The Texas Division of Workers Compensation has recently decided that to have an acceptable rating, they must rate every condition of the compensable injury.  This is a big benefit to Texas injured workers, who have seen many ratings ignore their injuries.

The Appeals Panel Number 121029, the Panel Reversed and Remanded the hearing officer after the two doctors who provided certified reports failed to include a contusion to the jaw, which was accepted as part of the compensable injury.  The AP found that since the doctor’s impairment rating did not consider the entire compensable injury when providing the impairment rating, that certification could not be adopted.

The Morris Law Firm, (214)357-1782 info@themorrisfirm.net

In most Texas Workers Compensation claims, your impairment rating and date of maximum medical improvement becomes final ninety days from the date you receive the certification by verifiable means.  However, there are Statutory exceptions to this found under Texas Labor Code §408.123(f).

The exceptions exist when there is compelling medical evidence of a mistaken medical diagnosis, an undiagnosed condition, improper or inadequate medical treatment or other compelling circumstances.  I’ve already blogged about inadequate treatment in http://themorrisfirm.net/blog/?p=332.

This Statute was clarified regarding medical diagnosis in AP No. 121007 when the Appeals Panel Reversed and Rendered a hearing officer after a finding that Claimant did not meet an exception to the ninety day rule because there was no misdiagnosis before the date that Claimant received the certification by verifiable means.

The Appeals Panel held that there is no requirement in the in §408.123(f)(1)(B) that the previously undiagnosed medical condition must have been present at the time of the first certification of MMI/IR.

The Morris Law firm, (214)357-1782 info@themorrisfirm.net

With the creation of Texas Labor Code §408.031, the Texas Division of Workers’ Compensation, created health care networks to provide treatment for injured workers.  Prior to September 1, 2005, injured workers were able to select their own doctor to provide treatment for their injuries.

Now many injured workers are limited in the selection of doctor that can provide them treatment for their work related injuries.  The injured worker must make a decision if that doctor actually has their best interest in regards to the treatment.  The injured work must ask themselves the following questions:

a)      Does the doctor contact the employer to help make medical decisions;

b)      Does the doctor only treat a portion of the injury, explaining that they must treat one condition then another later;

c)      Does the doctor fail to make referrals for diagnostic testing or to specialist that would help to define or treat the conditions;

d)      Does the doctor fail to place proper restrictions on an ability to work; or

e)      Does the doctor act like the patient is not his first interest?

If a doctor’s priority is not the care and recovery of their patient, it may be time to seek a new doctor.  Although doctors within the networks are very limited by the insurance carriers, there are options.  Attorneys that handle workers compensation claims can assist in finding the doctors whose first concern is for their patient and not only cost control.

Ultimately, the injured worker is in charge of their care.  There are many deadlines that can affect both the financial and medical benefits in a Texas Workers Compensation claim.  Make sure that these deadlines are understood and find assistance that is familiar with them.

The Morris Law Firm info@themorrisfirm.net (214)357-1782

We have recently seen a dramatic decrease from designated doctor’s impairment ratings for sprain/strain spinal injuries in Texas Workers Compensation claims.  The Fourth Edition of the AMA Guides generally uses Diagnosis Related Estimate (DRE) Categories to provide for spinal injuries.  Most sprain/strain injuries result in either a DRE Category I or a DRE Category II.

To find a DRE Category I, it must fit under the following description and verification:

The patient has no significant clinical findings, no muscle guarding or history of guarding, no documentable neurologic impairment, no significant loss of structural integrity on lateral flexion and extension roentgenograms, and no indication of impairment related to injury or illness.

The description and verification for a DRE Category II are:

The clinical history and examination findings are compatible with a specific injury or illness.  The findings may include significant intermittent or continuous muscle guarding that has been observed and documented by a physician…

The doctors state that upon examination they found no neurological impairment and no loss of range of motion.  However, they seem to ignore the inclusion of intermittent muscle guarding documented by a physician.

The Appeals Panel finally has provided support for our position that the impairment rating must properly use the AMA Guides.  In Appeals Panel Decision No. 120897, they found that the designated doctor improperly applied the AMA Guides in finding a DRE Category I for a cervical sprain/strain injury.  The Appeals Panel found that to meet the requirements of a DRE Category II, the injury worker need to only meet one of the three differentiators (muscle guarding, muscle spasms or non-uniform loss if ROM).  The differentiator may be present at the time of examination or have been documented by a physician to be used.

This helps to clarify for the doctors that only one differentiator is necessary to find a DRE Category II.  This provides a 5% greater impairment rating than a DRC Category I, which calculates to 15 additional weeks of impairment income benefits.

Daniel L Morris, info@themorrisfirm.net (214)357-1782

If your employer is a subscriber to the Texas Workers Compensation system, you are very limited in the claims arising from a work related accident.  However, if you are injured at work, you should immediately have your case reviewed to see what potential claims you may have.

Workers’ Compensation:

Your first claim is always against your employer’s workers compensation carrier.  There are different types of benefits so make sure you are aware of all the types of benefits for which you may be entitled.

Motor Vehicle Accident:

If you are injured as the result of a motor vehicle accident, immediately consult with an attorney that can handle both workers compensation and personal injury claims.  You may have claims including claims against the other driver, your under insured motorist insurance, any underinsured motorist policy purchased by your employer for you, your personal injury protection insurance.

Third Party Liability:

If you are at a job site that has multiple employers and you are injured as the result of another employer’s negligence, you may have a claim against that employer.

Wrongful Termination:

Texas is a “Right to Work” State.  This means that you can be terminated for any reason.  However, you the Texas Labor Code protects people regarding a workers compensation claim from discrimination and/or termination.

Social Security:

If you have missed more than one of work due to your compensable injury, file for Social Security Disability or Social Security Insurance.  If your claim is denied make sure that you consult with an attorney within the appeal period.

Gross Negligence:

Employers that subscribe to the Texas Workers Compensation system are exempt from claims of negligence.  But, they are not protected from claims of Gross Negligence resulting in death.  The beneficiaries of workers’ killed as the result of a compensable injury, may have a gross negligence claim against the employer.

Always be aware of your rights after work related injury.  Have your case reviewed to see that your rights are being protected and the proper claims are being pursued.

Daniel L Morris  The Morris Law Firm (214)357-1782 info@themorrisfirm.net

The Texas Supreme Court recently determined that injured workers under the Texas Workers Compensation system do not have a statutory right to sue their insurance carrier for Bad Faith.  The Court had previously determined that injured workers did not have a common law right to sue for Bad Faith.  (Texas Mutual Insurance Company v. Ruttiger, 2012 Tex. LEXIS 501, (Tex. June 22, 2012).

In their decision, the Court agreed with the insurance company’s argument that the New Act (1991) eliminates the need for a judicially imposed cause of action outside the administrative process and other remedies in the Act.  This being said, the Court felt that the Texas Department of Insurance, Division of Workers Compensation was able to give administrative violations for violations done by the injured workers insurance carrier.

As a result of this determination, injured workers need to be more diligent in handling their claims.  Insurance carriers no longer have the threat of a law suit for their actions done in Bad Faith.

We have seen a rise in totally denied claims and hearings to resolve those claims.  Injured workers must have a clear understanding of the burden needed to establish their claim and how to collect the evidence to prove it.  This must be done within strict deadlines set by the Division of Workers Compensation.

Daniel L Morris (214)357-1782 info@themorrisfirm.net

I recently returned from the annual Advanced Texas Workers Compensation Seminar.  This year I had the privilege of speaking with Maggie Knott on the Appellate Case Updates.  Any one that has been involved in the Texas Workers Compensation system over the last few years will know that it is rapidly changing.

Many of the changes are making it more difficult on injured workers. However, there are some appellate courts which have made findings which benefit injured workers.  Liberty Mutual Ins. Co. v. Adcock is a case regarding Lifetime Income Benefits, which helps injured workers.

For an injured worker to qualify for Lifetime Income Benefits in Texas, the injured worker must show the loss of use of both eyes, both feet above the ankles, both hands at or above the wrist or a combination of feet and hands; a spinal injury causing permanent paralysis of both arms, legs or a combination of the above; a physically traumatic injury to the brain resulting in incurable insanity or imbecility; or severe 2^nd or 3^rd degree burns which require grafting.

In Liberty Mutual Ins. Co. v. Adcock, the injured worker established that he was entitled to Lifetime Income Benefits.  A few years later, Liberty Mutual tried to re-litigate the claiming that the injured worker was getting better and no longer qualified for Lifetime Income Benefits.

The Fort Worth Court of Appeals affirmed the trial courts finding that the Division of Workers Compensation did not have authority to re-evaluate a determination of Lifetime Income Benefits.  Those benefits are to be paid until the death of the injured worker.

Daniel L Morris info@themorrisfirm.net (214)357-1782

The Texas Department of Insurance, Division of Workers Compensation has recently changed some of the purposes and the procedures for the use of designated doctors in dealing with injured workers in the system.  See http://www.tdi.texas.gov/wc/rules/adopted/documents/ddrulesm0712.pdf

Under Texas Administrative Code §270.1, a party may request a designated doctor to resolve questions about the following:

(1) the impairment caused by the injured employee’s compensable injury;

(2) the attainment of maximum medical improvement (MMI);

(3) the extent of the injured employee’s compensable injury;

(4) whether the injured employee’s disability is a direct result of the work-related injury;

(5) the ability of the injured employee to return to work; or

(6) issues similar to those described by paragraphs (1) – (5) of this subsection.

Under the new rule, the Division of Workers Compensation shall deny a request for a designated doctor if the insurance carrier has denied the compensability of the claim or otherwise denied liability for the claim as a whole and the dispute is not yet resolved.  However, a Benefit Review Officer (BRO) or a Hearing Officer (HO) may appoint a designated doctor may order an injured employee for the reason of causation that would require an expert medical opinion expert medical opinion would be necessary to resolve a dispute as to whether the claimed injury resulted from the claimed incident.

Any denial of the request for a designated doctor must be in writing and explain why the request was denied.

Daniel L Morris, The Morris Law Firm, PLLC (214)357-1782

On June 19, 2012, The Division of Workers’ Compensation published a memorandum of how Medical Dispute Hearings will be handled starting on June 1, 2012.  http://www.tdi.texas.gov/wc/idr/documents/drprocm0612.pdf

The Division of Workers’ Compensation classifies medical disputes into two different classes, medical fee disputes and medical necessity disputes.  Hearings for each are handled very differently.

Medical Fee Disputes:

All medical fee disputes are now handled through the same process regardless of the amount of the dispute.  To start the hearing process, the party needs to complete a DWC-60 form to request a Benefit Review Conference at the field office of the Division of Workers’ Compensation.

If the issue is not resolved at the Benefit Review Conference, the party may request a Contested Case Hearing at the State Office of Administrative Hearings.

Medical Necessity Disputes:

Disputes for medical treatment, including spinal surgery are done through this process, including networks, political subdivisions and pools.  After the claim has gone through the Independent Review Organization (IRO), the appealing party needs to complete a DWC-49 requesting a Medical Contested Case Hearing at a field office of the Division of Workers’ Compensation.

The Hearing Officer (Administrative Judge) shall consider evidence-based treatment guidelines adopted by the network, political subdivision or pool.  The issues may be appealed into district court.

Many of us did dumb things when we were younger.  Some of us still do.  However, problems arise for those that get a criminal record as a result of one of these dumb things.

Those people now have a criminal record.  A criminal record can affect your ability to get employment and move to a new apartment or house.  We are frequently contacted by people who ask “How do I expunge my criminal record?”

In Texas, expunction of criminal records may be done only in very limited cases.  If you received deferred adjudication for a Class C Misdemeanor, you may file with the court to have your record expunged.

Misdemeanors that are Class B, A or Felonies are not eligible for expunction.  However, many convictions for the above are entitled for non-disclosure.

Daniel L Morris, The Morris Law Firm, PLLC, (214)357-1782,

info@themorrisfirm.net