New Commissioner Speaks and Other Texas-sized Updates

For the first time in a public setting, the new Commissioner of the Division of Workers Compensation (DWC) provided her insights on the direction of the agency and the workers compensation system as a whole at the Insurance Council of Texas (ICT) Fall Conference. ICT is the preeminent provider of education to workers compensation stakeholders and the education lived up to its new location on the campus of the University of Texas.

Former Commissioner and current ICT Executive Director Alfred Betts introduced and grilled (ok, more of a pleasant conversation among friends) Cassie Brown, the new Commissioner for DWC and formerly the Deputy Commissioner for Regulatory Policy at the Texas Department of Insurance (TDI). (Immediate past-Commissioner Brannum was also in the audience). The Commissioner highlighted the improvements made by her predecessors and praised her staff for operating a system that she considers a model for other states. Commissioner Brown intends to use technology and other innovations to streamline operations and improve efficiencies. Commissioner Brown wisely avoided any of the more controversial topics but expressed her desire to work with system participants. She of course will be preparing for the legislative session in 2019 and Sunset Review following shortly thereafter. She addressed one of the hot button issues of first responder claims providing a glimpse how DWC will use technology to track and monitor claims made by first responders and the denials issued by carriers to help determine if those denials are appropriate.

Mark Pew of Preferred Medical entertained and challenged the capacity crowd to envision what workers compensation might look like in 12 years. The Rx Professor rightly prophesized the workers compensation system would look very different than it does now. The Gig Economy itself will change the employment landscape. Changes to our country’s delivery of medical care will alter the treatment options as much as new technology and medical innovations.

Jason Musick with Burns, Anderson, Jury and Brenner gave a thorough review of 2017 legislative changes and the recent rule developments, most notably for first responders. He also retailed the expected new rules governing designated doctors (DD). Mr. Musick explained the new DD rules are expected to increase the use of medical doctors (at the expense of chiropractors) by increasing the amount a medical doctor can earn in one day of performing exams and increasing the number of cases DWC will choose to select a medical doctor.

The first panel discussion brought different perspectives to the charged topic of peer reviews in workers compensation. The two advocates, Daniel Morris representing injured workers and David Loughlin for the employers/carriers, explained the legal and practical limits of peer review doctors. Mr. Morris explained his (perhaps surprising) fondness when carriers hire “Dr. No” (the peer review doctor who always says “no” to medical treatment and procedures and return injured workers back to work full duty) because the report might look good to the adjuster but not to the judges who hear the cases and know the “players.” Deputy Commissioner Matt Zurek warned of possible sanctions for carriers who fail to follow the peer review statutes and rules. Hiawatha Franks with Texas Association of School Boards gave real works examples of “good” and “bad” use of questions sent to peer review doctors and stressed the geographic differences requiring state-specific expertise and knowledge. Dr. Albrecht explained that good peer reviewers try to use evidence-based medicine to reach optimal results for injured workers but he too has encountered more than a few “Dr No’s” as a practicing orthopedic surgeon.  The panel recommended carriers use well-qualified doctors, share reports with the other side, update and improve the questions posed to their experts, and avoid sanctions for the improper use of peer review doctors to make medical utilization decisions.

Brandi Prejean of Thornton, Biechlin, Reynolds, & Guerra LLC led Dr Albrecht through a discussion of how to use diagnostic testing to properly arrive at a diagnosis. Dr Albrecht explained doctors often fall victim to treating the test results rather than the patient. Only a clear understanding of the history and a thorough physical exam can provide a doctor with information to base a treatment recommendation much less a causation opinion. A diagnostic test result confirms medical opinions; they rarely should be the opinion.

Finally, Judge Carothers joined Ms. Prejean, Mr. Morris, and Mr. Franks for a panel discussion on the compensability of workers injured while travelling. The panel discussed the applicability of the Coming and Going Rule, Access Doctrine, Dual Purpose Rule, Personal Comfort and Convenience Doctrine, and Good Samaritan Rule. Diving deeper, the panel explored what the courts envision when the employer does provide transportation, or when the nature of employment required workers to work many miles from their place of employment, often for long periods of time. The legal practitioners predictably argued their cases with ease until asked to present the case for their opponent. Judge Carothers calmly explained what evidence he needs, and often what evidence the parties fail to provide, when deciding these travel cases.

At the conclusion, system participants took away the following:

• Societal changes in employment and medical care will force workers compensation stakeholders to change their practices in ways we don’t yet understand
• Commissioner Brown plans on using technology and innovation to address problems or concerns system stakeholders bring to DWC (including first responder issues)
• First Responder claims handling is a top concern of the legislature and DWC now and for the foreseeable future including the 2019 session
• Expect new DD rules to significantly decrease the DWC’s reliance on chiropractors as designated doctors
• Diagnostic test results are often not associated with the mechanism of injury, especially when inconsistent with the history and physical exam
• DWC and TDI adopted complicated rules for the proper use of peer reviews for (1) extent of the injury and (2) utilization review; failure to follow those rules are grounds for sanctions
• Don’t use a Dr. No for peer reviews
• Travel cases are exceedingly complex with various doctrines and new case law explaining and sometimes changing decades-held understanding of compensability; know the latest pronouncements by the courts

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