Matt Lewis Law Preparing & Presenting Compensability & Extent Of Injur

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PREPARING & PRESENTING COMPENSABILITY AND EXTENT OF INJURY ISSUES :

PREPARING & PRESENTING COMPENSABILITY AND EXTENT OF INJURY ISSUES Bob Graves & Matt Lewis

Compensable Injury:

Compensable Injury "Compensable injury" means an injury that arises out of and in the course and scope of employment for which compensation is payable under this subtitle.

Producing Cause:

Producing Cause Producing cause in workers’ compensation cases is defined as a substantial factor in bringing about an injury or death, and without which the injury or death would not have occurred . Continental Casualty Transcon . Ins. Co. v. Crump , 330 S.W.3d 211 (Tex. 2010). Exert evidence was required to establish a causative link between an accident and a physical condition unless the conditions: are within the common knowledge and experience of laypersons ; did not exist before the accident ; appeared after and close in time to the accident; and are within the common knowledge and experience of laypersons, caused by these type of accidents. Guevara v. Ferrer , 247 S.W.3d 662, 666-67 (Tex. 2007)

Approach Issues:

Approach Issues Treating Doctor Peer Designated Doctor Compensability Rule 127.1(e): If a BRO or HO “determines during a dispute regarding the compensability of a claim as a whole that an expert medical opinion would be necessary to resolve a dispute as to whether the claimed injury resulted from the claimed incident,” the BRO or HO “may order the injured employee to attend a designated doctor examination to address that issue .” Extent of injury RME

Evidence:

Evidence Medical Records How many? Other Records Are they relevant? Photographs/Video Physical Evidence Demonstrative Evidence Summaries Timelines Charts

Testimony:

Testimony Fact Witnesses Live or Statement Direct/Cross Examination Issues Expert Testimony Live or Report Direct/Cross Examination Issues

Expert Issues:

Expert Issues Hyper-Designation Is there a report? Discovery? 1/20/15 Division Memo “Along with the required exchange of pertinent information, limited additional discovery is also authorized, including interrogatories . . . . If the parties wish, they may use the free-form interrogatories to seek information regarding the identity of a testifying expert and the general substance of the expert’s mental impressions and opinions—even if that expert has not prepared a written report. If the testifying expert did prepare a written report, the report would, of course, likely be subject to the exchange requirement discussed above.” “Testifying experts are reminded that the term “peer review” is defined in 28 TAC §180.1 as “[a]n administrative review by a health care provider performed at the insurance carrier’s request without a physical examination of the injured employee.” Pursuant to 28 TAC §19.2002, health care providers performing peer reviews on medical necessity issues must generate a written report.” “Hearing Officers will consider and rule on any case-specific objections to the free-form interrogatories. Hearing Officers will not allow parties to effectively shield the identity and opinions of testifying experts by listing an array of possible expert witnesses, only one of whom is actually expected to testify.”

Interrogatories:

Interrogatories _ x__12.  Question:  Please describe all medical records in the carrier’s possession related to this claim that have not been exchanged by the carrier pursuant to Rule 142.13 .   Indicate the medical provider, date of the report, date the report was received by the carrier, the name of the custodian of these records, and the address where the records are being stored.  In lieu of providing these details, consider simply attaching the identified records to your interrogatory responses     _x__13.  Question:  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 who gave the statement, the date of the statement, the media on which it is stored, the location of the recording or transcription, the name of the custodian of the recording or transcription, and the address where the recording or transcription is being stored.  In lieu of providing these details, consider simply providing the identified items with your interrogatory responses.

Extent of Injury Waiver:

Extent of Injury Waiver Rule 130.102(h): If there is no pending dispute regarding the date of MMI or the IR “prior to the expiration of the first quarter, the date of maximum medical improvement and the impairment rating shall be final and binding .” Appeal No. 040150-s: The IR in this case was final and binding at the end of the first SIBs quarter. Rule 130.1(c)(1 ): IR is the percentage of permanent impairment of the whole body resulting from the current compensable injury . Section 401.011(24) defines IR as the percentage of permanent impairment of the whole body resulting from a compensable injury . “Therefore , considering the definition of IR, we conclude that the IR was for the compensable injury and, thus, any injured body part or condition rated is included in the compensable injury under the facts of this case. Once the IR then became final pursuant to Rule 130.102(g), what was included in the underlying compensable injury was established .”

Matt’s Proposed Legislation:

Matt’s Proposed Legislation Sec. 408.0042. MEDICAL EXAMINATION BY TREATING DOCTOR TO DEFINE COMPENSABLE INJURY. ( a) The division shall require an injured employee to submit to a single medical examination to define the compensable injury on request by the insurance carrier, or claimant . (b) A medical examination under this section shall be performed by the employee's treating doctor. The insurance carrier shall pay the costs of the examination. (c) After the medical examination is performed, the treating doctor shall submit to the insurance carrier a report that details all injuries and diagnoses related to the compensable injury, on receipt of which the insurance carrier shall: (1) accept all injuries and diagnoses as related to the compensable injury; or (2) dispute the determination of specific injuries and diagnoses. (d) Any treatment for an injury or diagnosis that is not accepted by the insurance carrier under Subsection (c) as compensable at the time of the medical examination under Subsection (a) must be preauthorized before treatment is rendered. If the insurance carrier denies preauthorization because the treatment is for an injury or diagnosis unrelated to the compensable injury, the injured employee or affected health care provider may file an extent of injury dispute. (e) Any treatment for an injury or diagnosis that is accepted by the insurance carrier under Subsection (c) as compensable at the time of the medical examination under Subsection (a) may not be reviewed for compensability, but may be reviewed for medical necessity . . . .

Questions?:

Questions?

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