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.
September 8, 2023 from 12:00 P.M. to 1:00 P.M.: Lifetime Income Benefits Webinar with Chris Esson and Stuart Colburn
September 22, 2023 from 12:00 P.M. to 1:00 P.M.: It’s All Different: How DWC Will Resolve Disputes for Extent, MMI, and IR Webinar with Wendy Schrock and Pamela Pierce
HOUSE BILL NO. 471 AND LOCAL GOVERNMENT CODE CHAPTER 177A
LEGISLATIVE UPDATE
House Bill No. 471 amends Section 1, Subtitle C, Title 5, Local Government Code by adding Chapter 177A (hereinafter referred to as Chapter 177A). The amendment took effect May 24, 2023.
Chapter 177A applies to political subdivisions and covers firefighters, police officers, and emergency medical services personnel (hereinafter referred to as “covered employees”) of political subdivisions. §177A.001 defines the individuals covered by Chapter 177A.
§177A.002 acknowledges that covered employees may have collective bargaining, meet and confer, or other similar agreements that provide benefits. Chapter 177A mandates that such agreements provide benefits that at a minimum comply with Chapter 177A. Note: §177A.002 applies only to such agreements entered on or after May 24, 2023.
§177A.003 requires political subdivisions to provide covered employees leave of absence withfull pay for illnesses or injuries related to their line of duty. Leave with full pay is for a period commensurate with the nature of the illness or injury. If necessary, political subdivisions must continue leave at full pay for at least one year. Once that leave of absence expires, political subdivisions may extend the leave of absence at full pay or at reduced pay. Providing an extension is optional.
If a covered employee remains temporarily disabled once the mandatory leave of absence and any optional extension expire, the covered employee may use accumulated sick leave, vacation time, and other accrued benefits before being placed on temporary leave. The employee is not required to use these benefits.
If at the time the leave of absence and any extension expire a covered employee requires additional leave, the employee shall be placed on temporary leave. This language is mandatory.
If a covered employee returns to work light duty while recovering from a temporary disability, that light duty may continue for at least one year if medically necessary. This language is not mandatory. After recovering from a temporary disability, the covered employee shall be reinstated at the same rank and with the same seniority the employee had prior to going on temporary leave. This language is mandatory. Another employee may volunteer to perform the work of the covered employee until the covered employee returns to duty.
Chapter 177A amends §504.051(a) of the Texas Labor Code. The amendment specifies that workers’ compensation benefits provided under §504.051(a) shall be offset by benefits for incapacity provided under Chapter 177A. The amendment to 504.051(a) applies only to workers’ compensation claims filed on or after May 24, 2023. A claim filed before that date is governed by the law as it previously existed.
DWC HAPPENINGS
YOUR MONTHLY LOOK AT WHAT IS HAPPENING AT THE DIVISION AND HOW IT IMPACTS CARRIERS
The DWC recently issued a data call involving workers’ compensation networks, with information from these networks being due on December 4, 2023 (which means that at some point in time after that, we will likely have an update on the results of that call). The DWC has requested that the networks provide a list of every injured employee treated in their network from June 1, 2021 through May 31, 2023, as well as a list of all insurance carriers or political subdivisions they have contracted with as of May 31, 2023.
In addition, a review of recent disciplinary orders issued by the DWC clearly shows the types of violations DWC is currently focusing on, especially as it pertains to Carriers. Of course, Claimants never seem to appear in these disciplinary reports, but there has been increased attention paid to doctors and employers. With respect to Carriers, the focus still appears to be on timely payments, to both Claimants and health care providers. There were recent disciplinary orders for failing to timely pay Designated Doctors and health care providers within 45 days, with administrative penalties assessed in excess of $25,000. In addition to the penalties for late payments of TIBs and medical bills, there continues to be a significant focus on ensuring that Carriers correctly pay death benefits to the appropriate beneficiaries. All told, there were 15 different consent orders filed against Carriers or Self-Insureds in July. It is clear that the DWC will likely continue to assess administrative violations for these types of cases, which makes timely and appropriate payment of benefits more important than ever.
Compliance and Investigations Corner
The Division of Workers’ Compensation has unveiled a new form designated OARFI-IE for injured employees and OARFI-IC for insurance carriers. The form is titled a Request for information to the [claimant or insurance carrier], as appropriate and seeks information to assist in mediation disputes concerning maximum medical improvement and impairment ratings. The form asks insurance carriers to provide adjuster information, treating doctor, information, network name (if applicable), and whether certain conditions specifically listed on the form are or are not accepted as compensable by the insurance carrier.
For claimants, the form asks for injuries the claimant believes should be considered in the dispute (no conditions are listed) and a list of all health care providers for the compensable injury. It should be noted that the current version of these forms states the information is for mediation purposes and the “answers do not bind” the party.
Parties are given three business days to respond to the form.
Regarding the form for insurance carriers, it is important that responses be timely provided to the DWC, or the insurance carrier may be subject to a compliance action. It is also important to respond as accurately as possible, but Downs & Stanford, P.C. does not recommend that every condition listed must be accepted or denied.
In certain situations, the insurance carrier’s investigation may not have resulted in a determination of whether certain conditions are related to the compensable injury. For those conditions, the insurance carrier can list the conditions and then state the insurance carrier’s investigation continues but it has not yet made a determination whether the listed conditions are or are not related to the compensable injury. It is also recommended that a peer review opinion be obtained on the conditions to obtain a medical opinion whether the listed conditions are related to the compensable injury. If appropriate, and following receipt of the peer review opinion, the insurance carrier can then send in amended responses.
Because of the potential extent of injury ramifications responses from responding to the form, insurance carriers should consider consulting their legal counsel before responding to this DWC request on form OARFI-IC.
Decisions, Decisions, and More Decisions
Current Cases that You Need to Know
• Great Divide Ins. Co. v. Fortenberry, __ S.W.3d __, 2023 Tex. App. LEXIS 5164 (Tex. App.—Dallas July 17, 2023, no pet. h.)
DECISION: An NFL player received significant payments pursuant to the NFL Collective Bargaining Agreement following an injury. He later sought TIBs. Finding professional football players are a distinct class of employees, the player had the burden of raising and proving he did not elect to receive benefits under the Bargaining Agreement pursuant to Lab. C. § 406.095 and 28 Adm. C. § 112.401, and those benefits were less than workers’ compensation benefits under the Act. The worker was not challenging the amount of medical benefits as compared to the Bargaining Agreement.
WHAT THIS MEANS FOR YOU: Professional athletes are special, and their claims should be treated as such.
• Gonzalez v. Lopez, __ S.W.3d __, Tex. App. LEXIS 5793 (Tex. App.—Corpus Christi Aug. 3, 2023, no pet. h.)
DECISION: The worker sued his employer for injuries sustained on the job. That case was abated for DWC to make a decision on employment status. The final decision of DWC is the worker was an employee of the employer. The worker did not file a judicial review lawsuit against the carrier; rather, he amended his petition against the employer. The carrier was never properly or timely sued. The worker’s sole option after DWC determines employment status it to seek judicial review naming the proper party (the carrier) as a defendant. With the IW’s judicial review timelines waived, the employer may now assert the statutory exclusive remedy defense.
WHAT THIS MEANS FOR YOU: Workers must sue the right party within the statutory timeframes.
• APD 230778, 2023 TX Wrk. Comp. LEXIS 55
DECISION: The ALJ considered the wrong doctor’s report when deciding the 90-day finality issue. The AP reversed for the ALJ to make a finding if the first certification given by the doctor who issued that certification became final. The ALJ is also to consider the parties timely-submitted written arguments.
WHAT THIS MEANS FOR YOU: Carefully review the D&O.
• APD 230769, 2023 TX Wrk. Comp. LEXIS 56
DECISION: The ALJ included in the D&O various extent of the injury stipulations made by the parties. The carrier contended it never entered into those stipulations. The AP reviewed the record and agreed. The ALJ also found against the DD. The D&O did not include a finding of fact (FOF) regarding the doctor who opined the claimant was not at MMI.
WHAT THIS MEANS FOR YOU: The FOF must be grounded in evidence presented at the CCH.
• APD 230839, 2023 TX Wrk. Comp. LEXIS 57
DECISION: The certifying doctor awarded an 8% IR for 80 degrees of flexion of the knee. However, the AMA Guides state moderate impairment is less than 80 degrees of flexion and mild impairment is less than 110 degrees of flexion. Because the doctor measured 80 degrees of flexion, the proper IR is 4% for mild impairment, not 8% for moderate impairment.
WHAT THIS MEANS FOR YOU: Be careful with “less” than or “more” than language.
• APD 230824, 2023 TX Wrk. Comp. LEXIS 58
DECISION: The certifying doctor made a mistake converting UE impairment to a whole person impairment. The AP held the error is one it could fix with a mathematical correction.
WHAT THIS MEANS FOR YOU: Those conversion tables are often tricky.
• Herring v. Renewable Energy Sys. Ams., Inc., No. 4:21-cv-00260, 2023 U.S. Dist. LEXIS 118515 (S.D. Tex. 2023)
DECISION: A federal magistrate ruled the plain language of the Act only requires the employer to maintain a policy of WC insurance; it does not have to purchase a policy. The employer maintained a policy because it was listed as an additional insured on the policy purchased by its temporary service worker vendor. Further, the intentional injury exception is not triggered by an allegation the employer intentionally failed to furnish a safe workplace; rather, “The employer must believe that its actions are substantially certain to result in a particular injury to a particular employee, not merely highly likely to increase overall risks to employees in the workplace.”
WHAT THIS MEANS FOR YOU: The federal courts can interpret the Act too.
• Harris Cty. Dep’t of Educ. v. Montgomery, __ S.W.3d __, 2023 Tex. App. LEXIS 5280 (Tex. App.—Houston [14th Dist.] July 20, 2023, no pet. h.)
DECISION: An assistant principal alleged his Texas Constitutional rights were violated when his employer improperly denied WC benefits. However, the court did not have subject matter jurisdiction because the worker failed to exhaust his administrative remedies by appealing the denial to DWC.
WHAT THIS MEANS FOR YOU: DWC must issue a determination that WC benefits are due before a court can award damages for violating his constitutional rights.
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.