GQ Corner
Q. We have a peer review conveying a medical opinion that epidural steroid injections are not medically reasonable or necessary. May I deny such treatment on this basis?
A. No. You may not unilaterally deny or direct medical treatment under any circumstances, as doing so represents a compliance issue potentially resulting in the assessment of administrative violations and imposition of penalties. Determinations of medical necessity are the exclusive province of the utilization review agent (URA) and dictate your liability for medical benefits related to the compensable injury. In other words, you are bound by the URA determination concerning medical necessity even you have other evidence contrary thereto. However, you may and indeed should transmit a copy of the peer review to your URA for its benefit in analyzing such issues. Also keep in mind that you may deny payment of medical bills on extent of injury grounds if the treatment at issue is targeted at diagnoses or conditions unrelated to the compensable injury. This requires a timely filed PLN-11 disputing the compensability of the relevant diagnoses or conditions.
Q. The claimant is a salesperson who would routinely drive himself and other employees to sales calls throughout the day with a stop for lunch at remote locations. He reported an injury that occurred while he was in the parking lot of a restaurant during the lunch hour. Would he be considered in the course and scope of employment under these circumstances?
A. Probably, based on the information provided. Texas courts and the Appeals Panel have generally held that the personal comfort and convenience doctrine does not apply to off premises injuries. However, the Supreme Court has separately observed that most courts regard an employee whose work entails routine off premises travel as being in the course of his employment when the injury has its origin in a risk created by the necessity of sleeping or eating away from home (except when a distinct departure on a personal errand is demonstrable) as would appear to be the case in this instance involving a traveling salesperson.
Q. The claimant sustained a compensable injury and his doctor imposed work restrictions. The employer contacted him by phone to communicate an offer of modified duty employment consistent with his restrictions. May we treat this as a bone fide offer of employment?
A. No. The offer communicated by phone could not be characterized as a bona fide offer of employment as outlined in Rule 129.6. However, the absence of a valid (written and otherwise meeting the relevant criteria set out in the Rule) bona fide offer does not necessarily mean the claimant is disabled. Disability issues are notoriously fact-intensive in nature and are determined on a case-by-case basis considering the totality of the unique circumstances involved. Here, you may have a reasonable basis on which to dispute disability based on an argument that the claimant is not unable to obtain and retain employment at wages equivalent to the pre-injury average weekly wage because of the compensable injury, given the availability of modified duty employment consistent with his restrictions. Frankly, this is generally a tough argument to win and we recommend encouraging your insured to formally transmit a written bona fide offer of employment so that you may safely treat the wages offered as post-injury earnings for which you may take a credit against your TIBS liability, regardless of the disability disposition.
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