If you live long enough, things definitely seem to come full circle.

Erika Copeland

I began my workers’ compensation career as a hearing officer in the field when designated doctors addressed only maximum medical improvement and impairment ratings. As time went by, they added other issues to their repertoire and the list grew.

Local treating doctors provided MMI/IR certifications and, if you didn’t like it, you requested a designated doctor. Then the scheduling companies moved in, and doctors started traveling from Houston to Abilene to see patients, and the whole landscape changed. Seemingly before we knew it, the tail was wagging the dog and the companies were making 60% of the amount billed for the examinations and recruiting doctors from all disciplines, demographics and age groups to be designated doctors. It was truly the wild, wild West.

The Texas Department of Insurance’s Division of Workers’ Compensation, spurred by the Sunset Advisory Commission and the 82nd Legislature, acted. And, in January 2011, I was in Austin and was charged — along with many others — with making changes to the designated doctor program. Many people at the DWC spent untold hours working very hard to improve the program and developed new rules, qualification and certification criteria, testing and training curriculum that met the statutory requirements, and systems designated to ensure qualified doctors were selected for the thousands of examinations that were requested each year. It was a complete overhaul of the system that was not without its fits and starts, but overall, we saw great improvement in the training, testing, competence and resources available to the doctors charged with providing the opinions necessary for the system participants to use in resolving their disputes. 

All of these changes came with consequences — some anticipated and some unforeseen. The requirements to become a designated doctor, or even a doctor certified to evaluate MMI/IR, were now more burdensome, time-consuming and costly. The number of examinations available no longer justified the cost for many and some made the economic decision to let their certifications lapse.

The training for years had been perfunctory and the testing was not monitored or meaningful. Now, the DWC required a three-day training course at no small expense and was requiring doctors to have access to the ODG and MD Guidelines — additional expense items. Many doctors did not want to take the time to learn or maintain the certification. 

Some unintended problems with the way the DWC selected the most qualified doctors — and the additional costs associated with new training, testing and administrative requirements under the new rules — pushed many MDs and DOs out of the system. In September 2012, there were more than 1,200 doctors on the DWC’s list. As of the date of this newsletter, the list is down to 238, and less than 30% are MDs and DOs. 

Over the years, the DWC attempted to solve the problem of the ever-shrinking list with rule changes. In December 2018, it implemented a rule change designed to change the way the examinations were assigned and modified the qualification standards, yet the list continued to shrink.

This new set of rules has the stated goal of maintaining and increasing participation in the designated doctor program and allowing better access to certain kinds of examinations. While it may well achieve the latter, there is little hope of it doing the former for one simple reason. In the April 10 rule memo, the DWC clearly stated that neither rule concerns one of the most important issues that the DWC has not changed in decades: billing and reimbursement.

While they may be working to address that issue, the status of the billing and reimbursement rules project remains unclear. In light of the current state of the list, a change to the fee structure could be, at this point, too little too late.

The medical doctors and osteopaths left because it was no longer cost-effective for them to do the work. The medical fee guidelines for designated doctor examinations have not been updated to adequately reflect the changes in the designated doctor program. The administrative burden on designated doctors, with or without scheduling company assistance, increased considerably when the rules changed. The complexity of the cases the board-certified doctors are asked to address — especially regarding the extent of the injury — and the sheer volume of medical records they are asked to review in order to adequately evaluate those kinds of issues are not reflected in the medical fee guidelines. There is no reimbursement when a doctor travels out of town to see a claimant who doesn’t show up. There is no incentive for local doctors who feel as though they are being priced out of the market by traveling doctors.

The administrative burden has lessened to some degree, however. The doctors, under the new rule, don’t have to test anymore. Over time, other requirements have lessened. Training is no longer three days long every two years, and much of it is available by webinar instead of live training. Doctors are no longer required to have access to MD Guidelines or ODG; they just have to “apply” them.

The obvious casualty of these changes: report quality.

While the doctors have concerns that are no doubt legitimate, practitioners have their own concerns about the rules. Notwithstanding the obvious concerns about the declining quality of the designated doctor reports, we are now back to square one (circa 2010) with the designated doctor deciding what is compensable, without regard for what the carrier has accepted or disputed, whether the doctor is addressing extent of injury or not. The designated doctor will no longer provide multiple certifications unless the DWC orders it.

This begs the question: How does this help us with informal resolution?

Meanwhile, the carrier is required to pay benefits based on the designated doctor’s certification of MMI/IR, even if it has disputed the condition the designated doctor has rated. The question then becomes, is this a voluntary payment according to the Second Injury Fund when it comes time to seek reimbursement if the carrier is able to get the MMI/IR determination overturned at a contested case hearing? How do we advise our clients?

A lot of very hard work went into making positive changes to the designated doctor program after the last Sunset Commission recognized the problems the DWC was facing. In this girl’s opinion, the DWC was on the right track with training, testing and educating a group of doctors to provide meaningful tools to aid system participants and the DWC in dispute resolution.

Unfortunately, just easing up on the administrative burdens and continuing to change the qualification criteria will not bring more doctors into the system. Changing the criteria to make it easier for a doctor to “qualify” does not make a doctor more qualified.

Erika Copeland is a senior associate with Stone, Loughlin & Swanson LLP in Austin. Copeland is the former director of the Division of Workers’ Compensation Designated Doctor Outreach and Oversight section. Her workers’ compensation experience also includes 12 years as a DWC administrative law judge.