Texas Rule 180.21

There has been recent activity in the use of Rule 180.21 as a “sword” by the Claimant’s bar in an effort to overturn the appointment of a designated doctor when the doctor is on the list of a third party vendor that also includes the peer review doctor or required medical examination doctor.  The evidence presented is usually a letterhead that shows that both doctors have the same address, phone number, fax number, etc.  Recently there was a claim made by a Claimant’s attorney against a Carrier and a third party RME/Peer review vendor that the Carrier, by using only one vendor, is seeking an outcome based result. An allegation of collusion between the two parties was also made.  Thus, there has been recent activity by some Carriers to begin using more than one vendor for their peer reviews and required medical examinations.

Downs * Stanford recently used Rule 180.21 as a “sword” in getting a designated doctor removed by using the argument that a designated doctor had a disqualifying association when the doctor was a party to a third party billing service that provided examination rooms, personnel, billing, assistance in completing reports and billing the workers’ compensation services for the doctors in the group. The group included not only the designated doctor, but also a referral doctor who treated the Claimant.  The Hearing Officer ruled that the designated doctor had a disqualifying association.  This ruling was important to the Carrier because the designated doctor’s rating of 16% was the first valid rating and had not been disputed timely.

There are less than 15 cases using Rule 180.21, specifically subsection (A)(2) for disqualification.  Appeals Panel Decision 100842 provides some clarity on the question of what constitutes a disqualifying association with a designated doctor pursuant to Rule 180.21.  The underlying case involved a Designated Doctor who was asked to certify maximum medical improvement and an impairment rating.  The Designated Doctor (DD) rendered a certification that the claimant reached MMI on June 25, 2009 with a 10% rating.  An issue arose on the extent of the injury to depression.   The Carrier obtained a peer review opinion with another doctor on the issue of whether the compensable injury extended to include depression.  The peer review doctor opined the injury did not include any psychiatric diagnoses or conditions. It was later determined depression was part of the claim.  The DWC sent a letter of clarification to the DD requesting the doctor consider an impairment rating for depression.  The DD stated that he did not have the qualifications for rating depression and referred the Claimant to the Carrier’s peer review doctor to examine the Claimant and provide assistance in the rating.  The DD subsequently used the referral doctor’s rating and added it to the initial 10%, which still resulted in a rating below 15%. The Claimant disputed the rating and argued the Designated Doctor was not properly appointed and that he had a disqualifying association pursuant to Rule 180.21 due to his use of the Carrier’s peer review doctor for assistance with the psychological component of the impairment rating.

In such case, the Appeals Panel stated that “a doctor, serving in the capacity as a carrier peer review doctor or as a required medical examination doctor for the carrier, cannot serve as a referral doctor of the designated doctor for the claimant in the same claim because of the perception of disqualifying association.”  In the other cases rendered under this rule, there had to be a relationship between the two doctors, which was not present in this case.  For example, the relationship between two doctors could include sharing office space or utilizing the same billing vendor.  In this case there was no relationship between the designated doctor and the referral doctor.  The relationship was between the referral doctor and the carrier.

While there are not many cases where Rule 180.21 would be useful, do not forget that proof of a disqualifying association between a designated doctor and either a treating doctor or a referral of the treating doctor or an RME or Peer Review doctor can render a certification invalid and result in the appointment of a new designated doctor.

    This article was written by Frances A. Lout, Esq., a Shareholder at Downs Stanford, P.C. and posted by Stuart D. Colburn, Esq.