Welcome to the Jungle: DWC-Appointed Designated Doctors
Friday, April 24, 2009 | 0
By Joe R. Anderson and Mark H. Sickles
The Texas Labor Code grants the Texas Department of Insurance Division of Workers Compensation (DWC) authority to appoint a designated doctor (DD) to help resolve compensability disputes. The Labor Code and DWC rules further outline the weight of the DD's opinion, the parties responses to the DDs opinion, and other compliance issues. An ever increasing trend is DDs are being appointed in cases that have been completely denied. Some carriers and self-insureds are now asking, "Why?"
Authority to Appoint DDs When Compensability is in Dispute
Prior to House Bill 7, any party could request a DD to assess an injured workers date of maximum medical improvement (MMI), impairment rating (IR), and ability to return to work while receiving supplemental income benefits (SIBs). In 2005, the legislature amended Texas Labor Code 408.0041. Section (a) now provides that a DD may resolve the following questions:
- MMI;
- IR;
- extent of injury;
- disability;
- ability to return to work; and
- "issues similar to those described by subdivisions (1)-(5)."
As a result of the Labor Code amendments, the division implemented the same categories in DWC Rule 126.7(c). Rule 126.7 was effective Jan. 1, 2007, and since that time, the Division has started scheduling DD examinations on completely-denied claims. In reviewing Texas Labor Code section 408.0041(a) and Division rule 126.7(c), the legislature and division did not define "similar issues."
In the past, the division would not schedule DD examinations on disputed cases. Even if both parties agreed to schedule an examination, the division would more than likely refuse to set the examination. It is clear from the Labor Code and the division rule that the division is not given specific authority to schedule a DD examination on disputed claims. This is outlined in Texas Labor Code section 408.0041, which does not grant a DD the authority to address compensability. In a disputed claim, the determination of the compensability of the claim is left to the discretion of a hearing officer at a Benefit Contested Case Hearing (BCCH).
Despite the defined "role" of a DD, the division prepared a June 18, 2007, memorandum allowing DDs to also address "whether there is an injury resulting from the claimed incident." This is now the standard language on a DWC-32. One section of the memorandum regarding "Guidance on Requesting DD Examinations" specifically outlines disputes on compensability. The memorandum indicates that there are two components to compensability. The first is a medical component as to whether there was an injury resulting from the claimed incident. The second is a legal component as to whether the injury occurred within the course and scope of employment. The memorandum further indicates that when the compensability of the injury has been denied or disputed, the division will not schedule a DD to address a legal issue, but will schedule a DD examination to address the medical issue of whether there is an injury related to the claimed incident and, if so, the extent of the injury. The memorandum further provides instructions on how to properly fill out the request for a DD examination (DWC-32).
In reviewing the Workers Compensation Act and rules, such a definition of compensability including the two components addressed in the memorandum is unattainable. The definition of compensable injury is "an injury that arises out of and in the course and scope of employment for which compensation is payable under this subtitle." Compensation means "payment of a benefit." Benefit means "a medical benefit, an income benefit, a death benefit, or a burial benefit based on a compensable injury." Furthermore, medical benefit means "payment for health care reasonably required by the nature of compensable injury and intended to (a) cure or relieve the effects naturally resulting from the compensable injury, including reasonable expenses incurred by the employee for necessary treatment to cure and relieve the employee from the effects of an occupational disease before and after the employee knew or should have known the nature of the disease and its relationship to the employment; (b) promote recovery; or (c) enhance the ability of the employee to return to or retain employment." It appears that the only language regarding a medical component is the language discussing the payment of medical benefits from a compensable injury.
In addition to the memorandum, the division also recently revised the DWC-32 to conform to the corresponding Labor Code amendments and DWC Rule changes. The new form explains that an example of "other similar issues" would be "to determine if there is an injury resulting from the claimed incident." However, the same form clearly notes the following: "Designated doctor examinations may not be requested for developing treatment plans, determining the appropriateness of medical care, or to determine the compensability of the injury. As a result, DDs are now being requested to address whether there is an injury resulting from the claimed incident."
The main concern in allowing a DD to address this type of request is that the DD is essentially providing an opinion on the compensability of the claim. If a DD is requested to address this issue, and finds that an injured worker had an injury from the claimed incident, then the DD has essentially provided an opinion on compensability. All that is missing from his opinion or findings is that the injury is a compensable injury. A carrier wishing to challenge the appointment of a DD on a completely-denied claim must then examine how it should proceed under the Act and Rules. Should a carrier wish to object, the carrier would be wise to ensure compliance with the Act and Rules, e.g., send medical records, provide an analysis letter, pay the fee for a DD examination, or it will risk administrative penalties.
Weight Given to DD's Report
According to Division Rule 126.7(d), the report of the DD is given presumptive weight regarding the issue(s) in question and/or dispute, unless the preponderance of the evidence is to the contrary. At a BCCH, the hearing officer is granted the authority to determine the issue of whether the injured worker sustained a compensable injury. It is our opinion that the DD report should not have any weight regarding the issue of compensability on a totally disputed claim. Up to this point, the division has not attempted to assign presumptive weight to a DD's report on the issue of compensability, despite arguments from some claimants attorneys. The division will consider the DD's opinion on whether an injury resulted from the claimed incident. Although the report may not have presumptive weight, it will clearly be "considered" by the hearing officer.
Conclusion
The appointment of DDs on completely denied claims will continue to be an issue for carriers and self-insureds. At some point, the practice will probably be challenged by a carrier or self insured, most likely in the arena of compliance. Perhaps a better practice would be to allow the appointment of DDs in completely denied cases when both parties are in agreement that the appointment occurs.
This article by Joe R. Anderson and Mark H. Sickles of the Austin law firm of Burns Anderson Jury & Brenner L.L.P was reprinted with permission.
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