Texas Workers’ Compensation: DRE Category III (Radiculopathy)

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Spinal injuries for cervical, thoracic and lumbar which in radiculopathy may be eligible for a DRE Category III.  Radiculopathy is a condition due to a compressed nerve in the spine that can cause pain, numbness, tingling, or weakness along the course of the nerve.

To qualify a person must have an ongoing minor neurologic impairment low the lower extremity related to cervical, thoracic or lumbar injury.  This is documented through examination of reflexes and findings of unilateral atrophy above or below the knee related to no other condition, and it may be verified by electrodiagnostic testing.  The injured worker must have one of the two following findings:

  1. Decreased circumference (atrophy)  Spine-injury-related circumferential measurements show loss of girth of 2 cm or more above or below the elbow or knee.  The atrophy cannot be explained by non-spine-related problems or contralateral sypertrophy, as might occur with a dominatnt limb or greatly increased use of a limb.  The neurologic impairment may be verified by differentiator 4 below.

2. Electrodiagnostic evidence Unequivocal electrodiagnostic evidence exists of acute nerve root compromise, such as multiple positive sharp waves or fibrillation potentials; or H-wave absence or delay greater than 3 mm/sec; or chronic changes such as polyphasic waves in peripheral muscles.

If a person receives a DRE Category III, that is equal to a 15% Impairment Rating for the Cervical spine and a 10% Impairment Rating for the Thoracic or Lumbar spine.

Texas Workers’ Compensation: Benefits

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In Texas Workers’ Compensation claims there are medical and indemnity (money) benefits.  Each of these benefits are governed by the Texas Department of Insurance (TDI) through the Division of Workers’ Compensation (DWC).

Indemnity benefits are cash payments paid directly to the claimant (injured worker).  They are paid for disability (TIBs or SIBs); for the claimant’s whole body impairment (IIBs); payment to claimant’s who qualify for life time income benefits (LIBs); and benefits to beneficiaries of a deceased claimant.

Medical benefits are requested by a medical provider and approved or denied by the insurance carrier.  If approved, the medical provider receives payment for the medical care directly from the insurance carrier.  If they are denied, it can be for a number of different reasons (i.e. compensability, improper treatment, etc.).

To dispute adverse determinations of indemnity or medical benefits by an insurance carrier, the DWC allows the parties to resolve disputes through a hearing process at a field office of the DWC.

Daniel L Morris, The Morris Law Firm, info@themorrisfirm.net, (214)357-1782

 

SOCIAL MEDIA DURING TEXAS DIVORCE

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We have become a social media society. 27% of all online time is spent on social media network sites. Facebook has over 1.12 billion users. More than half of adults in the United States have a profile on a social networking site. If you are complementing or currently going through a divorce (or any kind of litigation), you need to be very conscious of anything you post online. Things you should know: -Anything you do online can and will likely be used against you; -Lawyers and their clients have been sanctioned for deleting social media content that they considered damaging to their case. Remember deleting embarrassing photos or incriminating wall posts constitutes spoliation of evidence. Also, in the digital age, “delete” doesn’t really mean “delete” anymore; there’s always a way to retrieve information once it’s placed on the Internet. Things you should do: -Bolster your privacy settings, or delete online photo albums; – If you maintain a blog, do not discuss the case, anything related to the divorce, or indeed any personal information that could be used against them; -Create a new web-based e-mail address, with a new password, to ensure that the ex doesn’t have access; -Make sure that you monitor what your children are doing online and with cellphones. A child’s Facebook page may contain references to problem issues like drugs, alcohol or relationships could become pivotal in a custody battle; and -Avoid online references to finances. Discussions about an expensive vacation, a bonus or raise at work, or a planned purchase can serve as evidence in a subsequent alimony or child support Proceeding. Social networking sites like Instagram, Facebook, MySpace, LinkedIn, and Twitter represent a revolution in the way people communicate and share information. This sharing can come with a high price for the unwary. If you have the will power, it might be a good time to take a hiatus from social media. Daniel L Morris, The Morris Law Firm, info@themorrislawfirm.net, (214)357-1782

DO I HAVE A NEW INJURY OR PRE-EXISTING CONDITION?

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TEXAS WORKERS’ COMPENSATION

You’ve had an accident at work, you were sent to the doctor and he took you off of work. You’ve filed your workers compensation claim with the insurance carrier only to receive a notice that your claim is being denied. They claim that you are suffering from an ordinary disease of life or a pre-existing condition. Not only are you in pain and unable to work, you are receiving no benefits and have no way to pay your bills. What do you do? Most people will argue that since they were able to do their normal job prior to the accident and are now unable to work, it should be clear that they suffered a compensable injury. Ten years ago this argument was sufficient to allow a judge to rule in the workers’ favor. However, the Texas Workers’ Compensation system has steadily become more difficult for the injured worker to prevail. The burden is on the injured worker to prove by a preponderance of the evidence (more likely than not), that they have suffered a new injury. To do this, they must show that the pre-existing condition had some enhancement, acceleration, or worsening of the underlying condition. This is generally done through a report from a doctor describing how the underlying condition enhanced, accelerated or made worse by the accident. Always consult with an attorney who understands the Texas Workers’ Compensation system and can help you know when you have the proper evidence to win your case. The attorney will also assist you in finding a doctor that works for you and not the insurance carrier. Daniel L. Morris, The Morris Law Firm, info@themorrisfirm.net (214)357-1782

Texas Workers Compensation Benefit Review Conference Scheduling Order

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Many cases in the Texas Workers’ Compensation system arrive at a Benefit Contested Case hearing, only to find that the case is not ready to litigate. This generally arises when there are incomplete medical records or the insurance carrier changes what medical conditions they have accepted or disputed. The Division of Workers’ Compensation is creating Scheduling Order to allow more uniformity in the hearing process. Starting on June 1, 2014, Texas Department of Insurance, Division of Workers’ Compensation will begin issuing scheduling orders at the conclusion of an initial Benefit Review Conference (BRC) when the Benefit Review Officer determines that a second BRC should be set. The scheduling order may direct either or both parties to: -Exchange existing pertinent information not exchanged at the initial BRC -Exchange new information necessary to an informed disposition of the dispute. If the information is not obtained prior to the second BRC, the party may file a DWC-45 form to reschedule the BRC; to allow more time to exchange the necessary information. If the information is not exchanged, the Benefit Review Officer may cancel the BRC and schedule a Benefit Contested Case Hearing. Unfortunately I feel that the Scheduling Orders will have little real effect on the hearing process. Unless, the Division of Workers’ Compensation provides a means for the injured worker to have more control over selecting their treating doctor and the insurance carriers are required to specify the medical conditions they have accepted as part of the compensable injury. Daniel L Morris, The Morris Law Firm, (214)357-1782, info@themorrisfirm.net

Texas Workers Compensation, Designated Doctor’s Report

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Rule 127.220 of the Texas Administrative Code requires that the report meet the following guidelines: (1) identify the question(s); (2) provide a clearly defined answer for each question; (3) sufficiently explain how the designated doctor determined the answer to each question within a reasonable degree of medical probability; (4) demonstrate, as appropriate, application or consideration of the American Medical Association Guides to the Evaluation of Permanent Impairment, division-adopted return-to-work and treatment guidelines, and other evidence-based medicine, if available; (5) include general information regarding the identity of the designated doctor, injured employee, employer, treating doctor, and insurance carrier; (6) state the date of the examination and the address where the examination took place; (7) summarize any additional testing conducted or referrals made as part of the evaluation; (8) include a narrative description of the medical history, physical examination, and medical decision making performed by the designated doctor, including the time the designated doctor began taking the medical history of the injured employee, physically examining the employee, and engaging in medical decision making and the time the designated doctor completed these tasks; (9) list the specific medical records or other documents the designated doctor reviewed as part of the evaluation, including the dates of those documents and which, if any, medical records were provided by the injured employee; (10) be signed by the designated doctor who performed the examination; (11) include a statement that there is no known disqualifying association as described in §127.; (12) certify the date that the report was sent to all recipients required by and in the manner required by §127.10 of this title; and (13) indicate on the report that the designated doctor reviewed and approved the final version of the report. This Rule sates that the above requirements are the minimum that a designated doctor must comply with. If you feel that your designated doctor did not comply with the above requirements, contact an attorney to assist you in disputing the designated doctor’s report. Daniel L. Morris, The Morris Law Firm, (214)357-1782, info@themorrisfirm.net

Texas Workers’ Compensation Average Weekly Wage (AWW)

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Texas work related injuries that are handled by the Texas Division of Workers’ Compensation will use your Average Weekly Wage to calculate your disability benefits and impairment benefits. If your AWW is miscalculated by just a few dollars per week, you could lose hundreds or even thousands of dollars over the life of your claim. You generally calculate Average Weekly Wage by adding up your gross salary for the thirteen weeks prior to your injury then divided by 13 to get an average. This calculation should not only include your wage, but also any fringe benefits (i.e. bonuses, insurance, housing, food, clothing, etc.), that are discontinued after the accident. If there are not thirteen weeks of employment prior to the date of injury, a similar employee may be used or an agreement between the parties. If you question your average weekly wage, you may request a DWC-3 form which your employer should have provided to the insurance carrier. Daniel L. Morris, The Morris Law Firm, (214)357-1782, info@themorrisfirm.net