2211 South IH 35 Suite 300 Austin, TX 78741 (512) 327-6884 (512) 327-8354 fax 

November 17, 2015 

 

The Fifth Court of Appeals Via efiling 

c/o The Honorable Lisa Matz, Clerk of the Court 

600 Commerce Street, Suite 200 

Dallas, Texas 75220 

Re: Cause No. 05-15-00195-CV; Dr. Eric Vanderwerff, D.C. v. The Travelers 

Indemnity Company of Connecticut and Texas Department of Insurance - Division 

of Workers' Compensation & DWC Commissioner Ryan Brannan, in his official 

capacity, In the 5th Court of Appeals, Dallas County, Texas 

Post-Submission Letter Brief of Appellant in Reply to Travelers’ Letter Brief

To the Honorable Justices of the 5th Court of Appeals: 

This letter is in response to the letter brief of the Travelers Ins. Co.—one of 

the Defendant’s below and the Insurance Carrier, regarding the substantive issue 

of statutory construction and enforcement for preauthorization of medical 

treatment under the Texas Workers’ Compensation Act. Travelers argues against 

the clear Legislature language of 2003 that preauthorized treatment may be later 

disputed—the Legislature said No emphatically. Travelers omits reference to the 

clear statutory language in dispute. 

May an insurance carrier preauthorize a leg amputation or a four level spinal 

fusion with screws and plates and then later say “just kidding.” The Legislature 

clearly determined and made clear in 2003 that the insurance carrier is liable and 

may not dispute such preauthorized care at a later date. “The insurance carrier is 

liable for health care treatment and treatment plans . . . voluntarily 

preauthorized and may not dispute the certified or agreed-on preauthorized 

health care treatment . . . at a later date. TEX. LAB. CODE §413.014(f). How could 

the Legislature be any clearer? Voluntary preauthorization creates liability and 

ends any dispute. 

The Legislature in 2003 made clear that since 1989 that authorization or 

preauthorization meant the Insurance Carrier was liable if voluntarily agreeing to 

pay medical care. The Houston 14th Court made clear in directly addressing 

ACCEPTED

05-15-00195-CV

FIFTH COURT OF APPEALS

DALLAS, TEXAS

11/17/2015 12:42:43 PM

LISA MATZ

CLERK

 FILED IN 5th COURT OF APPEALS DALLAS, TEXAS 11/17/2015 12:42:43 PM LISA MATZ Clerk
Case No. 05-15-00195-CV Letter Brief of Dr. Vanderwerff, Appellant Page 2 of 6

2211 South IH 35 Suite 300 Austin, TX 78741 (512) 327-6884 (512) 327-8354 fax 

Section 413.041(f) in Stinson v. Ins. Co. of the Pa., 286 S.W.3d 77 (Tex. App.—

Houston [14th Dist.], pet. denied Sept. 25, 2009): 

The TWCC cannot prohibit parties from voluntarily agreeing to pay for 

medical services that would otherwise require preauthorization, and any 

such agreements create liability for those agreed services on the part of the 

insurance carrier. Tex. Lab. Code Ann. § 413.014(f) (Vernon 2006). 

Long has the word “authorize” been in the English language, with the law 

unquestionably enforcing “authorize” as “to empower; to give a right or authority 

to act,” with “authorized” “construed as equivalent to ‘permitted.’ Black’s Law 

Dictionary Revised 4th Ed. 1968, p. 169. It is likely an oxymoron, or a 

reaffirmation of “authorize,” to use the prefix “pre-” to point out the 

authorization before the work is performed, which is almost always obtained in 

advance for services under any policy of insurance. Any health care provider in 

the State of Texas will affirm that preauthorization for medical care means 

approval and liability for reasonable payment (if the payment amount is not also 

preauthorized), as will any patient of a health care plan. 

The History of Preauthorization and Liability under the 1989 Act 

ORIGINALLY, PREAUTHORIZATION PROPERLY MEANT LIABILITY TO THE 

STATE AGENCY. In 1989, the Texas Legislature in adopting the Texas Workers’ 

Compensation Act under Texas Revised Civil Statutes 8308 Section 8.28(a) stated 

as to preauthorization: 

The commission by rule shall specify those health care treatments and 

services requiring express preauthorization, except for medical emergency, 

by the insurance carrier. The insurance carrier is not liable for those 

specified treatments and services if preauthorization is not sought by the 

claimant or health care provider and either obtained from the insurance 

carrier or ordered by the commission. 

In 1991, the then Texas Workers’ Compensation Commission, TWCC (predecessor 

to the Texas Department of Insurance-Division of Workers’ Compensation, DWC) 

expressly noted in adopting initial preauthorization rules that:1

 

1

 16 Tex. Reg. 7099, 7100, 
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2211 South IH 35 Suite 300 Austin, TX 78741 (512) 327-6884 (512) 327-8354 fax 

. . . the commission believes that such procedures should be reviewed prior 

to performance, to ensure that these treatments are medically necessary 

and related to the specific injury. . . . 

but that all such services should be subject to preauthorization to ensure 

that such treatment is necessary and related to the specific injury. . . . 

The commission disagrees, noting that pre-authorization of medical 

services ensured providing of treatment necessary and related to the 

specific injury, . . . . 

In 1993, the Texas Legislature codified the Texas Workers’ Compensation Act 

making clear that preauthorization was necessary to create liability and carriers 

were not liable if preauthorization was not sought and obtained or ordered: 

Sec. 413.014. PREAUTHORIZATION. (a) The commission by rule shall specify 

which health care treatments and services require express preauthorization 

by the insurance carrier. Treatments and services for a medical emergency 

do not require express preauthorization. 

(b) The insurance carrier is not liable for those specified treatments and 

services unless preauthorization is sought by the claimant or health care 

provider and either obtained from the insurance carrier or ordered by the 

commission. (V.A.C.S. Art. 8308-8.28(a).) 

A Decade Later State Agency Attempted to Redefine Statutory Preauthorization 

Meaning to Meant something less as Travelers erroneously asserts in conflict 

with the statute. In 2000, the then Texas Workers’ Compensation Commission, 

the predecessor to the DWC, apparently attempted by rule to change the decade 

long law and rule, and the TWCC erroneously limited workers and health care 

providers justified reliance upon written preauthorization requests for medical 

care. The TWCC first stated its changed position on preauthorization in the 

adoption of amendments to Rule 124.3 (28 Tex. Admin Code 124.3): 

Preauthorization decisions are to be made entirely based upon medical 

necessity of the treatment of the condition proposed to be treated. Issues 

associated with extent of injury, compensability of the injury, or liability for 

the claim are separate from the issue of whether a given treatment or 

service is medically necessary. That is why approval of a preauthorization 
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2211 South IH 35 Suite 300 Austin, TX 78741 (512) 327-6884 (512) 327-8354 fax 

request does not make a carrier liable for payment if the carrier 

successfully challenges the extent of injury/compensability/liability issue. 

25 TEXREG 2101 (March 10, 2010) 

In 2002, the TWCC amended Rule 134.600 to follow this newly adopted 

interpretation of preauthorization, effective January 1, 2002, to include the 

language: 

(f) The carrier shall: 

(1) approve or deny requests for preauthorization or concurrent review 

based solely upon the reasonable and necessary medical health care 

required to treat the injury, regardless of: 

(A) unresolved issues of compensability, extent of or relatedness to the 

compensable injury; 

(B) the carrier's liability for the injury; or 

(C) the fact that the employee has reached maximum medical 

improvement; 

28 TexReg 9908 (November 30, 2001). After the problems caused by the TWCC’s 

unsupportable reinterpretation of “preauthorization” in 2000 through 2002, the 

Legislature passed express language in the Act to state that “preauthorization” 

means what it means—liability. 

2003-- LEGISLATURE SAID PREAUTHORIZED CARE MAY NOT BE DISPUTED. 

The Legislature in 2003 clearly reemphasized that preauthorization creates 

liability and insurance carriers “MAY NOT DISPUTE” such treatments “AT A 

LATER DATE.” See TEX. LAB. CODE §413.014(f). In 2003, Senate Bill 1804 was 

passed creating express liability of carriers under 413.014 for preauthorized 

treatment and prohibited an insurance carrier from later disputing the 

preauthorized treatment, pharmaceuticals, and treatment plans. The Legislative 

analysis of the 2003 Legislation could not have been clearer:2

Currently, a health care provider may contact an insurance carrier to get 

precertification or preauthorization for certain care. After receiving the 

preauthorization or precertification from the carrier, the services will be 

 

2 http://www.capitol.state.tx.us/tlodocs/78R/analysis/pdf/SB01804S.pdf ; see also

http://www.capitol.state.tx.us/tlodocs/78R/analysis/pdf/SB01804F.pdf 
Case No. 05-15-00195-CV Letter Brief of Dr. Vanderwerff, Appellant Page 5 of 6

2211 South IH 35 Suite 300 Austin, TX 78741 (512) 327-6884 (512) 327-8354 fax 

provided and billed to the insurance carrier. Later, however, the insurance 

carrier may dispute the treatment and services provided or refuse to pay 

them. This bill would clarify this section of the law. 

* * * * * 

Provides that the insurance carrier is liable for health care treatment and 

treatment plans and pharmaceutical services that are voluntarily 

preauthorized and prohibits the insurance carrier from disputing the certified 

or agreed-upon preauthorized health care treatment and treatment plans and 

pharmaceutical services at a later date. 

This bill took effect in September of 2003. Our injured employees and especially 

our health care providers, our doctors and clinics count on voluntary 

authorization or payment--“preauthorization”-- to mean exactly what the 

Legislature clarified to the then TWCC and now the DWC, that the DWC “may not 

prohibit” and the Legislature clearly used the word “liable” under subsection 

413.014(d) and (f) and prohibited disputes of such preauthorized care a later 

date. This enforces the law as written in 1989, and properly applied through 

2000, and the Legislature put the TWCC/DWC on notice that it meant what it said 

in 2003. Texas Labor Code Section 413.014 currently provides under (d) and (f): 

(d) The insurance carrier is not liable for those specified treatments and 

services requiring preauthorization unless preauthorization is sought by the 

claimant or health care provider and either obtained from the insurance 

carrier or ordered by the commissioner. 

(f) The division may not prohibit an insurance carrier and a health care 

provider from voluntarily discussing health care treatment and treatment 

plans and pharmaceutical services, either prospectively or concurrently, 

and may not prohibit an insurance carrier from certifying or agreeing to pay 

for health care consistent with those agreements. The insurance carrier is 

liable for health care treatment and treatment plans and pharmaceutical 

services that are voluntarily preauthorized and may not dispute the 

certified or agreed-on preauthorized health care treatment and treatment 

plans and pharmaceutical services at a later date. 

While it is not yet before this Court what preauthorized treatment creates as to 

liability and no longer being subject to any dispute, the erroneous position of 

Travelers cannot be supported. The Court should consider the full history and 

the clear language of the statute that preauthorization ends any dispute and 

creates liability. 
Case No. 05-15-00195-CV Letter Brief of Dr. Vanderwerff, Appellant Page 6 of 6

2211 South IH 35 Suite 300 Austin, TX 78741 (512) 327-6884 (512) 327-8354 fax 

Respectfully, 

/s/ Brad McClellan 

Bradley Dean McClellan 

State Bar No. 13395980

Of Counsel, Law Offices of Richard Pena, P.C. 

2211 South IH 35 Suite 300 

Austin, Texas 78741 

Brad.McClellan@yahoo.com 

(512) 327-6884 telephone 

(512) 327-8354 facsimile 

CERTIFICATE OF SERVICE 

I certify that a copy of the foregoing Appellant’s Letter Brief in Reply to Travelers’

Letter Brief was served on the through counsel of record by the method indicated 

below on November 17, 2015. 

DOUGLAS D. GEYSER, Assistant Solicitor General

ADRIENNE BUTCHER, Assistant Attorney General

OFFICE OF THE ATTORNEY GENERAL

P.O. Box 12548 (MC 059), Austin, TX 78711-2548

Tel.: (512) 936-2540

Fax: (512) 474-2697

douglas.geyser@texasattorneygeneral.gov

Attorneys for DWC and Commissioner

James M. Loughlin

Stone Loughlin & Swanson, LLP

P.O. Box 3011

Austin, Texas 78755

Facsimile: (512) 343-1385

jloughlin@slsaustin.com 

Counsel for Defendant Travelers

Via efiling/eservice

Via efiling/eservice

/s/ Brad McClellan 

Bradley Dean McClellan