28 Tex. Admin. Code § 126.11 - Extension of the Date of Maximum Medical Improvement for Spinal Surgery
(a) The commission may approve an extension
of the date of maximum medical improvement, subject to subsection (f) of this
section, if the injured employee has had spinal surgery or has been approved
for spinal surgery in accordance with §
134.600 of this title (relating to
Preauthorization, Concurrent Review, and Voluntary Certification of Health
Care), 12 weeks or less before the expiration of 104 weeks from the date income
benefits began to accrue. Only one extension of the date of maximum medical
improvement pursuant to this section may be granted. Approval for spinal
surgery is either the notification from the insurance carrier (carrier) that
the spinal surgery has been preauthorized or a decision from the appeal process
finding the insurance carrier liable for the reasonable costs of spinal
surgery. Any extension of the date of maximum medical improvement ordered by
the commission must be to a specific and certain date.
(b) Upon application by either the injured
employee or the insurance carrier, the commission may by order extend the date
of maximum medical improvement past the period of 104 weeks from the date
income benefits began to accrue as described in the Texas Labor Code, §
401.011(30)(B).
The request shall be made in the form and manner prescribed by the commission.
The commission shall issue an order approving or denying the request for an
extension of the date of maximum medical improvement within ten days of the
date the request is received by the commission.
(c) Prior to submission to the commission of
a request for an extension of the date of maximum medical improvement, the
requestor shall request from the treating doctor or surgeon the information
listed in subsection (f) of this section. The request shall also be sent to the
injured employee, the injured employee's representative, and the insurance
carrier by first class mail on the same day it is submitted to the treating
doctor or surgeon. The treating doctor or surgeon shall provide to the injured
employee, the injured employee's representative, and the insurance carrier the
information requested in subsection (f) of this section within ten days of the
date the request is received. If the requesting party has not received the
information from the treating doctor or surgeon within 15 days, the request may
be submitted to the commission without this information.
(d) After the actions in subsection (c) have
been completed, a request for an extension of the date of maximum medical
improvement shall be filed at the commission field office managing the claim by
personal delivery or first class mail. A request is deemed filed upon receipt
at the appropriate field office. In addition, the request shall be sent to the
injured employee, the injured employee's representative, and the insurance
carrier on the same date it is sent to the commission. If the information from
the treating doctor or surgeon is absent when the request is received,
commission staff may invoke the provisions of §
102.9 of this title (relating to
Submission of Information Requested by the Commission) to secure any necessary
information.
(e) A request for an
extension of the date of maximum medical improvement shall be filed no earlier
than 12 weeks before the expiration of 104 weeks after the date income benefits
began to accrue. The commission shall deny any request for an extension of the
date of maximum medical improvement that is received by the commission prior to
12 weeks before the expiration of 104 weeks after the date income benefits
began to accrue or is received on or after the expiration of 110 weeks from the
date income benefits began to accrue.
(f) In making the determination to approve or
deny a request for an extension of the date of maximum medical improvement, the
commission shall consider:
(1) typical
recovery times for the specific spinal surgery procedure;
(2) projected date and information regarding
when the condition may be medically stable as provided by the treating doctor
or the surgeon;
(3) case specific
information regarding any extenuating circumstances that may have resulted in
variances from conservative treatment protocols and time frames that may impact
recovery times as provided by the treating doctor or the surgeon;
(4) information from any source regarding
intentional or non-intentional delays in securing the surgery or medical
treatment for the compensable injury;
(5) any pending, unresolved disputes
regarding the date of maximum medical improvement; and
(6) any pertinent information provided by the
insurance carrier, injured employee, and/or the injured employee's
representative regarding the extension being requested under this
section.
(g) An injured
employee or an insurance carrier may dispute the approval, denial, or the
length of the extension granted by the commission order by filing a request for
a benefit review conference in accordance with §
141.1 of this title (relating to
Requesting and Setting a Benefit Review Conference) no later than ten days
after the date the order is received. Any proceedings and further appeals shall
be conducted in accordance with Chapters 140-143 of this title (relating to
Dispute Resolution/General Provisions, Benefit Review Conference, Benefit
Contested Case Hearing, and Review by the Appeals Panel). Any agreement which
resolves a dispute regarding extension of the date of maximum medical
improvement in accordance with this section shall be in writing and approved by
the commission. Approval shall not be granted if any party rescinds the
agreement by notifying the commission within three working days of signing the
agreement.
(h) If a request for
benefit review conference is not received by the commission within ten days
after the date the order granting or denying the extension was received by the
disputing party, the parties waive their right to dispute the commission order.
In the event that an order is timely disputed, the order shall remain binding
pending final resolution of the dispute.
(i) If the injured employee is certified by a
doctor to have reached maximum medical improvement between the date the
extension order was issued and the extended date of maximum medical improvement
specified in the order, any dispute regarding the date of maximum medical
improvement shall be resolved through the selection of a designated doctor
consistent with the provisions of the Texas Labor Code, §
408.122, concerning
Eligibility for Impairment Income Benefits; Designated Doctor, and § 130.6 of
this title (relating to Designated Doctor; General Provisions). If the
certification of maximum medical improvement during this time period is not
disputed and the date certified is prior to the date of maximum medical
improvement specified in the order for the extension, the date of maximum
medical improvement from that certification shall apply. If the certification
was timely disputed and the resolution of such a dispute determines that the
injured employee reached maximum medical improvement at a date which is
different than the date of maximum medical improvement specified in the order
for the extension, the earlier date shall apply.
(j) In the event that the extension of the
date of maximum medical improvement is granted based on a finding of liability
for spinal surgery within the 12 week period and a party appeals the
preauthorized approval to a benefit contested case hearing, any extension of
the date of maximum medical improvement ordered by the commission shall be
conditional pending final decision under the commission's jurisdiction of the
liability for spinal surgery. If spinal surgery is not performed within six
weeks after the date the final decision of the commission is issued, the order
for the extension of the date of maximum medical improvement shall be null and
void.
(k) This section applies only
to compensable claims with a date of injury on or after January 1, 1998. This
section does not apply to an employee who has reached maximum medical
improvement prior to requesting an extension under this section. An employee
has reached maximum medical improvement in accordance with the Texas Labor
Code, §
401.011(30)(A),
when either a finding of the date of maximum medical improvement is not
disputed, or the date of maximum medical improvement has been finally
resolved.
Notes
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