D&S Straight Out of CompTown – December 2023

Happy Holidays to all of you and we will see you all in 2024! 

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.

January 12, 2024 from 12:00 P.M. to 1:00 P.M.:  Interpreting Common Orthopedic And Neurologic Tests Upper Body Webinar with Pamela Peavy Pierce and Chris Esson
January 26, 2024 from 12:00 P.M. to 1:00 P.M.:  Medical Benefits in WC Webinars with Charles Morse and Wendy Schrock



The Workers’ Compensation Research and Evaluation Group recently released their annual review of health care costs and utilization in the Texas workers’ compensation system, with some very positive results for carriers.  Between 2012 and 2022, healthcare costs declined from $1.15 billion to $812 million.  Additionally, the total number of yearly claims dropped from 319,000 to 256,000, a 20% decrease.  Along with that, the average cost per claim dropped 12% as well, signifying the definite cost advantages for employers to stay in the workers’ compensation system. When inflation is factored into all of this, the total cost of professional and hospital services in 2022 was 41% lower than in 2012.

Additionally, the DWC recently released their 2022 report on work-related injuries and illnesses as it concerns private employers.  In 2022, private industry employers reported 178,800 total recordable nonfatal cases, or an incidence rate of 1.9 cases per 100 full time workers in Texas.  This is the lowest rate in 10 years, and is significantly lower than the national rate of 2.7 cases per 100 employees. Across all sectors of private industry, Texas is considerably lower than the national average when it comes to workers’ compensation injures.


The Importance of Texas Workers’ Compensation Work Status Reports (DWC-73)

When DWC Compliance and Investigations investigates a complaint for failure to timely initiate Temporary Income Benefits (TIBs) or for failure to pay TIBs as and when due, the investigator will look for any Work Status Reports (DWC073s) in the claim file.  If the claim file has DWC073s that provide restrictions or state the employee is prevented from returning to work as a result of the compensable injury, the investigator will consider the dates covered by the DWC073s to be dates of disability for which TIBs are due.   If no TIBs have been paid for those dates, claim notes documenting that the employer states the employee is back to work or earning pre-injury wages is not sufficient.  The carrier must obtain earnings statements or other tangible evidence to support there are no lost wages (i.e., the employee is earning equal to or in excess of the average weekly wage).  Without that type of evidence, it is likely the investigator will escalate the complaint for issuance of a proposed consent order with a monetary violation.  So, remember, anytime a DWC073 documents light duty restrictions or off work status and the employer states the employee is back to work or earning the pre-injury wages, the carrier must obtain earnings statements or similar evidence to support the employer’s statements.

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

•  Royston v. Harris County, __ S.W.3d __, 2023 Tex. App. LEXIS 8957 (Tex. App.—Houston [1st Dist.] Nov. 30, 2023, no pet. h.)

DECISION: The injured worker sought judicial review. The district court judge ruled against him, and he appealed. The court of appeals found his pleadings so defective as to waive his claims. The court writes, “Because it would be inappropriate for this Court to speculate about Royston’s substantive legal arguments, we find waiver due to inadequate briefing.”

WHAT THIS MEANS FOR YOU: Courts will give latitude to pro se litigants but will not apply one set of rules for parties with counsel and another set of rules for litigants representing themselves.

• APD 231436

DECISION: A finding of fact stated the doctor certified MMI and an IR.  But the finding of fact did not state if the ALJ found that certification was supported by the evidence.  The AP writes, “Although the ALJ made a conclusion of law, decision, and addressed the issue in her discussion of the evidence, the ALJ failed to make a finding of fact as to which certification in evidence was supported by the preponderance of the evidence.”

WHAT THIS MEANS FOR YOU: The AP has standards. An ALJ must make a finding of fact, conclusion of law, and a decision regarding the issues of MMI and IR that are supported by the evidence.

• APD 231453

DECISION: The DD listed one set of ROM measurements in the narrative section of the report and another set of ROM measurements in another section. The two ROM measurements were internally inconsistent and would result in different IRs. Thus, the DD’s report could not be adopted. The AP adopted the IR certified by the treating doctor referral who used the same accepted injury diagnoses and MMI date as found by the ALJ.

WHAT THIS MEANS FOR YOU: DD’s internal inconsistency might not lead to a LOC if there is another adoptable rating in evidence that uses the correct injury diagnoses and MMI date.

•  In re E. Tex. Med. Ctr. Athens, __ S.W.3d __, 2023 Tex. App. LEXIS 8753 (Tex. App.—Tyler Nov. 21, 2023, no pet. h.)

DECISION: In a non-subscriber case, the worker sued her employer for failing to provide a safe workplace. The employer designated another company and one of its employees as responsible third parties. The court struck the designation and the employer appealed. The court of appeals held that “a negligence case against a nonsubscribing employer is an action for workers’ compensation benefits under the TWCA” But Chapter 33 authorizing responsible third party designation does not apply to “an action to collect workers’ compensation benefits under the workers’ compensation law of this state (Subtitle A, Title 5, Labor Code).” Tex. Civ. Prac. & Rem. Code Ann. § 33.002(c)(1). So, the district court judge’s decision to strike the designation was upheld.

WHAT THIS MEANS FOR YOU: A nonsubscriber may not designate responsible third parties.

• APD 231200

DECISION: The certifying doctor failed to sign the DWC-69. Rule 130.1 requires, “completion, signing, and submission of the Report of Medical Evaluation [DWC-69] and a narrative report.”

WHAT THIS MEANS FOR YOU: A certifying doctor’s autograph on the DWC-69 is required.

• APD 231343

DECISION: The CCH decision mistakenly referred to the DD by a different name requiring reformation.

WHAT THIS MEANS FOR YOU: The name of the doctor is important.

• APD 231250

DECISION: Nine certifications of MMI/IR could not be adopted because each failed to rate the compensable injury. Some certifications of MMI/IR rated conditions not found compensable, and others failed to rate what is compensable. And the DD in one certification also failed to round the wrist ROM to the nearest 10 degrees.

WHAT THIS MEANS FOR YOU: The more the diagnoses, the greater the chance a certification will fail to rate the entire compensable injury.

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.