On October 1, 2010, the new rules for BRC exchanges take effect. We recommend that you develop work flow processes to assure that you meet the time sensitive deadlines. You also need to train whomever is going to perform the evidence exchange on what information is considered “pertinent” for a particular issue. The Division has placed a list of pertinent documents on their website. The site is: http://www.tdi.state.tx.us/wc/idr/brc_info_ic.html
The party disputing an issue(s) must exchange all pertinent documents and evidence prior to the request of a BRC.
The opposing party must perform an exchange of all pertinent information within 10 working days of receipt of the set notice. Remember that the date of receipt of the set notice is the date that the Austin Carrier representative receives the notice in the Austin board representative’s mail box, not the date that the adjuster receives the notice at their desk. Calculate the date for exchange based upon the board representative’s date stamp.
At a minimum exchange all DWC filings, witness statements, and medical records including DWC 73s, if applicable to the dispute.
All unexchanged pertinent information not previously exchanged should be exchanged with the opposing party no later than 14 days prior to the BRC.
Any new evidence must be exchanged at the Benefit Review Conference.
It is anticipated that the Division will be tracking the parties’ timely exchange of information within the above deadlines and issue violations for the failure to timely perform the exchange of information. As the parties must exchange the evidence with the DWC, and the DWC is aware of the time that a set notice is placed in the Carrier’s Austin representative’s mail box, the calculation of the deadlines is a fairly simple process for violation purposes.
Due to the short time frames for the exchange from the date of the receipt of the set notice by the board representative, 10 days and 14 days prior to the Benefit Review Conference, Downs Stanford will not be responsible for performing these exchanges for our clients.
We will continue to exchange documents at the Benefit Review Conference on our client’s behalf. We request that when you make the initial and subsequent exchange, if any, that you also send an additional copy of your exchange to your counsel who will represent the Carrier’s interests at the Benefit Review Conference at the same time so that the attorney will know what the Carrier has exchanged and not necessarily duplicate efforts. Remember to send the exchange to all parties, including the Division of Workers’ Compensation.
A new DWC 45 has been published for use on and after October 1, 2010. The key element of the new form is the requirement of showing that the requesting party has attempted to resolve the issue with the opposing party. A simple statement does not appear to be sufficient. A list of all attempts to contact the opposing party along with any correspondence to the opposing party should be included with the DWC 45 when filed with the Division. The requirement for the attempt at resolution prior to requesting a BRC may be problematic on a dispute of SIBS due to the 10 day time frame to dispute a quarter from the date of receipt of the DWC 52. You will need to time your review of the SIBS application to allow time to try to reach a resolution with the opposing party and to document the attempts to reach a resolution before filing for the SIBS.
Faye Scott and I will be attending a meeting next week regarding the new changes. We will report any new information to you at that time.
This article was written by Frances A. Lout, Esq., a Shareholder at Downs Stanford, P.C. and posted by Stuart D. Colburn, Esq.