D&S Straight Out of CompTown – December 2022

Thank you for another great year.  Downs & Stanford wishes you a safe and very Happy Holidays!  We will see you in 2023!

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

Want Some Credit?  Come and Get It!

See the first class of 2023 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.

January 13, 2023 from 12:00 P.M. to 1:00 P.M.:  Legal Defenses for Workers’ Compensation Claims Webinar (133463) with Wendy Schrock and Adrienne Gasser

Division of Workers’ Compensation Discount Interest Rate Set

DWC has determined that any interest or discount provided for in the Texas Labor Code shall be at the rate of 8.11 percent.

The rate is effective January 1, 2023, through March 31, 2023.

DWC Happenings

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

On December 1, 2022, the DWC submitted the biennial report to the Texas Legislature.  This report provides an update on the workers’ compensation system, as well as provide legislative recommendations from a workers’ compensation perspective.

According to this report, workers’ compensation rates have decreased 77% since 2003, while the number of employers that are “non subscribers” (25%) is the lowest in six years.  The percentage of employees working for non subscribers is the lowest in 12 years as well, indicating that more companies are choosing to avail themselves of the workers’ compensation system and forego the potential liability risks associated with non-subscriber policies.

As are as medical costs are concerned, Texas claims are approximately 22% lower than the median cost of 18 states analyzed in a recent study, and return to work outcomes have shown improvement as well.  To that end, 83% of all employees injured in 2020 returned to work within 6 months, and 92% went back to work within one year of their injury.  The DWC also highlighted their use of Pharmacy Closed Formulary, which was first implemented in 2011.  For example, only 42 injured employees in the state received a fentanyl prescription between September 1, 2021 and August 31, 2022, which was directly attributable to the closed formulary.

On the Legislative front, the DWC recommends the Designated Doctors be exempted from state sales tax.  As many of you may have previously heard, the Texas Comptroller issued a private letter ruling stating that charges for DD exams were subject to sales tax, which would have required these doctors to collect the tax, and likely would have led to even more doctors leaving the system.  Fortunately, a memo was issued in November delaying this implementation, but the DWC is desirous of having this codified into law.

A more interesting legislative request is the request by the DWC to amend Chapter 410 of the Texas Labor Code to protect al communications for ALJ’s and Appeals Panel Judges.  Apparently, in recent months multiple open record requests were made for working papers of ALJ’s from parties actively involved in ongoing disputes, and this is of great concern to the DWC.  The powers that be apparently believe that a party being allowed to receive this information would have a chilling effect on the judge’s ability to make impartial determinations, which then raises the question of what exactly is being said in these communications!

Finally, the DWC is requesting that changes be made to the maintenance tax paid off of each workers’ compensation insurance policy.  Apparently, one of the by products of premium costs going down so significantly is that the tax collected on those premiums has gone down as well, causing a shortfall for DWC and OIEC.  The tax base has gone down 49.9% since 2003, primarily driven by the 77% decrease in workers’ compensation insurance premiums.

Compliance and Investigations Corner

DWC has released the results of Performance Based Oversight (PBO) for 2022.   DWC is required to monitor workers’ compensation system participants’ compliance with the Texas Labor Code and DWC rules. One compliance objective is achieved through PBO. Based on the performance assessment in the PBO, insurance carriers are placed into regulatory tiers: poor performers, average performers, and high performers. DWC then focuses its regulatory oversight on the poor performers.

Insurance carriers selected for the PBO are assessed on the following measures:

  1. Timely payment of initial temporary income benefits by the insurance carrier – 50% weight.
  2. Timely processing of initial medical bills by the insurance carrier – 30% weight.
  3. Timely processing of request for reconsideration medical bills by the insurance carrier – 10% weight.
  4. Timely submission of initial payment data via Electronic Data Interchange (EDI) – 5% weight.
  5. Timely submission of medical bill processing data via EDI – 5% weight.

DWC will calculate the performance score (percentage) for each measure. Next, the performance score for each measure will be multiplied by the assigned weight value (the value is rounded up). The overall score identifies the overall performance standard for the assessed entity. The performance standards are: High Tier: 95.00 or greater Average Tier: 80.00 through 94.99 Poor Tier: 79.99 or less.  136 carriers participated in PBO for 2022.  Of the 136, 41 were assessed as high tier performers, 82 were assessed as average tier performers, and 13 were assessed as poor tier pier performers.  Congratulations to the 41 high tier performers, and the 13 poor tier performers can expect additional regulatory oversight for the next two years.

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 221596, 2022 TX Wrk. Comp. LEXIS 94

DECISION: The DD improperly calculated an IR from ROM values. The DD arrived at a 4% IR when the ROM values on the IR worksheet should result in a 3% IR.

WHAT THIS MEANS FOR YOU: The AP is very good at calculating IRs.

• APD 221634, 2022 TX Wrk. Comp. LEXIS 93

DECISION: The ALJ found the preponderance of the evidence overcame the DD certification. But the RME report placed the IW into a lumbosacral DRE when the injury was to the cervical. There were no other DWC-69s in evidence using the MMI date found by the ALJ.

WHAT THIS MEANS FOR YOU: Overcoming the IR found by the ALJ does not necessarily overcome the MMI date.

• APD 221575, 2022 TX Wrk. Comp. LEXIS 95

DECISION: The ALJ found in accordance with the DD who considered a cervical strain, a condition not yet determined to be part of the compensable injury. But the referral doctor arrived at the same date of MMI and the same IR as the DD but for the correct injuries/diagnoses. So, the AP reformed the Decision by changing the name of the certifying doctor but keeping the same MMI/IR.

WHAT THIS MEANS FOR YOU: Only put forward a report of MMI/IR that rates the compensable conditions, and only the compensable conditions.

• APD 221564, 2022 TX Wrk. Comp. LEXIS 92

DECISION: The IW disputed the Order for attorney fees. The ALJ determined that a reduction of .5 hours was appropriate. But the Decision miscalculated the correct amount of attorney fees. The AP corrected the mathematical error.

WHAT THIS MEANS FOR YOU: The AP can calculate IR and attorney fee orders.

• APD 221571, 2022 TX Wrk. Comp. LEXIS 91

DECISION: The worker challenged certain orders requiring the appointment of a DD. The AP noted the DWC does not need good cause to order a worker to attend an examination with a DD more than 75 miles from the IW’s residence. The ALJ found the second DD was properly appointed in part on the mistaken belief the first DD was a chiropractor when in fact the first DD was a medical doctor. Since the ALJ made this decision on a misstatement of the evidence in the record, the ALJ was reversed to give the ALJ another chance to decide which doctor was properly appointed for a TBI. The AP also reversed to give the ALJ the opportunity to address whether the DD had a disqualifying association with the RME because he was one of the medical directors of an entity which is located at the same address where the worker was ordered to attend an RME, but the worker did not believe he attended that RME examination.

WHAT THIS MEANS FOR YOU: There are challenges securing DDs and RMEs in rural areas of the state.

• APD 221428, 2022 TX Wrk. Comp. LEXIS 89

DECISION: Two errors overcame the 90-day finality provisions. First, the certifying doctor labelled the incorrect shoulder when assessing ROM impairment. Second, the certifying doctor improperly calculated the IR for loss of ROM for extension.

WHAT THIS MEANS FOR YOU: Improperly calculating the IR is always an exception to the 90-day finality provisions of Texas Labor Code §408.123.

• APD 221537, 2022 TX Wrk. Comp. LEXIS 86

DECISION: The ALJ found the first certification of MMI/IR became final under Texas Labor Code §408.123. Therefore, the DD was not properly appointed on the issues of MMI/IR. But the Conclusion of Law stated the DD was not properly appointed on MMI/IR and extent of the injury. Since the proper appointment of the DD for extent was not an issue before the ALJ, the AP struck that portion of the Decision.

WHAT THIS MEANS FOR YOU: DDs for MMI/IR are not properly appointed when the first certification becomes final.

• APD 221456, 2022 TX Wrk. Comp. LEXIS 88

DECISION: Both the DD and the RME believed the claimant was not at clinical MMI on the date of SMMI. But the DWC-69s from both doctors inadvertently used a date two days before SMMI. The AP noted the IR shall be calculated as of the MMI date. No DWC-69 calculated an IR on the correct SMMI date, requiring reversal.

WHAT THIS MEANS FOR YOU: The proper calculation of the SMMI date must correspond to the SMMI date found on the DWC-69s.

• APD 221389, 2022 TX Wrk. Comp. LEXIS 84

DECISION: The MMI in the DD’s narrative report occurred one year before the MMI date on the DWC-69. Although a clerical error, the internal inconsistency involves a matter of medical judgement and therefore the error could not be fixed by the AP.

WHAT THIS MEANS FOR YOU: Always compare the narrative report with the DWC-69 for internal inconsistencies.

• APD 221544, 2022 TX Wrk. Comp. LEXIS 85

DECISION: One issue reported at the BRC involved extent of the injury at L3-4. But at the beginning of the CCH, the parties agreed to the issue as stated by the ALJ which omitted the L3-4. Nevertheless, the parties actually litigated the L3-4. Thus, the AP found the extent of injury determinations as incomplete and reversed for further findings.

WHAT THIS MEANS FOR YOU: Sometimes it pays to pay attention during the pro forma portions found at the beginning of the CCH; like when they read the actual issues to be resolved at the hearing.

• APD 221463, 2022 TX Wrk. Comp. LEXIS 87

DECISION: The AP was not impressed with the DD, finding numerous inaccuracies, discrepancies, and misapplications. Hence, they did not find it appropriate to mathematically correct the IR.

WHAT THIS MEANS FOR YOU: Some DD’s reports just can’t be fixed by the AP.

• APD 221547, 2022 TX Wrk. Comp. LEXIS 90

DECISION: Neither party appealed the MMI date determination. But the record included no DWC-69 using the un-appealed MMI date that rated the compensable injury, and only the compensable injury.

WHAT THIS MEANS FOR YOU: Failing to appeal the MMI date may restrict your options (and the options of the AP) on appeal.

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