D&S Straight Out of CompTown – February 2022

As we are now well into the New Year, please check out the newest information from the Division and our upcoming seminars.

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

Want Some Credit?  Come and Get It!

As we are now well into the New Year, please check out the newest information from the Division and our upcoming seminars.
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. 

March 11, 2022 from 12:00 P.M. to 1:00 P.M.:  Claim Competency: What to do before the 60th Day Webinar (128623) with Wendy Schrock and Chris Esson. 

March 25, 2022 from 12:00 P.M. to 1:00 P.M.:  How a Carrier Can Ethically Deny a Claim for WC Benefits (119462) with Rynn Freiling and Chris Esson.

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.

SIBs Work Search Requirement No Longer Suspended  

 On March 27, 2020, Commissioner’s Bulletin No. B-0012-20 announced suspension of the work search compliance standards for SIBs under Texas Labor Code §408.1415(a) and 28 Texas Administrative Code §130.102(d). (www.tdi.texas.gov/bulletins/2020/B-0012-20.html).  On July 2, 2021, the Commissioner issued Bulletin No. B-0018-21 announcing that DWC has determined that suspending the work search requirement was no longer necessary as a response to COVID-19. (www.tdi.texas.gov/bulletins/2021/B-0018-21.html).  Accordingly, for each full week of the qualifying period on or after Monday, August 2, 2021, injured employees must meet at least one of the work search requirements to qualify for SIBs. Note that the “week” is determined by the qualifying period week rather than the calendar week. 

What this means for you: Adjusters are receiving DWC-52s for qualifying periods with weeks occurring after August 2, 2021. Claimants are not required to document work search compliance for the qualifying period weeks prior to August 2, 2021. Claimants are required to document weekly work search compliance for each full week of the qualifying period starting on or after that date. We anticipate an increase in BRCs now that the SIBs work search requirement is back in effect.

DWC Compliance Concerns

Take an interest in compliance. 

In January 2022, DWC Compliance & Investigations (“C&I”) issued a proposed Consent Order against a Carrier for failure to timely reimburse a designated doctor’s medical bill.  The designated doctor billed the Carrier $650 for services.  C&I proposed a penalty of $2,000, more than 3 times the bill, because payment was not timely.  

The Carrier paid $650 to the designated doctor 65 days after the deadline to pay, but without interest.  Interest in the amount of $3.31 was paid 106 days after the deadline to pay.  C&I considered the payment made and compliance met on day 106, not 65 when the bill was paid in full, and took the position the Carrier did not comply until all amounts owed, including interest, were paid.  

The additional 41 days from the reimbursement of the bill until interest was paid caused the penalty to escalate from an expected amount of under $1,000 to a proposed amount of $2,000.  

Keep in mind, interest is always due when benefits, income or medical, are not paid timely.  C&I will not consider a payment to be in full compliance until the interest is paid, even if the interest is as small as $3.31.

DWC Corner

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

It was announced in April of 2021 that the Division of Workers’ Compensation was going to be moving from their current location on Metro Center Drive near the Austin International Airport to downtown Austin in the Capitol Complex.  This move will occur in the summer of 2022, but the DWC has started using a new mailing address that they have requested all stakeholders start using.  

Going forward, any mailed correspondence with the DWC needs to be sent to:

        Division of Workers’ Compensation
        P.O. Box 12050
        Austin, Texas 78711

No information has been released as of yet regarding the new location of the Austin Field Office, but once that is announced, we will let you know.

In other news, the DWC has extended its mandatory data call for information related to COVID-19 injuries out to June 30, 2022.  Selected insurance carriers and self-insureds have been required to comply with this data call, which is seeking information concerning exposures and injuries reported to insurance carriers from December of 2019 through June 30, 2022.  

The DWC is also now requesting comments concerning proposed revisions to the DWC-73 forms.  The new proposed DWC-73 looks quite different than the one currently being used, and the biggest change at first glance is a movement away from the health care provider having to break down in detail the restrictions, to more of a restriction based on job type.  For example, the current DWC-73 allows health care providers to check the number of hours per day that a worker could sit, stand, kneel, climb, etc.  The proposed new form simplifies it by asking the doctor to determine what category (sedentary, light, medium, heavy or very heavy), the Claimant can perform work.  If you would like to look at the proposed form, please go to: 
https://www.tdi.texas.gov/wc/forms/documents/drdwc0730222.pdf, and if you would like to comment on the proposed form, please send an email to RuleComments@tdi.texas.gov

The deadline for comments is March 4, 2022.

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

• Reyes v. Lubrizol Corp., __ S.W.3d __, 2022 Tex. App. LEXIS 486 (Tex. App.—Houston [14th Dist.] Jan. 25, 2022, no writ hist.) 

DECISION: Premises owner entered into a Services Agreement with a contractor to work on its premises. The Services Agreement required the premises owner to provide WC insurance by reimbursing the contractor’s premiums. A contractor’s employee was injured by two of the premises owner’s employees. The injured worker sought to avoid the exclusive remedy defense by arguing the contract never referred to the premises owner as a general contractor; and therefore, he did not meet the definition of a general contactor. The court held the premises owner still conclusively established it fell within the general contractor definition because it was contractually obligated to reimburse the subcontractor’s WC insurance premiums pursuant to the Services Agreement. 

WHAT IT MEANS FOR YOU: Courts will look past the words of a contract to see how the parties acted. 

• APD 211982

: The IW filed a DWC-45 more than 90 days after receipt of the first certification of MMI. But during the 90 days, the Commissioner signed Bulletin # B-0008-21 tolling Texas Labor Code 408.123 finality (90 day) deadlines because of the Winter Storm Uri. Adding the days covered by the Bulletin (February 12-23, 2021, the IW timely filed the DWC-45 challenging the certification within 90 days.  

WHAT THIS MEANS FOR YOU: Commissioner Bulletin # B-0008-21 tolls medical and billing deadlines.  The Commissioner Bulletin # B-0008-21 effectively expanded the 90-day timeline to dispute the first certification of MMI/IR.  

• APD 211980

: The DD determined MMI. The Benefit Review Officer send a Letter of Clarification with additional PT notes, and the DD changed the MMI date. Subsequently, the IW requested another LOC based on additional PT notes dated after MMI. The AP held the MMI date could not be adopted because the DD did not have all the medical records.  

WHAT THIS MEANS FOR YOU: The DD’s certification of MMI/IR can be attacked if the DD does not have all the records, including PT notes. 

• APD 211971

: The IW alleges his injury extended to and included a stroke and post-concussion syndrome, among other diagnoses. DWC did not appoint a DD who was board certified in neurological surgery, neurology, physical medicine and rehabilitation, or psychiatry. The AP reversed ordering a new appointment of a DD with the appropriate specialty. 

WHAT THIS MEANS FOR YOU: Parties should ensure the DD has the appropriate board certifications for strokes and post-concussion syndromes.  

• APD 211953

: The IW was a police detective specializing in crimes against children. She was demoted to a patrol officer working the night shift. The Decision &Order included language that repetitive mental traumas or stressful events do not constitute a compensable injury. But the ALJ based her opinion on the IW’s demotion and transfer which was a legitimate personnel action. The Appeals Panel wrote only to clarify that first responder’s repetitive mental trauma claims are compensable after September 1, 2019.  

WHAT THIS MEANS FOR YOU: First responders repetitive mental trauma claims are compensable if the date of injury is on or after September 1, 2019. 

• PHI Air Med., LLC v. Tex. Mut. Ins. Co., __ S.W.3d __, 2022 Tex. App. LEXIS 820 (Tex. App.—Austin Feb. 3, 2022, no writ history)  

DECISION: In a long running feud, air ambulance providers seek to avoid Texas Fee Guidelines for their services wanting Insurance Carriers to pay their billed charges. The court held federal preemption did not apply to the case at this time but remanded to the trial court for further proceedings. The court also held the requirement to file for judicial review within 45 days of receiving the SOAH decision was mandatory but not jurisdictional. 

WHAT THIS MEANS FOR YOU: More litigation on air ambulance reimbursement rates. 

Employer Liability:  Texas’ Supreme Court Clarifies Burden of Proof in Intentional Injury Cases

Since 1913 when the Texas workers’ compensation act was passed, the courts have excepted actions for gross negligence and intentional injury from the exclusive remedy defense. Employees injured by their employer’s intentional conduct can sue their employer.  The family of a deceased worker can sue the employer for gross negligence.  But what does “intentional” mean?  In Mo Vac v, Escobedo,  the Supreme Court explained “intent” means “‘the actor desires to cause consequences of his act, or that he believes that the consequences are substantially certain to result from it.’…”Mo-Vac Serv. Co. v. Escobedo, 603 S.W.3d 119 (Tex. 2020).  Further, “the actor must intend the specific result, not merely the actions or circumstances leading up to the result.”  The Court held “for the intentional-tort exception to the exclusive remedy to apply, 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.” 

The Court gave an example from Rodriguez v. Naylor Industries, Inc., 763 S.W.2d 411 (Tex. 1989).  Naylor’s employee, Rodriguez, was told by his supervisor, Cameron, to drive a specific delivery truck on a specific 250-mile route from Rockdale to Corpus Christi by way of Port Lavaca.  Rodriguez inspected the truck’s six tires—two on the front axle and four on the rear—and reported to Cameron that they were cracked and had no tread and that the inner tube was even visible on one.  Cameron responded: “That truck has to go to Port Lavaca and then … to Corpus Monday morning …. Either take it or walk.”  Some 70 miles into the trip, one of the front tires blew out. Rodriguez hitchhiked four miles to the nearest town, called another Naylor supervisor, Wallace, in Houston, about 100 miles away, and asked him to bring a spare tire.  When Wallace arrived, he instructed Rodriguez to replace the ruined front tire with one of the back tires. Though Wallace knew it was illegal to drive the truck without all six tires, he told Rodriguez to continue driving to a place where they could get a new tire.  Rodriguez continued the trip with Wallace following him.  Sixty miles later, the lone back tire on one side blew out, causing the truck to flip over, injuring Rodriguez.

The evidence showed that Cameron had to know that driving the truck in its condition was substantially certain to result in a blowout resulting in a loss of control.  Cameron’s order to “either drive the truck or walk” showed that he intended Rodriguez to risk the specific danger.  When a blowout did occur, Wallace’s demand that Rodriguez keep driving also showed that he intended Rodriguez to continue to take a risk that was not only substantially certain but had already occurred once to the same driver in the same truck with the same problem an hour earlier.  The Court held that the evidence raised a fact issue whether Naylor acted with intent.

In Escobedo, Plaintiff contends that Escobedo fell asleep at the wheel due to fatigue from being forced to work grueling hours.  Escobedo’s time records show that in the eight days leading up to the accident, he worked 137 hours, averaging 17 hours a day. He worked 20 hours three days before the accident, 14 hours two days before, and 19 hours the previous day—in total, all but 19 hours out of 72.9.  Plaintiff’s expert estimated that the day before the accident, Escobedo had only a few hours’ rest before leaving the Dilley yard about 9:00 P.M. to make deliveries at two wellsites.  Mo-Vac was pushing all its drivers hard to keep up with business demands in the west and south Texas oil boom.  Their working conditions are described in an affidavit by their manager, Urbano Garza.  Garza stated that he was “forced” by “clear directive” from upper management “to have the drivers work unsafe hours rather than let a competitor get the jobs which were demanded by our customers.”  Even though it was “obviously unsafe to nearly everyone in company management,”  Mo-Vac drivers were “routinely working 100 hours or more per week” and “19 to 24 hours straight—day after day.”  “It was becoming insane.”  If he “mentioned it as a concern”, Garza said, he “would get an ‘ear full’ or a verbal reprimand from [his] supervisors about keeping production up at all costs.”  Because Mo-Vac was not adding enough drivers, “[m]aking the current drivers do overtime was the only way to get the production higher.”  In the frenzied months before Escobedo’s accident, he had logged as many as 138 hours of overtime for a two-week pay period and other drivers logged even more.  The record reflects that several Mo-Vac drivers had logged well over 200 hours of overtime in a single paycheck period.  According to Garza, Mo-Vac knew its drivers’ hours violated state standards and encouraged them to “alter their work logs to appear that they were in compliance with DOT sleep and rest regulations”. 

The Supreme Court was not persuaded, noting that “Mo-Vac may have known that there was an ascertainable statistical chance that some of its drivers would be injured over some period of time and that the number of hours its drivers worked would impact that chance.  But this evidence does not indicate that Mo-Vac intended a driver be killed on the job or that Escobedo’s crash due to his grueling schedule was substantially certain.”  The Court also reasoned that Plaintiff’s evidence failed to show the likelihood that Mo-Vac subjectively believed Escobedo’s death was substantially certain to occur.  The Court concluded that “Plaintiff’s evidence merely shows Mo-Vac’s awareness of the commonsense notion that fatigued drivers are more likely to be involved in a crash than well-rested drivers.”  

Stay tuned in future newsletters as this area will likely generate more litigation.

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.