The state agency charged with representing injured workers’ interests in the Texas workers’ compensation system has recommended repealing Labor Code provisions setting a 90-day period for determining maximum medical improvement (MMI) in favor of using 104 weeks – the time allowed for workers to receive temporary income benefits.
Some stakeholders see the proposal as an attempt to get lawmakers to reverse their decision in 2003 to allow a 90-day period.
The Office of Injured Employee Counsel (OIEC) is arguing for the change, in part, based on a court case that it says could overturn the 90-day rule as unconstitutional. The office included the proposed change among a series of policy and legislative proposals in a 129-page report to the 2009 Legislature that the agency posted on its website last week.
Austin attorney Stuart Colburn of the Downs-Stanford law firm told WorkCompCentral Friday the provision can operate for or against injured workers, carriers and employers.
Colburn, who chairs the State Bar’s Workers’ Compensation Section, said he can “understand the arguments on both sides” regarding changing the provision.
Initially, Colburn explains, the former Texas Workers’ Compensation Commission created the rule, and the commission’s appeal panel “generated exceptions” to it. That resulted in a court challenge, which determined that the appeals panel didn’t have the authority to make exceptions — with the commission passing an emergency rule in response.
That rule was challenged on the basis that there was no statutory language allowing the commission’s action, with the Texas Supreme Court striking down the 90-day rule, Colburn said.
The Legislature subsequently created the 90-day provision by passing a bill that included most of the “fairly large” exceptions for injured workers, Colburn said. “An injured worker can find a way out most of the time,” he said.
The 90-day provision has been less of an issue in recent years than it was during the 1990s, Colburn said.
While the provision often may work against an injured worker, it also can work against a carrier, as in instances where designated doctors’ determinations on a worker’s impairment isn’t challenged by a carrier within the 90 days, Colburn explained.
From the standpoint of carriers and employers, “there needs to be some finality. ... They need to be able to close a file,” he said.
Otherwise, Colburn noted, a worker could come back after almost two years seeking a change.
“It’s like a statute of limitations,” Colburn said. “Sometimes, it is going to be unfair … Sometimes an injured worker may not dispute a determination and may get stuck with an impairment rating lower than they could or should have had.”
However, Colburn said, the exceptions in the current provisions do provide safeguards to keep that from happening.
OIEC notes that Labor Code Section 401.011(30) currently provides that “maximum medical improvement” means “the earlier of (A) the earliest date after which, based on reasonable medical probability, further material recovery from or lasting improvement to an injury can no longer reasonably be anticipated; (B) the expiration of 104 weeks from the date on which income benefits begin to accrue; or (C) the date determined as provided by Section 408.104” (spinal surgery after the expiration of 104 weeks).
OIEC notes the Texas Supreme Court, in a 1995 decision in
Texas Workers’ Compensation Commission v. Garcia, considered an equal protection challenge to the statutory limitation of 104 weeks for a claimant to receive temporary income benefits. At that time, the Workers’ Compensation Commission had not adopted a 90-day provision and it was not a part of the statute.
In the Garcia case, the court stated that the act’s definition of maximum medical improvement “merely establishes what is, in essence, a two-year cap on temporary income benefits for all claimants.”
The court also noted that two years was “not an arbitrary place to draw the line, as there was medical testimony at trial that most workers will actually reach maximum medical recovery within that time period.”
In
Fulton v. Associated Indemnity Corp., the 3rd Court of Appeals (Austin) in 2001 considered another challenge to the state's 90-day rule.
“The challenge asserted that the requirement that a claimant must dispute a determination of maximum medical improvement with a concurrent impairment rating within 90 days was beyond the commission’s rulemaking authority,” OIEC wrote.
As it happens, the claimant in the Fulton case was represented by Norman Darwin, the Public Injured Employee Counsel and head of OIEC, prior to Darwin being appointed to his current position. Darwin was traveling on Friday and could not be reached for comment.
The court in Fulton stated that “the Supreme Court noted that temporary income benefits are ‘a major benefit’ under the act, and restricting those benefits to a two-year period was justified only by medical testimony that most workers’ conditions stabilize within that time frame.”
The appeals court commented that under the Supreme Court's rationale, "a rule that cuts off temporary income benefits before the worker’s condition has had two years to stabilize might be deemed arbitrary" and thus unconstitutional by adversely affecting the worker's benefits.
OIEC noted the 2003 Legislature amended the Labor Code to state that an employee’s first certification of maximum medical improvement and impairment rating would be final if not disputed “prior to the 91st day after the date written notification is provided to the employee and the carrier by verifiable means.”
The change provided for a claimant to dispute after the 90th day if there was a “significant error” by the certifying doctor, a “mistaken diagnosis or a previously undiagnosed condition” or “improper or inadequate treatment of the injury.”
OIEC argues the Garcia and Fulton courts “both recognized that having 104 weeks for the injury to stabilize is a major benefit to the injured employee.”
“In essence, the Fulton court asserts that if the 104-week period were procedurally shortened, it would call into question the constitutionality of the Texas Workers’ Compensation Act.”
OIEC calls for the 90-day provision to be repealed, saying there is “no discernible justification for the 90-day provision other than to deprive the injured employee the full 104-week period for their condition to stabilize.”
“A serious constitutional issue is presented by denying the injured employee an opportunity to receive a reasonable substitute for the loss of his constitutional right to seek redress for his injuries,” OIEC concludes.
However, the Insurance Council of Texas believes the Fulton decision was addressed by House Bill 2198 in 2003.
HB 2198 was authored by Rep. Burt Solomons, R-Carrollton, who carried HB 7, the 2005 workers’ compensation reform legislation.
The Insurance Council reported HB 2198 “specifically granted the Texas Workers' Compensation Commission (TWCC) rulemaking authority to implement the 90-day rule.”
“The Division of Workers' Compensation continued the new rule after the TWCC was abolished,” the council notes.