April 2000 FOLFOL FOLIO - FOL Attorneys Austin · April 2000 ©2000 - Flahive, Ogden & Latson Volume 5, No. 4 C & P Targets Errors p.3 Company Profiles on the Internet p.6 Nonsubscriber

FOLFOLFOLFOLFOLFOLClient Newsletter by Flahive, Ogden & Latson

FOLIO©2000 - Flahive, Ogden & LatsonApril 2000 Volume 5, No. 4

C & P Targets Errors p.3Company Profiles on the Internet p.6

Nonsubscriber Liability; Are Waivers Valid? p. 8

In this issue. . .

continued on p. 13

continued on p. 13

A panel of the Texas Workers’Compensation Commission AppealsPanel has ruled that a carrier hasonly seven days to pay or dispute aclaim, or it waives its defenses tocompensability under the Act. Youwill recall that the San Antonio Courtof Appeals ruled that an insurancecarrier has waived its defenses if itdoes not pay or dispute a claimwithin seven days. Downs v.Continental Casualty Company, No.04-99-00111-CV (Tex. App. – SanAntonio January 26, 2000). TheAppeals Panel has now signaled itsintent to follow Downs in TexasWorkers’ CompensationCommission Appeal No. 000433.

Our firm believes that the Downsdecision is clearly erroneous. Theopinion completely disregardsSection 409.021 (c), which providesfor waiver if the carrier fails tocontest compensability within sixtydays. This section becomesmeaningless in light of the Downsdecision. The court has basicallycreated an entirely new statutoryprovision waiving a carrier’s rightsif it fails to pay or contest withinseven days. There could not be a

Appeals Panel Adopts Downs Decisionclearer case of a judge-made law.

It is a poorly reasoned decisionand is pending before the SanAntonio Court of Appeals onMotion for Rehearing. That willprobably be overruled and it willthen be appealed to the SupremeCourt. Until now, TWCC hasdeclined to apply the Downsdecision. It was mentioned in onedissent. It was not, however, reliedupon by the Commission ascontrolling authority.

In Texas Workers’ Compen-sation Commission Appeal No.0004333, the Appeals Panel hasnow cited Downs in a majorityopinion. In that case, the AppealsPanel held as follows:

“The Downs decisionestablishes, contrary to theinterpretation the Commissionhad given to Section 409.021,that the carrier has seven daysto either initiate benefits ordispute compensability and that

In a split decision issued on April6, 2000, the Texas Supreme Courtheld that the Texas Workers’Compensation Act does not providea right of judicial review of SOAHdecisions which occur after appealfrom the Medical Review Division.The Court also held that theinsurance carrier might have aconstitutional right of judicial review,but that the carrier in the case didnot preserve the argument. Theremay be a right of judicial review ofthese decisions under the

No Judicial Review inMedical Disputes

Administrative Procedure Act, butthis carrier waived that argumentin oral argument.

In Continental Cas. Ins. Co. v.Functional Restoration Assoc., theSupreme Court analyzed Sections410. 255, 410.301(a), and 410.251of the Labor Code and concludedthat Section 410.255 does notprovide a right of judicial review,only the manner of judicial reviewprovided by other sections.Essentially, the court held that

FOLIO

CLIENT NEWSLETTER BY FLAHIVE, OGDEN & LATSON

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The Third Court of Appeals hasheld that a governmental entity andits risk pool enjoy sovereign immunityin bad faith causes of action arisingout of workers’ comp claims. InMilner v. City of Leander; AxiaServices, Inc.; and Texas MunicipalLeague Intergovernmental RiskPool, No. 03-98-00686-CV (Tex.App.- Austin 2000) the court alsoheld that an oral dispute of animpairment rating is sufficient totrigger a designated doctorappointment under Rule 130.5(e).

Carol Milner’s treatingchiropractor certified MMI with a13% impairment rating. At a BRCon the claim, the carrier’srepresentative disputed the ratingand the BRO assigned a designateddoctor who certified MMI with a

5% impairment rating. Milnerunsuccessfully exhausted heradministrative remedies contendingthat the first rating had becomefinal because the oral dispute wasinvalid. Milner sought judicialreview of the Commission’s finaldetermination on her impairmentrating issue and also brought badfaith causes of action against theCity, the TPA, and TMLIRP. Thetrial court granted summaryjudgments against the claimant onthe bad faith claims. The court alsoruled that the oral dispute wassufficient to avoid the 90-day rule.

The Court of Appeals disagreedwith Milner’s argument that Rule130.5(e) requires that an initialimpairment rating be disputed inwriting within 90 days in order to

prevent it from becoming final. TheCourt pointed out that Rule 130.5(e)does not state that a dispute mustbe in writing. The Court of Appealsconcluded that Milner’s initialimpairment rating which wascertified on November 13, 1993was disputed within 90 days;accordingly, the Court of Appealsoverruled Milner’s issue regardingthe oral dispute of her initialimpairment rating.

Milner argued that the trial courterred in granting summary judgmenton a bad faith cause of action infavor of the City and TMLIRP onthe basis of sovereign immunity.The Court rejected Milner’sargument that the relevant statutesrevealed a clear and unambiguouswaiver of the governmental entities’immunity from suit. The Courtemphasized that the decision towaive sovereign immunity is left tothe legislature and that the legislaturemust use clear and unambiguouslanguage to effect a waiver ofimmunity. The Court noted thatChapter 416 contains no expresswaiver of governmental immunityfor breach of the duty of good faithin fair dealing in handling workers’compensation claims.

Milner sought to hold the TPAliable for the alleged breach of dutyof good faith and fair dealing. Thecourt rejected the contention, callingthe results of the argument “absurdand unfair.” The Court of Appealsnoted that the City and TMLIRP,as insurance carriers, had a non-delegable duty to handle Milner’sclaim fairly and in good faith.However, the “special relationship”that gives rise to that duty existsbecause the insured and the carrierare parties to a contract that is the

Court Finds No Bad Faith Liability for Governmental Entities and TPAs

continued on p. 13

The Commissioner of Insurancehas issued a mandatory, quarterlycall for workers’ compensationmarket condition information. TheMarch 31, 2000 call was issuedpursuant to Article 38.001 of theTexas Insurance Code. The call isdesigned to provide the TexasDepartment of Insurance withimmediate access to marketcondition information.

This information will be used toprepare a report required underArticle 5.13-2, Section 5(e) of theTexas Insurance Code, forsubmission to the Governor andcertain members of the TexasLegislature.

The call must be completed andreturned in accordance with TDIinstructions by not later than May15, 2000. Underlying data, individualsource documents and otherinformation utilized in the

development of the call responsemust be maintained in carrierrecords for a minimum of threeyears after May 15, 2000. Failureto comply with the requirements ofthis call within the time limitsspecified may constitute a violationor violations of the Texas InsuranceCode and may subject the insurerto the penalties provided by law.

The forms for the Quarterly Callfor Experience also can be accessedand downloaded via the Internet atwww.tdi.state.tx.us. Questionsconcerning this call should bedirected to Vicky Knox at the TexasDepartment of Insurance at (512)475-1879.

TDI Seeks Market Data

The Data Services Division ofthe Texas Department of Insurancehas a new Post Office box addressfor receipt of this information. Thenew address is P.O. Box 149104Austin, Texas 78714-9104

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The TWCC Division ofCompliance and Practices is nowissuing fines to carriers whorequest more than one medicalexamination in a 180-day period.Under §408.004 a carrier is entitledto only one RME every 180 days,except under limitedcircumstances outlined in Rule126.5.

The RME rule requires that theCommission monitor all carrierrequests for medical examinationsthat are requested before theexpiration of the 180-day periodthrough statistical analysis, audits,

Compliance and Practices NowIssuing Fines for RME Errors

Additional RMEs may be approvedbefore the expiration of 180 days inthe event that a medical opinion isneeded to determine if:1. There has been a change in the

employee’s condition;2. There is a need to change the

employee’s diagnosis;3. The treatment should be

extended to another body partor system, or if the extent ofinjury has changed;

4. The compensable injury is aproducing cause of additionalproblems or conditions;

5. Disability exists, because ofnewly discovered information;

6. Proposed surgery, other thanspinal surgery, is necessary totreat the compensable injury;or

7. The employee has reachedmaximum medical improve-ment and to determine theimpairment rating when theexamination relates to a bodypart or system that is outsidethe expertise of the carrier’srequired medical examinationdoctor selected under subsection(c) of this section.

* For dates of injury on or afterSeptember 1, 1997

or other appropriate means. TheCommission has defined anunreasonable request to include:(1) a request for an additionalexamination for a reason whichdoes not comply with the rule; (2) arequest for a different doctorwithout sufficient grounds; (3) arequest made in violation of theSIBs provisions of the rule; and (4)a request which provides false,incomplete, or misleadinginformation.

For dates of injury on or afterSeptember 1, 1997, the Commissionmay approve additional RMEs at

The Commission has passed arule clarifying the responsibilitiesof two divisions within the agency.Commission Rule 133.305 outlinesthe responsibility of the Division ofMedical Review to adjudicateissues that affect the payment ofincome benefits.

The Commission’s preamble toRule 133.305 addresses jurisdictiondisputes between the MedicalReview Division and the HearingsDivision. “Under §413.031 of theTexas Labor Code, the MRDdetermines what ‘health care isreasonably required by the natureof the injury.’ The Division ofHearings adjudicates benefitdisputes, including compensabilityissues.”

Section 133.305(a) defines thedisputes that the Medical ReviewDivision will resolve. These nowinclude issues involvingreimbursement to injured employeesfor out-of-pocket expenses, aninsurance carrier’s request for a

refund from a health care provide,the amount an insurance carrierpays a health care provider formedical treatment or services, themedial reasonableness or necessityof treatment or services, andpreauthorization denials.

However, where a carrier raisesa dispute as to liability for the claim,compensability, or extent of injury,the new rule permits the MedicalReview Division to resolve themedical disputes as defined in§133.305(a), regardless of otherdisputed issues. The parties maysimultaneously pursue resolution ofother issues through the Division ofHearings. Therefore, MedicalReview will no longer dismissrequests for medical disputeresolution that include disputespertaining to liability for the claim,compensability, or extent of injury.For related article, refer to page 9-for discussion of preauthorizationdisputes- in this issue of FOLIO.

Medical Review Division AltersDismissal Policy

Texas is the only state that stillallows private employers to

choose whether or not tomaintain workers’

compensation insurance.

the carrier’s request before theexpiration of 180 days in sevensituations. Those situations areoutlined in the box below.

RME Primer


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The Texas Board of MedicalExaminers has refused to modifythe probated license suspension ofa Houston-area doctor with anactive workers’ comp practice.The Board’s action rejects therecommendations of Boardadvisors that the doctor’s earlierprobated suspension be made lessrestrictive.

Dr. Erich Scheffey, anorthopedic surgeon, had beensuspended from the practice ofmedicine in May 1995 based onallegations that he engaged in billingand other irregularities in hispractice. The order becameeffective in October 1997following the Texas SupremeCourt’s rejection of Dr.Scheffey’s request for a stay.However, the suspension wasprobated for five years and Dr.Scheffey was permitted tocontinue to practice medicinesubject to a number of restrictions

on his ability to perform orthopedicsurgery.

This order constitutes Dr.Scheffey’s third attempt in threeyears to modify the terms of hisprobation. The request resulted ina November 10, 1999 hearingbefore two Board representatives.Following that hearing, the Board’srepresentatives recommended thatthe original order be made lessrestrictive with regard to the natureof surgeries that Dr. Scheffey canperform without supervision.

The Board of MedicalExaminers rejected thoserecommendations. The Boarddenied Dr. Scheffey’s petition tomodify the original order.Moreover, the Board’s December11, 1999 order states that allprovisions of the May 1995 order“remain in full force and effect untilsuperseded by a subsequent orderof the Board.

Board Refuses to Modify Dr.Scheffey’s Probation

Some applicant classificationsface special problems in jobplacement. These applicant groupsinclude entry level workers,veterans, disabled workers as wellas other special applicants. TheDOT can be used to assist thesepotential employees in their jobsearch. Entry Level Workers

Entry workers often have little

or no training, education or jobexperience geared to specificoccupational requirements. Theymay also lack the necessary licensesor certification for certain jobs inwhich they express interest. In oneway or another, they may not befully competitive with moreexperienced jobseekers.

An effective method ofclassifying such workers is to

review the individual’s educationalbackground, interests, hobbies,casual or leisure time workexperience, worker traits, and otherindicators of potential occupationalabilities and skills. For example, ifthe applicant had an interest inscience activities in school, theymight be considered for a laboratoryjob if such openings are available inthe area. The final code assignedshould allow the individual thegreatest possible exposure to workor training opportunities in relationto interests, skills and abilities.

In a manual matching system, itis not usually possible to assign a 9-digit code to an entry worker, butevery effort should be made toassign an appropriate 6-digit codeand generalized title. One methodof indicating that the individual is anentry worker is to replace the periodafter the third digit in theoccupational code with an (x). Forexample, if an entry worker isassigned the job titleLABORATORY TESTER (anyindustry), the 6-digit code assignedwould be 029x261. In acomputerized matching system,there is no standard method ofrecording entry classifications,since the recording procedures canvary from state to state.Veterans

U.S. veterans seeking civilianjobs are usually given preference infile search and referral activities bypublic employment service offices.

How to Use the Dictionary of OccupationalTitles for Job Placement

This is the third in a three-part series describing use of the Dictionary of Occupational Titles for job placement. TheDictionary of Occupational Titles is a treatise containing occupational codes (DOT Codes) for assistance in jobplacement. The Dictionary is a primary tool for job placement. Vocational counselors use it, as do attorneys andAdministrative Law Judges with the U.S. Department of Labor. The Dictionary is helpful in SIBs cases, disputes overbonafide offers of employment and disability disputes. The series has been adapted from the appendix to the DOT 4th

Edition (Revised 1991).

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Interest CalculatorSecond Quarter

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Flahive, Ogden & Latson, a 26 lawyer firm,defends contested workers’ compensation casesstatewide every day. The firm has representedinsurance companies and employers before theTexas Workers’ Compensation agency for morethan 50 years.

For general questions concerning the news-letter call (512) 435-2225. FOLIO's Editor-in-Chief is Jack W. Latson.

FO&LFO&L

Flahive, Ogden & LatsonP.O. Box 13367Austin Texas 78711

A wide range of information on Texas insurancecompanies and HMOs - including complaintcomparisons – is now available directly from theTexas Department of Insurance’s Web site. Keyfacts are available on each of the more than 2,700insurers, HMOs and third-party administrators legallydoing business in Texas.

“All it takes is a mouse click to learn almostanything you want to know about an insurancecompany or HMO,” said Commissioner JoseMontemayor, who authorized TDI staff to put allcompany profiles on the Internet. TDI will continueto mail or fax printed company profiles for peoplewho call the Consumer Help Line, 1-800-252-3439,and cannot access profiles over the Internet.

TDI Launches Company Profileson the Internet

Information on a company’s profile include:• How long the company has been in business.• Its home office address, business phone

number and toll-free number.• Names of top company officers.• Name and address of its attorney for service,

the person designated by a company to receivelegal papers, including notice of lawsuits filedagainst the company in Texas.

• Links to the Web sites of five financial ratingservices that may be used to obtain a financialstrength letter grade for the company. Theservices are A. M. Best, Standard & Poor’s,Duff & Phelps, Moody’s and Weiss.

• Types (or “lines”) of insurance a company islicensed to sell.

• Financial information on insurance companiesand HMOs, including assets and liabilities andpremiums collected in Texas.

• Complaint data, including indexes that tell at aglance whether a company’s ratio of justifiedcomplaints to total policyholders is better orworse than average. A complaint index lowerthan 1.0 indicates fewer justified complaintsthan average. An index higher than 1.0indicates an above-average ratio of complaintsto total policyholders.

• Company history, including fines and otherpenalties imposed by TDI and the insurancedepartments of other states. History alsoincludes mergers, acquisitions, name changes,receiverships and non-confidential actionstaken by TDI to rehabilitate financially troubledcompanies.

To find a company profile, go to TDI’s home page,www.tdi.state.tx.us. Look under “Quick Access” onthe right side of the home page for “Profiles: CO/HMO.” Click “CO” for company. Enter the first wordor two of a company’s name, followed by an asterisk(*) or percent mark (%). Click on “submit.” You’ll geta list of companies with similar names.

TDI has provided some company profiles on itsWeb site for several years. These, however, werelimited to the 300 companies most frequently askedabout in calls to TDI’s Consumer Help Line.


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Proving “No Ability” Under the New SIBs RulesPractice Pointer

It is clear under the 1999 SIBsrules, that if claimants assert thatthey have no ability to work, theymust (1) show they are unable toperform any work in any capacity;(2) provide a narrative reportspecifically explaining how theircompensable injury causes totalinability to work, and (3) showthere are no other recordsestablishing they are able to returnto work. Although it is the claimants’burden to show there are no recordsproving that they have an ability towork, carriers often attempt todefeat claimants’ position byproviding FCE or RME reportsshowing that, at the very least,claimants can work in a sedentaryposition. Therefore, from thecarriers’ perspective, a questionarises as to what constitutes arecord establishing that claimantshave an ability to work.

Determining whether claimantshave an ability to work is a questionof fact. In resolving that issue, the

hearing officer must determinewhether medical or other reportsshow that claimants have an abilityto work.

Just as conclusory statementsfrom doctors stating that claimantshave no ability to work carry little tono weight, conclusory statementsthat claimants have an ability towork will likewise carry little to noweight. As such, carriers wouldbenefit from making sure that theirFCE or RME reports clearly statethat claimants have an ability towork, state at what level claimantswould be able to work, and identifywhat physical abilities claimantshave. In other words, the moresubstance supporting the doctors'conclusion that claimants have anability to work, the more difficult itwill be for hearing officers todetermine that there is no record“showing” that the claimant has anability to work.

If your FCE or RME reports arenot clear as to what level claimants

The Texas Workers’ Compen-sation Commission held publichearings to gather information fromworkers’ compensation systemparticipants to assist in thedevelopment of an electroniccommunications plan. The plan willlay the foundation for creating theworkers’ compensation system ofthe future, relying less on paper andallowing for actions in the system tobe more effective, efficient, andtimely.

The April 2000 hearings took placein Dallas, Tyler and McAllen. TheCommission heard public testimony

TWCC Considers ElectronicCommunications

and engaged in a round tablediscussion to solicit input fromattendees on various paperreduction issues.

The 76th Legislature appropriatedfunds for a TWCC BusinessProcess Improvement project andmandated a 60% reduction in papercommunications within theworkers’ compensation system byJanuary 1, 2003. TWCC isevaluating all agency processes aspart of the BPI project, includinghow to reduce paper in the workers’compensation system.

would be able to work or as to whatphysical capabilities they have, itmay be worthwhile to contact thedoctor to clarify why the doctorbelieves the claimant has an abilityto work. In addition, if a claimantgives submaximum effort, makesure the doctor gives specific detailsregarding the lack of effort and, ifpossible, have the doctor state atwhat level the claimant would havebeen able to work had he given amaximum effort.

In addition, timing of the FCE orRME exams is important. Althoughthe rules do not place a time limit onwhen the other records establishingclaimants are able to return to workmay be no longer be considered, itappears that the further the examdate is from the qualifying period,the less persuasive the reports willbe. Moreover, if a claimant hasundergone surgery or her physicalcondition has substantially changedsubsequent to the FCE or RME,you may want to consider havinganother exam performed so that aclaimant’s ability to work may bereassessed in light of the possiblechange of her physical condition.

In sum, while it is often difficultfor claimants to establish that theyhave a complete inability to performany type of work-related activity,carriers should not assume that ifthey have a record showingclaimants have an ability to work,the hearing officers would agreewith this record. Carriers shouldmake every effort to present FCEor RME reports that wereperformed within a relevant timeperiod and that provide a detailednarrative describing the claimants’work abilities.


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The El Paso Commission moved its offices on Friday March 25, 2000. The new address andCommission phone number is:

Texas Workers’ Compensation CommissionEl Paso State Office Building401 East Franklin Avenue, Suite 330El Paso, Texas 79901(915) 834-7000

10 Sunland Park Dr.

Palo Alto Dr.

DeLeon Dr.

Cam

illa

Dr.

Francisco Ave.20

The Texas Supreme Court ispoised to clarify confusion as towhether a Texas employer whodoes not carry workers’compensation insurance may limitliability for on-the-job injuriesthrough the use of waiverscontained in employee benefitplans.Background

Texas is the only state that doesnot require employers to purchaseworkers’ compensation insurancefor their employees. One state,New Jersey, provides for twoalternatives: 1) the typical workers’compensation statute; and 2) aform of employers’ liability basedon traditional common lawremedies. It is required that everyemployer choose one of the twooptions; however, all New Jerseyemployers have thus far opted forthe workers’ compensation statute.

In Texas, employers whopurchase workers’ compensationinsurance for their employees aregenerally referred to as“subscribers,” while employers

who do not participate in the state-regulated system are referred to as“nonsubscribers.” The TexasWorkers’ Compensation Act(“Act”) contemplates twoscenarios for employers dependingon whether they choose tosubscribe.Scenario 1: Subscribers. Underthe first scenario, if an employerchooses to subscribe, its employeeswho are injured on the job receivestatutorily regulated medical andwage-replacement benefits inexchange for waiving the right tosue the employer. Two exceptionsexist to this general rule. The firstexception exists in cases of thedeath of an employee resulting fromthe employer’s gross negligence.See Texas Labor Code, Section408.001(b). The second exceptionexists with regard to a third partywho is or becomes liable to paydamages for a compensable injuryor death. See Texas Labor Code,Sections 417.001-004.

Under this scenario, theemployer’s liability for negligenceis limited, and the employee is notrequired to pursue litigation toreceive benefits. See Texas LaborCode, Section 406.031; see alsoTexas Labor Code, Section 406.032which lists four circumstances inwhich a carrier is not liable forpayment of workers’ compensationbenefits to an injured employee.Scenario 2: Nonsubscribers.Under the second scenario, if anemployer chooses not to subscribe,its employees (or their dependentsin the case of a fatality) may sue torecover damages for injuries ordeath resulting from a work-relatedinjury. Texas Labor Code, Section406.034(b) authorizes an employeeof a subscriber to waive coverageunder the Act, and retain the rightto sue under common law, withinfive days of beginning employment.

If sued, the Act specifies that anonsubscriber may not raise thecommon-law defenses ofcontributory negligence (injurycaused by the negligence of the

Nonsubscriber Liability; Are Waivers Valid?(Part One)

continued on p. 15

ROC Board Members, 2000-01Senator Troy Fraser, ChairRep. Kim Brimer, Vice Chair

Senator John J. CaronaSenator Leticia Van de PutteRepresentative David Counts

Representative Scott HochbergJ.M. “Mike” Lowery, TWCC

CommissionerRebecca Olivares, TWCC

CommissionerNancy Moore, Commissioner of

Insurance designee


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The Research and OversightCouncil on Workers’Compensation has two new Boardmembers: Senator Leticia Van dePutte of San Antonio and SenatorJohn Carona of Dallas. The newappointments replace seatsformerly held by Senator DavidSibley and Senator Ken Armbrister.In the past six months, the ROCBoard has seen the appointment offour new Directors.

Senator Armbrister leaves theBoard after having served as thefirst Chair of the ROC Board andthen as Vice Chair during thesucceeding term. The ROCmonitors the agencies and entitiesinvolved in the workers’compensation system, providesresearch information on workers’compensation to the general public,and responds to constituents’ needsfor assistance.

The Agency is actively engaged

More New Blood for the ROC

Practice Pointer

A recurring question is whetherpreauthorization of a medical bill ona disputed claim guaranteespayment, or whether it simplyprovides a “reasonable andnecessary” guideline for the bill,should the claim be determined tobe compensable. The current MRDinterpretation is thatpreauthorization does obligate thecarrier to pay according to the feeguidelines whether the treatment isfor a compensable service or not.Our firm disagrees with thisinterpretation.

Commission Rule 133.301 dealswith retrospective review of medicalbills. Subsection (a) provides forthe retrospective review of all

The Effect of Preauthorization in Disputed Casescompleted medical bills forcompliance with the Texas LaborCode, Commission fee andtreatment guidelines, and otherCommission rules. It applies to allmedical bills, whether the service ispreauthorized or not.

The preamble to the rule makesit clear that preauthorization onlydeals with whether the service isreasonable and necessary, and notwhether the condition iscompensable, or whether thecarrier owes for it. However, acarrier’s prospective review ofmedical necessity and reason-ableness of treatments or servicesthrough the preauthorizationprocess establishes the medical

necessity and reasonableness ofthe treatment, and the carrier is notallowed to reconsider this issueretrospectively. It may considerother issues, however.

If the carrier has preauthorized aservice for which preauthorizationis required, the carrier is liable forremitting a reasonable reim-bursement for the service, assumingthat the condition is compensable.Therefore, just because a servicehas been preauthorized does notmean that the carrier is liable for it.Preauthorization only means thatthe carrier will not use the defensethat the treatment was notreasonable and necessary whenthe bill is presented.

When preauthorization isrequested for treatment in acontested claim or to a disputedbody part, the carrier must conductpreauthorization on the question ofmedical necessity. We advisecarriers to put a disclaimer at thebottom of the grant ofpreauthorization on disputed casesstating that liability for payment isdenied pursuant to an attachedTWCC 21.

in supervising several researchstudies mandated by HB 3697.Three studies will focus on medicalcost and quality issues, and onestudy will examine workplacereturn-to-work issues. The studiesare scheduled for completion inNovember 2000. They have beentimed to supply data prior to thenext legislative session in the springof 2001.

The nine-member board setspolicy for the research agency.The ROC board of directors iscomprised of three members whoare appointed by the Speaker of theHouse. Three members of theboard are appointed by theLieutenant Governor. Theremainder of the board consists oftwo members from the TWCC aswell as one ex-officio member, theinsurance commissioner or hisdesignee.


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The Research and OversightCouncil on Workers’Compensation has cleared the wayfor a group of Austin researchersto conduct a study related to theTexas workers’ compensationsystem. The study will focus onworkplace safety and return-to-work issues, with a specialemphasis on the future needs ofTexas employees and employers ina changing work environment.

The contract was awarded toResearch and Planning Consultants,Inc., a project team composed ofhealth care providers, policyanalysts, attorneys, economists,actuaries, industrial safety experts,claims managers, vocational

Workplace Safety Study Approved by ROCrehabilitation consultants,statisticians, survey researchspecialists and information systemsspecialists. The contracted amountfor the study is $144,665. The studyis scheduled for completion inNovember 2000 to provide usefuldata prior to the convening of the77th Legislature in January 2001.

The ROC has identified fourobjectives for the study. Theseare to: 1) Identify the top ten majorindustrial and occupational sectorsin Texas that should be the focus ofthe state’s safety and return-to-work efforts over the next tenyears; 2) Identify current safetyand return-to-work programsadopted by employers, unions and

insurance carriers that constitutebest practices for their industriesand occupations, assessingeffectiveness and applicability toTexas; 3) Develop educationalinitiatives that could be directedtoward the Texas employers whowant to implement an effectivesafety or return-to-work programsfor their employees; and, 4)determine any changes in currentTexas law that would be required toimplement improved programs.

The research is legislativelymandated. House Bill 3697, passedby the 76th Texas Legislature,directs the ROC and the TexasWorkers’ Compensation InsuranceFund (a major writer of workers’compensation insurance in Texas)to conduct specific studies toexamine medical cost and quality ofcare, workplace safety, and return-to-work programs.The claimant has raised the

specter of “sole cause”. Whateffect does this have on your claimshandling?

The Appeals Panel has heldthat the threshold issue in suchcases is whether claimant can provea causal connection between hispresent condition and the injury towhich he attributes his currentcondition. See Texas Workers’Compensation Commission AppealNo. 950800. If the claimant cannotdo this, the carrier prevails.Consequently, the failure of a carrierto prove that some interveningemployment or injury is the “solecause” of the claimant’s conditionis immaterial if the claimant hasfailed to prove causation. Statedanother way, if the claimant hasfailed to prove that his compensableinjury is a producing cause of hiscurrent condition, or need formedical treatment, there is no

Practice PointerSole Cause; Who Has the Burden?

requirement that carrier prove thatsome other accident or incident isthe sole cause of the condition.

Despite some overly broadstatements in several AppealsPanel decisions, the carrier has no“burden of proof” of sole cause.Texas Workers’ CompensationInsurance Fund v. Mandlbauer,998 S.W.2d 750 (Tex. 1999), putthis issue to rest. In that case, theclaimant complained that the Courtdid not give the jury a “sole cause”inferential rebuttal instruction. TheSupreme Court held, however, thatthe claimant could not raise the“sole cause” issue; rather, it wasonly for the carrier to raise. It wasnot an issue, but merely aninstruction. The Supreme Courtthen quoted from Select Ins. Co.v. Boucher, 561 S.W.2d 474 (Tex.1978): “The basic characteristicof an inferential rebuttal is that itpresents a contrary or inconsistent

theory from the claim relied uponfor recovery.”

With respect to the issue ofdisability, the Appeals Panel hasstated: “Whether a sole causedefense is raised or not, the claimantstill must establish that thecompensable injury was a producingcause of the disability.” TexasWorkers’ CompensationCommission Appeal No. 961729.The burden remains on the claimantto prove the unemployment“emanates from the compensableinjury.” Moreover, the claimant’sfailure to prove he suffered acompensable injury that is theproducing cause of a later injury orcondition relieves the carrier fromany obligation to prove sole cause.

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Q CornerG

Q: I have a case where we continueTIBs at the present time. I havereceived a good video that shows theclaimant quite active. The treatingdoctor has viewed the tape and theRME doctor has viewed as well. Iam waiting for both doctors tocomment on the video. In themeantime the claimant has becomerepresented by an attorney. Theattorney is requesting a copy of thevideo. Am I obligated to provide acopy of the video to the claimantattorney? I thought I only had toprovide a copy of the tape if theclaim goes to a BRC. Please let meknow. I really do not have aproblem providing a copy althoughit will cost us to have a copy made.A: You are correct that you onlyhave to exchange with claimant/attorney if you are going to a BRC/CCH. However, you may exchangeit with the attorney if you want to.This may convince the claimant/attorney to not pursue the BRC/CCH.

Q: I have a claimant who injuredhis right shoulder 2 1/2 years ago.He has had 4 surgeries done on theshoulder (2 of which were fusions).He was given a 27% impairmentrating. He is now having problemswith his left shoulder and the treatingdoctor says that the problem with theleft shoulder came about because ofoveruse (since he can’t use his rightshoulder). Under this scenario, do Iowe for the left shoulder?

A: Generally speaking overuse casesare usually not compensable. Ofcourse if the overuse occurred atwork then it is a new injury. If ithappened at home then it is usuallynot compensable and there is an oldcat bite/scratch case that says this(AP 93725).

Q: Could you please answer thefollowing questions for me?1) Does TWCC have any restrictionsthat would prevent a carrier or TPAfrom receiving medical billselectronically vs. paper?2) Is there a requirement that a hardcopy of the medical bill be containedin the physical claim file?A: 1) Current Rule 133.300(c)provides that a carrier shall processfor payment all properly completedbillings for medical services submittedon commission approved forms asdescribed in Rule 134.800, i.e. HCFA-1500. However, Rule 133.300(b),which is not yet in effect, providesthat for electronically submitted bills,the insurance carrier shall be able toproduce documentation indicating thedate the insurance carrier receivedthe electronically submitted bill. Rule134.800(f), which in not yet in effect,provides that health care providersmay submit medical bills by facsimileor electronic transmission, whenmutually agreed upon between thehealth care provider and the insurancecarrier, unless the bill and/orsupporting documentation cannot besent by those media, in which casethe health care provider shall send thedocumentation by mail or personaldelivery. Neither of the new rules is in effect.In our March Folio, we published theeffective dates of these new rules.The new rules will be effective for alldates of service on or after July 15,2000. 2) There is no requirement that you

keep a hard copy, but there is arebuttable presumption that youreceived the bill 5 days afterwhenever health care provider saysit sent it to you. The burden is onyou to establish when you receivedthe bill. Since timeliness of the bill isan issue in many cases, WeSTRONGLY recommend that youkeep a date-stamped hard copy ofthe bill in your file, whether receivedelectronically or in the mail

Q: This claimant was released toRTW light duty by her treating doctoron 2-9-00. Her employer sent acertified letter dated 2-16-00 (theyhave the green card showing theletter was received by the EE). Theyoffered the employee light duty andinstructed her to call to discuss theposition. The offer was to remainopen until 2-21-00 at 8:00. Sincethe employee did not show up, nordid she call, she was terminated on3-31-00 for refusing the offer andfor failure to return from leave ofabsence. I would assume I couldnow stop TIBs.A: Yes. File a TWCC-21 describingthese facts in the same detail thatyou used in this question. In addition,it would be prudent to request a BRCon a TWCC-45 to dispute disability.

Q: Please clarify for me what therequirement is for the carrierobtaining job descriptions from theemployer to provide to the treatingphysicians as it relates to the newrule regarding the TWCC 73 form.Is this required and if so, are therespecific guidelines to follow?A: There is no such requirement.However, in many cases, it wouldbe in your interest to obtain a jobdescription for the treating doctor.

Q: Dr. C referred claimant to doctor

Here are several of the mostsignificant questions (andanswers) asked of FO&Lattorneys this month.

- 12 - FOLIO


A, an Ortho. Doctor A diagnosed alumbar sprain. He reported thatclaimant had injured himself liftinga pool table (121599). He improvedenough to go back to work lightduty. However he was working lightduty and was lifting up some kind ofbucket when he had a re-exacerbationof pain. He has been having someproblems with work because there isno real light duty work that he cando. Question – could the bucketincident be considered a new injury?A: This is likely a continuation ofsymptoms from the first injury andnot a new injury. This would be afact question for the hearing officerand could either way. A hearingoffice would need to determine ifthere was additional damage or harm(new injury) or merely a recurrenceof pain (continuation of old injury).The medical evidence you’ve quotedsupports the position of no newinjury. Of course, it will be necessaryto timely dispute the existence of anew injury if the claimant is alleginga new work related injury.

Q: When the Designated Doctorchosen by TWCC during a SIBsperiod to settle an issue of workability renders his opinion, doesCarrier have to accept his opinionand immediately pay benefits? Sincethe Designated Doctor was appointedduring BRC, doesn’t the issue haveto go back to the BRC for resolution?I still very strongly disagree with theDesignated Doctor, as do two otherDoctors who have examinedclaimant and his records. TheDesignated Doctor did not do anFCE!A: Rule 130.110 does not contain aprovision that requires the carrier topay SIBs if the SIBs-DD says theclaimant is unable to work. The rulemerely provides that the DD’sopinion is entitled to presumptive

weight and can only be overcome bythe great weight of the other medicalevidence. You should be able tomaintain your dispute pending a resetof the BRC without fear of anadministrative violation. Once weget to the BRC, it is very likely thatthe BRO will issue an interlocutoryorder for payment of SIBs pendingthe CCH.

Q: Treating doc is contending thathis referral to an anesthesiologistfor pain management does not requirepreauthorization, and should betreated as a mere office visit. Is thisconsidered a preauthorization ofpain management as required under134.600.A: Yes, unless the referral treatmentcan be classified as a pain clinic.

Q: Is the new rule, that extent ofinjury issues can’t be waived,applicable to all cases, or just caseswhere extent became an issue afterthe effective date of the rule? Whatis that effective date?A: Arguably, the rule is retroactivein its application, although theAppeals Panel has not yet consideredthe question. The rule becameeffective March 13, 2000. Thefollowing is directly from the TWCCcomments to the rule:

“Previously the rules were virtuallysilent on the issue of how to disputeextent of injury. This has led tonumerous problems within thesystem. In the absence of guidanceon this issue, the Appeals Panel hasattempted to provide some structureto this issue. One Appeals Panelapproach has suggested that when adoctor attempts to treat additionalbody parts/systems, such as in theprevious example, Texas LaborCode, §409.021 (regarding Initiationof Benefits; Insurance Carrier’s

Refusal; Administrative Violation) isinvoked and the carrier has 60 daysto file a dispute for extent of injury orwaive the right to dispute this issueand become liable for this body part/system. This rule does not adoptthat interpretation.

Texas Labor Code, §409.021, isintended to apply to thecompensability of the injury itself orthe carrier’s liability for the claim asa whole, not individual aspects ofthe claim. When a carrier disputesthe extent of an injury, it is notdenying the compensability of theclaim as a whole; it is disputing anaspect of the claim. This is similar towhen a carrier accepts a claim butdisputes the existence of disability.A dispute of disability is a dispute ofthe amount of benefits that a personis entitled to. In much the same way,a dispute involving extent of injury isa dispute over the amount or type ofbenefits, specifically, medicalbenefits, to which the employee isentitled (i.e. what body areas/systems, injuries, conditions, orsymptoms for which the employeeis entitled to treatment); it is not adenial of the employee’s entitlementto benefits in general.

Though the rule gives a carrier atime frame to file the dispute ofextent of injury, failure to do sotimely is a compliance issue. It doesnot create liability. Because a carrierhas 45 days to either pay or deny amedical bill and because in a situationwhere the carrier does not accept anew body part/system as part of thecompensable injury, the carrier islikely to deny the medical bill fortreatment for that body part, thetime frame for filing the dispute ofextent of injury is tied to the carrier’sdeadline for paying or denying themedical bill.”


FOLIO - 13 -

its failure to do so results in awaiver of the right to contest.The court determined that thelegislature intended to“encourage a carrier uncertainof the compensability of aninjury to pay the benefitspending a full investigation ofthe claim” and that the 60-dayperiod in Section 409.021(c)sets an outside limit on theinvestigation period of a carrierthat initiates benefits withinthe seven-day period.”This is a very troubling decision.

Like the Downs case, we believeit is erroneous. It is contrary to theCommission’s own interpretationfor the last eight years. It iscontrary to the plain language ofthe statute. We believe it ispremature for the Commission toapply this decision. The Downscase is on appeal and is not finallydecided. Yet, that is the clearholding of the Commission in TexasWorkers’ Compensation

Commission Appeal No. 000433.We recommend that carriers

treat this as controlling for all newcases. You must either pay or denywithin seven days. The court andthe Appeals Panel do not makeclear how a carrier should “pay”within seven days of written noticewhen its first duty to pay is sevendays after compensable lost time –which may be much later. Thesafest thing to do is to deny allborderline questionable claimswithin seven days of first writtennotice and do not rely on the“payment” provision to extend thetime to deny. On pending cases, ifyou have delayed the payment and/or denied the case more than sevendays after notice, be aware that theCommission may impose theDowns rationale and determine thatyou have waived your defenses. Inthat event, we strongly recommendthat you contest that interpretationand appeal it to judicial review.

Downs Cont'd

judicial review is only available to aparty who has gone through theAppeals Panel.

The Court stated that the“legislative history never expresslystates that medical benefits disputesarising in the Division of MedicalReview may receive judicialreview,” even though theCommission had always assumedsuch judicial review exists. TheCourt refused to considerContinental’s constitutionalarguments, holding that becauseContinental did not include thosearguments in the original petition,those arguments were waived.

Justices Owen and Hechtdissented, believing that the statute

Medical Disputes Cont'ddoes provide judicial review formedical benefits disputes. Theytraced legislative history and theanalysis by Senator Montford andconcluded that the history of thestatute, when read as a whole,supports a conclusion that judicialreview is available for medicalbenefits.

Justice Phillips also dissented,disagreeing with the Court’sdecision not to consider theconstitutional right to review. Hereviewed the existing law regardingamendment of pleadings anddismissal of actions, and concludedthat Continental had raised the issueand should have been allowed toamend its pleadings.

The question is now what effectthis decision has on pending medicaldisputes, both at the Commissionand at SOAH. Please note that thisdecision did not hold that there is noright of judicial review for medicaldisputes at all, only that there isnone in the statute. However, thecourt did not consider the otheralternatives, those being the APAand the Constitution.

If you have a case pending atSOAH (including the hospital feelitigation), be aware that you cannotappeal to district court based on astatutory provision. An appeal maybe available on a constitutionalbasis. Please call FO&L if youhave questions.

Interest RatesQuarter

/Year2nd/20001st/20004th/19993rd/1999

InterestRate

9.34%8.858.454.89

result of unequal bargaining powerand by its nature can allowunscrupulous insurers to takeadvantage of their insured. Unlessand adjuster and the compensationclaimant have a special relationshiparousing out of the contract, anadjuster owes the claimant no dutyof good faith and fair dealing. SeeNatividad v. Alexsis, Inc., 875S.W.2d 695, 697-98 (Tex. 1994).Because no such relationshipexisted between Milner and Axia,Milner’s bad faith cause of actionagainst Axia was properlydismissed by summary judgment.

Milner Cont'd


FOLIO- 14 -

To give veterans the maximumopportunity to qualify for openings,both their civilian experience andthe occupational training theyreceived during their militarycareers must be fully reflected intheir occupational classification andcode. The inclusion of significantmilitary occupations in the DOTassists in providing correct inputand increases the chances of findinga job match.

The Department of DefenseMilitary Career Guide 1988-1989,prepared in cooperation with theDepartment of Labor and publishedin 1987, is an important referencedocument in this area. Itconsolidates occupationalinformation from all branches ofthe Armed Services and relatedmilitary-to-DOT occupations.Disabled Workers

The procedure for coding entryworkers may also be applied todisabled or differently-abledworkers and applicants with limitedor nonrelevant work experienceregistering under various assistanceor human resource developmentprograms. The interviewer mustnot assume that a disabilityautomatically precludes a workerfrom performing a particular job.Companies will often make specialaccommodations to employdisabled persons (in fact, someaccommodations are legallyrequired).

If a person has strong or specialphysical capabilities which wouldallow them to accommodate tocertain tasks, these also should betaken into account. The interviewermay refer to the Handbook forAnalyzing Jobs or his or her regionalOccupational Analysis Field Centerif he or she has any questions

regarding the physical demandslisted for a specific occupation inthe DOT. Remember that additionalinformation from testing andreinterviewing applicants may beused to review and/or revise anindividual’s assigned occupationalclassification.Other Special Applicants

Persons in certain life situationsmay, based on the stressful natureof these situations, be considered inthe category of special applicant.In addition to the applicant groupscited above, interviewers may becalled upon to assist applicants whoare difficult to place such as low-skilled youth, older workers, ex-offenders, drug abusers, seasonalor displaced reentrants to the labormarket and others who need towork but challenge a counselor’splacement skills. To mosteffectively place clients in availablelocal jobs, interviewers mustsometimes evaluate the broaderneeds and values of applicantsincluding their work attitudes,personality and need for transitional

support such as remedial education,medical or mental health care,transportation and day care.

The employment interviewer, torespond to this challenge, must tryto determine the applicant’s workresources including abilities,interests, physical capabilities, workhistory and experience, educationand leisure activities. Use of supportmaterial such as the Guide forOccupational Exploration and theOccupational Outlook Handbook(available at most libraries) is usuallyadvisable. These easy-to-readbooks, published by the Departmentof Labor, provide information onseveral job factors including specificwork duties, training and education,earnings, working conditions andfuture opportunities.

The important thing is not the jobtitle, but the skills and abilitiesrequired by the job. An applicantwhose experience and aptitudesare matched to an occupation neverconsidered before is a real successstory. The interviewer, witheffective use of the DOT, can playa pivotal role in that process.

How to Use the DOT Cont'd

Our regular office hours are 8:15 a.m. to 4:45 p.m.. If you needto call after 4:45, please call Patsy Shelton at (512) 435-2234, or SusanQuinn at (512) 435-2216. They will be on duty until 6:00 p.m. daily.

DON’T WAIT UNTIL THE LAST HOUR OF THE DAY FORDON’T WAIT UNTIL THE LAST HOUR OF THE DAY FORDON’T WAIT UNTIL THE LAST HOUR OF THE DAY FORDON’T WAIT UNTIL THE LAST HOUR OF THE DAY FORDON’T WAIT UNTIL THE LAST HOUR OF THE DAY FORDEADLINE FILING. ANY FAXES WITH INFORMATION DUEDEADLINE FILING. ANY FAXES WITH INFORMATION DUEDEADLINE FILING. ANY FAXES WITH INFORMATION DUEDEADLINE FILING. ANY FAXES WITH INFORMATION DUEDEADLINE FILING. ANY FAXES WITH INFORMATION DUEMUST BE RECEIVED BY 3:30 p.m.MUST BE RECEIVED BY 3:30 p.m.MUST BE RECEIVED BY 3:30 p.m.MUST BE RECEIVED BY 3:30 p.m.MUST BE RECEIVED BY 3:30 p.m. for any deadline handling forsame day delivery to the Commission, and faxed according to the faxdirectory listed on the last page of FOLIO. Furthermore, if you have alast minute deadline call our office by 3:00 p.m. and speak with JoyceReagan, Tillie Aguirre, or Patsy Shelton to advise that a last minutefiling is necessary to meet a deadline. We will be watching and waitingfor the fax. Otherwise, last minute faxes could delay receipt. Our lastdaily run to the Commission will be at 4:15 p.m., in order to get acrosstown to meet their 5:00 closing time.

FO&L OFFICE HOURS


FOLIO - 15 -

injured worker); assumption of therisk (by accepting employment, theemployee accepted the obvious andusual risks of the job); or negligenceof a fellow employee (injury causedby the negligence of anotheremployee). Under this scenario,liability exposure is uncertain andpotentially high for nonsubscribingemployers. From the employee’sperspective, proving negligence istime-consuming and the outcomeof litigation is uncertain. If injuriesprevent a return to work, or if theinjured worker is terminatedfollowing an injury, income may bediscontinued and the worker maybe required to pay for medicalexpenses out of pocket pending theoutcome of litigation.

A Third Scenario? Somenonsubscribing employers haveattempted to carve out a thirdscenario that may not have beencontemplated by the Legislature—the use of liability waivers inemployee benefit plans to avoid

negligence lawsuits arising out ofon-the-job injuries.

As an example, a nonsubscribermay notify a prospective or currentemployee that he or she may receiveincome and medical benefits in theevent of an on-the-job injury.However, in order to receive thesebenefits, the employee mustvoluntarily agree to accept benefitsunder the company’s disability planas the only benefits the employee isentitled to receive. Furthermore, asa condition of receiving benefitsunder the plan, the employee maybe required to waive, or give up, theright to sue the employer fordamages resulting from a work-related injury or illness (commonlyreferred to as a “waiver”).

This article is reprinted from the TexasMonitor, Vol. 5, No. 1. It was first

published in April, 2000. Next Month,FOLIO and the ROC examines recent

case law in this area.

Nonsubscriber Liability Cont'd

Practice Pointer

What happens when a carrierpays death benefits to a survivingspouse and later learns that thedeceased employee had a naturalchild? Does the carrier haveexposure for double payment ofbenefits? If so, what argumentscan be made to avoid that exposure?

Under the constructive trustdefense, the surviving spouse canbe considered to be constructivelyholding the child’s money in trustfor her and the carrier may not beliable for an overpayment. Thereasoning is that the carrier hasbeen paying the child’s half to

Newly Discovered Death Beneficiariessurviving spouse to hold on behalfof the child. After discovery of theadditional beneficiary, the carrierwill still send the child’s check tothe surviving spouse, but with onemore name (the child’s name) on it.

Carriers can minimize theirexposure to double liability byconducting a complete investigationwithin the 60 days following noticeof the death. Rule 132.17 (effectiveMarch 13, 2000) provides that acarrier must conduct aninvestigation relating to thecompensability of the death, thecarrier’s liability for the death, and

the accrual of benefits. The carrierhas 60 days from notification of thedeath or from written notice of theinjury that resulted in the death(whichever is greater) to conductits investigation.

Moreover, a carrier that is madeaware of a potential death claimmust attempt to identify all potentialbeneficiaries. The carrier is requiredto maintain documentation relatingto its attempt to identify potentialbeneficiaries. If the carrieridentifies or becomes aware of apotential beneficiary it must notifythe potential beneficiary of potentialentitlement to benefits, using a plainlanguage notice. This notice shallbe sent within seven days of thedate the carrier identified or wasotherwise made aware of theidentity and means of contactingthe potential beneficiary.

If you have a case with a potentialfor double liability, you shouldcontact counsel at FO&L to discussthe specific facts of yourinvestigation.

On April 18, 2000, the TWCCremoved 46 doctors from theApproved Doctor List. The doctorswere notified that they cannot becompensated for medical treatmentprovided after April 18, 2000 to anemployee who has sustained acompensable injury under the Act.

A list of each doctor removedfrom the TWCC ADL can be foundin our resource center atwww.fol.com.

More DocsOff List


FOLIO- 16-

The TWCC has developed EDIcodes for dealing with a claimant’snon-compliance with the RMEprocess. Per TWCC rules, a carriermay suspend TIBs under certainconditions. These conditions mayinclude scenarios where a claimantfails to attend a Required MedicalExamination ordered by theTWCC, or if a claimant fails toattend a Required MedicalExamination as agreed to by thecarrier and claimant.

In order to allow carriers toelectronically file such terminationreports, the TWCC has developedMaintenance Type Code S3(suspension/non-compliance withadministrative requirements.) S3

New EDI Guidelines For RMENon-Compliance

has been chosen to indicate thecarrier’s notification to the TWCCthat TIBs will be suspended basedon the claimant’s non-compliancewith jurisdictional requirements.

This information should beforwarded as soon as possible toappropriate personnel within eachcarrier’s organization. In addition,carriers should contact their EDITrading Partners to advise them ofthis recent change. In the eventthat a carrier’s EDI Trading Partneris not able to transmit thisMaintenance Type Code for anyreason, you should contact ourfirm’s EDI Coordinator at (512)435-2222.

In 1999, the Research andOversight Council on Workers’Compensation conducted atelephone survey of 1,002 Texasemployers with workers’ comp-ensation insurance to obtain theirperspective on the system. Topicscovered in this survey includedsalary continuation programs, drugand alcohol testing by employers,insurance carrier claim manage-ment practices, safety and accidentprevention services, medical carefor injured workers, and benefitadequacy. Previous articlesaddressed the usage of salarycontinuation programs by Texasemployers. This article focuses onthe survey findings from the othertopic areas and explores elementsrequiring further research.Beginning this month, andcontinuing for the next two months,

Employer's Perspectives on TexasWorkers’ Compensation (Part I)

FOLIO will report the results ofthis survey.Drug and Alcohol Use in theWorkplace

Insurance carriers are not liableto pay workers’ compensationbenefits to employees injured onthe job as a result of voluntaryintoxication (either alcohol or drug-induced). However, by implement-ing drug testing and other accidentprevention methods, employershave made a significant effort overthe previous ten years to reducethe number of on-the-job injuriesattributed to drugs and alcohol. Mostemployers surveyed (71 percent)indicated that they engage in sometype of drug testing and/orscreening of their employees. Themost prevalent type of testing usedwas pre-employment testing,followed by random testing, post-

accident testing, probable-causetesting, and scheduled testing.

Only 8 percent of all employerssurveyed reported havingexperienced a drug or alcohol-related work injury in the last threeyears. However, this figure may bemisleading and the actual numberof drug or alcohol-related injuriesmuch higher: 29 percent of theseemployers surveyed do not use anytype of drug testing and of theemployers that test, 30 percent failto use post-accident testing, whichis needed to determine if theemployee was under the influenceat the time of the incident. Therefore,it is likely that some drug and/oralcohol-related work injuries remainundetected.

This assumption is supported bycomparing the number of drug oralcohol-related work injuriesreported by employers using post-accident testing, with employersthat do not utilize post-accidenttesting. Based on the findings ofthis survey, only 3 percent ofemployers without post-accidentdrug testing reported experiencinga drug or alcohol-related job injury.On the other hand, 14 percent ofemployers who utilized post-accident testing discovered drug oralcohol-related work injuries. Thisindicates that without proper testingmethods, employers may be lesslikely to detect or identify drug oralcohol-related injuries.

Next Month, the survey looksat claims management,medical utilization and safety.This article is reprinted fromthe Texas Monitor, Vol. 5, No. 1.

FOLIO - 17 -


FLAHIVE, OGDEN & LATSON DIRECTORY

Admin. Violations Patsy Shelton 435-2234 867-1724 PGS

BRC Settings (FO&L - Req. For Evid.) Cindi Friedel 435-2244 477-4987 CAF

Disputed Claims (TWCC-21) Phyllis Devine 435-2271 477-4996 LST

General Questions Receptionist 477-4405 867-1700 GQS

Insurance Coverage (TWCC-20) Phyllis Devine 435-2267 477-4996 PAD

Med Review Disputes Annette Moffett 435-2266 867-1733 AMM

Records Request/Photostats Phyllis Devine 435-2267 477-4996 PAD

Request for BRC (TWCC-45) Kathy McFerrin 435-2217 477-4862 KLM

Spinal Surgery Dianne Townsend 435-2251 479-5319 DLT

TWCC Manual Sales Joel Ogden 435-2256 472-9160 JMO

Task Direct Dial(512)

Direct Fax(512)

[email protected]

ContactPerson

KEY TASK DIRECTORY

** Alternative e-mail address: first initial+last [email protected] (Example: [email protected])

Allain Provosty 435-2170 867-1715 AAP Raina Walpole 435-2231

Bobby Stokes 435-2150 867-1705 RDS Anita Drake 435-2249

Carlos Acosta 435-2177 867-1712 CA1 Sally Stephens 435-2236

Chuck Finch 435-2158 867-1713 CCF Dayna Dixon 435-2223

Dana Gannon 435-2151 867-1710 DMG Barbara Klein 435-2263

Doug Pruett 435-2182 867-1721 HDP Faith Mullins 435-2238

Erin Allen 435-2181 867-1728 EMA Lori Goebel 435-2225

Greg Solcher 435-2175 867-1718 GDS Lisa Black 435-2260

Jack Latson 435-2156 867-1724 JWL Patsy Shelton 435-2234

James Sheffield 435-2169 867-1703 JRS Sharissa Karol 435-2224

Katie Flahive 435-2168 867-1702 KMF Gina Barrow 435-2229

Kevin MacEwan 435-2166 867-1706 KEM Cynthia Sherman 435-2274

Lynette Phillips 435-2165 867-1708 LLP Karen Vanloo 435-2240

Pamela Peavy 435-2163 867-1736 PEP Lisa Anderson 435-2250

Paul Stone 435-2157 867-1716 PBS Kathleen Leedy 435-2269

Paul Warren 435-2159 867-1719 PDW Debbie Garza 435-2281

Rebecca Strandwitz 435-2160 867-1720 RMS Raina Walpole 435-2231

Rhett Robinson 435-2154 867-1709 SRR Susan Quinn 435-2216

Rob Dollars 435-2164 867-1707 EVH Eva Hernandez 435-2233

Ron Johnson 435-2178 867-1722 RMJ Andrea Burnett 435-2272

Roy Leatherberry 435-2179 867-1714 RJL Margo Davis 435-2228

Scott Bouton 435-2153 867-1737 SDB Faith Mullins 435-2238

Steve Tipton 435-2162 867-1704 SMT1 Mary Casebier 435-2275

Susan Jahn 435-2152 867-1717 SRJ Margo Davis 435-2228

Tricia Blackshear 435-2180 867-1723 PHB Lori Goebel 435-2225

Attorneys Direct Dial(512)

Direct Fax*(512)

E-Mail **[email protected]

Paralegal Paralegal(512)

*Attorney's direct dial fax no. is directed to his/her paralegal.


FOLIO- 18 -

CASE DECISIONSTEXAS SUPREME COURT

Continental Casualty Ins. Co. v. Functional Restoration Assoc., et al., (Tex. 2000) No. 98-0479The appellant has no statutory right to judicial review of a medical benefits decision by the TexasWorkers’ Compensation Commission’s Hearings Division.

Facts: In this case, Continental Casualty Insurance Co., argues that they are entitled to judicial reviewof a medical benefits decision by the Texas Workers’ Compensation Commission’s Hearings Division(TWCCHD). The trial court dismissed Continental’s suit for want of jurisdiction. The court of appealsreversed, holding that although the Texas Workers’ Compensation Act does not confer a statutory right tojudicial review of medical benefits disputes Continental does have an inherent right to judicial review.

Holding: Reversed. The question before the court is whether Continental is entitled to judicial reviewof a medical benefits decision by the TWCCHD. Texas Labor Code §413.031(a)(1) and (2) provides that ahealth care provider has a right to commission review of a medical service provided if the health care provideris denied payment or authorization for the service. Review is conducted by the commission’s division of medicalreview in Austin, unless the health care provider or the commission requests that the review be conducted bya professional review organization. A party to a medical dispute that remains unresolved after a medicalbenefits review is entitled to a hearing conducted in accordance with the Texas Government Code Chapter2001, under the Administrative Procedure Act.

It is well recognized under Texas law that there is no right to judicial review of an administrative orderunless a statute provides a right or unless a statute provides a right or unless the order adversely affects a vestedproperty right or otherwise violates a constitutional right. Section 410.251 merely provides a right to judicialreview to any party who has exhausted its administrative remedies and is aggrieved by a final decision of theappeals panel. Sections 410.255 and 410.301 merely prescribe the manner of judicial review, depending onwhich issues are involved. Continental did not seek appeals panel review, nor is such review available fordisputes arising in the division of medical review and proceeding to an APA hearing; consequently, §§410.251and 410.255 do not apply.

When the language of a code provision is clear and unambiguous, it controls even though it was enactedas part of the Legislature’s ongoing statutory revision and even though it may effect a change in the law.Because the language of §§410.251 and 410.255 in unambiguous, the court need not look to the prior law indetermining legislative intent; instead, it may presume that the Legislature intended the plain meaning of itswords.

The court holds that §410.255 provides the manner of judicial review, but does not grant a right ofjudicial review, of appeals panel decisions on issues other than compensability, income benefits or deathbenefits. Accordingly, Continental has no statutory right to judicial review and failed to plead a right to inherentjudicial review.

In sum, Continental’s trial court petition clearly alleges only its right to judicial review conferred bystatute; it did not allege an inherent right to judicial review under due process of law. Because Continentalexpressly waived its right to judicial review under §2001.171 of the APA and because the Workers’Compensation Act does not provide a right of judicial review, the district court properly dismissed the suit forlack of jurisdiction on the only bases for jurisdiction alleged by Continental in its petition. Accordingly, the courtof appeals’ judgment is reversed and the district court’s judgment dismissing the suit is affirmed.

FOLIO - 19 -


Texas Workers’ Compensation Ins. Fund v. DEL Industrial Inc., (Tex. 2000) No. 98-0946The Staff Leasing Services Act supersedes the common law right-of-control test in defining therelationship between client companies and staff leasing companies for workers’ compensationpurposes.

Facts: DEL Industrial Inc. is a company that cleans refinery storage tanks through high-pressurewater-blasting. DEL’s workforce consists of two groups: workers directly employed by DEL and workersleased by DEL from Administrative Resources, Ltd., a staff leasing company. ARL did not provide workers’compensation insurance for the employees it leased to DEL. DEL contracted with the Texas Workers’Compensation Insurance Fund to provide workers’ compensation coverage for its direct, non-leased,employees for a period from March 30, 1994 to March 22, 1996. At the end of that policy period, the Fund billedDEL an additional $52,047 to cover the cost of premiums for the workers leased from ARL. When DELrefused to pay, the Fund filed suit to collect the unpaid premiums. Both parties moved for summary judgment.The trial court granted partial summary judgment for the Fund and found DEL liable for the premiums. Thetrial court then conducted a non-jury trial to determine the amount of recovery and awarded the Fund $30,215in premiums and interest. The court of appeals reversed and rendered judgment that DEL was not liable to theFund for the premiums on the leased workers. The Fund now appeals.

Holding: Affirmed. The issue before the court is whether the Staff Leasing Services Act requiresa company that purchases workers’ compensation insurance for its employees to pay premiums for employeeswhom the company leases from a staff leasing company when the staff leasing company declines to purchasecoverage for those leased workers.

The Fund contends that the “coemployer” language in Texas Labor Code §91.042(c) means that DELis the coemployer of the leased employees for workers’ compensation purposes such that the leased workerswere covered by DEL’s workers’ compensation policy. However, that interpretation of “coemployer” ignoresthe context in which the word is used and is contrary to the express statutory scheme developed by theLegislature.

Under §91.042(c), the “coemployer” provision, must be construed within the contest of the entirestatutory scheme. Applying these principles, the court holds that §91.042 establishes that the staff leasingcompany and the client company are “coemployers” only to the extent of the consequences of the staff leasingcompany’s decision to elect or deny workers’ compensation insurance coverage. Those consequences arespecifically set out in §91.042 and do not include the consequence that a client company’s workers’compensation policy provides coverage for leased employees when the staff leasing company does not obtaincoverage. The fact that the Legislature places primary responsibility for the leased workers on the staff leasingcompany is consistent with the proposition that the staff leasing company holds the exclusive right to elect ordeny workers’ compensation coverage for the leased workers.

In conclusion, the SLSA does not require a company that purchases workers’ compensation insurancefor its employees to pay premiums for employees whom the company leases from a staff leasing company whenthe staff leasing company declines to purchase coverage for those leased workers. The staff leasing companyand the client company are coemployers of the assigned workers only to the extent that they share theconsequences of the staff leasing company’s election. Under the Act, the staff leasing company holds theexclusive right to elect or deny workers’ compensation coverage for assigned employees. The SLLSA alsosupersedes the common law right-of-control test in defining the relationship between client companies and staffleasing companies for workers’ compensation purposes. Therefore, the court affirms the court of appeals’judgment, holding that DEL is not liable to the Fund for workers’ compensation premiums for the employeesit leased from ARL.

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Scheffer v. Allied Assets Corp., et al., No. 01-99-00956-CV (Tex. App.—Houston [1st Dist.] 2000).The legal injury rule states that a cause of action accrues when a wrongful act causes some legal injury,even if the fact of injury is not discovered until later, and even if all resulting damages have notoccurred.

Facts: Scheffer was employed as a cook at Chambers Elementary School when she was exposedto an Allied oven and grill cleaning product. Scheffer suffered a series of reactions to the oven cleaner,beginning on October 13, 1995. Scheffer asserts, however, that it was the incidents on March 22 and 25, 1996,and a diagnosis of “asthma” with a referral to a pulmonologist, that caused her to know she had a medicalcondition directly related to Allied’s oven cleaner. Scheffer contends that because the previous incidents werediagnosed as “allergic,” and had been continuously reviewed by her physician and an allergist, she did notbelieve she had a medical condition directly related to her continuing exposure to Allied’s oven cleaner, or thatthe incidents were serious before March 25, 1996. Scheffer filed suit on February 24, 1998, alleging permanentinjuries caused by her exposure to Allied’s oven cleaner. Allied filed a motion for summary judgment on March30, 1999, alleging the suit was barred by a two-year statute of limitations. Allied argued that the appellant wasinjured on Oct. 13, 1995, and knew of the injury by that date, but because she did not file suit by October 13,1997, this suit is barred by limitations. Allied’s motion for summary judgment was granted and Schefferappealed.

Holding: Affirmed. The legal injury rule states that a cause of action accrues when a wrongful actcauses some legal injury, even if the fact of injury is not discovered until later, and even if all resulting damageshave not occurred. The court concluded that the appellant’s cause of action accrued on October 13, 1995, whenshe first suffered a reaction to the oven cleaner severe enough to seek medical attention. Further, the courtnoted that to impose the statute of limitations in this case does not create an impossible condition for the appellantto have discovered her injury and filed suit.

Harris County v. Tullos, No. 01-99-00044 (Tex. App.—Houston [1st Dist.] 2000).In requiring that the fact finder consider the decision of the Appeals Panel, the Labor Code affordsprobative value to the decision without requiring that it be formally offered into evidence.

Facts: Tullos sustained several injuries in 1991, when he fell while performing work in the course andscope of his employment with Harris County. The Texas Workers’ Compensation Commission ordered Tullosto be examined by Dr. Pedro Caram to determine percent of impairment. In 1991, Dr. Caram found that Tulloshad a 9% IR. But before Dr. Caram could report to the commission his final report on Tullos’ IR, he suffereda stroke and was unable to submit his final opinion. In November 1995, Dr. Schilling, the claimant’s treatingdoctor, determined that Tullos had a 30% IR. A contested-case hearing was held to determine Tullos’ IR, andthe hearing officer concluded the great weight of the medical evidence was contrary to the report of thedesignated doctor, Dr. Caram, and that Tullos had an IR of 30%, as determined by Dr. Schilling. Harris Countyappealed the decision to the TWCC Appeals Panel. The appeals Panel affirmed the 30% IR decision of thehearing officer. Harris County appealed again to county court, which affirmed the decision of the AppealsPanel. Harris County now appeals the decision of the trial court.

Holding: Affirmed. Harris County maintained on appeal that the decision of the Appeals Panelcannot be considered because it was not formally entered into evidence. Harris County asserted that the LaborCode demands formal admission of the decision of the Appeals Panel because section 410.306 requires thatevidence “be adduced as in other civil trials” on judicial review of the Appeals Panel rulings under section410.301. The court, however concluded that by placing the decision of the appeals Panel before the trial court

CASE DECISIONSTEXAS COURTS OF APPEALS

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for its consideration, by acknowledging Dr. Schilling’s 30% IR rating in contending that Dr. Caram’s 9% IRrating controlled, and by referring to Dr. Schilling’s 30% IR rating in questioning its own witness, Harris countywaived any complaint premised on requiring that the decision of the Appeals Panel be formally admitted intoevidence.

Ramirez v. Carreras, No. 13-98-517-CV (Tex. App.—Corpus Christi 2000).Where a doctor performs a workers’ compensation impairment examination solely for the benefit of theinsurance company, no physician-patient relationship exists between the doctor and the examinee.

Facts: Simon Ramirez filed a workers’ compensation claim and the workers’ compensation insurancecarrier hired Dr. Jose Carreras to perform an impairment rating on him. Ramirez contends Carreras injuredhim while performing the exam. He sued for medical negligence, common law negligence, and assault andbattery. Summary judgment was granted for Carreras on the negligence claims, which were severed from theother claims, thus making the judgment appealable. Ramirez appeals the portion of the summary judgmentdismissing his cause of action for common law negligence.

Holding: Affirmed in part; reversed and remanded in part. The court affirmed the trial court’ssummary judgment as it relates to the plaintiff’s medical negligence cause of action as the court determinedthat no physician-patient relationship existed between Ramirez and Carreras. Thus, Carreras had no duty toconduct the examination according to the accepted standards of medical care. The court did determine,however, that the physician does have the duty to perform the examination in such a manner as to not injurethe examinee. Ramirez did produce some evidence that Carreras breached this minimum duty of care and thusthe common law negligence cause was remanded.

Lambert, et al. v. Affiliated Foods Inc., No. 07-98-0371-CV (Tex. App.—Amarillo 2000).Waivers of employees’ rights against nonsubscribing employers that do not provide benefits equivalentto workers’ compensation benefits are not void on public policy grounds.

Facts: By their motion for rehearing, appellants Danny Lee Lambert and Teresa Lambert, contendthe court erred by affirming the summary judgment that they take nothing against appellee Affiliated Foods Inc.The original opinion of Nov. 16, 1999, held that a waiver of any claims against Affiliated arising out of an injurythat was executed as part of a disability benefit plan was not void as against public policy.

Holding: Overruled. Lambert pointed out that the Texas Supreme Court denied a petition fordiscretionary review in Reyes v. Storage & Processors Inc., 995 S.W.2d 722 (Tex. App.—San Antonio 1999,pet.denied). The court found that Reyes was not controlling or applicable for two reasons. First, the employer’splan under consideration in Reyes did not provide benefits for non-occupational injuries, and benefits werelimited to injuries from the employer-employee relationship. In contrast, Affiliated’s plan provides no-faultcoverage for occupational as well as non-occupational injuries to employees who voluntarily elect to participatein the plan. Unlike the plan in Reyes, Affiliated’s plan provides benefits for injuries received in addition to thosecovered by the Act. Second, the effect of the notation “denied” means that Reyes is not binding on this court.

Lopez v. Texas Workers’ Compensation Insurance Fund, No. 03-99-00229 (Tex. App.—Austin2000).Under Labor Code Section 410.205 the fund is not in breach of its insurance policy by refusing to paybenefits until required by a final judgment.

Facts: In March 1998, the district court in Jim Wells County rendered judgment on a jury verdict thatappellant Lucas Lopez sustained an occupational disease in the course and scope of his employment. The Fundappealed that judgment to the Fourth Court of Appeals in San Antonio. The Fund refused to pay Lopez benefitsduring the pendency of its appeal, contending that, under Section 410.205 of the Labor Code, the decision ofthe Appeals Panel denying compensation was binding until there was a final, non-appealable judgment in thecase. Lopez notified the Fund that he intended to sue for bad faith in handling his compensation claim underthe Texas Insurance Code and the Deceptive Trade Practices Act. Before he could do so, the Fund filed suit

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APPEALS PANEL DECISIONS

Texas Workers' Compensation Commission Appeal Panel Decision No. 991554Carrier was entitled to rely upon an agreement that the claimant was entitled to SIBs at a reducedmonthly rate based on a bonafide offer of employment.

Facts: The claimant signed an agreement at a benefit review conference whereby he agreed toentitlement to supplemental income benefits for the third compensable quarter at the reduced rate of $201.76per month. The reduction was based upon the carrier’s contention that the claimant was offered a bona fideoffer of employment, which he rejected. The claimant later decided to have the agreement set aside. Hecontended that he was mislead, that the agreement was actually blank when signed and that the agreementwas against his best interest.

Following the contested case hearing, the hearing officer concluded that the claimant had not beenoffered a bona fide offer of employment and that the agreement was, “Not consistent with the requirementsof law, because the supplemental income benefit rate was reduced for no reason other than to compromisethe dispute regarding claimant’s entitlement to supplemental income benefits at the full supplemental incomebenefit rate of $807.03”. The carrier appealed contending that the claimant had not shown justification to havethe agreement set aside under the statutory requirements.

Holding: The Appeals Panel reversed and rendered the hearing officer’s determination that theagreement should be set aside. The Panel noted that the hearing officer had not identified any specific statutorylanguage violated by the terms of the agreement. Relying upon the lack of any evidence that the agreementitself violated any provision of law, the Appeals Panel rendered a decision that the agreement was binding onall parties.

Texas Workers' Compensation Commission Appeal Panel Decision No. 992526Carrier’s dispute of the compensability of claimant’s sarcoidosis need not be based on medicalevidence; therefore, carrier’s dispute, filed after 60 days (and receipt of an RME opinion) was notbased upon newly discovered evidence that could not have reasonably been discovered at an earlierdate.

Facts: The claimant worked as a hairdresser for the insured. She was contending that her exposureto chemicals in the workplace aggravated an underlying condition identified as sarcoidosis. According to themedical records, the claimant suffered from this condition as well as other conditions including pulmonaryfibrosis and lesions on her forehead.

The claimant’s testimony indicated that she developed breathing problems in 1996. She was diagnosedwith sarcoidosis in 1996. She indicated that at least two doctors told her at the time that the condition could beaggravated by exposure to chemicals and fumes at the workplace. The claimant missed time from work inOctober and November of 1996 and again in September of 1997. She further described a specific incidentoccurring on August 6, 1998 during which a hair-coloring agent on a client’s head began smoking. The claimantindicated that she was exposed to fumes from this smoke as she neutralized the substance on the client’s head.

in Travis County seeking a declaratory judgment on whether its interpretation of Section 410.205 was correctand whether the Fund’s refusal to pay Lopez during the pendency of the appeal constituted a breach of its policywith its insured. The Travis County district court upheld the Fund’s interpretation of the statute and declaredthat the Fund was therefore not in breach of its insurance policy by refusing to pay benefits until required bya final judgment.

Holding: Affirmed. The court stated that the statute clearly provides that the ultimate administrativeruling, whether granting or denying benefits, remains in effect until overturned by a final and enforceable judicialdecision.

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She claimed that she developed lesions on her skin after this particular incident.The carrier’s first TWCC-21 was filed on September 10, 1998. The TWCC-21 indicated the carrier’s

acceptance of the “exacerbation to the claimant’s sarcoidosis”. The wording in the document went on to denythat the claimant’s injury included the pulmonary fibrosis, dyspnea, and para-aortic mass.

On September 17, 1998, the adjuster completed a request for an RME. The request was approved onOctober 12, 1998, and the examination took place on November 18, 1998. In a report dated December 14, 1998,the RME doctor wrote a report in which he indicated that the sarcoidosis was not work-related. Thereafter,on January 8, 1999, the carrier filed a second TWCC-21 disputing injury and contending that the claimant’scondition was an ordinary disease of life.

The hearing officer determined that the claimant’s condition as an ordinary disease of life. The hearingofficer further determined that the carrier’s dispute was timely in that it was based upon newly discoveredevidence that could not have reasonably been discovered earlier. The claimant appealed.

Holding: Reversed and remanded. The Appeals Panel disagrees with the hearing officer’sconclusion that the evidence upon which the carrier’s second TWCC-21 was based could not have beendiscovered earlier. The Panel specifically noted that the carrier had disputed the condition of pulmonary fibrosiswithout a medical opinion suggesting that that condition was an ordinary disease of life. As such, the AppealsPanel disagreed with the suggestion that the carrier needed to wait for a medical opinion suggesting that thesarcoidosis was an ordinary disease of life before filing its dispute. The Panel felt that the medical evidenceavailable at the time the carrier filed its original dispute was sufficient to allow the carrier to make adetermination as to whether or not an aggravation of the underlying sarcoidosis either did or did not occur.

The Appeals Panel remanded for further proceedings concerning the sustaining of a compensableinjury. The Panel indicates specific disagreement with the hearing officer’s suggestion that the claimant’s caseunder all the facts rises or falls solely on an identification of specific chemicals present in the air on the dateof the specific injury.

The following cases appeared in the January 2000 issue of FOLIO

The cases below have previously been summarized in FOLIO. However, at the time of printing, they were not yetpublished in the Southwest 2d Reporter. They have now been released for publication. We have included thecitations to the Southwest 2d Reporter below. This update will appear in each edition of FOLIO.

CITATION UPDATE

Walls Regional Hospital v. Bomar, 9 S.W.3d 805 (Tex. 1999).Koch Refining Co. v. Chapa, 11 S.W.3d 153 (Tex. 1999).Elliot-Williams Co., Inc. v. Diaz, 9 S.W.3d 801 (Tex. 1999).

To help expedite your faxed information to the correct area within FO&L and get it to the responsible person at the earliest time, usethe following fax directory. Please remember the 3:30 p.m. receipt deadline for material required to be date stamped at theCommission. Material received after 4:00 does not permit time to deliver across town prior to the commission close.

Fax Number Attention To: Subject Matter:(512) 867-1700 FOL All materials not listed below

(512) 867-1732 Trina DeCecco Suspension of TIBs

(512) 479-5319 Dianne Townsend ONLY Spinal Surgery Info.

(512) 867-1724 Patsy Shelton Advisory Info., APA-Admin.ViolationsCompliance & PracticeExtra Hazardous

(512) 477-4862 Tillie Aguirre Billing InquiriesRequest for Treating Doctor (TWCC-53)

(512) 477-4862 Kathy McFerrin Status of BRC Requests

(512) 867-1700 Paralegals All CCH Related Info.

(512) 477-4862 Kathy McFerrin Request for BRCs (TWCC-45)SIBs Applications (TWCC-52)Notice of MMI/IR Dispute (TWCC-32)Req. for Reduction due to Contribution (TWCC-33)

(512) 477-4987 Cindi Friedel BRC & PHC HearingsRFEs, Set Notices, Hearings,Files, Set Notice Cancellations

(512) 477-4996 Phyllis Devine Insurance Coverage (TWCC-20)Notice of ControversionRequest for Record Checks & TWCC Files

(512) 477-4996 Phyllis Devine Notice of Disputed Claims (ALL TWCC-21s)

(512) 867-1733 Annette Moffett Med Review Disputes/Initial SubmissionsSOAH/Medical Review

(512) 472-9160 Joel Ogden TWC Manual Orders & Request for Info.

Note: Time sensitive fax numbers are highlighted in bold face.

Flahive, Ogden & LatsonP.O. Box 13367Austin, Texas 78711

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FO&L Fax Directory

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April 2000 FOLFOL FOLIO - FOL Attorneys Austin · April 2000 ©2000 - Flahive, Ogden & Latson Volume 5, No. 4 C & P Targets Errors p.3 Company Profiles on the Internet p.6 Nonsubscriber