Recently, the Office of Attorney General (OAG) filed a Brief on behalf of the Division of Workers' Compensation to the Third Court of Appeals in Austin, Texas, in a case styled Texas Mutual Ins. Co. v.
Center , et al. On page thirteen, the brief stated, "Stated differently, as fee guidelines were never intended to be entitlements of statements of a maximum payment amount, they cannot become stale or outdated so as to create a right to demand the Division engage in rule making to increase or decrease the amount due upon application of the rule in a Contested Case matter." Some stakeholders are troubled by the implication that a maximum allowable reimbursement (MAR) is not a ceiling.
Although the Office of Attorney General was asserting a different legal point, the language does suggest the Fee Guideline is only the suggested amount of reimbursement and not a true MAR. The OAG is aware of this concern and may or may not take any action.
The impact of the statement, if taken literally, contradicts the Division's policies on medical reimbursement. Carriers are subject to enforcement action if they reimburse less than MAR, and increased litigation can be expected if the Fee Guidelines are not statements of a maximum payment amount. In fact, either party could challenge the reimbursement rate if they disliked the applicable MAR or any other methodology utilized in the fee guideline. Although every case should be decided on its own merit, carriers should monitor this situation closely and examine the documentation provided where a value greater than MAR is sought.