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Matt Lewis Law Dallas Texas - Indemnity Dispute Resolution July 2009

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Title: Matt Lewis Law Dallas Texas - Indemnity Dispute Resolution July 2009


1
INDEMNITY DISPUTE RESOLUTION
  • Practices, Procedures Problems Update 2009
  • Matthew B. Lewis
  • (972) 644-1111
  • matt_at_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  • Rule 141.6 repealed 410.032 controls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/brcp
    andp.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
  • HOs 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
    officers 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 officers report.

12
  • Once answered, the party must rely on that
    position alone unless the response is amended.
  • If the partys 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
    carriers 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 IWs 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 claimants participation, the medical
    provider must send the IW written notice of

28
  • Subclaimants 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 DDs based
    on use of the matrix system (APD 081398-S)
  • Obtain matrix by making open records request
    indicating which doctors matrix you want. Send
    the request to wcopenrecords_at_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)
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