D&S Straight Out of CompTown – August 2022

We 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!

Here are more Lunch and Learns so you can get your credit early!

We are offering Lunch and Learns for 1-hour credits.  See the list of classes 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. 

September 9, 2022 from 12:00 P.M. to 1:00 P.M.:  When Are Injuries While Traveling Compensable? (125611)

September 23, 2022 from 12:00 P.M. to 1:00 P.M.:  Marihuana. The Ethical Considerations (125609)

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.

Compliance and Investigations Corner

Anytime income benefits are not paid, the insurance carrier must file a PLN explaining why the income benefits are not being paid.

Please contact us at 
Q&A if you have a specific question about which PLN to file or what language to use on a claim.

DWC Corner

Your monthly look at what is happening at the Division and how it impacts Carriers

We have a new Texas Division of Workers’ Compensation Commissioner!

Per the August 9, 2022 Texas Department of Insurance news release, Governor Greg Abbott appointed Jeff Nelson as Commissioner of Workers’ Compensation for a term set to expire on February 1, 2023. 

Jeff Nelson of Austin is the Director of External Relations for the Division of Workers’ Compensation, a position he has served in since October 2016. He previously served as a senior campaign consultant for Congressman Kevin Brady, executive aide to Governor Rick Perry, and as a legislative aide to State Senator Tommy Williams. He is a board member of the Southern Association of Workers’ Compensation Administrators. Nelson received a Bachelor of Arts in Government from the University of Texas at Austin.  Please see the link here for more information:  https://content.govdelivery.com/accounts/TXINSUR/bulletins/32752a6.

New DWC-3 Wage Statement Forms are here!  

Effective July 27, 2022, the Division adopted revisions to the DWC Form-003, Employer’s Wage Statement, DWC Form-003ME, Employee’s Multiple Wage Statement, and DWC Form-003SD, Employer’s Wage Statement for School Districts.  You may begin using these forms as of July 27, 2022.
These forms allow employers to provide information to their Carriers to calculate average weekly wage and issue income benefits.  The new forms are found on the TDI’s website:  https://www.tdi.texas.gov/forms/form20numeric.html.

The premise behind the revisions was to make the forms easier to understand and complete.  An accurately completed wage statement helps carriers properly calculate an Injured Worker’s Average Weekly Wage and issue correct income benefits.  

Question of the Month

Adjuster:  If employer paid Short Term Disability (STD) to the Claimant, can we count STD as post injury earnings?

How much of the STD Policy does the Employer pay for?

Adjuster:  If they pay 100% (or something) does that mean something….?

Yes, how much of the STD policy the Employer pays for means something.  Per the Appeals Panel Decisions, only if the Employer pays 100% of the STD policy, then you can take the full STD payment to the Claimant as Post Injury Earnings against the TIBs you owe.

We would be happy to assist you with any questions regarding this or any other issues you may have.  Please email us at Q&A.


The Claimant is reaching statutory MMI (104 weeks from the 8th day of disability) and you don’t have an impairment rating?  You’ve requested one from the treating doctor to no avail, and the designated doctor’s exam is not scheduled for another month.  How do you come up with a reasonable assessment to file your PLN-3(c) based on the 4th Edition of the AMA Guides for the spine?

Possible impairment ratings for the spine:

Lumbosacral Spine Impairments – Table 72

DRE Category    Description                                                           Impairment %

I                        Complaints or symptoms                                              0%
II                       Minor impairment – signs of lumbar     injury,             5%
                         without radiculopathy (intermittent or continuous
                         muscle guarding, nonuniform loss of range of motion
III                      Radiculopathy present                                                10%
IV                     Loss of motion segment integrity                               20%
V                      Radiculopathy & motion segment integrity                25%
VI                    Cauda equina like syndrome without    bowel or        40%
                         bladder impairment
VII                   Cauda equina syndrome with bowel or bladder            60%
VIII                  Paraplegia                                                                    75%

Cervicothoracic Spine Impairments – Table 73

DRE Category    Description                                                           Impairment %

I                          Complaints or symptoms                                               0%
II                         Minor impairment – signs of neck injury without        5%
                           Radiculopathy or loss of motion segment integrity 
III                        Radiculopathy present                                                  15%
IV                       Loss of motion segment integrity                                25%
                          or multilevel neurologic compromise    
V                        Severe upper extremity neurologic                              35%
VI                      Cauda equina syndrome without bowel or bladder   40%
VII                    Cauda equina syndrome with bowel or bladder         60%
VIII                     Paraplegia                                                                      75%

Thoracolumbar Spine Impairments – Table 74

DRE Category    Description                                                           Impairment %

I                          Complaints or symptoms                                               0%
II                         Minor impairment                                                         5%
                            A. Clinical signs of thoracolumbar injury without radiculopathy or loss of motion segment integrity
                            B. Structural inclusions – less than 25% compression of vertebral body or posterior element fracture without dislocation
III                        Radiculopathy                                                               15%
                            A.    Neurologic evidence of limb impairment
                            B.    Structural inclusions – 25% to 50% compression fracture of 1 vertebral body or posterior element fracture disrupting the spinal canal
IV                        Loss of motion segment integrity or multilevel            20%
                            neurological compromise    
V                         Radiculopathy and loss of motion segment integrity    25%
VI                        Cauda equina syndrome without bowel or bladder       35%
VII                       Cauda equina syndrome with bowel or bladder            55%
VIII                       Paraplegia                                                                     70%

If you need help estimating Impairment Ratings, please email us, and we can help you.  If the matter is complex, then we can assist in requesting a Peer Review to help calculate the estimated Impairment Rating as well.

Need Help with Designated Doctors, Peer Reviews, or Required Medical Examinations?  You’ve Come to the Right Place!

Please contact dd-rme@downsstanford.com, and our office will be happy to assist you.

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

• APD 220907, 2022 TX Wrk. Comp. LEXIS 60

DECISION: The parties stipulated the compensable injury is Carpel Tunnel Syndrome (CTS). The EMG was negative for CTS. The Designated Doctor (DD) certified Maximum Medical Improvement (MMI) for bilateral wrist pain. In an answer to a Letter of Clarification (LOC), the DD noted the EMG ruled out CTS. The Appeals Panel (AP) reversed holding the DD did not rate the compensable injury as stipulated by the parties. Another certification rated a condition not accepted as compensable or litigated by the parties. None of the certifications rated the compensable condition requiring reversal.

WHAT THIS MEANS FOR YOU: Make sure the certifications rate the compensable injury and only the compensable injury.

• APD 220810, 2022 TX Wrk. Comp. LEXIS 61

DECISION: The DD rounded range of motion (ROM) measurements for the lower extremities and then failed to use the AMA Guides Tables to calculate the correct Impairment Rating (IR) based on the ROM values. For lower extremity IR calculations, the certifying doctor has medical discretion to award the most severe IR or not in a given plane and ROM measurements need not be rounded. Because of the medical discretion, the AP could not adjust the IR.

WHAT THIS MEANS FOR YOU: AP knows how to calculate IRs, and you should too. 

• APD 220898, 2022 TX Wrk. Comp. LEXIS 59

DECISION: The Administrative Law Judge (ALJ) required expert medical evidence for an AC joint sprain and strain. The AP reversed holding expert medical evidence is not required for sprains and strains. 

WHAT THIS MEANS FOR YOU: The AP is steadfast that sprains and strains do not required expert medical evidence. 

• APD 220930, 2022 TX Wrk. Comp. LEXIS 58

DECISION: The AP clarified the typographical error did not change the outcome. The worker underwent a total hip replacement, not a total knee replacement. The AP also affirmed the decision that the worker failed to prove he earned 80% of his preinjury wages when the evidence indicated he returned back to work at his same hourly rate of pay in 2013 and received yearly incremental raises.

WHAT THIS MEANS FOR YOU: The worker must prove he did not earn 80% of his preinjury wages.

• In re Hellas Constr., Inc., __ S.W.3d __, 2022 Tex. App. LEXIS 5222 (Tex. App.—Austin July 28, 2022)

DECISION: The decedent died because of a heat stroke. Beneficiaries filed a wrongful death action. The contractor first denied and then accepted the decedent was an employee. The contractor and its workers’ compensation carrier paid the burial benefits and requested a Benefit Review Conference (BRC). Plaintiffs tried to avoid a DWC determination by arguing they did not file a claim with DWC, and the timeline to file a DWC-42 has passed. The court of appeals held DWC had exclusive jurisdiction to determine the employment status, even if the beneficiaries did not file a claim with DWC or the carrier.

WHAT THIS MEANS FOR YOU: DWC should hear all claims of employment status. 

• In re Estate of Gomez, __ S.W.3d __,   2022 Tex. App. LEXIS 5078 (Tex. App.—Fort Worth July 21, 2022)

DECISION: The alleged common law spouse signed a DWC-24 agreeing she was not a legal beneficiary. She then filed a gross negligence claim against the decedent’s employer alleging she was the common law spouse and filed an heirship claim before the Probate Court. The employer tried to appeal the Probate Court’s ruling. The court held the employer had no jurisdiction to challenge or appeal the Probate Court’s finding since it did not have a pecuniary interest in the outcome. 

WHAT THIS MEANS FOR YOU: Employer cannot challenge the Probate Court’s determination of common law marriage. 

• APD 220948, 2022 TX Wrk. Comp. LEXIS 67

DECISION: The ALJ determined the worker did not sustain disability from 3/26/21 through the date of the CCH. The discussion section included ALJ statements the worker did not find a doctor to treat with until 11/23/21. However, the records included a 11/9/21 medical report, 14 days earlier. The ALJ’s statement is a misstatement of the evidence requiring reversal.

WHAT THIS MEANS FOR YOU: The ALJ could determine the worker did or did not have disability but cannot misstate the evidence to support either determination. 

• Hudspeth Cty. v. Ramirez, __ S.W.3d __,  2022 Tex. App. LEXIS 5624 (Tex. App.—El Paso Aug. 5, 2022)

DECISION: A county employee sustained a compensable injury resulting in his death. The beneficiary sued for exemplary damages. The court held the county enjoys governmental immunity and cannot be sued under either the Wrongful Death Act or for exemplary damages pursuant to Texas Labor Code Section 408.001(b) (which is excluded by the Political Subdivisions Law) and instead must seek damages under the Tort Claims Act which does not provide for exemplary damages against a political subdivision. 

WHAT THIS MEANS FOR YOU: A beneficiary cannot seek exemplary or punitive damages against a political subdivision.

• APD 2201016, 2022 TX Wrk. Comp. LEXIS 62

DECISION: The DD stated the pre and post-injury MRIs did not reveal any change. But the records do not reflect the DD had possession or reviewed one of the MRIs. Instead, the DD relied on a second opinion by a doctor who reviewed both MRIs. Other doctors did have that MRI to review so it was available. Thus, the DD did not have all the records pursuant to Rule 127.10 when making an extent of injury determination.

WHAT THIS MEANS FOR YOU: The DD must review all relevant medical records before the report is adoptable.

• APD 221060, 2022 TX Wrk. Comp. LEXIS 65

DECISION: None of the three certifications rated the compensable injury; that is, the diagnoses that are accepted or administratively determined to be compensable. Some rated conditions that were not compensable and others did not rate all the accepted conditions. The IR must rate all the diagnoses that are compensable and not rate any of the diagnoses that are not.

WHAT THIS MEANS FOR YOU: Create a spreadsheet and make sure there is a certification that rates the compensable injury.

• APD 221118, 2022 TX Wrk. Comp. LEXIS 63

DECISION: The narrative report did not include any worksheets, clinical findings, or other documentation demonstrating how the certifying doctor arrived at the IR for left trigger finger, one of the accepted injuries. As such, the certification does not meet the requirements of Rule 130.1. 

WHAT THIS MEANS FOR YOU: Certifying doctors must show their work.

• APD 220931, 2022 TX Wrk. Comp. LEXIS 66

DECISION: The RME report was not adoptable because of on an internal inconsistency between the MMI date on the DWC-69 and the MMI date found in the narrative report. The DD report was not adoptable because the DD indicated the Injured Worker’s mental status returned to baseline but still awarded a 7% IR for mental status impairment without any explanation.

WHAT THIS MEANS FOR YOU: The IR found on the DWC-69 must match the narrative report

• Grant v. Wind Turbine & Energy Cables Corp., __ S.W.3d __, 2022 Tex. App. LEXIS 5074 (Tex. App.—Fort Worth July 21, 2022)

DECISION: Injured Worker (IW) was interviewed, hired, and paid by a temporary staffing company, but the client company had the right and did control his employment under the Borrowed Servant Doctrine. The IW sustained an injury when the client company told him to be in a certain place on their property when injured. The temporary services company “might have been Grant’s general employer for some purposes and activities would not mean that it was his common law employer for all purposes and all activities.” The temporary services company did not have the right to control the IW to serve as the common law employer for purpose of the “particular work at issue” for negligence purposes. 

WHAT THIS MEANS FOR YOU: Temporary employment and staff leasing act cases are incredibly complex.

If you have any general questions regarding Longshore or would like a seminar regarding Longshore Claims, please email Longshore@downsstanford.com.

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.