D&S Straight Out of CompTown – April 2023

Our Attorneys at Downs & Stanford, P.C. are here to help you with your every day questions with Texas Workers’ Compensation.  Please see the newest updates below in what is happening with the DWC.

Lunch and Learns – First Come, First Served CEU Credits for All Adjusters

Want Some Credit?  Come and Get It!

See the class being offered below; the first 25 adjusters to sign up will be in the course.  Once you have registered, you will receive confirmation for the Webinar. The Zoom link will be emailed the Monday before each Webinar.
Please note if you have taken the course listed below in the last two years, you will not be eligible for credit again per Texas Administrative Code §19.1010 (7)(c).

Don’t delay!  Email us today at CE@downsstanford.com.

April 28, 2023 from 12:00 P.M. to 1:00 P.M.:  Basics of Handling a Death Claim Webinar with Adrienne Gasser and Charles Morse

May 12, 2023 from 12:00 P.M. to 1:00 P.M.:  Spring Appeals Panel Decision and Case Law Updates Webinar with Pamela Pierce and Chris Esson

May 19, 2023 from 12:00 P.M. to 1:00 P.M.:  Paying and Denying Medial Bills Webinar with Rynn Freiling and John Fundis

DWC Quarterly Meeting for Carriers
March 22, 2023

On March 22, 2023, the Texas Department of Insurance, Division of Workers’ Compensation (DWC) held its quarterly meeting to provide system information and to discuss ongoing operations, current topics, and issues in the Texas workers’ compensation system. 

 A big takeaway from this meeting was that the DWC’s Designated Doctor Program is cracking down on inaccurate or incomplete DWC-32s.  If your DWC-32 is not complete or accurate, it will be rejected.  Be sure to double-check your DWC-32 before submitting it.  Our firm frequently notices Carrier vendors misstating the accepted injuries in Box 37 even when there is a PLN-11 on file.  

The Texas Legislature is now in its regular session; approximately 8,300 bills concerning Texas workers compensation were filed this session.  These are too numerous to summarize here, but many concern expanding preferential treatment for first responders, medical scope of practice, changes to medical reports and fees, combining coverage in policies for health insurance and workers compensation insurance, and changes to the course and scope of employment.

A review of the disciplinary orders over the last quarter made it clear that the DWC’s current focus is on insurance carriers, and more specifically, the timeliness of income benefit payments made to the claimants and their attorneys.  In fact, 88 of the 96 disciplinary orders issued were directed to Carriers or Self-Insureds.  Most disciplinary orders were for failing to pay TIBs properly, for failing to pay pursuant to a Designated Doctor, and failing to properly pay SIBs.  The obvious takeaway from this is that it is vitally important that Carriers and TPAs timely pay income benefits, and that Carrier’s always need to make sure they are paying pursuant to the findings of the Designated Doctor.  This was also evident from the compliance audit data and complaints received by the DWC.  In the “Complaints Received” and “Complaints Closed” data, most violations were for “income benefit delivery.”  

The DWC Fraud and Prosecutions Unit received 785 fraud referrals, opened 50 fraud cases, and referred three fraud cases for prosecution to the District Attorney.  In Fiscal Year 2023, they obtained five convictions, two of which were against employers, one of which was against a health care provider, one of which against a claimant, and another against an attorney.

If you have any questions about PBO (Performance Based Oversight) for insurance carriers, which is coming up again in 2024, email PBO@tdi.texas.gov.  

For general implementation information concerning EDI R3.1, go to txdwcedi.infor/inpl-info.  Release 1 cut-off will be on July 25, 2023, at 5:00 p.m. CST.  Release 3.1 will go LIVE on July 26, 2023.  All Carriers must complete testing before July 26, 2023.  Carriers that use an EDI vendor are automatically approved when the vendor completes the test plan.  Small carriers that opted to use web entry are not required to test.  The testing opened on January 12, 2023.   For technical questions, send an email to txdwcedi@iso.com.  To see FAQs, go to txcedi.info/faq.  For training, email martha.luevano@tdi.texas.gov.  For any questions concerning EDI R3.1 billing, email txdwcbillingquestions@verisk.com

The Texas Workers Compensation Conference will be held at the Hyatt Regency in Austin, Texas on July 10 – 12, 2023.  Registration at the “Early Bird” rate of $400 will start on April 3, 2023, through May 31, 2023.  To Register go to: https://www.tdi.texas.gov/wc/events/wcconference.html.


The Workers’ Compensation Research and Evaluation Group recently released their study concerning Employer Participation in the Texas Workers’ Compensation system.  Among the highlights from this report is the fact that the employer subscription rate has increased to 75% in 2022 from 72% in 2018, and that the share of employees that work for subscribing employees is 83%, the highest amount in 12 years. Interestingly enough, the subscription rates for small employers went down, while large employers stayed stable (likely because the large employers left the system years ago).  However, regardless of size, the rates of non-subscription among most employers continue to trend downward.

The Workers’ Compensation Research and Evaluation Group also released updated information concerning Covid-19 claims in Texas.  As of 2/5/23, Carrier’s have reported nearly 98,000 Covid claims, and 468 fatalities to DWC, with slightly more than half of these claims belonging to first responders and correctional officers.  Insurance carriers have denied 38% of Covid claims with positive tests (approximately 25,000), but of that amount, there have only been 239 disputes filed with DWC as of 2/5/23.  In examining the number of claims filed by month, the claim frequency has decreased significantly.  In January of 2022, there were 12,352 claims; in January of 2023, the number of new claims decreased to 993, a 92% drop overall.

Finally, the Deputy Commissioner for Legal Services, Ms. Kara Mace, has issued a Notice of Proposed Rule Review for all sections dealing with the “old law” workers’ compensation statutes.  While the current law has been in effect since January 1, 1991, there continue to be “old law” cases that come up, mostly with regards to medical services and the like.  The DWC is accepting public comments on whether the reasons for initially adopting these rules continue to exist, and whether or not these rules should be repealed, re-adopted or amended.  If anyone feels strongly about this, comments need to go to RuleComments@tdi.texas.gov, and the deadline for submission is May 1, 2023.

Compliance and Investigations Corner

Texas Administrative Code § 130.8 applies to all certifying doctors and not just designated doctors.  Carriers are required to pay Impairment Income Benefits (“IIBS”) within five days of receipt of the certifying doctor’s certification of maximum medical improvement and impairment rating.  A certifying doctor is not just the designated doctor, but also includes treating doctors, referral doctors, and required medical examination doctors selected by the Carrier.  Pursuant to Rule 130.8, a carrier must pay IIBS in accordance with the certifying doctor’s medical evaluation report no later than 5 days after receiving the doctor’s medical evaluation report when maximum medical improvement is not disputed.  A carrier commits an administrative violation by failing to timely pay accrued IIBS within 5 days of receiving the certifying doctor’s report.  DWC has issued monetary penalties for this type of violation.

Decisions, Decisions, and More Decisions
Current Cases that You Need to Know

•  Olivares v. Chevron Phillips Chem. Co., LP, __ S.W.3d __, 2023 Tex. App. LEXIS 1649 (Tex. App.—Dallas Mar. 14, 2023, no pet. h.)

DECISION: Chevron instituted an OCIP program; Apache Industrial signed the OCIP. Apache Global, a subsidiary of Apache Industrial, worked on the project. Global’s employee, not Industrial’s employee, was injured. Global had executed an assumed-name certificate and was working under the assumed name of Industrial. The court held that the parent company is not the employer of its subsidiary’s employees. An assumed name or trade name does not change the legal rights of the entities involved. The employee was working for a legal entity that had not signed the OCIP. Thus, the employee was not covered by the OCIP and can sue Chevron for negligence.

WHAT THIS MEANS FOR YOU: OCIPs are hard and if not written correctly, a smart plaintiff lawyer might find a way to avoid the exclusive remedy affirmative defense.

• Fortenberry v. Great Divide Ins. Co., __ S.W.3d __, 2023 Tex. LEXIS 301 (Tex. 2023)

DECISION: The plaintiff was injured playing for the Dallas Cowboys. He sought judicial review arguing venue was proper in Dallas County where he resided at a Marriott Residence Inn paid for by the team. The Texas Supreme Court held that for purposes of venue, a plaintiff can have more than one residence and the residence can be a hotel depending on the facts. The evidence supported the player’s presence in and intent to remain in the county because the player lived at the hotel for three months before the injury and signed a three-year contract to play for the team. Further, the carrier stipulated to venue in Dallas County at the CCH.

WHAT THIS MEANS FOR YOU: Those stipulations at a CCH matter.

• APD 221683

DECISION: The accepted diagnosis of the right shoulder is a contusion and a right shoulder Grade 1 sprain/strain. The claimant underwent shoulder surgery including a distal clavicle resection for the pre and post operative diagnosis of a SLAP tear. The IR certification could not be adopted because it included a 10% UE impairment for the distal clavicle resection for a SLAP tear which is not an accepted diagnosis, and the surgery was not treatment for the accepted conditions of right shoulder contusion or strain/sprain.

WHAT THIS MEANS FOR YOU: Make sure both the IR and the surgery are for the compensable injury when evaluating an MMI/IR certification.

• APD 230066

DECISION: The ALJ determined a multitude of conditions were not related to the compensable injury. The ALJ wrote that the IW testified that a “slow-moving” train was involved in the accident. However, the IW never testified the train was “slow-moving.” This misstatement of the evidence required reversal of the extent and MMI/IR issues.

WHAT THIS MEANS FOR YOU: Both the doctors and the ALJ must rely on a substantially correct MOI.

• APD 230102

DECISION: In a COVID-19 IR case remarkably similar to APD 230137, the certifying doctor failed to state the results for diffusing capacity of carbon monoxide (Dco). The AP writes, “The required methodology includes, in part, measurements made from at least three acceptable spirometric tracings of forced expiration: FVC, FEV1, and the FEV1/FVC, a predicted normal single-breath Dco Value for an individual according to age, and utilization of Table 8 (page 5/162) for estimating the extent of permanent impairment.”

WHAT THIS MEANS FOR YOU: Certifying doctors must perform spirometry and single breath Dco testing for respiratory impairment.

• APD 230137

DECISION: In a COVID-19 IR case remarkably similar to APD 230102, the certifying doctor failed to state the results for diffusing capacity of carbon monoxide (Dco). The AP writes, “The required methodology includes, in part, measurements made from at least three acceptable spirometric tracings of forced expiration: FVC, FEV1, and the FEV1/FVC, a predicted normal single-breath Dco Value for an individual according to age, and utilization of Table 8 (page 5/162) for estimating the extent of permanent impairment.”

WHAT THIS MEANS FOR YOU: Certifying doctors must perform spirometry and single breath Dco testing for respiratory impairment.

• APD 222017

DECISION: The first certification became final. However, the certifying doctor did not use the combined tables correctly which resulted in an incorrect IR. Failing to properly use the combined values table is compelling medical evidence of a significant error in calculating the IR.

WHAT THIS MEANS FOR YOU: In 90-day finality cases, have the IR reviewed before attending a CCH.

• APD 230023

DECISION: The MMI date on the DWC-69 was different than the MMI date found in the narrative report. The AP held the internal inconsistency is not simply a clerical error they can correct; therefore, a reversal was required. Further, the DD failed to round to the nearest ten degrees for UE ROM impairment calculation.

WHAT THIS MEANS FOR YOU: Sloppy DD IRs should be corrected before the AP gets a hold of them.

• APD 230105

DECISION: The certification could not be adopted because the compensable injury was not rated. The AP found fault with the doctor rating post traumatic arthritis instead of post traumatic osteoarthritis and a right knee strain instead of the accepted contusion.

WHAT THIS MEANS FOR YOU: Make sure the diagnosis codes are for the accepted injuries.

• APD 230096

DECISION: The certifying doctor rated a left thumb sprain as opposed to a right thumb sprain requiring a reversal.

WHAT THIS MEANS FOR YOU: Get the injury right.

• APD 221983

DECISION: The ALJ used the wrong MMI certification. The AP writes, “The Appeals Panel stated that a focus on and requirement of material recovery or lasting improvement in determining MMI is misplaced, and the question regarding whether an injured employee has reached MMI is not whether the injured employee actually recovered or improved but whether, based upon reasonable medical probability, material recovery or lasting improvement could reasonably be anticipated.”

WHAT THIS MEANS FOR YOU: MMI is based on reasonable anticipation of the future, not what actually occurred.

• APD 230225

DECISION: Use Table 68 on page 3/89 of the AMA Guides for complete motor or sensory loss for the named peripheral nerves. The specific provisions of the AMA Guides do not prohibit using Table 11 on page 3/48 of the AMA Guides to rate the value of a partial sensory deficit using Table 68.

WHAT THIS MEANS FOR YOU: Different tables for partial versus complete sensory loss for peripheral nerves.

• APD 230145

DECISION: The ALJ determined a number of issues including disability and whether STD are considered PIE. The AP first held the issue of LTD benefits as PIE are not subsumed in the issue of disability. Second, STD benefits were paid 100% by the employer and thus are considered PIE.

WHAT THIS MEANS FOR YOU: The AP might start requiring a granular approach to issues.

You’ve got WC questions?  We have answers.  Send your questions to Q&A.

For Employer’s Liability, General Liability, Subro, and all other areas of law, email questions here.

Want some CE credit?  Come and get it!  Join us for Lunch and Learns every Friday.  For information and registration, email CE Department.

Have questions about Designated Doctors, RMEs, or Peer Reviews or have records for a DD, RME, or Peer?  Email our DD Department.

Do you have a hearing and need help or need to send records for an already set hearing?  Please send all set notices and records to DWCHearings@Downsstanford.com.