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Appeals Panel Decision Manual - Medical Benefits Issues
Medical Benefits Issues
Compliance with Choice of Doctor Requirements. (M01)
Reimbursement for Medical Travel Expenses. (M02)
Timely Dispute of Treating Doctor. (M03)
Other Medical Benefits Issues. (M00) (Intentionally left blank)
Compliance with Choice of Doctor Requirements (M01)
Initial Choice of Treating Doctor. "Treating doctor" means the doctor who is primarily responsible for the employee's health care for an injury. TLC Section 401.011(42). An IE is entitled to an initial choice of treating doctor from the list of DWC-approved doctors. TLC Section 408.022(a); 28 TAC Section 126.9(a). The first doctor providing health care to an IE will be considered the IE's initial choice of treating doctor. 28 TAC Section 126.9(c). TLC Section 408.022(e) and 28 TAC Section 126.9(c) list instances that do not constitute an initial choice of treating doctor. TLC Section 408.022(f) states, "This section does not apply to requirements regarding the selection of a doctor under a workers' compensation health care network established under Chapter 1305, Insurance Code, except as provided by that chapter."
Insufficient Evidence of Initial Selection. The IE went to her HMO primary care physician (Dr. F), but Dr. F did not treat the IE and, instead, referred her to her prior workers' compensation physician (Dr. B) to treat her current workers' compensation injury. Dr. B provided no treatment to the IE because, before her appointment, Dr. B noticed he had acted as the designated doctor in one of the IE's previous workers' compensation claims. The employer's risk management office referred the IE to Dr. M, who became the IE's treating doctor. On August 28, 1998, the IE filed a DWC Form-053, Employee Request to Change Treating Doctor. The ALJ determined, among other things that the IC was discharged from liability for payment to the IE's treating doctor before August 28, 1998, due to her failure to comply with 28 TAC Section 126.9. The AP reversed and rendered, stating that the facts were insufficient to support the implied finding that it was necessary for the IE to seek approval to change her treating doctor, as Dr. M was her initial selection. The AP found insufficient evidence to establish that Dr. F rendered health care as defined in TLC Section 401.011(19), and determined Dr. F was not her initial treating doctor. APD 990121.
Sufficient Evidence of Initial Selection. Dr. P provided the IE with emergency care by performing surgery to reattach a portion of the IE's finger that had been amputated in the compensable injury. Dr. P only provided the IE with follow-up care after his surgery. Afterward, the IE began treating with Dr. M. The ALJ determined that Dr. P was not the IE's initial choice of treating doctor, and the IE began treating with Dr. M, the IE's initial choice of a treating doctor. The AP held that the evidence sufficiently supported the ALJ's determination that the claimant's initial choice of treating doctor for workers' compensation purposes was Dr. M. APD 031638.
IE's Change of Treating Doctor. An IE who is dissatisfied with his or her initial choice of treating doctor may notify DWC in writing or by telephone when medical necessity exists for immediate change, and request from DWC authorization to select an alternate treating doctor. TLC Section 408.022(b); APD 950663. TLC Section 408.022(b) and 28 TAC Section 126.9(d) detail what an IE must do to request a change of treating doctor. When DWC receives the IE's request, it issues an order within 10 days either approving or denying the request. 28 TAC Section 126.9(f). TLC Section 408.022(c) and 28 TAC Section 126.9(e) list some of the criteria DWC uses to make its determination. TLC Section 408.022(d) provides that a change of doctor may not be made to secure a new IR or medical report. With good cause, an IE or IC may dispute DWC's order within 10 days after receiving the order and request a BRC. After a BRC, an unresolved dispute may proceed to a CCH and then to an appeal to the AP. 28 TAC Section 126.9(g).
The AP addressed the standard to be used in reviewing a change of treating doctors in APD 022245 and APD 020022. In APD 022245, the issue was framed as whether the IE was "entitled to change treating doctors." The AP cited APD 020022 and held that the issue is broader than whether the particular DWC employee who approved the change abused his or her discretion. Evidence may be presented and considered in addition to what was stated on the DWC Form-053, Employee Request to Change Treating Doctor. The ALJ must evaluate whether a change should be allowed according to the standards in TLC Section 408.022 and 28 TAC Section 126.9.
IE Entitled to Change Treating Doctor. The ALJ determined that the IE was entitled to a change of treating doctor because the treating doctor refused to continue the IE's medical care after the IC refused to pay the medical bills. The AP affirmed the ALJ's determination. APD 012317.
IE Not Entitled to Change Treating Doctor. The IE requested a change of treating doctor on the basis that she was not satisfied with her current doctor's treatment. The ALJ determined the IE was not entitled to a change of treating doctor because the medical evidence presented was insufficient to establish that the initial treating doctor's treatment was inappropriate or a conflict existed between the IE and the initial treating doctor to the extent that the doctor/patient relationship was jeopardized or impaired or the IE was entitled to a change of treating doctor based on any other criteria in TLC Section 408.022 or 28 TAC Section 126.9. The AP affirmed the ALJ's determination. APD 001422.
IE's Failure to Comply with Change of Doctor Requirements. 28 TAC Section 126.9(h) provides that DWC may, after holding a benefit CCH, relieve the IC of liability for health care furnished by a doctor or health care provider at the doctor's direction if: (1) the doctor chosen by the employee is not on the (DWC-approved doctor) list at the time the medical treatments or services are rendered; or (2) the employee failed to comply with DWC rules regarding a change of treating doctor. The IC is relieved of liability for the cost of health care under TLC Section 408.024.
IC Not Relieved of Liability for Health Care Benefits. The IE sustained a crush fracture and laceration to his hand while working for the employer. The IE reported the injury to the employer's secretary and asked her which doctor he should see. The secretary recommended a doctor who was close to the employer's premises because the IE was bleeding profusely and she believed the injury was an emergency requiring immediate medical attention. The IE went to the recommended physician. The IE later returned for a follow-up visit, but because he had to wait four hours to see the doctor, the IE went to a second doctor. The second doctor recommended a hand surgeon to the IE. The IE did not submit a DWC Form-053, Employee Request to Change Treating Doctor for the second doctor he consulted, but did submit a DWC Form-053, Employee Request to Change Treating Doctor for the hand surgeon he consulted. The ALJ determined that the IC was relieved of liability for health care provided by the second doctor under 28 TAC Section 126.9(h)(2) because the IE failed to comply with the rules on a change of treating doctor when he changed to the second doctor. The AP reversed, finding that the employer's recommended doctor provided emergency care and, as such, did not constitute an initial choice under 28 TAC Section 126.9(c)(3). The AP found that the second doctor was the IE's initial choice of treating doctor, and the IE properly complied with the requirements to change treating doctor. So, the AP found that the IC was not relieved of liability under 28 TAC Section 126.9(h)(2). APD 020867.
Reimbursement for Medical Travel Expenses (M02)
An IE may request reimbursement from an IC for travel expenses incurred for medical treatment for the IE's compensable injury when:
medical treatment for the compensable injury is not reasonably available within 30 miles from where the IE lives, and the distance traveled to secure medical treatment is greater than 30 miles one-way; or
the distance traveled to attend a designated doctor examination, required medical examination, or post designated doctor treating or referral doctor examination is greater than 30 miles one-way.
28 TAC Section 134.110(a).
The IE must submit a DWC Form-048, Request to Get Reimbursed for Travel Costs to the IC within one year of the date the expenses were incurred. 28 TAC Section 134.110(b). The request must include documentation or evidence (such as itemized receipts) of the amount of the expense. 28 TAC Section 134.110(c). Reimbursement is based on the travel rate for state employees on the date of travel. 28 TAC Section 134.110(d). See 28 TAC Section 134.110(d) for the methods used in measuring travel mileage. When an IE's travel expenses reasonably include food and lodging, the IC shall reimburse for the actual expenses not to exceed the current rate for state employees on the date the expense is incurred. 28 TAC Section 134.110(d)(4). Reimbursement for travel expenses, including food and lodging, is only available to the IE, not another person, such as a travel companion or spouse. APD 060440-s (Please note that although this APD was decided under prior 28 TAC Section 134.6, concerning dates of travel before May 2, 2006, which is the effective date of 28 TAC Section 134.110, the new section on travel reimbursement also does not provide for reimbursement of travel expenses for anyone other than the IE).
Timely Dispute of Treating Doctor (M03)
With good cause, an IE or an IC may dispute the order regarding a change to an alternate treating doctor within 10 days after receiving the order. The dispute will be handled through the dispute resolution process described in 28 Texas Administrative Code (TAC) Chapters 140 - 143. 28 TAC Section 126.9(g).
Although filing a DWC Form-045 (Request to Schedule, Reschedule, or Cancel a Benefit Review Conference (BRC) or to Proceed Directly to Contested Case Hearing (CCH)) to request a BRC is the preferred way to dispute a DWC order regarding a change of treating doctors, that is not the only way such a dispute may be made. The AP has held that an IC disputing a change of treating doctor in a TWCC Form-021 (now PLN-11, Notice of Disputed Issue(s) and Refusal to Pay Benefits) filed within the 10-day period to timely contest the approval or denial of a request to change treating doctors is an adequate dispute. APD 000620.
Party Did Not Waive Right to Dispute DWC Order Regarding Change in Treating Doctor. The IC filed a TWCC Form-021 (now PLN-11, Notice of Disputed Issue(s) and Refusal to Pay Benefits) disputing the change of treating doctors on March 27, 2001. The IC filed a TWCC Form-045 (now DWC Form-045, Request to Schedule, Reschedule, or Cancel a BRC or to Proceed Directly to CCH) that only disputed entitlement to TIBs on April 2, 2001. The ALJ determined that the IC did not waive the right to dispute the change of treating doctors under 28 TAC Section 126.9(g). As the IC filed its dispute within 10 days after receiving the order approving the IE's request to change treating doctors, the AP affirmed the ALJ's determination. APD 011513.
Party Waived Right to Dispute DWC Order Regarding Change in Treating Doctor. The order approving the IE's change in treating doctors was placed in the IC representative's box on September 5, 2002. The IC did not dispute the order until September 20, 2002, more than 10 days after the IC received the order. The ALJ determined that the IC waived its right to dispute the order. The AP affirmed the ALJ's determination. APD 030567.
For more information, contact: apdmanual@tdi.texas.gov
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