Appealing Medical Disputes In a Texas Workers' Compensation Claim
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The most immediate need of any injured worker is medical treatment. Before there is human resources paperwork to fill out, lost time from work, or an adjuster to deal with, you need to be seen by a doctor. This article explores the usual methods injured workers may use to exercise their right to reasonable and necessary medical care, as well as a few non-conventional thoughts on the matter.
The IRO Process
As I've talked to injured workers who call me looking for help because specific medical treatments have been denied them by the insurance company, I've realized that many lawyers or other people in position to help injured workers do not take any action to "secure" medical benefits for claimants. It appears that more often than not, those trying to help injured workers "hope" they get medical benefits. They act passively to assist claimants caught in a battle for medical benefits when the patient needs an advocate to "secure" these benefits.
The good news is that advocacy in these situations is usually just making sure everybody is doing what needs to be done to timely appeal any denial of care. Handling these initial denials of care does not take much effort, and is not very complex. It requires a little communication, and sometimes you have to fill out a form.
Most claimant's attorneys will not be involved in the initial request for care. That is usually submitted by the doctor as a request for preauthorization. But most claimant's attorneys will hear about treatment for which preauthorization is denied. You will usually get the call as soon as the patient finds out that therapy, or diagnostic testing of some kind, has been denied.
In these moments, you must know that Rule 134.600(o) controls, and the doctor/patient/attorney has only 15 days to appeal this initial denial. This is where the communication part comes in: call the requesting doctor and find out if the clinic is going to appeal the preauthorization denial. In almost every case, the doctor's staff will handle it.
If the requesting doctor is not going to appeal the decision and the claimant wants to pursue the appeal, all you have to do is resend the request to the carrier and ask them to reconsider the denial. You will usually fax the initial request and a copy of the written denial back to the carrier with a cover letter asking the carrier to reconsider the denial of care. It is a common practice to write "request for reconsideration" on the denial when you send it back in. This helps demonstrate that a second attempt was made to request treatment. This is important because the rules require the patient to obtain two denials of preauthorization before a request for review by an independent review organization (IRO) can be filed.
Once the treatment has been denied twice, helping this injured worker to get the requested treatment actually gets easier. Another call has to be made to the doctor's office to see if the staff there is going to file the request for an independent review organization. Most doctor's offices will at least get the patient through the first two denials, but they won't all file for the IRO.
You only have to know two things to do a request for an IRO:
1. You have 45 days from the second denial to file for the IRO.
2. You must file form LHL-009, which is available on the Texas DWC's website.
An LHL-009 is not hard to fill out. It asks for basic information about the patient, the requesting doctor, and the service that was denied. It must be faxed to the company that mailed the denial letters, usually a utilization review company. All request for reconsideration denials have the contact info for where to send the LHL-009 in the body of the denial letter.
Once this is done, it is the carrier's responsibility to do everything else that gets the IRO assigned. You can expect a decision within 20 days in non-life threatening situations.
Appealing The IRO
As easy as it is to get a case to the IRO stage of dispute resolution, it is that hard to proceed from there with an appeal.
To appeal an IRO decision in a non-network claim, you must request that the Division schedule a Contested Case Hearing (CCH). To do this, file form DWC-045A within 20 days of receiving the IRO decision. The DWC-045A must be filed with the Chief Clerk of Proceedings of the DWC. Once this is filed, you will receive a hearing notice for the date and time of the CCH.
Before attending the CCH, there is a lot of work to be done. You must understand the treatment that was requested and what the Official Disability Guidelines (ODG) have to say about that treatment – especially any indication in the ODG for the specific criteria used to determine if that particular treatment is medically necessary. Each of these criteria should be proven up in the medical records, or by the testimony of the requesting doctor. Start early in securing the evidence you will need to prove up medical necessity.
Any treatment that is not recommended by ODG has to be proven necessary through evidence-based medicine. This means using other peer-reviewed medical journal articles, double blind studies, or treatment guidelines. To give the claimant his or her best shot, you should arrange for the requesting doctor to testify and explain why the treatment is necessary. Make sure the doctor knows what the ODG requirements are, that he testifies about them, and that he is prepared to be cross-examined on these criteria.
If the treatment in dispute is not recommended by ODG, or is not discussed in the ODG, always argue the exception protocols in Appendix D of the ODG. The Hearing Officer will not likely consider it all. This will at least give you a legal argument to make on appeal, if that becomes necessary.
If you do not prevail at the CCH, you must file a petition with the Travis County District Court within 30 days of the date the DWC decision became final (Government Code, Section 2001.176). The case is governed by the substantial evidence rule, meaning that the record is mostly limited to that which was submitted to the DWC. This is where your best legal arguments for how the Division improperly applied the law in the case should be made. That is why you always want to argue the exception protocols at the administrative level. The Division's failure to consider them at all is a good argument to make in a substantial evidence review case. Just make sure you developed a record in the CCH of how the claimant meets the exception protocol that should have been considered. It is not likely that you will be able to offer this evidence for the first time at the Judicial Review hearing.
Once the adverse IRO decision is received in a network claim, there is no administrative hearing to adjudicate the dispute. The IRO is appealed directly into the courts.
However, when House Bill 2605 passed, it included provisions amending Chapter 1305 of the Texas Insurance Code, to include the CCH process in the appeal of an adverse IRO decision in a network claim. This makes the tracts of network claims and non-network claims the same, with the exception that the Hearing Officer in the CCH must consider any treatment guidelines that the network has adopted when ruling on the question of medical necessity. These new provisions went into effect June 1, 2012.