GQ Corner

Q: When did the Texas workers’ compensation system transfer from “old law” to “new law” and what were the significant effects of the change?

A: The Texas Legislature adopted the Texas Worker’s Compensation Act (Senate Bill 1) on December 13, 1989. This “new law” is effective for injuries occurring on or after January 1, 1991. Injuries occurring before January 1, 1991 are considered “old law” claims.

The statutory overhaul instituted many significant changes. While the Act maintained elective coverage, it created a wider range of insurance options for employers, including self-insurance for large employers who meet established criteria and are certified by the agency. The Act also created the Texas Workers’ Compensation Commission (TWCC) to administer the workers’ compensation system, replacing the Texas Industrial Accident Board (TIAB) in so doing. TWCC administered the system until 2005, when House Bill 7 abolished it and replaced it with the Texas Department of Insurance, Division of Workers’ Compensation (TDI-DWC or “the Division”).

The 1989 Workers’ Compensation Act established a new benefits system, raised basic benefit levels and set many dispute and payment deadlines to ensure the prompt delivery of benefits. It also created the administrative dispute resolution process—the scheme including Benefit Review Conferences, Contested Case Hearings, and the Appeals Panels.

Significantly, settlement of cases was no longer allowed with the passage of the New Law. The Act also called for the development of medical fee and treatment guidelines to control medical costs and limited attorney fees to time and actual expenses, up to a maximum of 25 percent of an injured worker’s total recovery. The Act strengthened the Division’s ability to monitor system participants and to assess administrative penalties for non-compliance with the Act or Division Rules, providing that the Division may also investigate fraud and may work with local prosecutors and law enforcement officials to prosecute workers’ compensation fraud. Finally, the Act consolidated and expanded state-administered workplace health and safety programs and the created workplace health and safety assistance and incentive programs for employers.

Q: I have an injured worker who went to a walk-in clinic for treatment three days after his work injury. The doctor released him to return to modified duty work. The injured worker evidently did not take kindly to this, and verbalized as much to the doctor. The following day, he went to an orthopedic group and was seen by a doctor, who promptly removed him from work entirely.

Can the injured worker choose another doctor without either a referral or the filing of a request to do so with the DWC?

A: Rule 126.9(c) provides as follows:

The first doctor who provides health care to an injured employee shall be known as the injured employee’s initial choice of treating doctor. The following do not constitute an initial choice of treating doctor:

(1) a doctor salaried by the employer;

(2) a doctor recommended by the carrier or employer, unless the injured employee continues, without good cause as determined by the commission, to receive treatment from the doctor for a period of more than 60 days; or

(3) any doctor providing emergency care unless the injured employee receives treatment from the doctor for other than follow-up care related to the emergency treatment.

Thus, the first doctor who provides health care must be considered the “treating doctor” unless any of the exceptions in (1)-(3) apply. If the injured employee personally selected the doctor he initially saw, he must submit a formal request to the Division by means of a DWC-53 form. See https://www.tdi.state.tx.us/forms/dwc/dwc053chngdoc.pdf

Conversely, if an exception applies, he will be permitted to seek treatment elsewhere right away.
 
As far as disability goes, any doctor can give an opinion that may support disability, even if the doctor is not a valid treating doctor. In fact, a claimant can prove disability even through his own testimony without a medical opinion. The issue here is really one of the claimant doctor-shopping and whether there was a change in condition between the walk-in clinic visit and the subsequent visit. If the medical evidence does not warrant a change in disability status, i.e. from modified duty to off work entirely, you may dispute disability by means of a PLN-11. Regardless, it is often advisable under these circumstances to request a designated doctor examination on the issue of the claimant’s ability to return to work (along with MMI/IR as appropriate) as this may provide a concrete “second” opinion to which presumptive weight is assigned.