GQ Corner

Q. Back in March, 2019, I had a DDE done and requested extent regarding this claimant’s back issues.  My request used the diagnoses that the treating and the pain doctor had listed. The DDE came back with his determination, attached. Now I have requested a DDE on MMI and IR.  The Ombudsman has gotten authorization to add extent.  Her extent is disc herniation at L4-5 causing left lateral recess stenosis.  The only place I have seen this diagnosis is on the ortho’s request for surgery.  It is not listed on any of the medical reports otherwise. My question is, if the second DD adds this extent, do I need to accept that? 

A. Yes, if the DD adds the newly worded extent, you would have to accept. It is probably too late now, but I would have filed for an expedited CCH to stop the DDR appointment. That is because the disc herniation is the same as the other disputed conditions, intervertebral disc disorder. The doctors use those terms to mean the same thing. Maybe DWC will catch it and not set up the DD exam. The good thing is that they will do everything to appoint the same DD. If that is the case, he should say no again.

Q. The claimant disputed her first MMI/IR. The claimant was paid the first IR thru 5-2-19, but STAT MMI is actually 5-30-19. The DD was asked to address STAT MMI and IR, but instead found claimant NOT at MMI so, therefore, no IR applicable. She projected MMI for 2-20-20. We went to BRC and since the DD did not address STAT MMI, the BRO will write to the designated doctor for LOC purposes to address STAT MMI, but did not issue an Interlocutory Order for the carrier to pay additional TIBs 5-3 thru 5-30-19. The BRO left the record open pending receipt of the LOC. Since the LOC is pending, do we have to pay the additional TIBs at this time, or wait on the LOC?

A. The answer depends upon your risk tolerance and willingness to defend. The Designated Doctor clearly has stated that the claimant was not at MMI prior to the statutory date. Section 408.0041 of the Texas Labor Code requires you to pay benefits based upon the report of the Designated Doctor. However, the Designated Doctor did not address disability. TIBs are due if a claimant is disabled and not at MMI. The reasonable conclusion, therefore, is that TIBs would be due if the claimant is otherwise disabled. However, the SIF is currently taking the position that it is not liable for reimbursement for those TIBs if the earlier date is ultimately determined to be correct. The only way the SIF would be able to take that position is if the payment is not due pursuant to Section 408.0041. We have many cases challenging that determination, but the existence of those cases means that there is no agency-articulated answer. So, should you choose to not pay, there is some authority for that position; but if you are not willing to defend against a possible enforcement action, then you should pay the additional TIBs.