The Morris Law Firm Blog

April 9, 2013

Exceptions to Finality of Maximum Medical Improvement In Texas Workers Compensation Claims

Filed under: Workers' Compensation — Tags: , , , , , , , , — The Morris Law Firm 702 S. Beckley, Dallas, Texas, 75203 (214)357-1782 @ 11:58 pm

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

February 22, 2013

TEXAS WORKERS COMPENSATION IS MY NETWORK DOCTOR TAKING CARE OF ME?

Filed under: Workers' Compensation — Tags: , , , , — The Morris Law Firm 702 S. Beckley, Dallas, Texas, 75203 (214)357-1782 @ 6:59 pm

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

January 21, 2013

MUSCLE GUARDING/SPASMS IN SPINAL INJURIES

Filed under: Workers' Compensation — Tags: , , , , , , , — The Morris Law Firm 702 S. Beckley, Dallas, Texas, 75203 (214)357-1782 @ 8:05 pm

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

October 3, 2012

Texas Workers Compensation Types of Claims

Filed under: Workers' Compensation — Tags: , , , , , , , , — The Morris Law Firm 702 S. Beckley, Dallas, Texas, 75203 (214)357-1782 @ 8:36 pm

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

September 14, 2012

Bad Faith in the Texas Workers Compensation System

Filed under: Workers' Compensation — Tags: , , , , , — The Morris Law Firm 702 S. Beckley, Dallas, Texas, 75203 (214)357-1782 @ 6:34 pm

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

August 17, 2012

Texas Workers Compensation Lifetime Income Benefits

Filed under: Workers' Compensation — Tags: , , , , , — The Morris Law Firm 702 S. Beckley, Dallas, Texas, 75203 (214)357-1782 @ 10:56 pm

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 2nd or 3rd 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

April 30, 2012

TEXAS WORKERS COMPENSATION DWC-69

Filed under: Workers' Compensation — Tags: , , , , , , , , — The Morris Law Firm 702 S. Beckley, Dallas, Texas, 75203 (214)357-1782 @ 7:40 pm

I was in a Contested Case Hearing this week.  The issue before the hearing officer was maximum medical improvement and impairment rating.  We had a DWC-69 from the treating doctor that said the claimant was not yet at maximum medical improvement.  The insurance company had a 5% impairment from a post DD RME.

Finally, we had the DD (Designated Doctor), who had a DWC-69 with a 5%.  But in the body of his report, the DD stated that the actual impairment was a 15%.  He went on to state that his previous report included the causation of the full injury and all together it should be 15%.  The 5% was for what the insurance company’s letter stated was compensable.

Thank you Matt Lewis (www.dallasworkcomp.com) for sending me over the Appeal Panel number I needed during the hearing.  I remembered the nature of the case.  But, I couldn’t remember the number and I was with a new judge who didn’t know it.

Appeals Panel Decision No. 111393 states that although there was no DSC-69 in evidence to support the hearing officer’s decision.  However, the Appeals found that it was proper for the hearing officer to rely upon the evidence in the medical records.

With all the pressure that the Division of Workers Compensation is placing on the Designated Doctors, it is nice to see that we can actually look at the reports and not just a form with the blanks filled in.

Daniel L Morris

The Morris Law Firm

(214)357-1782

info@themorrisfirm.net

April 18, 2012

Complex Regional Pain Syndrome in Texas Workers’ Compensation Cases

Filed under: Workers' Compensation — Tags: , , , , , , , — The Morris Law Firm 702 S. Beckley, Dallas, Texas, 75203 (214)357-1782 @ 4:22 pm

I first started handling Texas Workers’ Compensation claims in 1996.  During my first year of practice, a lady walked into the office that had been diagnosed with Reflex Sympathetic Dystrophy (RSD).  The insurance carrier had accepted injuries to her bilateral hands and wrists, but they were disputing the RSD.

At that time it was difficult to even find doctors that were able to treat her symptoms, let alone assist with the causal connection to her compensable injury.  It required a lot of research into how to help her.  Since then we see a few of these cases per year.

Reflex Sympathetic Dystrophy (RSD) is also known as Complex Regional Pain Syndrome (CRPS) or Causalgia.  It is a chronic progressive neurological condition that can affect your skin, muscles, joints and bones.

Reflex Sympathetic Dystrophy generally arises from limb that has been injured.  This is true even from what appear to be minor sprain/strain injuries to an extremity.

The symptoms include:

-          Burning pain                                                   -Extreme sensitivity

-          Skin color changes                                       -Skin temperature changes

-          Muscle Spasms                                                -Tremors

-          Weakness                                                        -Migraine headaches

-          Excessive sweating

Reflex Sympathetic Dystrophy is difficult to diagnose.  A thorough history and neurological examination should be done.  The medical provider should note if mild sensory stimuli produces severe pain.  The examination should include notation of swelling and vascular reactivity, overgrown and grooved nails, stiff or weak joints and atrophy.

To be found compensable, you must prove by a preponderance that the RSD/CRPS naturally resulted from the compensable injury.

Daniel Morris

The Morris Law Firm, PLLC

(214)357-1782

info@themorrisfirm.net

April 12, 2012

Texas Workers’ Compensation Income Benefits

Filed under: Workers' Compensation — Tags: , , , , , , , , , , — The Morris Law Firm 702 S. Beckley, Dallas, Texas, 75203 (214)357-1782 @ 6:27 pm

When a Texas worker is injured in the course and scope of their employment (their employer must be a subscriber), there is an insurance policy that covers their injuries.  This insurance policy pays 100% of the medical care for necessary and reasonable medical care.  In addition, injured workers receive payments for disability and their impairments.

Types of Benefits:

Temporary Income Benefits:

Temporary Income Benefits (TIBs) are paid weekly to the injured worker prior to being placed at maximum medical improvement, when the worker is unable to earn the same income they received prior to the accident.  Temporary Income Benefits are generally paid at 70% of the pre-injury average weekly wage.  Make sure the amount includes any fringe benefits received from your employer.

Impairment Income Benefits:

Impairment Income Benefits (IIBs) are benefits you receive after you are found to be at maximum medical improvement.  When an injured worker is found to be at maximum medical improvement, they are also given an impairment rating from 0-100%.  For each point of impairment, the injured worker receives three weeks of Impairment Income Benefits.  The benefits are not for disability, they are paid even if the worker is working full time.

Supplemental Income Benefits:

Supplemental Income Benefits (SIBs) are paid to injured workers that receive an impairment rating of at least 15% and are not capable of returning to their previous type of employment.  Supplemental Income Benefits are paid monthly to injured workers who are completely unable to work, are actively engaged in seeking employment, are currently in a full time DARS approved program or are currently earning less than 80% of their pre-injury average weekly wage.

Lifetime Income Benefits:

Lifetime Income Benefits (LIBs) are generally paid weekly to injured workers who have an injury to their head that results in what the Division of Workers’ Compensation defines as incurable insanity or permanent imbecility.  Additionally, an injured worker may be entitled to Lifetime Income Benefits if they loss one of the following:

1)      The loss of use of both feet at or above the ankle;

2)      The loss of use of both hands at or above the wrist;

3)      The total loss of sight in both eyes; or

4)      Certain combinations of the above.

Death Benefits:

Death or Beneficiary Benefits are paid to dependents of a worker who dies as a result of the compensable injury.  This may be due to the results of the accident, treatment or medications taken for the effects of the accident.

Daniel L Morris, The Morris Law Firm, PLLC

(214)357-1782

info@themorrisfirm.net

March 2, 2012

RECORDED STATEMENTS IN TEXAS WORKERS COMPENSATION CLAIMS

Filed under: Workers' Compensation — Tags: , , , , , — The Morris Law Firm 702 S. Beckley, Dallas, Texas, 75203 (214)357-1782 @ 9:46 pm

A colleague of mine recently asked if injured workers in Texas Workers Compensation claims are required to provide a recorded statement to the insurance company.  This is an interesting question.

When they get a notice of a claim, many insurance companies perform what they call a three prong investigation.  The investigator contacts and gets a statement from the injured worker, the medical provider and the employer.  In most cases they take a recorded statement from the injured worker.  If the injured worker is not available it may be weeks after the accident.

Although we generally allow recorded statements of our clients, it is not mandatory that you do so.  The recorded statement is to help the investigator gather facts to make a determination of your claim.  Your statement could affect the compensability of your claim, the accepted conditions or if you have disability.  If they have told you that your claim is already being denied, all you are doing is providing them an opportunity to collect evidence against you.

If you allow the investigator to take a recorded statement there are a few keys that you should follow:

a)      Make sure you are alert and clear headed at the time of the statement (shortly after accidents, many are affected by medications);

b)      Give a clear statement as to how you were injured and ALL the body parts

c)      Anything you don’t know or remember, answer that you don’t know or remember;

d)     Ask them to explain any question you don’t understand;

e)      Answer all questions truthfully, especially in regards to your history of injuries and treatment; and

f)       Stay polite, you do not help your cause by arguing with the investigator.

Always remember that a Texas Workers’ Compensation claim is a legal matter.  Anything information you provide can be used by the insurance company.  When making a legal determination, always have advice from a competent professional.

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

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