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 26, 2024 from 12:00 P.M. to 1:00 P.M.: Supplemental Income Benefits with Pamela Pierce and Chris Esson.
May 17, 2024 from 12:00 P.M. to 1:00 P.M.: Subrogation Lien Recovery with Lauren Strax and Rynn Freiling.
DWC HAPPENINGS
YOUR MONTHLY LOOK AT WHAT IS HAPPENING AT THE DIVISION AND HOW IT IMPACTS CARRIERS
It has been a relatively slow month in the world of DWC happenings. However, it should be noted that there have been a number of recent retirements in the Hearings Division that will likely result in Benefit Review Officers being required to hold more hearings on a weekly basis. Since the beginning of January, the northern section has seen retirements from four Benefit Review Officers, and it appears relatively certain that not all of these positions will be filled going forward. There are also a number of other Hearings Division employees that are eligible for state retirement, and the concern going forward is the loss of institutional knowledge. While we can only wish the best of luck and contentment in retirement for the BROs that have left, we can’t help but be concerned about the experience and expertise that is no longer available to the parties.
DWC has proposed a number of changes to Chapter 147 of the Associated Rules of the Texas Labor Code. This section deals with agreements and settlements, and purports to “clean up” the Rule, especially if it is already addressed in the Texas Labor Code. While settlements are not normally seen on a regular basis in DWC matters, it is an option available to the parties. Among the changes, however, is an affirmation that any settlement must be sent to the DWC, and the DWC has 16 days in which to approve or reject it. Any settlement must establish that the insurance carrier is liable for the claim, that the claim is compensable, establish that the employee is entitled to benefits, state that a final resolution has been reached on all issues in the claim, and that parties waive their rights to future DWC hearings in most instances.
Once again, a look at the disciplinary orders issued in March of 2024 reveals that the DWC is most concerned about timely payments, more so than anything else. Here is an overview of fines and “offenses” in March:
- $5,000 for failing to timely pay on medical bills
- $2,500 for failing to timely pay attorney fees
- $7,500 for failing to timely pay medical bills
- $3,500 for failing to timely pay medical bill
- $4,000 for failing to timely pay medical bills
- $2,900 for failing to timely pay medical bills
The DWC did not solely focus on timely payment of medical billing, however. Failure to timely initiate income benefits was a repeatedly fined offense:
- $17,000 for failing to timely initiate TIBs
- $6,500 for failing to timely initiate IIBs
- $8,500 for failing to timely pay TIBs and failing to timely/accurately report EDI data
The clear message being sent by DWC is that if you do not timely start indemnity benefits, or you do not timely pay medical benefits, you can expect a potentially significant fine to come your way from the DWC.
Odd Case of the Month
We are starting a new section in our newsletter that brings out an “odd” case that our attorneys or our clients have seen in recent months. If you have any suggestions for submission, please send them to Q&A@downsstanford.com. If you deal with Texas workers’ compensation cases long enough, something will come across your desk that will make you scratch your head, laugh out loud, or just sigh in disbelief.
This month, a Texas Mechanism of Injury was that a teacher was trying to sit down and a student pulled the chair out from her. Now that might or might not be funny depending on your childhood antics. But what makes this a Texas MOI is that she her gun belt (and loaded gun) around her waist with the gun positioned over the sacrum which of course she landed directly on causing serious injuries to her coccyx and sacrum (and left hip, and left knee, and lumbar).
Head Scratcher
Can a same sex partner establish common law marriage & beneficiary status for death benefits?
A client’s recent question in our Q&A email inbox posed an interesting set of facts in an unsettled area of the law.
Q: I have a new fatal claim with an unmarried same sex partner. They have lived together for 7 years, share auto insurance policy and other financial accounts.
What does she need to send me to support her claim of common law marriage?
Discussion: Same sex marriage became legal in Texas in 2015 after the U.S. Supreme Court issued their decision on the case Obergefell v Hodges. This opinion required all states to issue marriage licenses to same-sex couples. In December 2022, the federalRespect for Marriage Act created statutory protections for same-sex marriages. The Act does not require all states to issue same-sex marriage licenses (as the Obergefell decision does), it requires all states to recognize valid same-sex marriages performed in another state.
Since there is no marriage license in this workers’ compensation claim, there is no formal marriage for Texas to recognize. So, the next question is whether Texas recognizes common law marriages between two people of the same sex.
To prove a valid common law marriage in Texas, two individuals must present evidence of:
- a specific and mutual agreement to have a present and immediate marriage;
- after the agreement they must live together as a married couple; and
- they must represent to others (“hold themselves out”) as being married.
Texas courts have held the representation of marital status to others must be consistent.
Same-sex couples in Texas can enter into an informal marriage, also known as a common law marriage. Texas allows parties in an informal marriage to hold, as their legal marriage date, the earliest date at which they satisfied all the requirements of an informal marriage.
Some Texas counties accept the filing of domestic partnership agreements and maintain a registry of domestic partnerships. A domestic partnership agreement is a document that describes the legal rights and responsibilities between two individuals of any gender in a long-term relationship. These documents are used for various purposes. Some employers use them to grant insurance and other benefits. However, the Texas Labor Code does not reference domestic partnership, it references marriage(covering formal and common law).
What do you think? Can a same sex partner establish common law marriage and thus beneficiary status for death benefits under the Texas Labor Code?
COMPLIANCE AND INVESTIGATION CORNER
Pay attention to requests for travel reimbursement. Per Rule 134.110, a carrier shall pay or deny an injured employee’s properly completed request for reimbursement within forty-five (45) days of receipt. Injured employees submit a request to get reimbursed for travel costs using form DWC048. The DWC048 must be sent to the carrier within one year of the date the travel costs are incurred, or the injured employee will waive the right to reimbursement. The DWC048 is used if the injured employee must travel more than thirty (30) miles one way (60 miles round-trip) to obtain medical treatment that is not reasonably available within 30 miles of where the injured employee lives, or if the injured employee travels more than 30 miles one way for a designated doctor examination or post-designated doctor required medical examination. If the travel requires the injured employee to stay overnight, then the injured employee can get reimbursed for lodging and meals. These expenses must have a receipt to demonstrate the amount incurred and the amount cannot exceed that allowed for travel by state employees. Once the DWC048 is received, the carrier must respond to the request within 45 days, or any dispute of reimbursement is waived. However, even if the request for reimbursement is approved, the carrier must, in box 12, note whether the request for reimbursement is approved, denied, or partially denied, and send that decision to the injured employee. If not satisfied with the carrier’s position, the injured employee can request a Benefit Review Conference. Failure by a carrier to take the required action within 45 days is a violation and can result in a monetary penalty so it is important to timely respond to any request for reimbursement for travel costs and avoid penalties.
Decisions, Decisions, and More Decisions
Current Cases that You Need to Know
• IN THE MATTER OF CHARLIE JAIMES, DECEASED
DECISION: The plaintiff named City of Rockwall as a defendant but meant to sue City of Dallas. Plaintiff timely served the City of Dallas with the petition which had attached the DWC’s AP decision and Decision & Order. The court held this was a case of a misnomer instead of a misidentification. The Statute of Limitations is tolled (the amended petition relates back to the filing date of the original petition) in misnomer cases when the plaintiff names the wrong party, but the correct parties are involved in the lawsuit. City of Dallas was timely put on notice that it was the intended defendant. The beneficiary did not timely claim death benefits but had good cause based on her mistaken belief that another person, a city employee, was handling the matter and filing documents.
WHAT THIS MEANS FOR YOU: Mistaken belief exception is substantially expanded based on the facts of this case.
• City of Stephenville v. Belew, __ S.W.3d __, 2024 Tex. App. LEXIS 1738 (Tex. App.—Eastland Mar. 7, 2024, no pet. h.)
DECISION: Under the “old” cancer presumption, pancreatic cancer was not one of the three listed by IARC, but the DWC nevertheless held that any cancer mentioned in Monograph 98 triggers the presumption. The court concluded that triggering the fire-fighter presumption required the claimant to “establish a general causal link between his cancer and the specific exposures listed in the statute.” The plaintiff has the burden of proof to establish general causation: to “show that, as determined by IARC, the specific exposures listed in the statue are capable of producing the type of cancer from which he suffers.” The statute “unambiguously dictated that the determinations made by IARC are the exclusive source of evidence the claimant must rely on and use to establish general causation and to trigger the presumption.” Once triggered, the claimant has the benefit of the presumption and thus need not show specific causation: “he is presumed to have developed the cancer in the course and scope of his employment.” The carrier now has the burden of persuasion to prove that something other than fire-fighting caused the cancer. The court described the Monograph process and determined three cancers trigger the presumption: testicular, prostate, and non-Hodgkin’s lymphoma. The court held the Appeals Panel “simply misapplied the effect of the statutory presumption.”
WHAT THIS MEANS FOR YOU: The 2005 cancer presumptions are limited to testicular, prostate, and non-Hodgkin’s lymphoma.
• Orta v. SN Operating, LLC, __ S.W.3d __, 2024 Tex. App. LEXIS 1634 (Tex. App.—San Antonio Mar. 6, 2024, no pet. h.)
DECISION: In a non-subscriber case, the new employee suffered a heat stroke and died. The symptoms and effects of heat stroke are not within the common layperson’s understanding and knowledge. The court held the worker must present expert medical evidence to prove work activities caused a heat stroke.
WHAT THIS MEANS FOR YOU: Most heat-related injuries require expert medical evidence.
• APD 240080
DECISION: The carrier submitted a document providing the registered agent for service of process using a P.O. Box as the address. A plaintiff cannot effectuate service at a P.O. Box. The carrier must produce a valid address for the agent for service of process.
WHAT THIS MEANS FOR YOU: ALJ Exhibit 2 cannot use a P.O. Box as an address.
• APD 240139
DECISION: The certifying doctor converted a 7% UE impairment into a WPI. But the doctor converted to 6%, not the correct 4%. The Appeals Panel corrected the IR.
WHAT THIS MEANS FOR YOU: Converting is hard for many doctors.
• APD 240113
DECISION: The worker requested relief from an agreement she signed involving her IR. The ALJ did not agree her inability to read English was a good cause in this case. There was no fraud or misrepresentation, and the worker was mailed a copy of the agreement providing time to review it. However, the ALJ found good cause holding the certifying doctor did not properly and accurately arrive at the proper IR. The AP disagreed because the calculation of the IR in this case involves rounding and therefore medical judgement. It is unclear if the IR calculation did not require medical judgment would have resulted in good cause to be relieved of the agreement.
WHAT THIS MEANS FOR YOU: There seems to be a rash of cases where workers are seeking relief from agreements.
• APD 240099
DECISION: In response to BRO report and at the CCH, the claimant asked to add the issue of whether the self-insured employer was properly recouping money or taking reimbursement contrary to Rule 129.7 (prohibiting an employer who provides salary continuation or supplementation from seeking reimbursement from the employee or the carrier). The ALJ granted the request. Then after the hearing, she determined she did not have jurisdiction and dismissed the issue without making any findings of fact or conclusions of law. The AP held the issue was properly before the ALJ and therefore reversed for the ALJ to make such a determination.
WHAT THIS MEANS FOR YOU: Employer recouping salary continuation or supplementation benefits from the employee or the carrier is a valid issue.
• APD 240094
DECISION: The AP listed the following errors in the report of Dr Q: no explanation of the date of MMI, missing page from the narrative report, unclear what conditions the DD considered and therefore if the entire compensable injury was rated.
WHAT THIS MEANS FOR YOU: The DD report must meet some minimal standards.
• APD 240172
DECISION: After the CCH concluded and the D&O was issued, the carrier submitted a new Carrier Information Form with a new address. The AP reversed to include the updated info.
WHAT THIS MEANS FOR YOU: Accurate and current Carrier Information Forms are important.
• APD 240162
DECISION: The ALJ adopted the MMI/IR determinations of the RME doctor. The AP does not provide any information about the other certifications. The RME mistakenly awarded a 1% IR when the certifying doctor should have awarded 2% according to the AMA Guides. The AP performed a mathematical correction.
WHAT THIS MEANS FOR YOU: If only we were all could calculate IRs like the AP.
• APD 240159
DECISION: The certifying doctor used the shoulder ROM measurements taken from the final PT visit. However, the therapist did not take or failed to document extension and adduction measurements. Neither did the certifying doctor use extension or adduction measurements from any other examination, including the doctor’s own. Therefore, “the ROM measurements were incomplete and do not comply with Rule 130.1.”
WHAT THIS MEANS FOR YOU: The certifying doctor must document measurements in all planes required by the AMA Guides.
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.