment of IR just to be clear.
Response: The Commission agrees. However, due to a reorganization of §130.12
in response to other comments received, the clarifying language has been added
to the first two sentences of (b)(1).
Comment: The commenter suggested making the information listed in the preamble
for required information for written notice be consistent with the criteria
for a valid MMI/IR under subsection (c).
Response: The commission agrees in part. Subsection (c) is changed to amend
the criteria, and the required information for notification is removed from
the preamble. This is due to the fact that most of the information listed
is already required to be included in a Report of Medical Evaluation.
Comment: Commenter suggests adding language that the 90-day period may
not be extended except as provided under Texas Labor Code §408.123(e).
Response: The commission agrees in part. While the Commission agrees there
are only certain provisions that may be used to overcome a 90-day finality,
there is no need to add this language to §130.12(a) because this is already
provided for in §130.12(b)(4).
Comment: The commenter recommends adding language clarifying that this
new rule applies only to certifications rendered on or after June 20, 2003.
Response: The commission agrees in part. A new subsection (d) was added
to specify the effective date for this rule. However, the effective date is
June 18, 2003. There were three statutory provisions revising §409.021
of the Act. All bills became effective immediately upon being signed into
law due to receipt of two-thirds of the votes in both houses approving them.
The first of these three bills signed into law was HB 2198 on June 18, 2003.
Therefore, June 18, 2003 is the controlling date when this provision became
effective.
Comment: The commenter indicates agreement with the purpose for the difference
in wording between §408.123, which states that the 90-day period begins
to run after the certification "is provided," and §130.12, which states
that the 90-day period begins to run after the certification "is received."
However, commenter recommends adding a provision to the rule for deemed receipt
of the notice by verifiable means.
Response: The commission disagrees. Once notice is provided by verifiable
means the requirement of the statute and rule is met. There is no need for
a deemed receipt provision. The legislature appears to have intended something
different from receipt when it established the "provided ... by verifiable
means" requirement.
However, a distinction should be made between notice being provided and
notice being received. Therefore, the rule is changed to read as follows:
(b) A first MMI/IR certification must be disputed within 90 days of delivery
of written notice through verifiable means. The notice must contain a copy
of a valid Form TWCC 69, Report of Medical Evaluation, as described in subsection
(c). The 90-day period begins on the day after the written notice is delivered
to the party wishing to dispute a certification of MMI or an IR assignment,
or both. The 90-day period may not be extended.
Comment: Several commenters recommend changing "employee's representative"
to "employee's legal representative" to make it clear only adjusters, the
injured employee and attorneys may dispute a certification of MMI/IR.
Response: The commission agrees in part. The intent is to make it clear
that only the injured employee, the injured employee's attorney or a representative
under the provisions of §150.3(a)(3) may dispute an MMI/IR certification.
However, the rule language has been rearranged for a more logical progression
of ideas and this language has been removed from §130.12(a) and is noted
solely in subsection (b) now.
Comment: The commenter states the treating doctor should be allowed to
dispute a MMI certification on behalf of the injured worker if requested to.
As determination of MMI is a medical issue, it is appropriate for the treating
doctor to be involved.
Response: The commission agrees in part. A treating doctor may dispute
an MMI/IR certification on behalf of an injured worker, if the treating doctor
is the injured employee's representative under the provisions of §150.3(a).
It is the intent of the rules to make it clear that only the injured employee
or injured employee's §150.3(a) representative may dispute an MMI/IR
certification. Special emphasis is given to that proposition in this rule
because of the substantial problems that were caused in the past regarding
whether there was MMI/IR dispute based on actions taken by treating doctors.
Comment: The commenter points out that grammatically the MMI and IR in
the third sentence of §130.12(a)(2) should not be spelled out and that
the sentence is redundant.
Response: The commission agrees in part. MMI and IR should not be spelled
out and this has been removed. However, the third sentence is not redundant
in that it is used to further clarify when the 90-day clock is triggered.
It should be noted that this rule has been rearranged from the proposed version
and this language is now contained in subsection (b).
Comment: The commenter suggests that the language of "assignment of IR"
indicates that an adjuster's reasonable assessment may become final and the
language should be clarified.
Response: The commission disagrees. A reasonable assessment of an IR by
an insurance carrier is not an assignment of an IR. Only a doctor certified
to perform ratings based on an actual physical examination may assign an IR.
The term "assignment" is used for consistency with §130.1 and the Act.
Comment: The commenter suggests providing a triggering mechanism for the
90-day clock for subsequent certifications when the first certification is
overturned.
Response: The commission disagrees that the text as proposed needs revising.
As provided in the Act and the amended rule, for a subsequent MMI/IR certification
to become final, it must be made after a decision that modifies, overturns
or withdraws the first MMI/IR certification becomes final. The trigger for
the 90-day clock for subsequent certifications is then as provided in subsection
(a): "The 90-day period begins on the date the written notice is delivered
to the party wishing to dispute a certification of MMI or an IR assignment,
or both."
Comment: Several commenters suggested deleting §130.12 (a)(3)(B).
However, one commenter acknowledged there are times when the first MMI/IR
certification is overturned, modified or withdrawn and the IR is not resolved.
Further, it should be made clear that this only occurs with respect to action
taken on a disputed MMI/IR certification.
Response: The commission agrees in part. Subsection (a)(3) is revised to
read:
(3) The first valid subsequent certification of MMI and/or assignment of
an IR received after the date a first certification of MMI and/or assignment
of an IR is overturned, modified or withdrawn by agreement of the parties
or a final decision of the commission or a court.
While the text noted in the comments has been deleted, some additional
explanation is provided. A dispute of a first MMI/IR certification will usually
resolve by agreement or a final decision establishing the injured employee's
MMI date and IR; however, there are rare instances when it does not. For example,
if a designated doctor is disqualified or a decision is made that the doctor
was improperly selected, without a designated doctor opinion, the issue of
a disputed MMI/IR cannot be resolved until another designated doctor is selected
and an examination takes place. This is not a situation when a certification
is overturned, modified, or withdrawn.
In the event the first MMI/IR is the only certification and it is rescinded,
or in the event an agreement or commission decision and order is entered but
another certification on record is not selected, this would fall within the
scope of this subsection. In these situations, the next certification received
after this event would become the first certification that may become final
if not disputed as provided in this section and by statute.
Comment: The commenter suggests inserting the term "legal" into the employee
representative phrase. He further suggests changing "or requesting" to "by
requesting."
Response: The commission agrees in part. The intent is to make it clear
that only the injured employee or injured employee's attorney or representative
under the provisions of §150.3(a)(3) may dispute an MMI/IR certification.
The rule language is changed to add a reference to this provision in addition
to attorneys.
Comment: Commenter requests clarification regarding the MMI/IR validity
criteria. Specifically, how to reconcile when an MMI date or IR is missing
from the TWCC-69 but in the narrative, or when the TWCC-69 and narrative have
different information.
Response: The Commission clarifies as follows: In order to be considered
a valid certification on its face, MMI and IR must be noted on the TWCC-69
itself. If there is conflicting information between the TWCC-69 and the narrative,
the conflict may be resolved through a letter of clarification to the certifying
doctor.
Comment: The commenter suggests that not including a MMI date on a TWCC-69
when the doctor is checking the STATUTORY box should not invalidate the certification.
Response: The commission disagrees. The TWCC-69 indicates that the actual
date of MMI is required regardless of whether the doctor is checking statutory
or clinical. While the statutory date is a legal concept, there have been
disputes over the accrual date that defines the statutory date. There are
also considerations when statutory MMI has been extended for spinal surgery.
Further, requiring an MMI date be placed on the TWCC-69 in all situations
provides a secondary level of "quality control" to verify the doctor meant
clinical or statutory MMI.
Comment: The commenter suggests that requiring a IR in the form of a percentage
is in conflict with §130.1 and the TWCC-69 that allows a doctor simply
to check the box indicating no permanent impairment and not include an actual
number.
Response: Commission agrees. Subsection (c)(2) of the rule is changed to
cover that situation by stating there may be either a determination of no
impairment or a percentage impairment rating. The same clarification has been
made through amendments to subsection (a)(1), which note that the 90-day deadline
to dispute applies to a determination of no impairment, as well as an IR assignment.
Comment: Commenter suggests that requiring the doctor to be authorized
by the commission to certify MMI and assign an impairment rating is in direct
conflict with §130.1(a), which states that a treating doctor may certify
MMI if he or she has determined that the injured employee has no impairment
even if the doctor has not been authorized by the commission to certify MMI.
Response: The commission agrees. The language in subsection (c)(2) is changed
to indicate that there must be an impairment determination of either no impairment
or a percentage impairment rating and that there must be a signature of a
certifying doctor who is authorized to make the assigned impairment determination.
The same clarification has been made through amendments to subsection (a)(1),
which note that the 90-day deadline to dispute applies to a determination
of no impairment, as well as an IR assignment.
Comment: Commenter asks for clarification on situations where a doctor's
authorization to perform certifications changes. For example: if a doctor
were removed from the list after the certification is made, would the certification
still be valid? The commenter recommends the Commission establish a time frame.
Response: The Commission disagrees. As revised, the rule makes it clear
that the MMI/IR certification is valid if it is signed by a doctor who, on
the date of the certifying examination and the date the TWCC-69 was signed
by that doctor, he or she was authorized by the Commission to make MMI/IR
certifications.
Comment: Several commenters indicated that the language used in §130.12(c)(4)
states that a certification is invalid unless the MMI and IR are prospective
and suggests this should be the other way around.
Response: The Commission agrees that the language in the proposed text
is inconsistent with long-standing practices regarding these issues and was
inadvertently misstated in the text as proposed. The language of subsection
(c) has been changed to fix this statement.
Comment: The commenter suggests adding another requirement to §130.12(c)
adding the language, "the certification has been assigned using an inappropriate
edition of the AMA Guides."
Response: The commission disagrees. This circumstance is already addressed
in subsection (b)(4), which references TLC §408.123(1)(A). This provision
allows for the disputing of a rating beyond the 90-day period if there is
a significant error on the part of the certifying doctor in applying the AMA
guidelines. Using the wrong edition of the AMA guides would be such an error.
§130.110
Comment: The commenter suggests that the language regarding the qualifications
of the designated doctor for SIBs return to work disputes mirror the requirements
in 130.5(d)(2)(c). While, another commenter questioned the purpose of the
requirement that a designated doctor for SIBs return to work disputes be in
the same discipline and licensure as the treating doctor.
Response: The commission disagrees with mirroring the same requirements
used for MMI/IR into SIBs ability to work questions. Questions regarding MMI/IR
are substantially different than determining whether an injured worker has
any ability to work. The Legislature did not provide that the same designated
doctor selection requirements for MMI/IR must be used for selection of a designated
doctor regarding ability to work.
Comment: Commenter suggests the rule fails to indicate specifically that
the insurance carrier and or treating doctor may send an analysis to the designated
doctor regarding the injured employee's medical condition, functional abilities,
and return to work opportunities in cases of supplemental income benefits
return to work cases, such as in the case of MMI/IR. Commenter recommended
that it would be appropriate to allow such an analysis to be sent to the designated
doctor.
Response: The commission agrees. The Legislature believed providing an
analysis to the designated doctor with respect to MMI/IR certifications would
be useful. An analysis should be just as useful regarding designated doctor
determinations on ability to work. Rule 130.110(h) is changed accordingly.
Therefore, the rule has been modified from the proposed text to allow for
the provision of an analysis in these situations.
Comment: Commenters expressed disagreement with removing the language prohibiting
the marking of medical records being sent to a designated doctor. Their concern
is that prejudicial and possible incorrect information will be provided and
improperly influence the designated doctor. That could happen in the event
the designated doctor cannot determine whether the marking is part the medical
record or added by a party as part of its analysis information. It was further
suggested that it is unfair that copies of the altered records or the analysis
do not need to be sent to the other parties to the claim.
Response: The commission agrees. The parties may present to the designated
doctor an analysis, a videotape or other physical evidence in both MMI/IR
certification and SIBs ability to work examinations. Allowing markings on
the original medical records could confuse the designated doctor about the
true content of the original medical record. Similar language was removed
from §130.5 because parties are now permitted to provide an analysis
to the designated doctor. Treating doctors and insurance carriers may copy
original medical records and mark the copies as part of the separate analysis
provided to the designated doctor. The language in 130.110(h) is amended from
the rule as proposed in that it again includes the prohibition regarding marking
original medical documentation.
Comment: Commenter states that a peer reviewer should not be allowed to
communicate with the designated doctor for two reasons. The peer reviewer
has not physically examined the injured employee and the peer reviewer usually
works for the insurance carrier, making his opinion suspect.
Response: The commission disagrees. In trying to make the most accurate
possible determination as the commission-appointed impartial doctor, the designated
doctor should be allowed the discretion to contact other physicians that have
treated or evaluated the injured worker. However, to be consistent with §180.22(g)
regarding peer reviewers, §130.110(i) is changed to read as follows:
The designated doctor may initiate communication with any doctor who has
previously treated or examined the injured employee for the work-related injury
or with peer reviewers, identified by the insurance carrier, who examined
the injured employee's claim.
Comment: Commenter suggests that the rule should be amended to indicate
a specific time frame for maintaining records from a designated doctor examination.
The current wording suggests that the records are to be kept indefinitely.
The commenter points out the costs associated with records storage can be
prohibitive.
Response: The commission disagrees. While the Commission understands the
burden placed on designated doctors in storing records from examinations,
the Commission points those doctors to their own licensing boards regarding
maintenance of records. There is no need to add a specific reference to this
rule. There are already provisions regarding maintenance of TWCC records.
Further, each licensing board makes note of the provisions required in the
maintenance of medical records. Specifically, a physician may destroy medical
records related to any civil or administrative proceeding only if the physician
knows there has been final resolution.
Subchapter A. IMPAIRMENT INCOME BENEFITS
28 TAC §§130.1, 130.5, 130.6, 130.12
The amendments and new rule are adopted pursuant to the Texas
Labor Code §402.061, which requires the commission to adopt rules necessary
for the implementation and enforcement of the Texas Workers Compensation Act;
the Texas Labor Code, §401.011 which contains definitions used in the
Texas Workers' Compensation Act; the Texas Labor Code, §401.024, which
provides the commission the authority to require use of facsimile or other
electronic means to transmit information in the system; the Texas Labor Code, §402.042,
which authorizes the executive director to enter orders as authorized by the
statute as well as to prescribe the form and manner and procedure for transmission
of information to the commission; Texas Labor Code, §402.071 relating
to authorization of representatives; Texas Labor Code §406.010, that
authorizes the commission to adopt rules regarding claims service; the Texas
Labor Code, §408.004 which provides for Required Medical Examinations;
Texas Labor Code §408.0041 which provides for the commission assignment
of a designated doctor; the Texas Labor Code §408.023 which requires
the commission to develop a list of approved doctors and lay out the requirements
for being on the list; the Texas Labor Code §408.0231, which provides
the commission with the responsibility for maintenance of the list; the Texas
Labor Code, §408.025, which requires the commission to specify by rule
what reports a health care provider is required to file; the Texas Labor Code §408.102,
which provides that temporary income benefits continue until the injured employee
reaches maximum medical improvement; Texas Labor Code §408.104 which
establishes procedures for MMI after spinal surgery; Texas Labor Code §408.122
which requires that designated doctors meet specific qualifications; the Texas
Labor Code §408.123, which requires a doctor certifying maximum medical
improvement to file a report and which requires a certification of MMI and
assignment of an impairment rating by a doctor other than the treating doctor
be sent to the treating doctor who must indicate either agreement or disagreement
with the certification of the evaluation; the Texas Labor Code §408.124,
which provides the commission the authority to by rule adopt the fourth edition
of the "Guides to the Evaluation of Permanent Impairment" published by the
American Medical Association to determine the existence and degree of an injured
employee's impairment; the Texas Labor Code §408.125 which provides the
process for disputing impairment ratings; the Texas Labor Code §408.151,
which provides for required medical examinations for supplemental income benefits;
Texas Labor Code §410.004 which requires dispute resolution proceedings
within the commission; Texas Labor Code §410.169 which addresses the
effect of a contested case hearing decision; Texas Labor Code §410.251
which allows judicial review after administrative remedies have been exhausted;
and Texas Labor Code §415.031 which addresses initiation of administrative
violation proceedings.
§130.1.Certification of Maximum Medical Improvement and Evaluation of Permanent Impairment.
(a)
Authorized Doctor.
(1)
Only an authorized doctor may certify maximum medical improvement
(MMI), determine whether there is permanent impairment, and assign an impairment
rating if there is permanent impairment.
(A)
Doctors serving in the following roles may be authorized
as provided in subsection (a)(1)(B) of this section.
(i)
the treating doctor (or a doctor to whom the treating doctor
has referred the injured employee for evaluation of MMI and/or permanent whole
body impairment in the place of the treating doctor, in which case the treating
doctor is not authorized);
(ii)
a designated doctor; or
(iii)
a required medical examination (RME) doctor selected
by the insurance carrier and approved by the commission to evaluate MMI and/or
permanent whole body impairment after a designated doctor has performed such
an evaluation.
(B)
Prior to September 1, 2003 a doctor serving in one of the
roles described in subsection (a)(1)(A) of this subsection is authorized to
determine whether an injured employee has permanent impairment, assign an
impairment rating, and certify MMI. On or after September 1, 2003, a doctor
serving in one of the roles described in subsection (a)(1)(A) of this section
is authorized as follows:
(i)
a doctor whom the commission has certified to assign impairment
ratings or otherwise given specific permission by exception to, is authorized
to determine whether an injured employee has permanent impairment, assign
an impairment rating, and certify MMI; and
(ii)
a doctor whom the commission has not certified to assign
impairment ratings or otherwise given specific permission by exception to
is only authorized to determine whether an injured employee has permanent
impairment and, in the event that the injured employee has no impairment,
certify MMI.
(2)
Doctors who are not authorized shall not make findings
of permanent impairment, certify MMI, or assign impairment ratings and shall
not be reimbursed for the examination, certification, or report if one does
so. A certification of MMI, finding of permanent impairment, and/or impairment
rating assigned by an unauthorized doctor are invalid. If a treating doctor
finds that the injured employee has permanent impairment but is not authorized
to assign an impairment rating, the doctor is also not authorized to certify
MMI and shall refer the injured employee to a doctor who is so authorized.
(3)
A doctor who is authorized under this subsection to certify
MMI, determine whether permanent impairment exists, and assign an impairment
rating and who does, shall be referred to as the "certifying doctor."
(b)
Certification of Maximum Medical Improvement.
(1)
Maximum medical improvement (MMI) is:
(A)
the earliest date after which, based on reasonable medical
probability, further material recovery from or lasting improvement to an injury
can no longer reasonably be anticipated;
(B)
the expiration of 104 weeks from the date on which income
benefits begin to accrue; or
(C)
the date determined as provided by Texas Labor Code §408.104.
(2)
MMI must be certified before an impairment rating is assigned.
(3)
Certification of MMI is a finding made by an authorized
doctor that an injured employee has reached MMI as defined in subsection (b)(1)
of this section.
(4)
To certify MMI the certifying doctor shall:
(A)
review medical records;
(B)
perform a complete medical examination of the injured employee
for the explicit purpose of determining MMI (certifying examination);
(C)
assign a specific date at which MMI was reached.
(i)
The date of MMI may not be prospective or conditional.
(ii)
The date of MMI may be retrospective to the date of the
certifying exam.
(D)
Complete and submit required reports and documentation.
(c)
Assignment of Impairment Rating.
(1)
An impairment rating is the percentage of permanent impairment
of the whole body resulting from the current compensable injury. A zero percent
impairment may be a valid rating.
(2)
A doctor who certifies that an injured employee has reached
MMI shall assign an impairment rating for the current compensable injury using
the rating criteria contained in the appropriate edition of the AMA Guides
to the Evaluation of Permanent Impairment, published by the American Medical
Association (AMA Guides).
(A)
The appropriate edition of the AMA Guides to use for all
certifying examinations conducted before October 15, 2001 is the third edition,
second printing, dated February, 1989.
(B)
The appropriate edition of the AMA Guides to use for certifying
examinations conducted on or after October 15, 2001 is:
(i)
the fourth edition of the AMA Guides (1st, 2nd, 3rd, or
4th printing, including corrections and changes as issued by the AMA prior
to May 16, 2000). If a subsequent printing(s) of the fourth edition of the
AMA Guides occurs, and it contains no substantive changes from the previous
printing, the commission by vote at a public meeting may authorize the use
of the subsequent printing(s); or
(ii)
the third edition, second printing, dated February, 1989
if, at the time of the certifying examination, there is a certification of
MMI by a doctor pursuant to subsection (b) of this section made prior to October
15, 2001 which has not been previously withdrawn through agreement of the
parties or previously overturned by a final decision.
(C)
This subsection shall be implemented to ensure that in
the event of an impairment rating dispute, only ratings using the appropriate
edition of the AMA Guides shall be considered. Impairment ratings assigned
using the wrong edition of the AMA Guides shall not be considered valid.
(3)
Assignment of an impairment rating for the current compensable
injury shall be based on the injured employee's condition as of the MMI date
considering the medical record and the certifying examination. The doctor
assigning the impairment rating shall:
(A)
identify objective clinical or laboratory findings of permanent
impairment for the current compensable injury;
(B)
document specific laboratory or clinical findings of an
impairment;
(C)
analyze specific clinical and laboratory findings of an
impairment;
(D)
compare the results of the analysis with the impairment
criteria and provide the following:
(i)
A description and explanation of specific clinical findings
related to each impairment, including zero percent (0%) impairment ratings;
and
(ii)
A description of how the findings relate to and compare
with the criteria described in the applicable chapter of the AMA Guides. The
doctor's inability to obtain required measurements must be explained.
(E)
assign one whole body impairment rating for the current
compensable injury;
(F)
be responsible for referring the injured employee to another
doctor or health care provider for testing, or evaluation, if additional medical
information is required. The certifying doctor is responsible for incorporating
all additional information obtained into the report required by this rule:
(i)
Additional information must be documented and incorporated
into the impairment rating and acknowledged in the required report.
(ii)
If the additional information is not consistent with the
clinical findings of the certifying doctor, then the documentation must clearly
explain why the information is not being used as part of the impairment rating.
(4)
After September 1, 2003, if range of motion, sensory, and
strength testing required by the AMA Guides is not performed by the certifying
doctor, the testing shall be performed by a health care practitioner, who
within the two years prior to the date the injured employee is evaluated,
has had the impairment rating training module required by §180.23 (relating
to Commission Required Training for Doctors/Certification Levels) for a doctor
to be certified to assign impairment ratings. It is the responsibility of
the certifying doctor to ensure the requirements of this subsection are complied
with.
(5)
If an impairment rating is assigned in violation of subsection
(c)(4), the rating is invalid and the evaluation and report are not reimbursable.
A provider that is paid for an evaluation and/or report that is invalid under
this subsection shall refund the payment to the insurance carrier.
(d)
Reporting.
(1)
Certification of MMI, determination of permanent impairment,
and assignment of an impairment rating (if permanent impairment exists) for
the current compensable injury requires completion, signing, and submission
of the Report of Medical Evaluation and a narrative report.
(A)
The Report of Medical Evaluation must be signed by the
certifying doctor. The certifying doctor may use a rubber stamp signature
or an electronic facsimile signature of the certifying doctor's personal signature.
(B)
The Report of Medical Evaluation includes an attached narrative
report. The narrative report must include the following:
(i)
date of the certifying examination;
(ii)
date of MMI;
(iii)
findings of the certifying examination, including both
normal and abnormal findings related to the compensable injury and an explanation
of the analysis performed to find whether MMI was reached;
(iv)
narrative history of the medical condition that outlines
the course of the injury and correlates the injury to the medical treatment;
(v)
current clinical status;
(vi)
diagnosis and clinical findings of permanent impairment
as stated in subsection (c)(3);
(vii)
the edition of the AMA Guides that was used in assigning
the impairment rating (if the injured employee has permanent impairment);
and
(viii)
a copy of the authorization if, after September 1, 2003,
the doctor received authorization to assign an impairment rating and certify
MMI by exception granted from the commission.
(2)
A Report of Medical Evaluation under this rule shall be
filed with the commission, injured employee, injured employee's representative,
and the insurance carrier no later than the seventh working day after the
later of:
(A)
date of the certifying examination; or
(B)
the receipt of all of the medical information required
by this section.
(3)
The report required to be filed under this section shall
be filed as follows:
(A)
The Report of Medical Evaluation shall be filed with the
insurance carrier by facsimile or electronic transmission; and
(B)
The Report of Medical Evaluation shall be filed with the
commission, the injured employee and the injured employee's representative
by facsimile or electronic transmission if the doctor has been provided the
recipient's facsimile number or email address; otherwise, the report shall
be filed by other verifiable means.
(e)
Documentation. The certifying doctor shall maintain the
original copy of the Report of Medical Evaluation and narrative as well as
documentation of:
(1)
the date of the examination;
(2)
the date any medical records necessary to make the certification
of MMI were received, and from whom the medical records were received; and
(3)
the date, addressees, and means of delivery that reports
required under this section were transmitted or mailed by the certifying doctor.
§130.5.Entitlement and Procedure for Requesting Designated Doctor Examinations related to Maximum Medical Improvement and Impairment Rating.
(a)
The commission shall order a medical examination by a designated
doctor at the request of the insurance carrier, an injured employee, the injured
employee's representative (if any), the Medical Advisor, or a division of
the commission. The request shall be made in the form and manner prescribed
by the commission.
(b)
This section shall be used to resolve questions about:
(1)
a certification of maximum medical improvement (MMI) and/or
an impairment rating (rating) assigned under §130.1 of this section (relating
to Certification of Maximum Medical Improvement and Evaluation of Permanent
Impairment);
(2)
the treating doctor's failure to certify the injured employee
to have reached MMI under §130.4(d) (relating to Presumption that Maximum
Medical Improvement has been Reached and Resolution when MMI has not been
Certified); and
(3)
other questions regarding maximum medical improvement and/or
the existence and amount of permanent impairment.
(c)
A certification of MMI and/or impairment rating assigned
by a doctor selected by a insurance carrier when the insurance carrier was
not entitled to such an evaluation, or otherwise assigned in violation of §126.5
of this title (relating to Entitlement to and Procedure for Requesting Required
Medical Examinations), or assigned by a doctor who is not authorized to certify
MMI or assign an impairment rating is invalid and this section does not apply.
(d)
The following provisions apply to selection and scheduling
of an examination by a designated doctor:
(1)
The commission, within 10 days of receipt of a valid request,
shall issue a written order assigning a designated doctor; set up a designated
doctor appointment for a date no earlier than 14 days, but no later than 21
days from the date of the commission order; and notify the injured employee
and the insurance carrier that the designated doctor will be directed to examine
the injured employee. The commission's written order shall also:
(A)
indicate the designated doctor's name, license number,
practice address and telephone number, and the date and time of the examination;
(B)
explain the purpose of the designated doctor examination
and that the designated doctor's report has presumptive weight with respect
to MMI and/or impairment as specified in the Texas Labor Code, §§408.0041,
408.122, and 408.125;
(C)
order the injured employee to be examined by the designated
doctor on the stated date and time; and
(D)
require the treating doctor and insurance carrier to forward
all medical records in compliance with subsection (d)(3) of this section.
(2)
If at the time the request is made, the commission has
previously assigned a designated doctor to the claim, the commission shall
use that doctor again, if the doctor is still qualified as described in this
subsection and available. Otherwise, the commission shall select the next
available doctor on the commission's Designated Doctor List who:
(A)
has not previously treated or examined the injured employee
within the past 12 months and has not examined or treated the injured employee
with regard to a medical condition being evaluated in the designated doctor
examination;
(B)
does not have any disqualifying associations as specified
in §180.21 of this title (relating to Designated Doctor List); and
(C)
has credentials appropriate to the issue in question, is
trained and experienced with the treatment and procedures used by the doctor
treating the patient's medical condition, and whose scope of practice includes
the treatment and procedures performed. In selecting a designated doctor,
completed medical procedures may be considered secondary selection criteria.
(3)
The designated doctor is authorized to receive the injured
employee's confidential medical records to assist in the resolution of a dispute
under this section without a signed release from the injured employee.
(A)
The treating doctor and insurance carrier shall provide
to the designated doctor copies of all the injured employee's medical records
in their possession relating to the medical condition to be evaluated by the
designated doctor.
(B)
The treating doctor and insurance carrier may also send
the designated doctor an analysis of the injured employee's medical condition,
functional abilities, and return-to-work opportunities. The analysis may include
supporting information such as videotaped activities of the injured employee
as well as marked copies of medical records, provided the original record
is provided intact and unmarked. If the insurance carrier sends an analysis
to the designated doctor, the insurance carrier shall send a copy to the treating
doctor, the injured employee, and the injured employee's representative (if
any). If the treating doctor sends an analysis to the designated doctor, the
treating doctor shall send a copy to the insurance carrier, the injured employee,
and the injured employee's representative (if any).
(C)
The treating doctor and insurance carrier shall ensure
that the required records and analyses (if any) are received by the designated
doctor no later than the fifth working day prior to the date of the designated
doctor examination.
(D)
If the designated doctor has not received the medical records
or any part thereof at least three working days prior to the examination,
the doctor:
(i)
shall report this violation to the commission's Division
of Compliance and Practices; and
(ii)
may elect to reschedule the examination. The rescheduled
examination shall be set for a date within fourteen days of the originally
scheduled examination. Within 24 hours of rescheduling, the doctor shall contact
the commission's field office and the insurance carrier with the time and
date of the rescheduled examination. The doctor shall conduct the rescheduled
examination regardless of whether or not the complete medical record has been
timely received.
(4)
To avoid undue influence on the designated doctor:
(A)
only the injured employee or appropriate commission staff
may communicate with the designated doctor about the case regarding the injured
employee's medical condition or history prior to the examination of the injured
employee by the designated doctor;
(B)
after the examination is completed, communication with
the designated doctor regarding the injured employee's medical condition or
history may be made only through appropriate commission staff (an ombudsman
is not considered appropriate staff to contact the designated doctor and should
communicate with a designated doctor only through appropriate commission staff);
and
(C)
the designated doctor may initiate communication with any
doctor who has previously treated or examined the injured employee for the
work-related injury or with peer reviews identified by the insurance carrier
who examined the injured employee's claim.
(5)
The insurance carrier, treating doctor, injured employee,
or injured employee's representative (if any) may contact the designated doctor's
non-medical office staff to ask about administrative matters such as whether
the designated doctor received the records, whether the exam took place, or
whether the report has been filed, or similar matters. However, the injured
employee's condition, MMI status, impairment rating, return to work abilities,
or similar issues shall not be discussed.
(e)
The insurance carrier is not entitled to a subsequent designated
doctor examination relating to MMI if the designated doctor previously found
the injured employee to have not reached MMI, until the earliest of:
(1)
the 60th day after the prior designated doctor examination
was held; or
(2)
the date the insurance carrier is found by the commission
to have good cause such as because "the injured employee reached the date
the designated doctor estimated the injured employee would reach MMI."
(f)
If either party requires clarification concerning the report
of the designated doctor, the party shall file a request for clarification
with the commission.
(1)
If the insurance carrier is not satisfied with the opinion
rendered by a designated doctor under this section, the insurance carrier
may request the commission to order an injured employee to attend an examination
by a doctor selected by the insurance carrier in accordance with §126.5
of this title (relating to Entitlement and Procedure for Requesting Required
Medical Examinations).
(2)
Either party may ask the commission to contact the designated
doctor to answer specific questions provided by the requestor regarding the
designated doctor's opinion.
(3)
Upon receipt of a request for a benefit review conference,
the commission shall resolve a dispute of the opinion of a designated doctor
through the dispute resolution processes outlined in chapters 140 through
147 of this title.
§130.6.Designated Doctor Examinations for Maximum Medical Improvement and/or Impairment Ratings.
(a)
A designated doctor examination for maximum medical improvement
(MMI) and/or permanent whole body impairment shall be conducted in accordance
with this section.
(1)
Any evaluation relating to either MMI, an impairment rating
or both shall be conducted in accordance with §130.1 of this section
(relating to Certification of Maximum Medical Improvement and Evaluation of
Permanent Impairment).
(2)
The opinion of the designated doctor is given presumptive
weight regarding MMI and impairment but only on the issue(s) in question or
dispute. If the report contains the doctor's opinion regarding other issues
(even those the commission has requested the doctor to consider), that portion
of the opinion does not have presumptive weight.
(b)
The designated doctor and the injured employee shall contact
each other if there exists a scheduling conflict for the designated doctor
appointment. The designated doctor or the injured employee who has the scheduling
conflict must make the contact at least 24 hours prior to the appointment.
The 24-hour requirement will be waived in an emergency situation (such as
a death in the immediate family or a medical emergency). The rescheduled examination
shall be set for a date within fourteen days of the originally scheduled examination
unless an extension is granted by the commission's field office. Within 24
hours of rescheduling, the designated doctor shall contact the commission's
field office and the insurance carrier with the time and date of the rescheduled
examination.
(c)
An insurance carrier may suspend temporary income benefits
(TIBs) if an injured employee, without good cause, fails to attend a designated
doctor examination.
(1)
In the absence of a finding by the commission to the contrary,
an insurance carrier may presume that the injured employee did not have good
cause to fail to attend the examination if:
(A)
by the day the examination was originally scheduled to
occur the injured employee has both:
(i)
failed to submit to the examination; and
(ii)
failed to contact the designated doctor's office to reschedule
the examination to occur no later than the later of the fourteenth day after
the originally scheduled examination date or the doctor's first available
appointment date; or
(B)
after rescheduling the examination as provided in subsection
(c)(1)(A)(ii) of this section, the injured employee failed to submit to the
rescheduled examination.
(2)
If, after the insurance carrier suspends TIBs pursuant
to this section, the injured employee submits to the designated doctor examination,
the insurance carrier shall reinitiate TIBs as of the date the injured employee
submitted to the examination unless the report of the designated doctor indicates
that the injured employee has reached MMI. The re-initiation of TIBs shall
occur no later than the seventh day following the latter of:
(A)
the date the insurance carrier was notified that the injured
employee had attended the examination; or
(B)
the date that the insurance carrier was notified that the
commission found that the injured employee had good cause for failure to attend
the examination.
(3)
An injured employee is not entitled to TIBs for a period
during which the insurance carrier suspended benefits pursuant to this section
unless the injured employee later submits to the examination and the commission
finds or the insurance carrier determines that the injured employee had good
cause for failure to attend the examination.
(d)
The designated doctor shall address the issue(s) in question
and any issues the commission may request the designated doctor to consider
and confine the report as described in subsection (h) of this section to only
those issues.
(1)
When there has been no prior certification of MMI, the
designated doctor shall evaluate the injured employee for MMI, and if the
doctor finds that the injured employee reached MMI, assign an impairment rating.
If the designated doctor finds that the injured employee has not reached MMI,
the doctor shall identify the reason that the designated doctor does not believe
the injured employee to have reached MMI, and estimate the date that the injured
employee will reach MMI.
(2)
When there has been a prior certification of MMI and impairment
rating and only the MMI date is in question, the designated doctor shall evaluate
the date the injured employee reached MMI and shall not assign an impairment
rating. If the certification of MMI in question was the treating doctor's
certification and the designated doctor finds that the injured employee either
was not at MMI or reached MMI on a date later than the treating doctor, the
designated doctor shall provide an explanation with clinical documentation
to support why the injured employee had not reached MMI as of the date certified
by the treating doctor.
(3)
When the impairment rating is the only issue in question,
the doctor shall assign an impairment rating without regard to the MMI date.
(4)
When MMI and permanent whole body impairment are in question
and the designated doctor determines that the injured employee has not reached
MMI, the designated doctor shall not assign an impairment rating. Otherwise,
the doctor shall certify MMI and assign an impairment rating.
(5)
When the extent of the injury may not be agreed upon by
the parties (based upon documentation provided by the treating doctor and/or
insurance carrier or the comments of the injured employee regarding his/her
injury), the designated doctor shall provide multiple certifications of MMI
and impairment ratings that take into account the various interpretations
of the extent of the injury so that when the commission resolves the dispute,
there is already an applicable certification of MMI and rating from which
to pay benefits as required by the statute.
(e)
When performing range of motion testing, if the AMA Guides
specifies that additional testing be performed because of consistency requirements,
the designated doctor shall reschedule testing within seven days of the first
testing unless there is no clinical basis for retesting and then the designated
doctor shall document this in the narrative notes with the clinical explanation
for not recommending re-examination.
(f)
Range of motion, sensory, and strength testing should be
performed by the designated doctor, when applicable. If this testing is not
performed by the designated doctor, the health care provider performing the
testing must have successfully completed commission-approved training, must
not have previously treated or examined the injured employee within the past
12 months, and must not have not examined or treated the injured employee
with regard to the medical condition being evaluated by the designated doctor.
Use of another health care provider to perform testing under this subsection
shall not extend the amount of time the designated doctor has to file the
report and the designated doctor is responsible for ensuring that the requirements
of this chapter are complied with.
(g)
For testing other than that listed in subsection (f) of
this section, the designated doctor may perform additional testing or refer
injured employees to other health care providers when deemed necessary to
assess an impairment rating. Any additional testing required for the evaluation
and rating, is not subject to preauthorization requirements in accordance
with the Texas Labor Code, §413.014 (relating to Preauthorization) and
additional testing must be completed within seven working days of the designated
doctor's physical examination of the injured employee. Use of another health
care provider to perform testing under this subsection can extend the amount
of time the designated doctor has to file the report by seven working days.
(h)
The designated doctor shall complete and file a Report
of Medical Evaluation in accordance with §130.1 of this title (relating
to Certification of Maximum Medical Improvement and Evaluation of Permanent
Impairment) and 130.3 of this title (relating to Certification of Maximum
Medical Improvement and Evaluation of Permanent Impairment by A Doctor Other
Than The Treating Doctor).
(i)
The designated doctor shall respond to any commission requests
for clarification not later than the fifth working day after the date on which
the doctor receives the commission's request. The doctor's response is considered
to have presumptive weight as it is part of the doctor's opinion. If, in order
to respond to the request for clarification, the designated doctor has to
re-examine the injured employee, the doctor shall:
(1)
make him/herself available to conduct the reexamination
within 10 working days of receiving the request (even if it means traveling
back to the location of the original examination); and
(2)
respond to the request for clarification not later than
the fifth working day following the reexamination.
(j)
The designated doctor shall maintain accurate records,
including the injured employee records, analysis (including supporting information),
and narratives provided by the insurance carrier and treating doctor, to reflect:
(1)
the date and time of any designated doctor appointments
scheduled with injured employees;
(2)
the circumstances regarding a cancellation, no-show or
other situation where the examination did not occur as initially scheduled
or rescheduled;
(3)
the date of the examination;
(4)
the date medical records were received from the treating
doctor or any other person or organization;
(5)
the date the medical evaluation report was submitted to
all parties in accordance with §130.1 of this title (relating to Reports
of Medical Evaluation: Maximum Medical Improvement and Permanent Impairment);
(6)
the name of all referral health care providers, date of
appointments and reason for referral by the designated doctor; and
(7)
the date the doctor contacted TWCC for assistance in obtaining
medical records from the insurance carrier or treating doctor.
(k)
The insurance carrier shall pay any accrued income benefits,
and shall begin or continue to pay weekly income benefits, in accordance with
the designated doctor's report for the issue(s) in dispute, no later than
five days after receipt of the report or five days after receipt of an order
by the commission, whichever is earlier. If the designated doctor provided
multiple certifications of MMI/impairment ratings by operation of subsection
(d)(5) of this section, the insurance carrier shall pay using the certification/rating
assigned based on the conditions that the insurance carrier believes are part
of the compensable injury.
§130.12.Finality of the First Certification of Maximum Medical Improvement and/or First Assignment of Impairment Rating.
(a)
The certifications and assignments that may become final
are:
(1)
The first valid certification of MMI and/or IR assigned
or determination of no impairment;
(2)
The first valid assignment of IR after the expiration of
104 weeks from the date income benefits begin to accrue or the expiration
date of any extension under Section 408.104, if the employee has not been
certified as having reached MMI; or
(3)
The first valid subsequent certification of MMI and/or
assignment of an IR or determination of no impairment received after the date
a certification of MMI and/or assignment of an IR or determination of no impairment
is overturned, modified or withdrawn by agreement of the parties or by a final
decision of the commission or a court.
(4)
A designated doctor may provide multiple IRs if there is
a dispute over extent of injury. Whichever rating from the designated doctor
applies to the compensable injury once an extent of injury (EOI) dispute has
been resolved may become final if not disputed. An EOI dispute does not constitute
a dispute of the MMI/IR for purposes of finality under this subsection.
(b)
A first MMI/IR certification must be disputed within 90
days of delivery of written notice through verifiable means, including IRs
related to EOI disputes. The notice must contain a copy of a valid Form TWCC
69, Report of Medical Evaluation, as described in subsection (c). The 90-day
period begins on the day after the written notice is delivered to the party
wishing to dispute a certification of MMI or an IR assignment, or both. The
90-day period may not be extended.
(1)
Only an insurance carrier, an injured employee, or an injured
employee's attorney or employee representative under 150.3(a) may dispute
a first certification of MMI or assigned IR under §141.1 (related to
Requesting and Setting a Benefit Review Conference) or by requesting the appointment
of a designated doctor, if one has not been appointed.
(2)
Use of the TWCC 69's non-concurrence section is not a prescribed
form and manner for a dispute.
(3)
A dispute may not be revoked or withdrawn to allow the
first valid certification of MMI and/or the first valid assignment of IR to
become final except by agreement of the parties.
(4)
The first certification of maximum medical improvement
and/or impairment rating may be disputed after the 90-day period as provided
in §408.123(e) of the Texas Labor Code.
(c)
A certification of MMI and/or IR assigned as described
in subsection (a) must be on a Form TWCC 69, Report of Medical Evaluation.
The certification on the Form TWCC 69 is valid if:
(1)
There is an MMI date that is not prospective;
(2)
There is an impairment determination of either no impairment
or a percentage impairment rating assigned; and
(3)
There is the signature of the certifying doctor who is
authorized by the Commission under §130.1(a) to make the assigned impairment
determination.
(d)
This section applies only to those claims with initial
MMI/IR certifications made on or after June 18, 2003.
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 February 23, 2004.
TRD-200401263
Susan Cory
General Counsel
Texas Workers' Compensation Commission
Effective date: March 14, 2004
Proposal publication date: September 5, 2003
For further information, please call: (512) 804-4287
28 TAC §130.110
The amendments are adopted pursuant to the Texas Labor Code §402.061,
which requires the commission to adopt rules necessary for the implementation
and enforcement of the Texas Workers Compensation Act; the Texas Labor Code, §401.011
which contains definitions used in the Texas Workers' Compensation Act; the
Texas Labor Code, §401.024, which provides the commission the authority
to require use of facsimile or other electronic means to transmit information
in the system; the Texas Labor Code, §402.042, which authorizes the executive
director to enter orders as authorized by the statute as well as to prescribe
the form and manner and procedure for transmission of information to the commission;
Texas Labor Code, §402.071 relating to authorization of representatives;
Texas Labor Code §406.010, that authorizes the commission to adopt rules
regarding claims service; the Texas Labor Code, §408.004 which provides
for Required Medical Examinations; Texas Labor Code §408.0041 which provides
for the commission assignment of a designated doctor; the Texas Labor Code §408.023
which requires the commission to develop a list of approved doctors and lay
out the requirements for being on the list; the Texas Labor Code §408.0231,
which provides the commission with the responsibility for maintenance of the
list; the Texas Labor Code, §408.025, which requires the commission to
specify by rule what reports a health care provider is required to file; the
Texas Labor Code §408.102, which provides that temporary income benefits
continue until the injured employee reaches maximum medical improvement; Texas
Labor Code §408.104 which establishes procedures for MMI after spinal
surgery; Texas Labor Code §408.122 which requires that designated doctors
meet specific qualifications; the Texas Labor Code §408.123, which requires
a doctor certifying maximum medical improvement to file a report and which
requires a certification of MMI and assignment of an impairment rating by
a doctor other than the treating doctor be sent to the treating doctor who
must indicate either agreement or disagreement with the certification of the
evaluation; the Texas Labor Code §408.124, which provides the commission
the authority to by rule adopt the fourth edition of the "Guides to the Evaluation
of Permanent Impairment" published by the American Medical Association to
determine the existence and degree of an injured employee's impairment; the
Texas Labor Code §408.125 which provides the process for disputing impairment
ratings; the Texas Labor Code §408.151, which provides for required medical
examinations for supplemental income benefits; Texas Labor Code §410.004
which requires dispute resolution proceedings within the commission; Texas
Labor Code §410.169 which addresses the effect of a contested case hearing
decision; Texas Labor Code §410.251 which allows judicial review after
administrative remedies have been exhausted; and Texas Labor Code §415.031
which addresses initiation of administrative violation proceedings.
§130.110.Return to Work Disputes During Supplemental Income Benefits; Designated Doctor.
(a)
This section applies only to disputes regarding whether
an injured employee whose medical condition prevented the injured employee
from returning to work in the prior year has improved sufficiently to allow
the injured employee to return to work on or after the second anniversary
of the injured employee's initial entitlement to supplemental income benefits
(SIBs). Upon request by the injured employee or insurance carrier, or upon
its own motion, the commission shall appoint a designated doctor to resolve
the dispute. The report of the designated doctor shall have presumptive weight
unless the great weight of the other medical evidence is to the contrary.
The presumptive weight afforded the designated doctor's report shall begin
the date the report is received by the commission and shall continue:
(1)
until proven otherwise by the great weight of the other
medical evidence; or
(2)
until the designated doctor amends his/her report based
on newly provided medical or physical evidence.
(b)
A dispute exists if there is conflicting medical or physical
evidence that has not been previously considered in a prior dispute under
this section that indicates the injured employee's medical condition has improved
sufficiently to allow the injured employee to return to work. Medical evidence
consists of medical reports or records that are generated as a result of a
hands-on examination of the injured employee. Physical evidence may consist
of, but is not limited to, videotaped activities, evidence of wage earning
capabilities (i.e., payroll information), or reports from a private provider
of vocational rehabilitation services or the Texas Rehabilitation Commission.
(c)
A party who wishes to seek the appointment of a designated
doctor to resolve the dispute shall make a request to the commission.
(d)
The request for a designated doctor from an insurance carrier
or an injured employee's representative must be in writing and provided to
the commission in the form, format and manner prescribed by the commission.
A request for a designated doctor from an unrepresented injured employee may
be submitted in any manner.
(e)
If a designated doctor has been appointed to resolve a
prior dispute regarding maximum medical improvement and/or impairment rating,
that doctor may not be appointed to resolve the dispute(s) regarding whether
the injured employee's medical condition has improved sufficiently to allow
the injured employee to return to work.
(f)
The commission shall select the next available doctor from
the commission's designated doctor list, which is, to the extent possible,
in the same discipline and licensed by the same board of examiners as the
injured employee's treating doctor of choice at the time of the finding of
change in the injured employee's medical condition which would allow the injured
employee to return to work and who has not previously treated or examined
the injured employee with regard to the medical condition being evaluated
by the designated doctor. A doctor selected under this section shall serve
as the designated doctor for all dispute(s) raised under this section unless
that doctor is unable or unwilling to act in that capacity.
(g)
The designated doctor and the injured employee shall contact
each other if there exists a scheduling conflict for the designated doctor
appointment. The designated doctor or the injured employee who has the scheduling
conflict must make the contact at least 24 hours prior to the appointment.
The 24-hour requirement will be waived in an emergency situation (such as
a death in the immediate family or a medical emergency). The rescheduled examination
shall be set for a date within seven days of the originally scheduled examination
unless an extension is granted by the field office managing the claim. Within
24 hours of rescheduling, the designated doctor shall contact the commission
field office and the insurance carrier with the time and date of the rescheduled
examination. If the designated doctor is not able to timely reschedule the
examination, the designated doctor shall contact the commission field office
and the insurance carrier within 24 hours of the refused examination. The
commission shall then either grant an extension of not more than seven days
or select a different designated doctor to perform the examination and resolve
the dispute.
(h)
The treating doctor and insurance carrier shall send to
the designated doctor without the requirement of a signed release from the
injured employee, all the injured employee's medical evidence in their possession
relating to the medical condition to be evaluated by the designated doctor.
Either party may submit with this medical evidence an analysis, a videotape
or other physical evidence it would like the designated doctor to review which
may indicate the injured employee's medical condition has improved or has
not improved sufficiently to allow the injured employee to return to work.
An analysis may include supporting information such as marked copies of medical
records, provided the original medical record is left intact and unmarked.
If the insurance carrier sends an analysis or physical evidence to the designated
doctor, the insurance carrier shall send a copy to the treating doctor, the
injured employee, and the injured employee's representative (if any). If the
treating doctor sends an analysis or physical evidence to the designated doctor,
the treating doctor shall send a copy to the insurance carrier, the injured
employee, and the injured employee's representative (if any). The designated
doctor is authorized to receive the injured employee's confidential medical
and physical evidence provided by either party to assist in the resolution
of whether the injured employee's medical condition has improved sufficiently
to allow the injured employee to return to work. The medical evidence must
not contain any marks, highlights, or other alterations placed on such records
for the purpose of communicating with or influencing the designated doctor.
The medical and physical evidence must be received by the designated doctor
at least three days prior to the date of the appointment as specified in the
commission order. If the medical evidence is marked, highlighted, altered,
or unrelated to the medical condition to be evaluated by the designated doctor,
the designated doctor shall notify the commission and report the noncompliance
of the treating doctor and/or insurance carrier. If the designated doctor
has not received the medical evidence at least three days prior to the examination,
the designated doctor's office shall notify the commission at the appropriate
field office and the appropriate commission staff will send an order to the
treating doctor and/or insurance carrier for the delivery of medical evidence.
(i)
To avoid undue influence on a person selected as a designated
doctor in accordance with Texas Labor Code, §408.125, only the injured
employee or an appropriate member of the staff of the commission may communicate
with the designated doctor about the case regarding the injured employee's
medical condition or history prior to the examination of the injured employee
by the designated doctor. After that examination is completed, communication
with the designated doctor regarding the injured employee's medical condition
or history may be made only through appropriate commission staff members.
An ombudsman and an ombudsman's assistant are not considered appropriate staff
to contact the designated doctor and should communicate with a designated
doctor only through appropriate commission personnel. The designated doctor
may initiate communication with any doctor who has previously treated or examined
the injured employee for the work-related injury or with peer reviewers, identified
by the insurance carrier, who examined the injured employee's claim. The insurance
carrier, treating doctor, injured employee, or injured employee's representative
(if any) may contact the designated doctor's non-medical office staff to ask
about administrative matters such as whether the designated doctor received
the records, whether the exam took place, or whether the report has been filed,
or similar matters. However, the injured employee's condition, MMI status,
impairment rating, return to work abilities, or similar issues shall not be
discussed.
(j)
The designated doctor shall review all medical and physical
evidence provided by the insurance carrier and treating doctor and shall perform
a hands-on examination. The designated doctor shall give the evidence reviewed
the weight he/she feels is appropriate. Following the examination, the designated
doctor shall prepare a report, in the form and manner prescribed by the commission,
of his/her findings regarding whether the injured employee's medical condition
has improved sufficiently to allow the injured employee to return to work.
(k)
The designated doctor shall file the report with the commission
in the form and manner required by the commission, so that it is received
by the commission not later than the seventh day after the completion of the
examination of the injured employee. At the same time it is filed with the
commission, the designated doctor shall provide a copy of the report by facsimile
or electronic transmission to the injured employee, the injured employee's
representative, if any, and the insurance carrier, unless the recipient does
not have a means of receiving the transmission, in which case the report shall
be sent by mail or personal delivery.
(l)
The designated doctor may perform additional testing or
refer the injured employee to other health care providers when deemed necessary
to find whether the injured employee's medical condition has improved sufficiently
to allow the injured employee to return to work. Necessary additional testing
is not subject to the preauthorization requirements in the Texas Labor Code, §413.014
(relating to Preauthorization) and additional testing must be completed within
seven days of the designated doctor's physical examination of the injured
employee.
(m)
The designated doctor shall maintain accurate records,
including the injured employee records, physical evidence, and narratives
provided by the insurance carrier and the treating doctor, to reflect:
(1)
the date and time of any designated doctor appointments
scheduled with injured employees;
(2)
the circumstances regarding a cancellation, no-show or
other situation where the examination did not occur as initially scheduled
or rescheduled;
(3)
the date of the examination and any testing;
(4)
the date medical and physical evidence was received from
the treating doctor or insurance carrier or any other person or organization;
(5)
the date the medical evaluation/work status report was
submitted to all parties in accordance with subsection (k) of this section;
and
(6)
the name of all referral health care providers, dates of
referral, dates of appointments and testing dates results were received, and
reason(s) for referral by the designated doctor.
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 February 23, 2004.
TRD-200401264
Susan Cory
General Counsel
Texas Workers' Compensation Commission
Effective date: March 14, 2004
Proposal publication date: September 5, 2003
For further information, please call: (512) 804-4287
28 TAC §132.17
The Texas Workers' Compensation Commission (the commission)
adopts amendments to §132.17 (regarding denial, dispute and payment of
death benefits), with changes to the proposed text published in the September
5, 2003, issue of the
Texas Register
(28 TexReg
7616).
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. This preamble contains a summary
of the factual basis of 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
agrees or disagrees with some of the comments and proposals.
The amendments are adopted to implement a change made to Texas Labor Code §409.021
by the 78th Texas Legislature, 2003, which changed from seven to fifteen days
the time frame within which a carrier must either begin payment of death benefits
or file a notice of dispute. Section 132.17(f) is amended to comply with this
statutory change.
The rule is also amended by adding new subsection (h) to clarify that the
new 15-day time frame applies only to compensable injuries that occurred on
or after September 1, 2003. This is a change from the text of the rule as
proposed.
Comments indicating support of the proposed amendment to §132.17 were
received from the following group or association: Insurance Council of Texas.
Comments neither specifically opposing nor in favor of the proposed amendment
to §132.17, but offering suggestions, were received from the following
group or association: Lockheed Martin Aeronautics Co.
The comment and commission response are summarized as follows:
Comment: Commenter recommends adding language to subsection (b) to state,
" . . . except in no instance shall the 60 day limit apply to bar dispute
of a claim based on false or misleading information regardless of the date
of discovery." Although commenter did not indicate where, in subsection (b),
this language should be added, it is the commission's understanding that the
commenter recommends inserting the additional language at the end of the last
sentence in subsection (b).
Response: The Commission disagrees. The recommended language would conflict
with §124.3(c) of the commission's rules and Texas Labor Code §409.021,
which provide that the issue of compensability may only be reopened if there
is a finding that the evidence on which the denial is based could not reasonably
have been discovered earlier. These provisions do not allow a waiver of the
60-day requirement if evidence of false or misleading information is known
prior to the expiration of the 60 days. Moreover, under Texas Labor Code §415.008(a),
a person commits a violation if that person obtains benefits by knowingly
making false or misleading statements or misrepresents or conceals material
facts; and Texas Labor Code §415.008(e) prohibits the commission from
taking final action on benefits if such an administrative proceeding is pending.
Thus, if a carrier does reopen the issue of compensability and dispute a claim
based on an allegation of false or misleading information, the carrier may
also submit a complaint to the commission alleging a violation of §415.008(a),
thereby allowing the issue of compensability to resolve itself in this manner.
The amendment is adopted pursuant to the Texas Labor Code, §402.061,
which authorizes the commission to adopt rules as necessary for the implementation
and enforcement of the Texas Workers' Compensation Act, Texas Labor Code §401.001
et seq.; Texas Labor Code §401.011 which provides definitions used in
the Texas Workers' Compensation Act; Texas Labor Code §408.181, which
requires an insurance carrier to pay death benefits to the legal beneficiary
if a compensable injury results in death; and Texas Labor Code, §409.021,
relating to an insurance carrier's right to contest the compensability of
an injury in a workers' compensation case.
§132.17.Denial, Dispute, and Payment of Death Benefits.
(a)
Upon being notified of a death resulting from an injury,
the insurance carrier (carrier) shall: investigate whether the death was a
result of the injury and, if the carrier has not already done so in compliance
with §124.3 of this title (relating to Investigation of an Injury and
Notice of Denial/Dispute) due to the injury being reported separately, conduct
an investigation relating to the compensability of the death, the carrier's
liability for the death, and the accrual of benefits. The carrier shall have
60 days from notification of the death or from written notice of the injury
that resulted in the death (whichever is greater) to conduct its investigation.
(b)
If the carrier believes that it is not liable for the death
or that the death was not compensable, the carrier shall file the notice of
denial of a claim (notice of denial) in the form and manner required by §124.2
of this title (relating to Carrier Reporting and Notification Requirements).
If the notice of denial is not filed by the 60th day as required, the carrier
may not raise an issue of compensability or liability and is liable for any
benefits that accrued and shall initiate benefits in accordance with this
section.
(c)
A carrier that is made aware of a death under subsection
(a) of this section shall attempt to identify all potential beneficiaries,
other than the subsequent injury fund (SIF), and the carrier shall maintain
documentation relating to its attempt to identify potential beneficiaries.
(d)
A carrier that identifies or becomes aware of a potential
beneficiary shall notify the potential beneficiary of potential entitlement
to benefits, using a plain language notice containing language and content
prescribed by the Commission. This notice shall be sent within seven days
of the date the carrier identified or was otherwise made aware of the identity
and means of contacting the potential beneficiary.
(e)
If the carrier receives a claim for death benefits in accordance
with §122.100 of this title (relating to Claim for Death Benefits), the
carrier shall review the evidence provided by the beneficiary to determine
whether the person is entitled to death benefits as provided in §132.2
through §132.6 of this title (relating to Determination of Facts of Dependent
Status; Eligibility of Spouse to Receive Death Benefits; Eligibility of a
Child to Receive Death Benefits; Eligibility of a Grandchild to Receive Death
Benefits; Eligibility of Other Surviving Dependents to Receive Death Benefits).
(f)
If the carrier believes the claimant is eligible to receive
death benefits, the carrier shall begin payment of death benefits. If the
carrier believes that the claimant is not eligible to receive death benefits,
the carrier shall file the notice of dispute of eligibility (notice of dispute)
in the form and manner required by §124.2 of this title (relating to
Carrier Reporting and Notification Requirements).
(1)
The carrier shall either begin the payment of death benefits
or file the notice of dispute not later than the 15th day after the latest
of:
(A)
receiving the claim for death benefits;
(B)
final adjudication of the carrier's denial of compensability
or liability under §124.2 and subsection (b) of this section; or
(C)
the expiration of the carrier's right to deny compensability/liability
under subsection (a) of this section.
(2)
If the notice of dispute is not filed within 15 days as
required, the carrier is liable for and shall pay all benefits that had accrued
and were payable prior to the date the carrier files the notice of dispute
and only then is the carrier permitted to suspend payment of benefits.
(g)
If the carrier has filed a notice of denial prior to receipt
of a claim for death benefits, the carrier shall provide a copy of the previously
filed notice of denial to the claimant within seven days of receipt of the
claim for death benefits.
(h)
The 15-day timeframe provided for in subsection (f) of
this section applies only to claims for benefits based on compensable injuries
that occurred on or after September 1, 2003. For claims based on compensable
injuries that occurred prior to September 1, 2003, the applicable timeframe
in subsection (f) of this section is seven days.
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 February 23, 2004.
TRD-200401265
Susan Cory
General Counsel
Texas Workers' Compensation Commission
Effective date: March 14, 2004
Proposal publication date: September 5, 2003
For further information, please call: (512) 804-4287
Subchapter F. PHARMACEUTICAL BENEFITS
Chapter 130.
IMPAIRMENT AND SUPPLEMENTAL INCOME BENEFITS
Subchapter B. SUPPLEMENTAL INCOME BENEFITS
Chapter 132.
DEATH BENEFITS--DEATH AND BURIAL BENEFITS
Chapter 134.
BENEFITS--GUIDELINES FOR MEDICAL SERVICES, CHARGES, AND PAYMENTS