Texas DWC’s Decision to Deny Benefit Review Conference Requests May Result in Greater Number of Incorrect Impairment Ratings

The Division announced a new policy to its administrative staff designed to limit the number of Benefit Review Conferences (BRCs). Benefit Review Officers are now instructed to deny BRC Requests on MMI/IR disputes unless there is an alternate certification by another doctor.

Although not supported by the statute or rules, the Division has verbally informed Benefit Review Officers to deny BRC Requests made by a party disputing the certification of medical maximum improvement (MMI) and impairment rating (IR) unless an alternate certification from another doctor is present in the case. Pursuant to Texas Labor Code § 408.123, an impairment rating and the first certification of MMI becomes final, if not disputed before the 91^st day after the date of written notification of the certification provided. Pursuant to Rule 130.12(b)(1), a party may dispute a first certification of MMI only by requesting a BRC or requesting the appointment of a designated doctor. When a designated doctor provides the first certification of MMI and IR, a party can only dispute the rating by requesting a BRC.

New Rule 141.1 changes the form and procedures for requesting a BRC. Some Benefit Review Officers have allegedly been instructed to deny BRCs for any reason.  Commissioner, Rod Bordelon, denies Benefit Review Officers (BROs) were instructed to deny BRC Requests and instead indicated that BROs have been told to grant the requests for BRCs if there is a valid basis for holding the BRC. Subsequently, BROs allegedly received instructions to deny BRC Requests when the issue concerned a dispute of MMI/IR and there is no alternate certification by another doctor.

Perhaps overlooked is the coordination of new Rule 141.1 with Rule 130.12. A denied request for a BRC does not constitute a dispute proceeding pursuant to Rule 141.1(f)(1). According to the comments to the rule, if a party does not properly and timely dispute an impairment rating or first certification of MMI, the BRC Request will be denied by the Division. A party may challenge the DWC's denial of a BRC Request by requesting a Contested Case Hearing (CCH). Presumably, a party requesting a CCH on this issue has the burden of proof to determine the Division erroneously denied the BRC.

The problem arises as to how a carrier may timely dispute the initial MMI/IR of a designated doctor, within 90 days of receipt, when the DWC refuses carrier's request for a BRC based on a failure to secure an alternate impairment rating.

Employers and carriers are forewarned about the Division's new internal process. Parties are encouraged to request a post designated doctor required medical exam as quickly as possible following claimant's examination by the designated doctor. Parties have complained the Division is denying a greater number (and percentage) of post designated doctor RME requests. Ensure the DWC-22 is appropriately and timely filed and follow-up with the evaluation. Of course, the claimant may refuse to attend or reschedule the evaluation making it more difficult to provide an alternate certification to comply with the unwritten informal procedures for requesting a BRC. If this occurs, carriers should take immediate action and notify DWC as to the claimant's attempts to avoid attendance at the post designated doctor RME appointment. If the carrier does not have a copy of the alternate certification prior to the 90 day deadline, a carrier should still file its DWC-45 Request for a BRC. Once an alternate certification is acquired, the carrier should request a CCH challenging the denial of the BRC Request.

Should you have any questions, please contact the Workers' Compensation attorneys at one of our Downs Stanford offices.

Founded in 1989, Downs Stanford handles a wide variety of civil legal matters including the defense of catastrophic injury and wrongful death cases, the defense of workers compensation claims, insurance coverage matters, business and commercial litigation, business entity formation, commercial transactions, family law, probate and estate planning, appellate law and subrogation. The firm is able to provide these services on a statewide level. Our firm is headquartered in Dallas and has offices in Austin, Houston and Tulsa. For more information about our firm, practice areas or attorneys, please visit our website at Downs • Stanford, PC.

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