We Hope Everyone Has a Happy Labor Day!
With kids back to school, life is back in full swing and we are four months from the end of 2021. We have updates on the most recent changes with the Division of Workers’ Compensation.
Summary of New Legislation Affecting Workers’ Compensation
Senate Bill 22: COVID-19 First Responder Presumption
SB 22 creates a new COVID-19 rebuttable presumption that a COVID-19 injury or death is compensable when claimed by peace officers, firefighters, emergency medical technicians, custodial officers, and detention officers.
• This bill applies to any new claim filed by a covered employee on or after June 14, 2021 and is retroactive.
• If a covered employee was diagnosed with COVID-19 on or after March 13, 2020, OR contracted COVID-19 between March 13, 2020, and June 14, 2021, the covered employee is entitled to pursue a claim under this presumption regardless of whether the claim was timely filed. Such claims must be filed on or before December 14, 2021.
• If a covered employee filed a claim between March 13, 2020, and June 14, 2021, and the claim was denied – the covered employee is entitled to request the claim be reprocessed under the presumption. The deadline to request the reprocess is June 14, 2022. Employees/beneficiaries may request a claim be reprocessed in any written form; they are not required to use the sample request.
• Carriers must process requests to reprocess claims within 60 days after receiving a written request to reprocess and must notify the injured employee/beneficiary and DWC whether the reprocessed claim is accepted or denied. Carrier will be required to use a plain language notice (PLN-15) to notify whether it is accepting or disputing a COVID-19 claim.
• Employees/beneficiaries may seek reimbursement for COVID-19 under new §409.0092. Within 45 days of receiving a written request, carriers shall reimburse or deny reimbursement for health care received including deductibles and co-pays. Employees/beneficiaries may seek medical dispute resolution (MDR) of any denial by filing a request within 120 days of the carrier’s denial for reimbursement.
Effective June 14, 2021.
Forms, Forms, and More Forms: Revised DWC Forms for Carriers
DWC-045 Request to Schedule, Reschedule, or Cancel a BRC (revised 7/21)
The revised DWC-045 eliminates the option to proceed directly to a CCH. The form includes a section stating: “If you are requesting to reschedule a BRC, you must contact the other parties and DWC docketing to get an agreed date when everyone is available. The proposed date is…”
DWC-45M Request to Schedule, Reschedule, or Cancel a BRC to Appeal a Medical Fee Dispute Decision (BRC-MFD) (revised 7/21)
The revised form includes a place to state whether a party’s attorney is the requestor. It removes the section inquiring whether a requesting employee is a first responder. A party requesting a BRC-MFD must attach a copy of the Medical Fee Dispute Resolution decision. A party requesting to reschedule a BRC-MFD must attach supporting documentation. The form includes a section stating: “If you are requesting to reschedule a BRC, you must contact the other parties and DWC docketing to get an agreed date when everyone is available. The proposed date is…” If the party requesting to reschedule missed the prior BRC-MFD, they must explain why they missed it and why they failed to contact DWC prior to missing it. A party requesting to cancel a BRC-MFD must attach supporting documentation.
DWC-095 SIF Reimbursement Request Form-Overturned Order of DD Opinion (revised 1/21).
This form reflects the new requirement that it be filed by electronic file transfer or fax.
DWC-096 SIF Reimbursement Request Form–Refund of Death Benefits (revised 1/21).
This form reflects the new requirement that it be filed by electronic file transfer or fax.
DWC-097 SIF Reimbursement Request Form–Multiple Employment (revised 1/21).
This form reflects the new requirement that it be filed by electronic file transfer or fax.
DWC-098 SIF Reimbursement Request Form–Pharmaceutical (revised 1/21).
This form reflects the new requirement that it be filed by electronic file transfer or fax.
DWC-153 Request for Record Check or Copies of Confidential Claim Information (revised 2/21).
This revised form replaces DWC Form-155, Request for Record Check and combines it with the prior DWC Form 153. The revised form allows parties to use a single form to request a DWC claim history or request copies of confidential claim information.
DWC forms revised in 2021 that Carriers do not file include:
DWC-048 Request to Get Reimbursed for Travel Costs (revised 2/21)
DWC-060 Medical Fee Dispute Resolution Request (revised 2/21)
DWC-083 Agreement for Certain Building and Construction Workers (revised 1/21)
DWC-084 Exception to Application of Joint Agreement for Certain Building and Construction Workers (revised 1/21)
Need Help with Designated Doctors? You’ve Come to the Right Place!
Finally, some good news on SIBs!! On March 27, 2020, DWC suspended work search requirements for SIBs under Texas Labor Code §408.1415(a) and 28 Texas Administrative Code §130.102(d) due to COVID-19. DWC has finally lifted the suspension. For each full week of a qualifying period on or after August 2, 2021, Claimants will now be required to complete active work search efforts conducted through the Texas Workforce Commission or documented by job applications submitted by the Claimant unless they are actively participating in a vocational rehabilitation program. Be sure and check any SIBs applications with a qualifying quarter beginning after August 2, 2021 to make sure that the Claimants made their weekly job searches as required by the statute and rule.
On June 4, 2020, DWC also suspended any examinations regarding return to work or disability as a direct result of the compensable injury. As of August 2, 2021, DWC resumed processing requests for DD examinations and RME examinations on all issues, including return to work or disability as a direct result of the compensable injury.
If you need assistance with any of your DD, RME or peer requests, please contactdd-rme@downsstanford.com, and our office will be happy to assist you.
Decisions, Decisions, and More Decisions
The Current AP Cases that You Need to Know
APD 210714, 2021 TX Wrk. Comp. LEXIS 48
DECISION: The ALJ refused to apply the rebuttable presumption because the evidence did not include the drug screen results and the verification section of the urine drug screen report was blank. The AP noted the ER records and an expert reviewer reflect a positive test result, and therefore, the rebuttable presumption should apply.
WHAT THIS MEANS FOR YOU: The AP wants the ALJs to apply the presumption but also noted that lay testimony can overcome the presumption.
APD 210736, 2021 TX Wrk. Comp. LEXIS 47
DECISION: The AP stated, “When there is an intervening injury, the correct standard of law is whether the intervening injury is the sole cause of the disputed condition or disability. To prove sole cause regarding a subsequent injury, the burden is on the carrier to prove that the claimant’s subsequent injury is the sole contributing factor to the claimant’s current condition or disability. APD 033368, decided February 19, 2004. The mere existence of an intervening injury does not establish that the intervening injury is the sole cause of the claimant’s condition. There may be more than one producing cause of the claimant’s current condition, namely the original compensable injury and the subsequent non-compensable MVA of October 6, 2019.”
WHAT THIS MEANS FOR YOU: Since this was a reconstruction of the records case, it is notable the AP chose to highlight its standard of sole cause despite the supreme court’s insistence of the producing cause standard.
APD 210517, 2021 TX Wrk. Comp. LEXIS 50
DECISION: The carrier did not dispute compensability but rather filed a PLN-11 disputing extent and disability. The ALJ held the carrier must pay all accrued benefits under Rule 124.3 because it did not pay or dispute within 15 days. Rule 124.3 is implicated when the carrier files a dispute of compensability or liability (PLN-1), not when it files a dispute of benefit entitlement.
WHAT THIS MEANS FOR YOU: Payment of all accrued benefits pursuant to Rule 124.3 is satisfied by filing a PLN-1, not a PLN-11.
Voelter v. Daimler Trucks N. Am., LLC, 2021 U.S. Dist. LEXIS 124077 (W.D. Tex. 2021)
DECISION: DTNA was not a party to the staffing agreement between the staffing agency and Custom Truck Services. But the evidence was DTNA was the actual entity that owned and controlled Custom Truck Services and operated Custom as an unregistered d/b/a. The court does not look to the contract to determine employer status, but rather to the parties daily relationship and conduct on the job site to determine if an employer had the right to exercise control over the employee.
WHAT THIS MEANS FOR YOU: The exclusive remedy bar is not easy to get around so long as both companies offer workers’ compensation insurance and have the right to control the worker.
Do You Have a Longshore Claim and Don’t Know It?
RECENT LONGSHORE DECISION ON BORROWED SERVANT/EXCLUSIVE REMEDY DEFENSE TO NEGLIGENCE CLAIMS
Raicevic v. Fieldwood Energy, LLC, 979 F.3d 1027 (5th Cir. 2020).
The Fifth Circuit held that an offshore platform mechanic was a “borrowed employee” of the platform owner, as required for the owner to invoke the LHWCA’s exclusive remedy provision as a bar to the mechanic’s negligence claim. The Court further held, as a matter of first impression, the employer could invoke the LHWCA’s exclusive remedy provision without showing that it paid benefits under the LHWCA. Raicevic sustained a back injury while working as a mechanic on an offshore platform owned by Fieldwood Energy, located on the outer continental shelf in the Gulf of Mexico. He was employed by Waukesha Pearce Industries, Inc. Raicevic sued Fieldwood for negligence. Following a jury trial, the district court entered a judgment for defendants. It found that Raicevic was Fieldwood’s borrowed employee, and thus the LHWCA’s exclusive-remedy provision gave Fieldwood tort immunity.
Under the Outer Continental Shelf Lands Act, an employee’s exclusive remedy for a work-related injury is the LHWCA. 43 U.S.C. §1333(a)(1) and (b); 33 U.S.C. §905(a). But this exclusivity provision only applies to (1) employers who “secure payment of compensation” under the LHWCA. 33 U.S.C. §905(a). The court reviewed the nine (9) federal factors under Ruiz v. Conoco for borrowed servant status and upheld the verdict on that issue.
The Court also addressed Raicevic’s argument that his tort claim was not barred because Fieldwood “fail[ed] to secure payment of compensation as required by” the LHWCA. 33 U.S.C. §905(a). Raicevic argued that to invoke the LHWCA as a defense, an employer must prove not just that it had LHWCA insurance, but that it paid benefits under that insurance to the employee. As a matter of first impression, the Court held that an employer could invoke the LHWCA’s exclusive remedy provision without showing that it paid benefits under the LHWCA. The statute makes clear what it means to “secure payment”—buy insurance or receive approval to pay compensation benefits directly. 33 U.S.C. §932(a). Here, both Fieldwood and Waukesha Pearce had LHWCA insurance at the time of the injury, and that was sufficient for Fieldwood to invoke the LHWCA’s exclusive-remedy provision. The Court concluded that, because Fieldwood had tort immunity, the district court correctly entered judgment for defendants.
If you have any general questions regarding Longshore or would like a seminar regarding Longshore Claims, please email Longshore@downsstanford.com.
Downs and Stanford Speakers Around the State
- Pamela Pierce will be speaking this month on COVID-19: Compensability and Presumptions at the Texas State Bar Advanced Workers’ Compensation Seminar.
- Stuart Colburn and Adrienne Gasser will be presenting Empathy and Texas Workers’ Compensation at Texas’ PRIMA Conference on November 9, 2021, held this year in Galveston, Texas.
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