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.
March 24, 2023 from 12:00 P.M. to 1:00 P.M.: Denials, Documentations, and Deadlines Webinar with Wendy Schrock and Chris Losey
ANOTHER NEW DWC-32 FORM
The Texas Department of Insurance, Division of Workers’ Compensation (DWC) has proposed amendments to designated doctor (DD) requests. The DWC contends “the amendments are necessary to maintain and increase participation in the designated doctor program and to allow better access to certain types of specialized examinations.” Texas Administrative Code (TAC) Section 127.1 of the proposed amendments includes removing language related to multiple certification requirement to harmonize with amendments to the multiple certification process in (TAC) Section 127.10. The amendments remove the provision of the requestor to list all compensable injuries, because the DD will be determining what injures are compensable when performing an extent of injury examination. TAC Rule 127.10 clarifies that testing and referral doctors for DD exams do not have to be in the same workers’ compensation health care network and clarifies that the insurance carrier must pay benefits on the extent of injury determination found by the DD. The amendment removes the language for a DD to provide multiple certifications and adds language that for examinations conducted on or after June 5, 2023, the DD may provide multiple certifications on maximum medical improvement (MMI) and impairments ratings (IR) only when directed by DWC. The proposed amendments also clarify DWC’s requirements for a case-specific good cause determination for scheduling an examination within 60 days.
DWC stated they analyzed data about designated doctor examinations, benefit review conferences, and contested case hearings involving the issues of MMI, impairment rating, and extent of injury in 2019, and determined only about 20% of designated doctor reports with multiple certifications were involved in DWC dispute resolution processes. Of the 20% of claims where the parties disputed MMI, impairment rating, and extent of injury in a DWC contested case hearing, DWC administrative law judges requested new certifications from designated doctors about 50% of the time, since the multiple certifications the designated doctor previously produced did not represent the compensable injury determined during the proceeding.
TAC Section 127.100 concerns DD certifications. The amendment repeals TAC Section 127.110 and merges it with TAC Section 127.100 specifying the requirements for certification and renewal. DDs that pass or have previously passed the certification test on or after May 13, 2013, are no longer required to retest every two years when they renew their certification, unless the DWC requires retesting based on substandard performance or changes in duties of the DD, or if there are updates to the guidelines or legislative changes. DDs seeking to renew their certification after their current term expires, must apply no later than 45 days before the end of the term.
TAC Section 127.130 updates the qualification requirements of physicians examining brain injuries, including concussion and post-concussion syndrome, by adding to the list of qualifying American Board of Medical Specialties and American Osteopathic Association Bureau of Osteopathic Specialist board certifications. Over the past several years, there was a marked decrease in the number of qualified board-certified physicians to examine traumatic brain injuries. DWC determined that all physicians are trained and tested to be able to handle DD assignments for non-musculoskeletal injuries, and to recognize when an injured employee needs to be referred for ancillary testing. Section 127.130 updates the requirements for physicians examining injured employees with spinal cord injuries and diagnoses, a spinal fracture with documented neurological deficit, or cauda equina syndrome. The amendments change “documented neurological deficit” to “documented neurological injury, or vascular injury.” This amendment no longer requires a board-certified specialist for multiple fractures unless they are accompanied by vascular injury or are more than one spinal fracture. Therefore, an injured employee with more than one simple, resolved fracture (without vascular injury) may be examined by a chiropractor or a physician with a different board certification or no board certification.
The amendments are proposed at this time, but if the proposed DWC-32 (here), is adopted, it will be critical to have a Peer Review completed and PLN-11 filed on extent of injury, when appropriate. We are happy to assist you with this process. Please contact us at DD-RME@downsstanford.com to assist you with being prepared for when the new DWC-32s are adopted.
Need Help with Designated Doctors, Peer Reviews, or Required Medical Examinations? You’ve Come to the Right Place!
Please contact email@example.com, and our office will be happy to assist you.
Oddest CCH of the Month:
A TOTALLY “CRAP” JOB
We recently did a CCH where a truck driver was allegedly injured dumping a truck load of human excrement. On the date in question, Claimant drove his filthy truck through a small town. His soiled truck was flinging the residue all over Main Street as he went. The town folk were unhappy and called his boss, who made him clean the truck with a spatula and drive it down a bumpy road to shake loose the remnants. Claimant was allegedly injured due to the extremely bumpy road tossing him around in the cab of the truck.
Decisions, Decisions, and More Decisions
Current Cases that You Need to Know
• Univ. of Tex. Rio Grande Valley v. Oteka, __ S.W.3d __, 2023 Tex. App. LEXIS 500 (Tex. App.—Corpus Christi Jan. 26, 2023, no pet. h.)
DECISION: A University of Texas Rio Grande Valley (UTRGV) employee was struck by another UTRGV employee at the McAllen Convention Center after graduation ceremonies. The worker decided not to pursue a workers’ compensation claim and instead sued her coworker and employer for a personal injury. UTRGV raised a plea to the jurisdiction claiming DWC had exclusive jurisdiction. The court held DWC has exclusive jurisdiction over the compensability of a claim or eligibility of benefits. But based on precedent in the 13th court of appeals, DWC did not have exclusive jurisdictions in a personal injury lawsuit that is not based on entitlement to workers’ compensation benefits. UTRGV is still entitled to raise the exclusive remedy defense at the district court level. The case simply can not be disposed of by a plea to the jurisdiction.
WHAT THIS MEANS FOR YOU: A plea to the jurisdiction will not result in an abatement or dismissal of a personal injury lawsuit in the 13th court of appeals when a worker sues a coworker and her employer for any reason other than entitlement to workers’ compensation benefits.
• APD 221745, 2023 TX Wrk. Comp. LEXIS 2
DECISION: The ALJ issued a POD to the DD mistakenly stating the compensable injury included a right shoulder strain rather than a right shoulder sprain. The DD responded rating the injuries as instructed by the POD. Therefore, the DD did not rate the correct compensable injury requiring reversal and a new LOC.
WHAT THIS MEANS FOR YOU: Parties may wish to stipulate at a CCH that sprains and strains are synonymous for purposes of the CCH.
• El Paso Indep. Sch. Dist. v. Portillo, __ S.W.3d __, 2023 Tex. App. LEXIS 584 (Tex. App.—El Paso Jan. 30, 2023, no pet. h.)
DECISION: The worker sustained a concussion which is synonymous with a traumatic brain injury. He took a different job with his employer but felt it was a ‘handicap” job and retired. He then applied for LIBs based on incurable imbecility or insanity. The court states the jury instruction should use definitions from dictionaries in existence around the time the Legislature passed the law in the early 1900s. LIBS entitlement does not require expert medical evidence. The court allowed testimony from the worker’s brother and daughter despite not being listed as witnesses before DWC but did not allow testimony from the adjuster who was present at the CCH..
WHAT THIS MEANS FOR YOU: Every concussion or TBI is now a possible LIBs case.
• APD 221944, 2023 TX Wrk. Comp. LEXIS 6
DECISION: The worker was employed until the 6th week of the 6th quarter when she was terminated. The DWC-52 did not include any evidence of employment or an active work search for the 7th week. Thus, she was not entitled to SIBS.
WHAT THIS MEANS FOR YOU: Workers must meet the SIBs requirements every week.
• APD 221902, 2023 TX Wrk. Comp. LEXIS 4
DECISION: The parties added a multitude of extent issues, presumably from a very descriptive MRI report of the lumbar spine. The ALJ made findings on some of the extent issues, failed to make findings on some, but made findings on extent conditions that were not certified. The AP struck the findings on issues not before the ALJ and remanded for a decision on all the conditions certified.
WHAT THIS MEANS FOR YOU: Careful when a multitude of MRI conditions are included as extent of the injury issues, especially when added by agreement at the CCH.
• APD 221860, 2023 TX Wrk. Comp. LEXIS 3
DECISION: The doctor did not rate the conditions the parties stipulated which included a left shoulder sprain. The doctor rated a left shoulder strain (among other diagnoses), but not a left should sprain.
WHAT THIS MEANS FOR YOU: Strains and strains are causing damage or harm to the D&O.
• APD 221840, 2023 TX Wrk. Comp. LEXIS 4
DECISION: The DD issued 7 reports, including in response to a LOC. None of the certifications rated the entire compensable injury. He included some conditions that are not included and failed to rate other compensable conditions.
WHAT THIS MEANS FOR YOU: Sometimes, a spreadsheet is a useful tool to determine if there is an adoptable rating.
• APD 222001, 2023 TX Wrk. Comp. LEXIS 10
DECISION: The AP took 6 pages to clarify the IR was still 0%. ROM used by the DD, which came from a previous DD report closer in time to the MMI date, was off by 10 degrees but both figures still resulted in a 0% IR.
WHAT THIS MEANS FOR YOU: Parties should spend more time analyzing their IR reports.
• APD 221998, 2023 TX Wrk. Comp. LEXIS 8
DECISION: The ALJ found for the IW regarding a L5-S1 disc herniation. The DD wrote the L5-S1 stenosis “resulting in inflammation of the L5 and S1 nerve roots resulting in radiculopathy at these levels” The AP agreed this statement did not address a disc herniation but rather stenosis. The AP decided to reverse for the ALJ to address the misstatement of the evidence instead of rendering a decision for lack of medical causation.
WHAT THIS MEANS FOR YOU: Spreadsheets are helpful to track causation opinions, too.
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.