The Division is changing internal policies and procedures concerning Letters of Clarification (LOC) to designated doctors. Many stakeholders have expressed confusion with the changes. The Division has issued two publications to educate system participants.
In the past, each field office had independent decision making responsibilities when sending letters of clarifications to designated doctors. Many felt this process was often abused with little oversight or regulation from DWC. For example, DWC sometimes just attached a cover letter to a requested Letter of Clarification posed by one of the parties or the Office of Injured Employee Counsel. Many inappropriate questions (for example, inaccurate defined terms or leading questions) were sent to the designated doctor. DWC staff was inundated with LOC requests. In turn, designated doctors frequently expressed frustration receiving multiple and sometimes contradictory LOCs requiring an answer within 5 days (with no additional reimbursement).
Downs Stanford has contacted the Division to seek clarification of the new process and offered their input for creation of new procedures. The Division is currently fine tuning the LOC process and plans to implement “new” procedures with a future rule.
According to the new procedures, DWC will propose Letters of Clarification to the Central Office who will then make recommendations. Recommendations may include sending the LOC as drafted, making modifications to the LOC, or denying the LOC. Letters of Clarification will be denied if it simply asked the designated doctor to review additional records including a post-designated doctor’s RME report. A Letter of Clarification must specifically point out where the designated doctor made an error (for example, in applying the wrong chapter or table of the AMA Guides) or address a specific Appeals Panel decision or question of law (for example, radiculopathy or range of motion regarding causation). Thus, a LOC should be specifically drafted based on the facts of the case and issues. The Division will likely reject LOC requests that simply ask the designated doctor to review additional medical records and inquire if the records change his or her opinion.
The Division cited the following potential benefits of the new LOC process:
A. Shortening time to resolve disputes by moving issues more quickly to an appropriate venue (BRC or CCH);
B. Establishing state wide consistency for LOCs;
C. Improving the quality of the request for LOCs submitted to doctors so doctors do not spend time responding to repetitive, irrelevant, or inappropriate questions that will not assist in resolution of an issue;
D. Reducing costs and avoiding unnecessary additional dispute resolution and/or litigation;
E. Saving DWC resources currently used to track thousands of LOCs sent annually;
F. Synchronizing designated doctor LOC letters with LOC’s of IROs.
If you have a specific issue and believe an LOC is warranted, and you have difficulty getting the LOC approved by the Division, please feel free to contact any Downs Stanford lawyer to assist in drafting an appropriate request for a Letter of Clarification. Likewise, if you have received an LOC that you believe merits an appropriate response do not make the mistake of ignoring the LOC. You may be well served in contacting a Downs Stanford attorney to help you in drafting an appropriate response to the LOC. Often, a request for LOC sent by claimant’s attorney or ombudsman without an appropriate response from the carrier is treated as acquiescence on the part of the carrier.
OIEC is now requesting expedited CCHs on the denial of LOCs. DWC has granted a few CCHs for this purpose. Texas Labor Code § 410.024 and § 410.151 require a Benefit Review Conference (BRC) prior to a CCH unless DWC adopts a rule to the contrary. DWC Rule 142.5(b) does authorize DWC to allow parties to directly proceed to a CCH. OIEC asserts a BRC would not prove effective to resolve a dispute. However, Benefit Review Officers have the power to authorize LOCs. The parties at a BRC may mutually agree on a LOC and have it approved by a Benefit Review Officer. Further, parties may have other issues relevant to a dispute including MMI and impairment rating.
I need help writing a LOC for a BRC hearing. My ombudsman will not send what I have from my current doctors and my doctor wont re write it. All help would be appreciated. I'm a texas resident.