GQ Corner

Q: I have a claim where the claimant tested positive for alcohol. Can I deny the claim in its entirety based on positive test alone or does it have to be based on the quantitative results? If I need the quantitative results, where can I find the information needed to confirm the claimant was over the legal limit?

A: Find out who performed the testing and get the employer to order the results since most of the time the employer is who paid for the test. With regard to what the results show, there are two ways to prove intoxication: 1) .08 BAC or more or 2) proof that the employee did not have normal use of mental/physical faculties. See Texas Labor Code Section 401.013. If the testing was done by blood or urine and the results showed a .08 BAC, then a presumption of intoxication applies. If the amount is lower or if the testing was by some other method such as breathalyzer, the evidence may still support the defense, but the presumption of intoxication will not apply. Carrier will have the initial burden to show that Claimant may have been intoxicated at the time of the accident. If that burden is met, the burden of proof then shifts to the Claimant to prove that he or she was not intoxicated.

Q: I have a question on SIBs. We denied a quarter and the case went to CCH. The judge found in favor of the claimant. What is the deadline for paying the disputed quarter with interest?

A: Your deadline depends upon whether you appeal or not. If you appeal, you must pay within 5 days of the filing of the appeal. If you do not appeal, you have 20 calendar days from the date that the decision becomes final. The decision becomes final on the 16th business day following the receipt of the decision by your Austin representative.

Q: I have a doctor recommending spinal surgery on an old law claim with a date of injury of 6/1/1990. The claim was settled via CSA with open medical thru July 2017. My understanding is the carrier is obligated to pay all necessary medical treatment and therefore pay for the surgery. I have the following questions:

1. To what extent is the TWCC involved?

2. Does the carrier need to demand the surgical recommendation in writing from the board?

3. Does the workers’ compensation commission need to be informed so they can order medical exam?

4. Are there any TWCC forms that need to be filed?

A: Most old law medical is now just reviewed retrospectively and disputes are handled by prehearing conferences and awards. There is no provision for preauthorization of surgery under the old law. However, if you do preauthorize it, you do need to pay for it because of the bad faith risk that still exists for old law claims.

There is no requirement that a surgery demand be done prior to the procedure. DWC will still entertain a demand for surgery under Article 8306, Section 12e because they are required to do so by statute. They will however, in all likelihood, refuse to order surgery because they do not want to be blamed should the surgery be unsuccessful. They may still schedule MEOs for that review if requested, but will not be likely to issue an order for surgery regardless of the MEO opinion. To start either the demand or request of MEO, a written request with supporting medical documents would be submitted to the DWC.