Matt Lewis Law - Indemitty Dispute Resolution

1. INDEMNITY DISPUTE RESOLUTION Practices, Procedures & Problems Update 2009 Matthew B. Lewis (972) 644-1111 matt@mattlewislaw.com

2. Requesting A BRC • Form DWC-45 • Certify good faith effort has been made to resolve the issues identified. • Sometimes requires more than a letter to the opposing party. No consistency with this requirement. • Evidentiary exchange – 14 days prior

3. Subpoenas • No Rule authority prior to a CCH • DWC is approving them prior to a BRC • Some carriers are using them as early as the initial investigation of the claim • Either party may request a subpoena • Submit request to HO in local field office

4. Interlocutory Orders • Request may be written or verbal • May use DWC-58 • Considered by BRO within 3 days • May address accrued and future benefits, including medical benefits • Rule 141.6 repealed; 410.032 controls

5. Holding The Record Open • No authority for this • Effort to reduce CCH cancelations • BRO has 5 days to write a report following BRC • Seems to promote dispute resolution

6. BRC practices and procedures manual may be viewed at: http://www.tdi.state.tx.us/wc/idr/documents/brcpandp.pdf

7. Contested Case Hearing • Must be set within 60 days of BRC • Must exchange all records and witnesses no later than 15 days post-BRC • HO’s not strictly enforcing the exchange deadline; Allowing evidence into record and granting continuances if needed

8. Rule 142.13 • What is required in an exchange? • All medical reports and reports of expert witnesses who will testify at the hearing • All medical records • Any witness statements • the identity and location of any witness known to have knowledge of relevant facts • all photographs or other documents which a party intends to offer into evidence at the hearing

9. Additional Discovery • Interrogatories • Subpoena • Deposition on Written Questions • Motion To Compel

10. Thoughts on Interrogatories • Lock the opposing party into a position • Discover records not exchanged

11. Lock The Position • Form Interrogatory 3 asks: If a benefit review conference has been held, does the benefit review officer’s report accurately describe your position on the disputed issues listed? If not, please explain how your position on the disputed issues differs from that described in the benefit review officer’s report.

12. Once answered, the party must rely on that position alone unless the response is amended. • If the party’s position differs at the CCH from the response to the interrogatory, there lies grounds for a continuance if necessary.

13. Sample Questions To Discover Records Not Exchanged • Please describe all medical records in the carrier’s possession or control related to this claim that were not exchanged. Indicate the medical provider, date of report, and address where the records may be obtained. In lieu of providing names, dates and addresses, you may simply attach to your answers all medical records not previously exchanged.

14. Does the carrier have in its possession any medical peer review reports regarding diagnosis, reasonable and necessary medical care, disability, or preauthorization that have not been exchanged with the claimant? Indicate the reviewer, date of report, and address where the records may be obtained. In lieu of providing names, dates and addresses, you may simply attach to your answers all peer review reports not previously exchanged.

15. Does the carrier have in its possession any recorded conversations with the claimant or anyone from the employer that have not been transcribed and exchanged with the claimant? If so, please identify whose statement the carrier has and the location of the recordings and transcription.

16. On what date did the carrier provide the claimant with all documents required under Rule 142.13(c)(1)?

17. Deposition On Written Questions • The only allowed method to depose a health care provider • Significant in impairment rating disputes due to inability to introduce evidence in District Court that was not presented to the DWC

18. Motion To Compel • May compel responses to interrogatories, deposition on written questions, and subpoena requests • May compel compliance with Rule 142.13(c)(1)

19. Continuances • Division vacillates between granting most all requests and denying most all requests • Beginning a stretch of denying continuance requests

20. Expert Witnesses • If appearing telephonically, party should request approval • Any reports of a testifying expert must be exchanged • If testifying, should provide something more than the contents of the written report

21. Make sure the odds are the expert is adding something to the record and not more likely to cost you on cross • Avoid testimony like, “there is no way falling onto the back caused the DJD seen on the MRI,” when in cross the expert will say “yes, it is likely the fall onto the back aggravated the pre-existing DJD.”

22. Experts are not subject to “the rule.” • If you want the expert to hear the testimony, make sure to carry case law to the CCH. • Elbar, Inc. v. Claussen, 774 S.W.2d 45 (Tex.App.-Dallas 1989 writ dism'd). June 16, 1989

23. Administrative Appeal • Must file appeal with the Chief Clerk within 15 days (not counting weekends or Holidays) • The 15-day period does not begin until both the IW and the IW’s representative, if any, receive the Decision and Order.  Frank v. Liberty Ins. Corp., 255 S.W.3d 314 (Tex. App.—Austin 2008, pet. denied)

24. SubClaimants • Increasing participation by medical providers in the indemnity dispute process • Subclaimant medical providers must satisfy requirements to establish standing and jurisdiction

25. Section 409.009 • 409.009.  SUBCLAIMS.  A person may file a written claim with the division as a subclaimant if the person has: (1)  provided compensation, including health care provided by a health care insurer, directly or indirectly, to or for an employee or legal beneficiary; and (2)  sought and been refused reimbursement from the insurance carrier.

26. The AP has historically held that an EOB documenting a denial of reimbursement is evidence that satisfies the requirement of 409.009. (APD 011962-S).

27. Rule 140.6 • Effective September 23, 2008 • Grants party status to a subclaimant • Subclaimant is entitled to dispute resolution • In order to pursue a claim for compensation without the claimant’s participation, the medical provider must send the IW written notice of:

28. Subclaimant’s intent to pursue the claim • Warning that an adverse decision may be binding against the IW • Contact information for the Office of the Injured Employee Counsel

29. Why Medical Providers Pursue These Claims • If the subclaimant prevails and compensability is established, then the medical bills should be paid • Obtain final adjudication prior to direct billing of the IW • A win on compensability or extent of injury extends the deadline to file for MDR - Rule 133.307(c)(1).

30. Designated Doctors • Not an abuse of discretion to change DD’s based on use of the matrix system (APD 081398-S) • Obtain matrix by making open records request indicating which doctor’s matrix you want. Send the request to wcopenrecords@tdi.state.tx.us

31. If MMI date is changed, it must be based on a physical examination • If MMI date is changed in response to LOC without a new exam, it cannot be adopted because a determination of MMI must be based on a physical exam (APD 010297-S)