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THE ODG AND MDA

Disability Management & Treatment Guidelines


2008

Matthew B. Lewis
(972) 644-1111
matt@mattlewislaw.com
Rule 137.1
Disability Management Concept
Applies to non-network claims with dates
of injury beginning January 1, 1991
(a) Disability management is a process
designed to optimize health care and
return to work outcomes for injured
employees to avoid delayed recovery in
the Texas Workers' Compensation
System.
(b) This chapter is designed to provide
disability management tools, such as
treatment and return to work guidelines,
treatment protocols, treatment planning,
and case management to benchmark,
manage, and achieve improved outcomes.
The Division may use these tools for the
following purposes, including, but not
limited to:
(1) resolving income benefit disputes;
(2) resolving medical benefit disputes;
(3) establishing performance-based tiers;
(4) defining performance-based
incentives;
(5) determining sanctions or penalties;
(6) performing medical quality reviews; or
(7) assessing other matters deemed
appropriate by the Commissioner of
Workers' Compensation.
This chapter takes precedence over
any conflicting payment policy
provisions adopted or utilized by the
Centers for Medicare and Medicaid
Services (CMS) in administering the
Medicare program.
Independent Review Organization
(IRO) decisions regarding medical
necessity which are made on a case-
by-case basis, take precedence in
that case only, over adopted
treatment guidelines, treatment
protocols, treatment planning and
Medicare payment policies.
Rule 137.100
Treatment Guidelines
HCP’s shall provide treatment in
accordance with the current edition of the
Official Disability Guidelines – Treatment
in Workers’ Comp unless the treatment
requires preauthorization under Rule
134.600
Services provided in accordance with
the Guidelines is presumed
reasonable and reasonably required
(medically necessary).
Carrier is not liable for services that
exceed the Guidelines unless
provided in an emergency or
preauthorized under Rule 134.600
Even though services provided may be within
the Guidelines’ recommendations, the Carrier
may retrospectively review and deny
reimbursement for services that were not
preauthorized on the basis of medical necessity.
That denial must be supported by
documentation of evidence-based medicine that
outweighs the presumption of reasonableness.
Based on the layout and discussion in the
ODG, this probably means that in addition
to its RME or Peer Review report, the
Carrier’s position will have to be supported
by research studies. These should be
included with the RME or Peer Reviewer’s
discussion in a report – not based on an
adjuster’s perusal of the applicable
medical literature.
Any treatment that exceeds the Guidelines
or is not included in the Guidelines “may”
require preauthorization.
Medical Advisor Howard Smith, M.D., J.D.,
has issued a memo stating that such
treatment does in fact “require”
preauthorization.
Jaelene Fayhee, Executive Deputy
Commissioner, Policy and Research has
issued a similar memo.
Ms. Fayhee urges carriers to consider medical
necessity even if the HCP did not request
preauthorization for treatment that exceeds the
Guidelines during this transition period.
TLC 413.018 requires the Division to review the
medical treatment provided in a claim that
exceeds the Guidelines.
Any medical necessity disputes will be
determined by an IRO.
Carrier cannot deny treatment solely
because the diagnosis or treatment is not
specifically addressed by the Guidelines.
Still a question of reasonable and
necessary care.
Rule 137.10
Return To Work Guidelines
The Medical Disability Advisor, Workplace
Guidelines for Disability Duration
Use the disability duration values as
guidelines for the evaluation of expected
or average return to work time frames.
Duration values are considered to be a
reasonable length of disability.
To Be Used By:
HCP’s to establish return to work
goals/plans for safely returning injured
employees to “medically appropriate” work
environments.
Insurance carriers as a basis for
requesting a DD to address return to work
and for case management or vocational
rehabalitation
Employers, Carriers, Employees & HCP’s
to improve communication among the
parties about returning to work.
This was the main focus of the DWC
Disability Management Brown Bag Lunch.
Mitigating circumstances that may affect
disability duration are co-morbid
conditions, medical complications “or other
factors.”
Rule 137.10(e)
The duration values are not absolute
values
They do not represent specific lengths or
periods of time at which an injured
employee must return to work
The values represent points in time at
which additional evaluation may take place
if recovery has not occurred
A carrier may not use the Guidelines as
the sole justification or the only reasonable
grounds for reducing, denying, suspending
or terminating income benefits.
What Does The DWC Say About
The Guidelines?
Fast Facts
Provide expected lengths of disability
durations, which represent points in time
when additional evaluation and
communication among the HCP, injured
worker, carrier and employer should occur
if an injured worker has not fully recovered
and returned to work
Disability duration values are points in time
when the treating doctor should evaluate
when the injured employee should be able
to return to work and with what
restrictions.
Communication among the parties should
include proposed modifications to job
duties and activities.
Adjusters should communicate with the
treating doctor and the injured employee
regarding return to work goals and monitor
the injured workers’ progress
Adjusters should assist the treating doctor
and the injured employee in
communication with the employer
regarding proposed job modifications.
Online versions of the Guidelines are the
most current.
Using The Treatment Guidelines
Early access to appropriate medical
treatment for injured workers is a key
determinant of successful outcomes for
employers, providers, and insurers, as well
as the workers’ themselves (Page 13).
Provide treatment planning and procedure
guidelines
Procedure Summary is the most important
section
Using The Disability Guidelines
These values do not represent the absolute
minimum or maximum lengths of disability at
which an individual must or should return to
work. Rather, they represent important points in
time at which, if full recovery has not occurred,
additional evaluation should take place. These
values are designed to allow for individual
differences in recovery time based on the
numerous variables that impact disability
duration (Page xxxiii).
For each diagnosis and job classification,
there is a minimum, optimum, and
maximum disability duration.
First, identify the diagnoses.
Second, determine the job classification.
Finally, consider the disability duration for
each diagnosis.
Disability duration tables provide calendar
days, not necessarily work days.
Job Classifications
Sedentary Work – exerting 10 pounds of
force occasionally and/or negligible
amounts frequently to move objects.
Light Work – 20 pounds occasionally, 10
pounds frequently or negligible amounts
for constant force. Usually requires
walking or standing to a significant degree.
Medium Work – 50 pounds occasionally, 20
pounds frequently or 10 pounds constantly.
Heavy Work – 100 pounds occasionally, in
excess of 50 pounds frequently, or 20 pounds
constantly.
Very Heavy Work – in excess 0f 100 pounds
occasionally, in excess of 50 pounds frequently,
or in excess of 20 pounds constantly
Optimal vs. Maximum Duration
Optimum recovery time assumes the case
is optimally managed by the provider and
that there are no complications or co-
morbid medical conditions involved.
Maximum recovery time is the
recommended point in time at which
additional case information should be
requested from the treating physician to
determine when the patient may be able to
return to work.
Suggested information to be collected
includes specific information on the
presence of co-morbid conditions or
complications, work accommodations
available, and medical treatment
administered.
The maximum length of disability is not a
definitive cutoff point beyond which
individuals must return to work at the
same level of efficiency as prior to their
injury or illness (Page xxxiv).
Defining Disability
TLC defines disability as the inability because of
a compensable injury to obtain and retain
employment at wages equivalent to the pre-
injury wage.
MDA defines disability as a state in which the
individual is unable to perform his or her job at
the same level of efficiency as before the injury
occurred. Disability is not necessarily correlated
to the presence or absence of pain or other
symptoms.
Factors Affecting MDA Disability
Factors that influence disability are not
included in the duration tables. They are:
Psychological factors
Severity of the injury
Availability of effective medical treatment
Age
Complications
Medication
Return to Work Programs / Modified Duty
availability
Observations / Comments
The definitions of disability in the MDA vs.
TLC are quite different.
MDA focuses on function, TLC (with the
AP’s help) on earnings
MDA excludes from disability time to
attend doctor appointments and therapy.
These are not “disability events.”
Disability (MDA), length of disability and
maximum duration periods are all at odds
with each other. Disability is the inability
to perform the pre-injury job at the same
level of efficiency. Length of disability
refers to returning to “productive
endeavor.”
Maximum duration discussion suggests
that if that time period is exceeded,
information should be gathered on the
availability of work accommodations.
Productive endeavor and work
accommodations are not the same as
return to work at the same level of
efficiency as before the injury.
If the maximum duration value suggests the
need to consider light duty, how then can the
value in the maximum duration column be the
end of disability as some Hearing Officers are
suggesting?
If Rule 137.10 suggests that the disability
duration period is a point in time to consider a
DD, then isn’t the DD process just an end run
around this whole disability management idea?
How will the MDA definition of disability
affect traditional disability cases involving
light duty restrictions or termination?
Doesn’t the TLC definition trump the
MDA?
The disability guidelines seem a lot
“grayer” than the treatment guidelines.