A random search for the most useless things ever brings up a few novelties: pre-peeled bananas in plastic wrappers, the pet rock, the ropeless skipping rope, the I Am Rich iphone app ($999.99), and the treadmill bicycle (https://www.indy100.com/article/the-12-most-pointless-things-ever-invented--Z1Sd9fYMbl). These are all items of thankful obscurity, but perhaps equaling these items in obscurity and inutility is the section on form DWC-69 for the treating doctor to agree or disagree to the certification of MMI/IR by another physician. It is insufficient to constitute a dispute, insufficient as a matter of law to move the needle either direction in a dispute over such certification, and insufficient for any purpose other than to confuse treating doctors and their patients. See Rule 130.12(b)(2):
Use of the TWCC 69's non-concurrence section is not a prescribed form and manner for a dispute.
There are two recognized vehicles for pursuing a dispute over a certification of MMI/IR. Those two are a designated doctor request and a benefit review conference. The Appeals Panel has determined that, despite the presence of a means for filing a request for required medical examination order, the purpose of which would be to obtain an opinion to rebut that of a designated doctor, the filing of this request does not constitute a dispute (See Appeal No. 041903-s).
There is also the outlier issue of notification to the DWC by an unrepresented claimant, which will garner some brief discussion.
The statute initially assumes that the impairment rating disputed will be one certified by someone other than a designated doctor. Sec. 408.125(a) provides:
(a) If an impairment rating is disputed, the commissioner shall direct the employee to the next available doctor on the division's list of designated doctors, as provided by Section 408.0041.
The administrative rule follows this by Rule 127.1:
(a) At the request of the insurance carrier, an injured employee, the injured employee's representative, or on its own motion, the division may order a medical examination by 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) . . .
The form and manner of the dispute is the current version of the form DWC-32, Request for Designated Doctor Examination, available at the following link and filed with (https://www.tdi.texas.gov/forms/dwc/dwc032desdoc.pdf), filed with the DWC. A copy is also required to be sent to the other party.
This process only applies if a designated doctor has not already been appointed on the case, per Rule 130.12(b)(1):
(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.
The Appeals Panel has interpreted this requirement as whether a designated doctor has ever been appointed on the claim, even when the designated doctor’s appointment on the case preceded litigation in which a prior certification (by the designated doctor or otherwise) was “overturned, modified, or withdrawn by agreement of the parties or by a final decision of the commission or a court” pursuant to Rule 130.12(a)(3).
Take Appeal No. 121272. In that case, the carrier filed a DWC-32 on August 31, 2011. Prior to the designated doctor exam, the treating doctor referred the claimant for MMI/IR, which resulted in an exam on September 26. The DD exam/report followed on October 19. Because, at the time of the 1st certification, a designated doctor had been appointed, a request for a benefit review conference was required to prevent that certification from becoming final.
The DWC has taken the odd position as a matter of policy that a discrete, independent form for a requesting a benefit review conference must be filed, regardless of the presence of a prior setting for a dispute over other benefit issues in the claim is already pending. The Appeals Panel case law actually discusses underlying issues of administrative agency intent which point the other direction than this policy interpretation. Appeal No. 111006-s cites the preamble to Rule 141.1, which is the rule regarding setting, denying, and scheduling benefit review conferences.
In Appeal No. 111006-s, the controversy centered around whether a DWC-45, Request for Benefit Review Conference, was sufficient as a dispute when (a) the request contained language disclaiming intent for the conference to actually be set, and (b) the request was denied.
This prompted an extensive discussion of the rule regarding requests for a benefit review conference. The decision contains an quotation of the decision and order, which begins by stating that “Rule 141.1 provides that the first certification of MMI and IR may be disputed by filing a [DWC-45]. Whether arising out of this or not, the DWC has adopted a policy that a DWC-45 must be filed specific to the MMI/IR dispute in order to satisfy the 90 day dispute requirement. But the neither the cited rule nor the case establishes that an independent dispute form must be filed when there is a pending dispute on another matter.
And in fact, the rest of the discussion and its intersection with Rule 141.1 commends another interpretation. The discussion in the Appeals Panel decision centered around the requirements of a complete request as sufficient for a dispute. The dispute was over whether a form that disclaimed intent to actually have a benefit review conference, and which failed to result in a benefit review conference, was a proper dispute. The Appeals Panel cited the preamble to Rule 141.1:
Comment: A commenter recommends that the Division modify [Rule] 141.1(f) of this title to provide that submitting an incomplete request for a BRC will be sufficient to stop the first certification of [MMI] and [IR] from becoming final under [Section] 408.123(e).
Agency Response: The Division disagrees. The Division has noted instances where parties will submit a [DWC-45] for the purposes of preventing a first certification of MMI or IR from becoming final under [Section] 408.123(e) and [Rule] 130.12 of this title (relating to Finality of the First Certification of [MMI] and/or [IR]), but specifically say on the form that they do not want to proceed with a BRC. The purpose of requesting a BRC is to resolve a dispute and a party submitting a BRC request should be prepared to move forward with the BRC at the time the request is made. The purpose of these rules is to provide a timely and efficient mechanism to parties who need to resolve disputes regarding certain aspects of a workers’ compensation claim. Consequently, if a party wants to dispute the first certification of MMI or IR on a claim, then [Rule] 130.12 of this title requires a party to either request a BRC or request a designated doctor examination. After a complete request is submitted, approved, and a BRC scheduled, the party has established a dispute of the first certification of MMI and/or IR in accordance with [Section] 408.123(e), effective as of the date the request was filed. A party may obtain a CCH under [Rule] 141.1(g) of this title to determine that they had good cause for filing an incomplete request for a BRC and retain the original date of filing the request for a BRC. (35 TexReg 7430, 2010).
This has everything to do with the validity and effectiveness of the request, and nothing to do with the remaining aspects of Rule 141.1. Nothing in the history of the adoption of this rule indicates an intent to preclude a party from adding an issue. The text of Rule 141.5 indicates that the purpose of the benefit review conference is to “identify and describe the disputed issues,”, and that at the close of the conference, the Benefit Review Officer is to “identify any issues left unresolved.” There is nothing in the text which would exclude MMI/IR from inclusion.
There are several reasons this interpretation is to be preferred over that of the DWC up to this point. One, from a policy standpoint, allowing issues of MMI/IR to be added at a benefit review conference promotes efficient resolution of disputes. Two, from a consistency standpoint, the DWC already acts in accordance with this policy, but only when the parties are able to resolve the dispute over MMI/IR at the BRC. No BRO declines to approve an agreement resolving these issues merely on the absence of a separate DWC-45. All of this is, of course, on top of the textual issue that provides no rational basis for excluding the issues of MMI/IR from inclusion in an already set benefit review conference.
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