WHAT IS "DOUBLE DIPPING" ?

http://texasworkcomp.blogspot.com/2006/06/what-is-double-dipping.html
WHAT IS "DOUBLE DIPPING" ?
I tend to be a stickler on definitions, because, if we don't have a clear understanding of what is meant when people are using a term, confusion will result.

Thus, when I heard that a work comp carrier representative had used the term "double dipping", I had to find out what the heck it meant.

Initially, one would think this retarded and ambiguous term would mean that you were going to get TWO SCOOPS of ice cream on your cone instead of one. Maybe it means you get rocky road with your chocolate.

Of course, it could be a term unique to those who chew tobacco, and double dipping could mean getting a double load of "chaw" (i.e. chew).

But, double dipping COULD mean you use your Frito scoopable chip to get two loads of cheese on one scoop.

But, how would these apply to Work Comp? Clearly, insurance carriers are not giving out ice cream, not dispensing cheese dip, nor even chewing tobacco.

So, we have to "dip" deeper into the matter.

One possible clue as to what SOME carrier reps might mean when they throw this term around, is found in an article on Texas Mutual website

From http://www.texasmutual.com/news/stories2006Q2.shtm (selected portion used pursuant to FAIR USE doctrine)

"May 23, 2006 - Texas Mutual Insurance Company reports that, in unrelated cases, the Travis County grand jury indicted Carlos Torres and Shantel Babineaux on workers’ compensation fraud-related charges. Both workers were allegedly double-dipping, a term investigators use for claimants who collect workers’ comp income benefits by saying they are unable to work while they are actively employed."

So, THAT'S WHAT THEY MEAN when they use that retarded term!

So, let's investiage this idea a bit further.

Let's say a worker is actually employed in TWO jobs that he does daily.
It is not against the law to work two jobs.

Let's say one job is very physically challenging and one could get hurt easily, and involves heavy lifting, twisting, bending etc.
The other job is extremely light in nature. It only involves filing paperwork, no heavy lifting, no bending...in fact, a very , very light work description, job rating.

Scenario...this worker gets hurt on the job on the very physical job.
His injury is such he presents to a treating doctor. A history and exam are taken, radiographic examination done, even an MRI is done. The results indicate that, at this time, it is contraidicated that the patient continue working on the heavy duty job. THERE IS NO LIGHT DUTY ON THE HEAVY DUTY JOB.

The treating doctor fills out a 73 work status report taking the patient off work with regard to the job he was injured on, since there is no light duty or restricted duty available. In other words, the patient has to be 100 percent able to do heavy duty work.

But, he is physically able to do his second job, and if the duties of the second job were available on the heavy job, he could be returned to work.

But, the 73 work status, ONLY APPLIES to whether the worker can return to the JOB ON WHICH HE WAS INJURED...it does NOT apply to a second job in which he was not injured.

Therefore, there is no reason he cannot continue working at the second job, since he is fit and able to perform those extremely light and non-physically challenging duties.

Thus, he is properly and legally off work with regard to the job on which he was injured, but continues to be gainfully employed and working on job number two.

If one re-reads the "double dipping" definition, this employee / injured worker, would be "double dipping" because it does not stipulate he is working at the same job, just that he is getting work comp benefits, and remains actively employed.

Thoughts?

New Rule in effect July 9 regarding Treating Doctor Exam determining compensable injury extent

http://www.tdi.state.tx.us/wc/rules/planning/documents/pr126treatdoc.docTITLE 28. Insurance Proposed Section
Part 2. Texas Department of Insurance, Page 1 of 17
Division of Workers’ Compensation
Chapter 126. General Provisions Applicable To All Benefits
Proposed new §126.14
Treating Doctor Examination to Define the Compensable Injury
28 TAC §126.14
1. INTRODUCTION. The Texas Department of Insurance, Division of Workers’
Compensation proposes new §126.14 regarding a medical examination by the treating doctor to
define the compensable injury. The section is necessary as a result of House Bill 7, 79th
Legislature, Regular Session, effective September 1, 2005, which established Labor Code
§408.0042 for the purpose of identifying an injured employee’s compensable injury. Labor
Code §408.0042 requires the injured employee to attend one examination per claim with the
injured employee’s treating doctor at the request of the insurance carrier. This examination is a
voluntary option for insurance carriers to utilize as a tool in managing claims. The
examination’s purpose is to have the injured employee’s treating doctor identify the specific
injuries that were caused or aggravated by the work-related incident or activities. The insurance
carrier will make a determination on whether the injuries and diagnoses identified are accepted
as part of the compensable injury.
The Division anticipates that the report from this examination will not likely be the first
medical record the insurance carrier receives. The treating doctor will provide the medical
records from treatment and work activity capability reports on a regular basis. The doctor is
required to indicate the injuries and diagnoses being treated on these other reports and in billing
records. As such, the insurance carrier should already be aware of the injuries sustained and be
taking steps, in addition to this examination, to address those conditions for which it has
concerns.
TITLE 28. Insurance Proposed Section
Part 2. Texas Department of Insurance, Page 2 of 17
Division of Workers’ Compensation
Chapter 126. General Provisions Applicable To All Benefits
Proposed new §126.14
Treating Doctor Examination to Define the Compensable Injury
Pursuant to Labor Code §408.0042(g), this examination does not affect either the injured
employee or insurance carrier’s ability to request required medical examinations or designated
doctor examinations. The insurance carrier may obtain a peer review or request a required
medical examination or designated doctor examination to seek additional clarification on the
injured employee’s injuries in lieu of, or in addition to, this treating doctor examination. This
examination does not affect the treating doctor’s office visits for the purpose of treatment of
diagnoses accepted by the insurance carrier.
Proposed subsection (a) relates to the scheduling of the examination. An insurance
carrier electing to utilize this provision must contact the treating doctor and schedule an
appointment for the injured employee. To provide the injured employee sufficient notice of the
upcoming appointment, the examination should not be scheduled for a date earlier than 15 days
from the date the request is sent, and the examination should be scheduled to take place on or
before the 30th day after the request is sent. The Division has established a requirement that the
examination may not be requested prior to the eighth day after the date of injury. This day was
selected because it is the accrual date for indemnity in claims that begin experiencing lost time
immediately following an on-the-job injury.
Proposed subsection (b) states the insurance carrier is responsible for ensuring it
identifies the correct doctor with which to schedule the examination; therefore it is critical that
the insurance carrier verify a doctor’s role with the injured employee, the injured employee’s
Network or the Division prior to scheduling the examination. The examination shall be delayed
until the correct doctor is identified should the injured employee indicate the doctor named on
TITLE 28. Insurance Proposed Section
Part 2. Texas Department of Insurance, Page 3 of 17
Division of Workers’ Compensation
Chapter 126. General Provisions Applicable To All Benefits
Proposed new §126.14
Treating Doctor Examination to Define the Compensable Injury
the notice is not the treating doctor. If an examination occurs and it is later determined that the
doctor was not the treating doctor of record, the insurance carrier will still be liable for
reimbursement of the examination and testing, but the results of this examination may not be
used for the purpose of defining the compensable injury. An administrative penalty may also be
assessed against the carrier for failure to confirm the correct treating doctor before scheduling the
examination.
The injured employee should not attempt to change treating doctors after being informed
the insurance carrier has scheduled this examination. If a change does occur, the timing of the
doctor change will impact how the results of the examination will be considered. If a doctor
change is requested prior to the examination request, the results of the examination from the
previous treating doctor may not be used to define the compensable injury. The insurance carrier
may make a new request for an examination with the correct doctor. If the doctor change is
requested after the examination request, the examination results will be valid because the results
came from the treating doctor at the time the request was made.
Proposed subsection (g) addresses reporting by the treating doctor. Once the insurance
carrier has scheduled the appointment, the treating doctor is required to perform the examination
for the purpose of identifying all components of the compensable injury. The doctor is required
to report specific diagnoses and to not leave any related diagnoses unreported, even if a condition
is not being treated at the time of the examination. Any injury or diagnosis identified by the
doctor that is not related to the compensable injury should not be included in the list of
compensable injuries and diagnoses in this report. Non-related findings by the treating doctor
TITLE 28. Insurance Proposed Section
Part 2. Texas Department of Insurance, Page 4 of 17
Division of Workers’ Compensation
Chapter 126. General Provisions Applicable To All Benefits
Proposed new §126.14
Treating Doctor Examination to Define the Compensable Injury
may be included in the narrative section or in a separate medical report. The narrative section,
used to give a brief discussion of the objective findings and how the diagnoses are related to the
incident or activities that caused the work related injury or may have been precipitated or
aggravated by the incident or activities causing the work related injury, is required for the report
to be considered complete and valid.
The treating doctor is required to confirm any injury or diagnosis that may have occurred
as a result of the work related incident or activities. The doctor shall not indicate that the injury
cannot be diagnosed at the time of the examination, thereby deferring the compensable injury’s
definition. Should it be necessary to obtain diagnostic testing to rule out or confirm any
diagnoses, the doctor shall refer the injured employee. A list of the required tests and the
rationale for necessity must be clearly documented in the report’s narrative to justify the
additional filing days and any reimbursement. The concern about the potential number of early
diagnostic tests is a matter the insurance carrier must evaluate before requesting a treating doctor
examination to define the compensable injury based on the particular circumstances of the claim.
If the insurance carrier requests the examination very early in the claim, it risks having a larger
number of tests performed than would be necessary if the examination were to occur later in
treatment when some of the possible diagnoses would have been ruled-out clinically. Doctors
will also need to weigh the potential emotional effect multiple tests could have on an injured
employee’s recovery, especially early in the injury. Insurance carriers that are concerned about
diagnostic testing not requiring preauthorization by rule should note that initial diagnostic testing
generally does not required preauthorization.
TITLE 28. Insurance Proposed Section
Part 2. Texas Department of Insurance, Page 5 of 17
Division of Workers’ Compensation
Chapter 126. General Provisions Applicable To All Benefits
Proposed new §126.14
Treating Doctor Examination to Define the Compensable Injury
Subject to waiver of a contest of compensability for failing to dispute the injury within 60
days pursuant to Labor Code §§409.021 and 409.022, if the insurance carrier determines that a
specific diagnosis is not related while the insurance carrier is reviewing the case and medical
documentation during the course of claim management, this condition may be disputed using a
plain language notice, PLN-1 or PLN-11, without utilizing this examination.
Proposed subsection (h) addresses the reimbursement rate for this examination. The
reimbursement is $350, equivalent to the reimbursement for a required medical examination.
Participants felt that because this examination is for administrative purposes that require
additional documentation and its results have significant bearing on the claim, it is deserving of a
higher reimbursement than for treatment examinations. Testing necessary to define the
compensable injury shall be reimbursed in accordance with the Medical Fee Guideline §134.202.
Testing required to confirm or rule out a diagnosis is not subject to retrospective review for the
issue of compensability if the tests were documented on the treating doctor’s report with a
rationale for their performance in defining the injury.
Proposed subsection (i) explains the insurance carrier’s responsibilities when it has
received notice that the treating doctor has submitted the findings from the examination on
TXCOMP. After the doctor has submitted his findings online, the Division will notify the
insurance carrier electronically that the report has been filed and the need for the insurance
carrier to respond to those findings. The insurance carrier is required to indicate either
acceptance or denial of each diagnosis listed by the treating doctor to avoid any future confusion
regarding whether conditions were accepted or not.
TITLE 28. Insurance Proposed Section
Part 2. Texas Department of Insurance, Page 6 of 17
Division of Workers’ Compensation
Chapter 126. General Provisions Applicable To All Benefits
Proposed new §126.14
Treating Doctor Examination to Define the Compensable Injury
If the insurance carrier chooses to deny only specific injuries without any additional
liability issues, its online response to the treating doctor report is considered an extent of injury
denial and will be a substitute for the PLN-11. The insurance carrier’s narrative section shall
comply with the requirements of §124.2.
Proposed subsection (k) requires preauthorization prior to treatment for a specific
diagnosis if the insurance carrier disputes the relatedness of any specific diagnosis identified in
the treating doctor examination. Labor Code §408.0042 links the preauthorization requirement
to the diagnoses identified in the treating doctor examination report and specifically denied by
the insurance carrier. This section will apply differently from network to network due to each
network’s preauthorization requirements.
Proposed subsections (j) and (l) address dispute resolution to adjudicate extent of injury
issues identified when the insurance carrier denies specific diagnoses. An injured employee may
initiate dispute resolution by requesting a Benefit Review Conference (BRC) before
preauthorization has been denied, as it is likely the injured employee will be advised of the
refusal of benefits before preauthorization is sought. The authority to initiate dispute resolution
at this point derives from Labor Code §409.0021(a) that states if the insurance carrier refuses to
pay benefits it must advise the employee of the right to request a BRC and how to obtain
additional information. A benefit is defined in Labor Code §401.011 as medical, income, or
death benefits.
The healthcare provider’s authority to pursue extent of injury and initiate dispute
resolution does not occur until treatment has been rendered and reimbursement denied, as
TITLE 28. Insurance Proposed Section
Part 2. Texas Department of Insurance, Page 7 of 17
Division of Workers’ Compensation
Chapter 126. General Provisions Applicable To All Benefits
Proposed new §126.14
Treating Doctor Examination to Define the Compensable Injury
established by Labor Code §409.009, or when the provision of Labor Code §408.0042(d),
allowing a healthcare provider to seek dispute resolution after preauthorization has been denied,
is met.
Proposed subsection (m) addresses the review of treatment for those injuries accepted as
part of the compensable injury after the treating doctor has defined the injury. While §408.0042
does not allow the insurance carrier to reopen the issue of compensability of any diagnosis
accepted as a result of this examination for the purposes of medical treatment review, other
Labor Code provisions indicate rare circumstances where an insurance carrier may reopen the
issue of compensability, ultimately affecting an insurance carrier’s liability for treatment.
Once the examination has been performed and the injury is defined, any new diagnoses
that arise in the future will be handled as extent of injury issues, which require an insurance
carrier to file a PLN-11, and follow that process pursuant to applicable statutory and rule
provisions. The doctor shall not withhold any diagnosis identifiable at the time of the
examination from the report in order to change the way treatment may be handled.
The process for defining the compensable injury under Labor Code §408.0042 and this
rule does not change the insurance carrier’s contest/denial requirements under Labor Code
§§409.021, 409.022, and applicable rules. An insurance carrier waives the right to contest
compensability of a claim if it does not file its contest/denial with the Division within 60 days
after receiving written notice of the claim under §§409.021, 409.022, and applicable rules. An
insurance carrier cannot remove as part of the compensable injury those injuries and diagnoses
that become established as part of the compensable injury by the carrier’s failure to contest
TITLE 28. Insurance Proposed Section
Part 2. Texas Department of Insurance, Page 8 of 17
Division of Workers’ Compensation
Chapter 126. General Provisions Applicable To All Benefits
Proposed new §126.14
Treating Doctor Examination to Define the Compensable Injury
compensability of the claim under §409.021 and §409.022. The insurance carrier retains the
right to dispute any findings from the report that were not identifiable within the 60-day waiver
period.
The Division is developing an online reporting system in TXCOMP. At each phase of
the process, the appropriate participant will log into TXCOMP to input the required information.
The Division will send out a final summary consisting of the treating doctor’s findings and the
insurance carrier’s response to the injured employee, the injured employee’s representative (if
any), the treating doctor, and the insurance carrier. The information at each stage of the process
will be accessible online to those with appropriate TXCOMP access and will be maintained as
part of the historical record of the claim.
2. FISCAL NOTE. Heidi Jackson, Director, Claims Services, has determined that for each year
of the first five years the proposed section will be in effect, there will be no fiscal impact to state
and local governments as a result of the enforcement or administration of the section. There will
be no measurable effect on local employment or the local economy as a result of the proposal.
3. PUBLIC BENEFIT/COST NOTE. Ms. Jackson has determined that for each year of the
first five years the section is in effect, the public benefits anticipated as a result of the proposed
section will be that when the examination is requested by the insurance carrier, the injured
employee is likely to have an earlier and concrete notice of the insurance carrier’s acceptance or
denial of an injured employee’s compensable injury. The costs to an injured employee will be
TITLE 28. Insurance Proposed Section
Part 2. Texas Department of Insurance, Page 9 of 17
Division of Workers’ Compensation
Chapter 126. General Provisions Applicable To All Benefits
Proposed new §126.14
Treating Doctor Examination to Define the Compensable Injury
the costs associated with attending the examination, such as transportation costs. The costs to
insurance carriers depends on the frequency the carrier requests an examination with a treating
doctor. Each time a carrier requests an examination to define the compensable injury, the carrier
will incur the $350 treating doctor fee and the costs associated with any necessary diagnostic
testing to define the compensable injury. Carriers may also incur administrative costs for
someone to coordinate with the treating doctor in scheduling the examination and reviewing the
treating doctor’s report via TXCOMP. Carriers will also realize a cost for providing the notice
of the examination to the injured employee. Carriers may ultimately realize a positive financial
impact by utilizing this provision to define the compensable injury to resolve older, problematic
claims. Carriers may also benefit from receiving: earlier notice of the injury, more information
on the compensable injury, and ultimately more information on their liability. When carriers
request this examination, the treating doctor will realize the $350 examination fee and health
care providers will have more certainty that treatment rendered will be paid because the
insurance carrier has identified in advance those conditions that are compensable. Health care
providers may incur additional administrative costs in coordinating with carriers in scheduling
this examination. Health care providers may incur additional administrative costs in data entry
of the treating doctor’s report via TXCOMP. The treating doctor fee has been increased to $350
in anticipation and to help offset this cost. Any additional economic costs currently exist under
existing rules or result from the enactment of HB 7 and are not a result of the adoption,
enforcement, or administration of the proposed sections. There will be no difference in the cost
of compliance between a large and small business as a result of the proposed sections. Based
TITLE 28. Insurance Proposed Section
Part 2. Texas Department of Insurance, Page 10 of 17
Division of Workers’ Compensation
Chapter 126. General Provisions Applicable To All Benefits
Proposed new §126.14
Treating Doctor Examination to Define the Compensable Injury
upon the cost of labor per hour, there is no disproportionate economic impact on small or micro
businesses. Even if the proposed sections would have an adverse effect on small or micro
businesses, it is neither legal nor feasible to waive the provisions of the proposed sections for
small or micro businesses because the Labor Code requires equal application of these provisions
to all affected individuals. However, since it is within the carrier’s discretion as to whether or
not to request this examination, the carrier is able to decide when and whether it is appropriate to
request the examination.
4. REQUEST FOR PUBLIC COMMENT. To be considered, written comments on the
proposal must be submitted no later than 5:00 p.m. on March 6, 2006 to Norma Garcia, General
Counsel, Mail Stop 4D, Division of Workers’ Compensation, Texas Department of Insurance,
7551 Metro Center Drive, Suite 100, Austin, Texas 78744. An additional copy of the comment
must be simultaneously submitted to Heidi Jackson, Director, Claims Services, Mail Stop 30,
Division of Workers’ Compensation, Texas Department of Insurance, 7551 Metro Center Drive,
Suite 100, Austin, Texas 78744. A request for a public hearing should be submitted separately to
the General Counsel.
5. STATUTORY AUTHORITY. The new section is proposed pursuant to Labor Code
§§408.0042, 402.00111, and 402.061. Section 408.0042 requires the Division to have an injured
employee submit to a single treating doctor examination on request of an insurance carrier.
Section 402.00111 provides that the Commissioner of Workers’ Compensation shall exercise all
TITLE 28. Insurance Proposed Section
Part 2. Texas Department of Insurance, Page 11 of 17
Division of Workers’ Compensation
Chapter 126. General Provisions Applicable To All Benefits
Proposed new §126.14
Treating Doctor Examination to Define the Compensable Injury
executive authority, including rulemaking authority, under the Labor Code and other laws of the
State. Section 402.061 provides the Commissioner the authority to adopt rules as necessary to
implement and enforce the Texas Workers’ Compensation Act.
6. CROSS REFERENCE TO STATUTE. The following sections are affected by this
proposal:
Rule Statute
§126.14 Texas Labor Code §§ 409.021, 409.022, and
408.0042
7. TEXT.
§126.14. Treating Doctor Examination to Define the Compensable Injury.
(a) On request of the insurance carrier, an injured employee is required to submit to a
single examination per claim for the purpose of defining the compensable injury. The
examination:
(1) shall not be requested prior to the eighth day after the date of injury, and
(2) shall be scheduled to occur no earlier than 15 days and no later than 30 days
from the date the notice is sent to the injured employee.
(b) The insurance carrier shall verify the injured employee’s treating doctor prior to
scheduling the examination.
(1) Failure to verify an injured employee’s treating doctor or failure to notify the
Division in writing of a correction regarding the identity of the injured employee’s correct
TITLE 28. Insurance Proposed Section
Part 2. Texas Department of Insurance, Page 12 of 17
Division of Workers’ Compensation
Chapter 126. General Provisions Applicable To All Benefits
Proposed new §126.14
Treating Doctor Examination to Define the Compensable Injury
treating doctor shall result in an administrative violation. An insurance carrier that schedules the
examination with a doctor other than the injured employee’s treating doctor shall be liable for
reimbursement of the examination and testing. The results of the improper examination shall not
be used for the purpose of defining the injury.
(2) If a request to change treating doctor has been filed by the injured employee,
the insurance carrier shall not request this examination until after the treating doctor change has
been processed.
(c) The insurance carrier shall send the injured employee a notice of appointment, which
at a minimum shall include:
(1) general information identifying the claim;
(2) the name of the treating doctor;
(3) the date, time, and the location of the scheduled examination with the treating
doctor named; and
(4) the following statements in a bold font equal to the font size in the main body
of the notice:
(A) The insurance carrier may request that you, the injured employee,
attend a single examination per claim for the sole purpose of defining the compensable injuries
that resulted from the work-related incident or activities.
(B) The law requires this examination be scheduled with your treating
doctor. If the doctor named in this notice is not your treating doctor, immediately contact the
insurance carrier or the Texas Department of Insurance, Division of Workers’ Compensation.
TITLE 28. Insurance Proposed Section
Part 2. Texas Department of Insurance, Page 13 of 17
Division of Workers’ Compensation
Chapter 126. General Provisions Applicable To All Benefits
Proposed new §126.14
Treating Doctor Examination to Define the Compensable Injury
You are not required to attend the examination until the correct treating doctor has been
identified and the insurance carrier reschedules the appointment with the correct doctor.
(C) You, the injured employee, are responsible for contacting your doctor
to reschedule the appointment if you have a conflict with the date and time that has been
scheduled for you. If you fail to attend the examination at the time scheduled/rescheduled
without good cause, an administrative penalty may be assessed.
(d) Required information for the notice shall be entered online into TXCOMP. The final
summary screen shall be printed as the notice of appointment. A copy of the notice shall be sent
to the injured employee, the injured employee’s representative (if any), and the Division. The
notice shall be provided to the injured employee no later than 10 days prior to the examination.
(e) If a scheduling conflict exists, the injured employee shall immediately contact the
treating doctor to reschedule the appointment. The appointment must be rescheduled to take
place within seven working days of the original appointment.
(f) An injured employee who fails or refuses to appear at the time scheduled for an
examination may be assessed an administrative penalty unless good cause exists for such failure.
An injured employee who fails to submit to an examination at the insurance carrier’s request
does not commit an administrative violation if the doctor named on the notice is not the injured
employee’s treating doctor.
(g) The treating doctor, after conducting the examination, shall submit a report online via
TXCOMP no later than 10 days after the conclusion of the examination. To be considered a
complete and valid report, the report must contain, at a minimum, general information that
TITLE 28. Insurance Proposed Section
Part 2. Texas Department of Insurance, Page 14 of 17
Division of Workers’ Compensation
Chapter 126. General Provisions Applicable To All Benefits
Proposed new §126.14
Treating Doctor Examination to Define the Compensable Injury
identifies the claim; a description of the mechanism of injury; a list of diagnostic testing
performed, with the documented rationale for necessity; and specific, confirmed diagnoses that
the doctor considers to be related to the compensable injury along with an explanation of how
each diagnosis is related. Should additional testing be required to establish a diagnosis:
(1) the filing of the treating doctor’s report is extended seven days after the
testing is completed to allow for receipt and review of the reports from outside testing sources;
and
(2) the testing necessary to define the compensable injury shall be performed no
later than 10 working days after the examination and is not subject to preauthorization
requirements.
(h) A treating doctor may bill, and the carrier shall reimburse for an examination
required under this section. Treating doctors shall bill for the examination using the Healthcare
Common Procedure Coding System (HCPCS) Level I code, Evaluation and Management
Section, for work-related or medical disability evaluation services performed by a treating
physician. A Division modifier of “TX” shall be added to the Level I code. Doctors are not
required to submit a copy of the report with the bill if the report was previously provided to the
carrier. Reimbursement for the examination shall be $350. Reimbursement for the report is
included in the examination fee. Testing necessary to define the compensable injury shall be
billed using the appropriate billing codes and reimbursed, in addition to the examination fee, in
accordance with §134.202 of this title (relating to Medical Fee Guideline). Reimbursement for
testing shall only be retrospectively reviewed on a medical necessity or fee basis.
TITLE 28. Insurance Proposed Section
Part 2. Texas Department of Insurance, Page 15 of 17
Division of Workers’ Compensation
Chapter 126. General Provisions Applicable To All Benefits
Proposed new §126.14
Treating Doctor Examination to Define the Compensable Injury
(i) An insurance carrier shall indicate the injuries and diagnoses identified in the treating
doctor’s report that are being accepted or disputed within the later of 60 days of the date written
notice of the injury is received or within 10 working days of receipt of the treating doctor’s
report. The insurance carrier will accept or deny the injuries and diagnoses identified in this
examination online via TXCOMP. Any notification of denial must include a plain language
statement, pursuant to §124.2 of this title (related to Carrier Reporting and Notification
Requirements), explaining the insurance carrier’s rational for denial.
(1) In addition to the injuries and diagnoses accepted by the insurance
carrier as a result of this examination, the compensable injury includes all injuries, diagnoses,
symptoms and conditions that could have been reasonably discovered in an investigation by the
insurance carrier prior to the expiration of the 60-day waiver period and not denied as required
under Labor Code §409.021, §409.022, and applicable Division rules. The insurance carrier may
not use this examination to dispute the compensable injury that was defined by the 60-day
waiver period.
(2) The insurance carrier shall not deny reimbursement for treatment of any
diagnosis listed in the treating doctor’s report on the basis of compensability or relatedness in the
time between receipt of the doctor’s findings and the filing of its denial of the specific diagnosis,
until a compensability denial, submitted in accordance with §124.2 of this title, is submitted to
the Division and the treating doctor.
(j) The injured employee may initiate a request for a benefit review conference in
accordance with Labor Code §410.023(a) and §141.1 of this title (relating to Requesting and
TITLE 28. Insurance Proposed Section
Part 2. Texas Department of Insurance, Page 16 of 17
Division of Workers’ Compensation
Chapter 126. General Provisions Applicable To All Benefits
Proposed new §126.14
Treating Doctor Examination to Define the Compensable Injury
Setting a Benefit Review Conference) upon receiving a denial regarding specific injuries or
diagnoses.
(k) If the insurance carrier denies an injury or diagnosis identified in this examination,
treatment for that injury or diagnosis must be preauthorized prior to treatment occurring, except
as provided under Chapter 1305, Insurance Code and applicable Texas Department of Insurance
rules. For the treating doctor, the insurance carrier’s denial is effective on the date the notice of
denial is received by that doctor.
(l) A health care provider may request a benefit review conference, in accordance with
§141.1 of this title, to address an extent of injury question if:
(1) a request for preauthorization under this section has been denied;
(2) the injured employee is not pursuing the claim; and
(3) an agreement, filed in accordance with §147.4 of this title (relating to Filing
Agreements with the Commission, Effective Dates) has not been entered into by the insurance
carrier and injured employee establishing insurance carrier’s liability on the disputed issues.
(m) Once the treating doctor has defined the compensable injury and the insurance carrier
has accepted injuries or diagnoses as related, the insurance carrier shall not review treatment of
the accepted injuries and diagnoses for compensability.
8. CERTIFICATION. This agency hereby certifies that the proposal has been reviewed by
legal counsel and found to be within the agency’s authority to adopt.
TITLE 28. Insurance Proposed Section
Part 2. Texas Department of Insurance, Page 17 of 17
Division of Workers’ Compensation
Chapter 126. General Provisions Applicable To All Benefits
Proposed new §126.14
Treating Doctor Examination to Define the Compensable Injury
Issued at Austin, Texas, on ________________, 2006.
___________________________________
Norma Garcia
General Counsel
Division of Workers’ Compensation
Texas Department of Insurance

Headaches Persist After Arbitration Award

http://www.law.com/jsp/article.jsp?id=1149239121861
For a good example of how far some attorneys and litigants are willing to go to overturn an arbitration decision, look no further than a May 18 hearing in Dallas.

On that sunny Thursday afternoon, four attorneys gathered in Judge Nancy Thomas' 160th District courtroom, where they argued for more than three hours over whether an arbitration award should be vacated because the arbitration judge allegedly had a headache.

Not just any headache -- a migraine headache -- reason enough, a defense attorney argued, to overturn a $2.3 million arbitration award for the plaintiffs in Hinson, et al. v. Stevens Transport Inc., a workers' compensation case.

A migraine is an intense periodic headache that is usually limited to one side of the head. The fact that the arbitrator went ahead with the hearing -- despite mentioning to lawyers in the case that he'd suffered from a migraine the previous night and had gotten little sleep -- was a violation of the defendant's fundamental due process rights, according to a motion to vacate the arbitration award filed in Thomas' court by Stevens Transport.

Attorneys representing the plaintiffs, trucker Kenneth Hinson and his wife, do not agree with the defendant's reasoning.

Three trial lawyers say the case represents the growing dissatisfaction attorneys and litigants have with resolving litigation through arbitration. The arbitration system is supposed to help litigants by resolving disputes efficiently and economically and by offering a sense of finality. But increasingly, parties dissatisfied with the arbitrator's decision are willing to take the difficult and expensive step of contesting an arbitration award.

Two lawyers who defend the use of arbitration, including one who serves as an arbitrator, say arbitrations usually are not controversial and rarely are challenged successfully. They believe that sour grapes often fuel motions to vacate arbitration awards, which trial and appellate courts recognize for what they are.

NO SLEEP, NO JUSTICE?

Kenneth Hinson claims he suffered serious injuries while working for Stevens Transport, a Dallas-based transportation company. After his rig was involved in a wreck that he alleges was caused by a driver he was training, in 2003 Hinson filed a nonsubscriber workers' compensation suit in Thomas' court against the company.

Disputes between employees and employers who subscribe to coverage with a private carrier are automatically sent to a Texas Workers' Compensation Commission administrative panel for resolution. But employees of companies that do not subscribe to such coverage with the TWCC can sue their employers in state court.

But after the Hinsons filed suit, both sides agreed to allow the case to go to arbitration.

The parties selected JAMS, a company that provides mediation and arbitration services, and they agreed to have arbitrator Glen M. Ashworth, a retired state district judge from Kaufman County, hear the dispute. As part of a Rule 11 agreement, the parties agreed not to appeal the arbitration award unless it involved fraud or collusion.

The parties agree that on Aug. 9, 2005, day six of a 14-day arbitration hearing, Ashworth told them that he had not slept the previous night because of a migraine headache. A defense lawyer asked to recess the hearing but Ashworth refused.

Ashworth issued his final decision in the case on Dec. 6, 2005, and the plaintiffs filed a motion to confirm the arbitration award with Thomas.

But on Feb. 15, the defendant filed a motion to vacate the award, alleging that Stevens Transport did not waive its fundamental right to due process by signing the Rule 11 agreement. It also alleged that Ashworth had violated JAMS' procedural rules, which required him to refrain from serving as an arbitrator if he became physically or mentally unable to meet the expectations of the parties.

David L. Sargent, a partner in Dallas' Hermes Sargent Bates who represents Stevens Transport, made it clear to Thomas in his May 15 opening statement that "[w]e are not fussing with Judge Ashworth's assessment of the facts. We think the arbitrator was incapacitated."

To prove his point, on May 18 Sargent called two experts to the stand who testified that sleep deprivation can affect a person's ability to concentrate. Lawyers representing the Hinsons offered two experts of their own to counter Stevens Transport's experts.

The hearing before Thomas was a waste of time and money, said Ralph C. "Red Dog" Jones in his closing argument. Jones, a partner in Dallas' Jones Geisler, represents Hinson.

Sargent estimates that the defense spent $20,000 to pay for its two expert witnesses, and Jones says the plaintiffs spent about $15,000 on their two experts.

"We talk about frivolous lawsuits -- this is a classic frivolous defense," Jones argued. "An arbitration is supposed to be final. When you submit to arbitration, it's supposed to be private. It's not supposed to be down here at the courthouse."

On May 23, Thomas sided with the plaintiffs by granting their motion to confirm the arbitration award.

Attorneys: Summary Judgment in Texas Work Comp Case Sets Precedent

http://www.insurancejournal.com/news/southcentral/2006/06/08/69290.htm
Attorneys Anthony Cox and Greta Matzen, with the Dallas-based law firm of Hermes Sargent Bates LLP, announced they obtained a summary judgment of damages stating that Section 41.0105 of the Texas Civil Practice and Remedies Code limits a Party's recovery to the amount paid by a collateral source, such as workers' compensation. According to the attorneys, this is believed to be the first time a Harris County judge has decided Section 41.0105 applies to limit a Party's recovery of medical bills.

Section 41.0105 limits a Party's recovery of medical expenses to those expenses that the Party actually "pays or incurs." In Benavides v. Zurich American Insurance Company, the claimant/plaintiff had sought to recover medical expenses for the amount the medical provider billed, despite that the Workers' Compensation Act reduced those bills under fee guidelines promulgated by the Workers' Compensation Commission.

In granting summary judgment, the court reasoned that just because a medical provider sends a bill does not mean that a Party is entitled to recover that amount. Of particular importance, the court determined Section 41.0105 did not limit the recovery of paid medical bills as a "collateral source," but rather that the section applies as a substantive limitation on a Party's damage claim.

Benavides v. Zurich American Insurance Company, Cause number 2005-36200, is pending in Harris County District Court.