INDEMNITY DISPUTE RESOLUTION Requesting A BRC Form DWC-45 Certify good faith effort has been made to resolve the issues identified. Sometimes requires more than a letter to the opposing party. No consistency with this requirement. Evidentiary exchange – 14 days prior ......

1. INDEMNITY DISPUTE RESOLUTION
Practices, Procedures & Problems Update 2009
Matthew B. Lewis
(972) 644-1111
matt@mattlewislaw.com

2. Requesting A BRC
Form DWC-45
Certify good faith effort has been made to
resolve the issues identified.
Sometimes requires more than a letter to
the opposing party. No consistency with
this requirement.
Evidentiary exchange – 14 days prior

3. Subpoenas
No Rule authority prior to a CCH
DWC is approving them prior to a BRC
Some carriers are using them as early as
the initial investigation of the claim
Either party may request a subpoena
Submit request to HO in local field office

4. Interlocutory Orders
Request may be written or verbal
May use DWC-58
Considered by BRO within 3 days
May address accrued and future benefits,
including medical benefits
Rule 141.6 repealed; 410.032 controls

5. Holding The Record Open
No authority for this
Effort to reduce CCH cancelations
BRO has 5 days to write a report following
BRC
Seems to promote dispute resolution

6. BRC practices and procedures manual
may be viewed at:
http://www.tdi.state.tx.us/wc/idr/documents
/brcpandp.pdf

7. Contested Case Hearing
Must be set within 60 days of BRC
Must exchange all records and witnesses
no later than 15 days post-BRC
HO’s not strictly enforcing the exchange
deadline; Allowing evidence into record
and granting continuances if needed

8. Rule 142.13
What is required in an exchange?
All medical reports and reports of expert
witnesses who will testify at the hearing
All medical records
Any witness statements
the identity and location of any witness known to
have knowledge of relevant facts
all photographs or other documents which a
party intends to offer into evidence at the
hearing

9. Additional Discovery
Interrogatories
Subpoena
Deposition on Written Questions
Motion To Compel

10. Thoughts on Interrogatories
Lock the opposing party into a position
Discover records not exchanged

11. Lock The Position
Form Interrogatory 3 asks: If a benefit
review conference has been held, does
the benefit review officer’s report
accurately describe your position on the
disputed issues listed? If not, please
explain how your position on the disputed
issues differs from that described in the
benefit review officer’s report.

12. Once answered, the party must rely on
that position alone unless the response is
amended.
If the party’s position differs at the CCH
from the response to the interrogatory,
there lies grounds for a continuance if
necessary.

13. Sample Questions To Discover
Records Not Exchanged
Please describe all medical records in the
carrier’s possession or control related to this
claim that were not exchanged. Indicate the
medical provider, date of report, and address
where the records may be obtained. In lieu of
providing names, dates and addresses, you may
simply attach to your answers all medical
records not previously exchanged.

14. Does the carrier have in its possession any medical peer
review reports regarding diagnosis, reasonable and
necessary medical care, disability, or preauthorization
that have not been exchanged with the claimant?
Indicate the reviewer, date of report, and address where
the records may be obtained. In lieu of providing names,
dates and addresses, you may simply attach to your
answers all peer review reports not previously
exchanged.

15. Does the carrier have in its possession any
recorded conversations with the claimant or
anyone from the employer that have not been
transcribed and exchanged with the claimant? If
so, please identify whose statement the carrier
has and the location of the recordings and
transcription.

16. On what date did the carrier provide the
claimant with all documents required
under Rule 142.13(c)(1)?

17. Deposition On Written Questions
The only allowed method to depose a
health care provider
Significant in impairment rating disputes
due to inability to introduce evidence in
District Court that was not presented to the
DWC

18. Motion To Compel
May compel responses to interrogatories,
deposition on written questions, and
subpoena requests
May compel compliance with Rule
142.13(c)(1)

19. Continuances
Division vacillates between granting most
all requests and denying most all requests
Beginning a stretch of denying
continuance requests

20. Expert Witnesses
If appearing telephonically, party should
request approval
Any reports of a testifying expert must be
exchanged
If testifying, should provide something
more than the contents of the written
report

21. Make sure the odds are the expert is
adding something to the record and not
more likely to cost you on cross
Avoid testimony like, “there is no way
falling onto the back caused the DJD seen
on the MRI,” when in cross the expert will
say “yes, it is likely the fall onto the back
aggravated the pre-existing DJD.”

22. Experts are not subject to “the rule.”
If you want the expert to hear the
testimony, make sure to carry case law to
the CCH.
Elbar, Inc. v. Claussen, 774 S.W.2d 45
(Tex.App.-Dallas 1989 writ dism'd).
June 16, 1989

23. Administrative Appeal
Must file appeal with the Chief Clerk within 15
days (not counting weekends or Holidays)
The 15-day period does not begin until both
the IW and the IW’s representative, if any,
receive the Decision and Order. Frank v.
Liberty Ins. Corp., 255 S.W.3d 314 (Tex.
App.—Austin 2008, pet. denied)

24. SubClaimants
Increasing participation by medical
providers in the indemnity dispute process
Subclaimant medical providers must
satisfy requirements to establish standing
and jurisdiction

25. Section 409.009
409.009. SUBCLAIMS. A person may file a
written claim with the division as a
subclaimant if the person has:
(1) provided compensation, including health
care provided by a health care insurer,
directly or indirectly, to or for an employee or
legal beneficiary; and
(2) sought and been refused reimbursement
from the insurance carrier.

26. The AP has historically held that an EOB
documenting a denial of reimbursement is
evidence that satisfies the requirement of
409.009. (APD 011962-S).

27. Rule 140.6
Effective September 23, 2008
Grants party status to a subclaimant
Subclaimant is entitled to dispute
resolution
In order to pursue a claim for
compensation without the claimant’s
participation, the medical provider must
send the IW written notice of:

28. Subclaimant’s intent to pursue the claim
Warning that an adverse decision may be
binding against the IW
Contact information for the Office of the
Injured Employee Counsel

29. Why Medical Providers Pursue These
Claims
If the subclaimant prevails and
compensability is established, then the
medical bills should be paid
Obtain final adjudication prior to direct
billing of the IW
A win on compensability or extent of injury
extends the deadline to file for MDR - Rule
133.307(c)(1).

30. Designated Doctors
Not an abuse of discretion to change DD’s
based on use of the matrix system (APD
081398-S)
Obtain matrix by making open records
request indicating which doctor’s matrix
you want. Send the request to
wcopenrecords@tdi.state.tx.us

31. If MMI date is changed, it must be based
on a physical examination
If MMI date is changed in response to
LOC without a new exam, it cannot be
adopted because a determination of MMI
must be based on a physical exam (APD
010297-S)