But a couple of reports released this week from the Texas Office of Injured Employees Counsel challenge the notion that the Texas system is any good for the injured workers who have disputes about benefits.
OIEC provides ombudsman services to injured workers who either can't, or don't, get an attorney when a benefit dispute arises. They have limited resources and, like any governmental agency, must fight for budget dollars.
According to OIEC, it is only winning 29% of its cases, and that the number of disputes in contested case hearings are on pace to double in only three years.
Part of the problem, OIEC says, is that the agency lacks the money to pay medical experts to rebut defense attorneys who argue that injured workers must explain how their injury was caused by work.
As a consequence, OIEC argues that the system may violate constitutional notions of due process and equal protection.
"In the majority of cases where the injury is serious and the medical treatment extensive, the denial is made that the expert did not explain how the event caused the injury," the OIEC wrote. "Not only do the courts not require that explanation − except in complex medical situations where there is a valid cause-and-effect issue − OIEC is not provided resources to recruit and pay medical experts to make that causal connection. Taking into consideration that the Supreme Court has abolished the good faith and fair dealing remedy because OIEC assistance was available, the lack of authority or resources provided to OIEC brings into question the constitutionality of the dispute resolution process."
Hearing officers and the Appeals Panel are imposing an unreasonable burden of proof, based upon a 2010 Texas Supreme Court decision in Transcontinental v. Crump, the OIEC wrote. The high court ruled that a claimant must prove that the work-related incident was a "substantial factor" in causing a work-related injury.
"The causation requirement and the standard that it establishes has been so misconstrued and misinterpreted by hearing officers and the Appeals Panel that it has become unattainable by any reasonable interpretation," the reports state.
There are of course those who dispute this perception.
They say that regardless of whether or not OIEC had money to pay for experts, the culture of Texas work comp litigation doesn't normally include paying medical experts for further testimony on causation because it is unlikely that the fees would be reimbursed.
And treating physicians not trained in writing medical reports generate opinions that can not meet the relatively lax standard of substantial evidence.
The Texas Division of Workers' Compensation tracks the number of contested case hearings that were concluded per calendar year (note that there can be multiple disputes during a single contested case hearing).
According to DWC's website, the number of concluded contested case hearings increased significantly from 4,157 in 2011, to 6,083 in 2012, a 32% increase in one year.
The statistics also showed a significant increase in concluded contested case hearings requiring the OIEC's help during the same time period. OIEC helped claimants conclude 1,791 contested case hearings in 2011, and helped claimants conclude 2,772 contested case hearings in 2012, a 33% increase.
Whether or not OIEC has money for experts, and whether or not disputes are being unfairly determined or are wrongfully being denied, that the burden of OIEC has increased so dramatically points to issues that may be bigger than having money for medical experts.
Such dramatic rise in the number of cases being handled by OIEC raises a number of other questions: Why are disputes increasing so dramatically? Is there a correlation between the low percentage of favorable outcomes in OIEC represented cases to the increase in volume being handled by OIEC? What about the quality of the cases? And what are the disputed issues that are being litigated?
In my mind the OIEC reports are not conclusive, and as I point out, raise more questions than they answer. But the fact of such a dramatic increase in the demands on OIEC in such a short period of time should alert DWC and the Department of Insurance that something is amiss and should be investigated.
We know from past history that anomalous variations in statistical patterns usually means some operational aberration. This should be cause enough for a DWC investigation.
*********Post Script*********
I'll be in Orlando, Florida this coming week from Sunday through Wednesday for the Workers' Compensation Institute's Annual Conference and will be part of the Blogger's Panel on Monday at 10 a.m. ET. I hope to see you there.
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