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
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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).
January 24, 2025 from 12:00 P.M. to 1:00 P.M.: Legal Defenses for Workers’ Compensation Claims with Charles Morse and Adrienne Gasser
DWC HAPPENINGS
YOUR MONTHLY LOOK AT WHAT IS HAPPENING AT THE DIVISION AND HOW IT IMPACTS CARRIERS
On November 22, 2024, the DWC released their biennial report to the Texas Legislature, which purports to provide an update on the Texas workers’ compensation system, as well as providing legislative recommendations for the upcoming Legislative session. Some of the key trends noted in the report include the fact that workers’ compensation rates are down 81% since 2003, and health care costs are down $338 million since 2012, a significant decrease of 30%. Additionally, the number of prescriptions are down 73% since 2009, and the number of opioid prescriptions has dropped an astonishing 86% between 2009 and 2022, largely due to the adoption of the pharmacy formulary in 2011.
The report also noted the modernization projects the DWC is currently involved in, including replacing the claims management system that they have used since 1991. Eventually, the plan is to move all of the claim data from the COMPASS system to TXCOMP. This will also includes updates and modernization to the medical fee dispute resolution system, as well as a new system to manage disputes over income benefits. Of course, this being the DWC, no timeline has been given as to when stakeholders can expect these modernization efforts to be implemented.
The only major legislative recommendation made by the DWC to the Legislature was a big one, and that is to allow CCHs to be held via videoconference. As many of you already know, BRCs are currently held via Zoom (after Texas Labor Code §41.005(d) was adopted by the Texas Legislature in 2021), while the formal CCHs are held in person. During the COVID pandemic, all CCHs were held via Zoom, with varying degrees of success. In informal discussions with system participants (Claimant attorneys, Carrier attorneys and ALJs), there does not seem to be an extensive groundswell of support for this proposal, but this has been expected from the DWC, as they have been openly talking about this potential for months.
In a nutshell, if both parties agree, then the formal CCH can be held via Zoom. The DWC apparently feels that this will improve access to legal representation for injured employees living in more remote areas and will shorten timelines to resolve disputes (which is not explained at all in the legislative recommendation). It remains to be seen how often both parties will be willing to agree to a Zoom hearing, as there are obvious problems with those types of hearings when the credibility of a witness is involved, for example. In any event, we will watch what steps the Texas Legislature takes with regards to workers’ compensation matters as the next Legislative session starts in January.
What is an OARFI-IC Form? And, Should You Care About It?
DWC has implemented an OARFI (referred to as an ARFC) form and has been sending such forms to adjusters. The form was implemented in 2023 and is noted to be a request for information to the insurance carrier. The form itself references Rule 102.9 of the Texas Administrative Code. Such rule relates to the submission of information requested by the “Commission”.
What is the purpose of the form?
The OARFI-IC requests information regarding the workers’ compensation claim and specifically requests information regarding what injury or conditions the carrier has either not disputed or disputed on a claim. The form in box 5 supplies a list of conditions noted for a carrier to either check as “not disputed” or “disputed”. The form became necessary when the DWC removed information from a DWC-32 regarding what injuries/diagnoses were accepted by the carrier. Once the information regarding what injuries/conditions had been accepted by a carrier, it became increasingly difficult for DWC to define what injuries/conditions have been accepted by a carrier. This is especially true when a PLN-11 has not been filed in the case noting what injuries/conditions have been accepted by the carrier, or noting what conditions/injuries have been disputed by the carrier.
There is box 6 which requests information from the carrier as to what injuries or conditions the designated doctor needs to consider and supply alternate certifications of MMI/IR. Admittingly, the information requested in box 6 of the OARFI-IC form is a bit vague. The requested information is in a strong sense “putting the cart before the horse” and requests the carrier to list what injuries or conditions need to be provided to the designated doctor to supply alternate certifications of MMI/IR. Quite often, it is unknown what multiple certifications of MMI/IR are needed to be posed to a designated doctor until after a Benefit Review Conference is held. Carriers often do not know what injuries or conditions are even being pursued by a Claimant until after the BRC. The carrier should always want a certification of MMI/IR for the accepted compensable injury. As such, if a carrier is accepting a left knee sprain/strain injury then in box 6, the carrier should advise they want an alternate certification of MMI/IR for the accepted left knee sprain/strain injury. This should be given as information supplied in box 6. As far as any other alternate certifications of MMI/IR, again that is going to depend on what injuries/conditions are pursued by a Claimant. Thus, while the answer to box 5, listing what injuries/conditions are disputed or not disputed seems fairly straight forward, the information requested in box 6 may not be known in sufficient manner to supply an answer. I suggest carrier always list the accepted conditions or injuries in box 6 as requested for a multiple certification of MMI/IR.
Additionally, and importantly, in boxes 1, 2, 3 and 4, there is general claim information that is requested by DWC should be supplied in every case. Box 4 asks for the date of statutory MMI for which the carrier has calculated. The date of statutory MMI should be set forth in this box. Often, the DWC-32 filed by the carrier does not have this information, although such information is requested on the DWC-32.
From a carrier’s attorney perspective, information on the OARFI-IC can be valuable to the attorney. There are many times a PLN-11 has not been filed in a case which involves several extent of injury issues. The OARFI-IC form would be an easy resource to refer to in order to obtain the information as to what conditions/diagnoses have been accepted by the carrier. Often times, when dealing with several extent of injury issues, it can be somewhat difficult to decipher what exact conditions/diagnoses have been accepted by a carrier.
Is a carrier bound by the information set forth in the OARFI-IC form?
This was a debated point between carriers and DWC. At the Advanced Workers’ Compensation Seminar this year, the Director of Hearings advised carriers are not bound by the information set forth on the OARFI-IC form. A disclaimer has been inserted by DWC on the form under the heading of “Notice to the Parties”. It is expressively stated that the information requested is for mediation purposes only, and a carrier is not bound by the information submitted. DWC advises the information from the carriers should be used for designated doctors to prepare multiple certifications of MMI/IR. Please note, the notice to the parties advise the form will be sent to both carriers and Claimants. Personally, I have only had a few cases where I am aware that Claimant has completed an OARFI-IC form. In such cases, Claimants have indicated that each and every injury or condition listed in box 5 is being pursued. In my opinion, DWC opens a “pandora’s box” for Claimants to insert numerous extent of injury conditions/diagnoses when requesting such information from a Claimant. These list of conditions or diagnoses become extent of injury disputes which need to be adjudicated.
I have also been advised from several BROs that the diagnoses/conditions listed in box 5 are gleaned from medical records from which a Benefit Review Officer reviewed. This is somewhat troublesome for a medical report may list several conditions/diagnoses without supplying any causation language or attempt to relate the diagnosed condition to the mechanism of injury. I have argued in several instances that simply taking a diagnosis from a medical record does not equate to establishing a causal link between the diagnosed condition and the compensable injury. However, my objections have fallen on deaf ears. In any event, be aware that Claimants/Ombudsmans are completing OARFI-C forms. This is another reason why the carrier needs to ensure that they complete the form and supply information as requested.
When are the deadlines for responding to the OARFI-IC forms?
The answer can be found in Rule 102.9. Section (d) advises in the absence of an emergency, the reasonable period for responding to a request for information shall not be less than one day if the requested information is needed to administer a benefit issue in a claim. For other requested information, the reasonable period for response shall not be less than three working days. A clear reading of the rule indicates the minimum timeframe for providing information to the DWC as requested in the OARFI-IC form is one day when the information is needed to administer a benefit issue and three days in all other cases. Is the information requested in the OARFI-IC form necessary to administer a benefit issue on a claim? Quite frankly, I do not know the definitive answer. Usually the OARFI-IC forms are sent prior to the first Benefit Review Conference. However, I know some instances where they are sent after the first BRC. I would believe carriers are within the parameters of the rule if they supply the information requested in the OARFI-IC form within three working days of receipt. As such, the OARFI-IC form should not be ignored. The carrier should act with due diligence in supplying the information to the DWC as requested by the form. Carriers should, at a minimum, supply the requested information in boxes 1-4 within three days of receipt. If a carrier is not absolutely certain as to what body parts/conditions have been accepted on a claim, and are faced with a list of at least ten or more injuries/conditions, then I believe the carrier can indicate such information is “unknown at the present time”. This should probably be a calling card for the carrier to acquire a peer review to review the medical records and determine what injuries/conditions are deemed compensable and part of the injury. However, again, failure to supply any information is not a viable alternative. Subsection (e) of the rule explains what may result if information requested by the DWC is not provided to them. The subsection speaks of written orders from the DWC which may be pursued by DWC against carriers. Again, the school of thought should be carriers should make reasonable efforts to supply information to DWC as requested in the OARFI-IC form.
I believe in most instances the adjuster would want to go through their attorneys and have the attorney review the OARFI-IC form before it is submitted to DWC.
I would suggest that if you are consulting an attorney before filing such form, you notify the attorney as to the three-day deadline for the form and explain the due date for complying with the request for information.
Decisions, Decisions, and More Decisions
Current Cases that You Need to Know
• APD 241330, 2024 TX Wrk. Comp. LEXIS 56
DECISION: The ALJ’s determination that the first certification of MMI/IR from the treating doctor referral did not become final was not appealed. As such, DWC had a MMI/IR issue without a DD appointment. Citing APD 222017, the AP reversed for an appointment of a DD to give an opinion on MMI/IR.
WHAT THIS MEANS FOR YOU: AP’s interpretation of the statute requires a DD on the issue of MMI/IR unless the first certification of MMI/IR becomes final pursuant to the 90 day finality provisions.
• White v. Construction, __ S.W.3d __, 2024 Tex. App. LEXIS 7945 (Tex. App.—Dallas Nov. 13, 2024, no pet. h.)
DECISION: Employee sustained a compensable injury and was out of work for six months. In the interim, the employer responded to a rash of injuries by adopting stricter safety rules including the requirement to wear a hard hat. On the first day back to his work in his new light duty job, the employee was given a verbal warning to wear his hard hat. The next day, the employee was given a written warning following his failure to wear a hard hat. The next day, he was terminated again for failing to wear his hard hat for the third straight day. The employee filed a Chapter 451 claim alleging the termination was a pretext. The appellate court found the trial judge made no error by believing the termination was due to the worker’s failure to follow safety regulations and not as a pretext for filing a WC claim.
WHAT THIS MEANS FOR YOU: Failure to follow company safety rules are proper grounds to terminate.
• Hart v. N.H. Ins. Co., __ S.W.3d __, 2024 Tex. App. LEXIS 8292 (Tex. App.—Tyler Nov. 27, 2024, no pet. h.)
DECISION: The worker was driving an employer-provided vehicle from his employer’s premises to his home. Typically, employees would drive to and from remote work sites with one employee driving a truck and another driving a bigger piece of equipment. Thirty percent of his time was spent at the employer’s premises and the remaining was spent at remote locations. If not at a remote location, he was on-call. On the day of the accident, a large spool was loaded into the truck to be taken the following day to a customer’s location in Louisiana. There was conflicting evidence whether he was paid for traveling home. Driving a company vehicle with authorization alone is insufficient to meet the requirements of the course and scope definition. But the court held there was no evidence that established as a matter of law the worker was either in or not in the course and scope of employment and therefore summary judgement for either party was appropriate.
WHAT THIS MEANS FOR YOU: Driving a company vehicle loaded with product to be delivered the following day to a customer is evidence of the worker being in the course and scope of employment when driving home.
• APD 241268, 2024 TX Wrk. Comp. LEXIS 55
DECISION: Four MMI/IR certifications. One certified not at MMI even though SMMI had passed. The second did not include a new extent-of-the-injury finding. The third did not include two extent-of-the-injury findings. The fourth considered conditions not related and failed to rate the entire compensable injury.
WHAT THIS MEANS FOR YOU: Use a spreadsheet to make sure the ALJ has an adoptable rating.
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