D&S Straight Out of CompTown – February 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.

March 8, 2024 from 12:00 P.M. to 1:00 P.M.:  Where Understanding (Instead of Fighting Mental Health) Makes Sense with Stuart Colburn and Wendy Schrock.

March 22, 2024 from 12:00 P.M. to 1:00 P.M.:  How To Execute A Bulletproof Workers’ Compensation Investigation with Chris Esson and Wendy Schrock.



DWC has issued its 2024 Performance Based Oversight (PBO) Assessment Plan for Insurance Carriers, which is a roadmap of what DWC will be looking at in its assessment. This year the five measures DWC will examine are:

  1. timely payment of initial TIBS;
  2. timely reporting of initial TIBS payments to EDI;
  3. timely processing of initial medical bills;
  4. timely processing of requests for reconsideration of medical bills; and
  5. timely reporting of medical data to DWC via the Texas Medical State Reporting release 1.0.

The period for assessment is from January 1, 2024 through June 30, 2024. DWC will collect all of the data through the EDI filings made by carriers, and then separate the carriers into tiers of High (95 and above), Average (80-94.99), and Poor (79.99 and below). Traditionally, carriers falling into the Average and Poor tiers receive more scrutiny from DWC Compliance and Investigations Audits. In July of 2024, DWC will download and review the data and send the preliminary findings to carriers. DWC will provide carriers with a deadline to file rebuttals of the preliminary findings. In August 2024, DWC will review the rebuttals for eligible categories and in September, DWC will send the final findings and tier ratings to carriers. DWC will publish the results in October 2024.

DWC also released the 2023 Health Care Provider PBO results, which focused on DWC-69s and DWC-73s. With regard to the filing of DWC-69s, ninety-five doctors were reviewed, with fifty-eight providers achieving the High tier performance category. Ninety-three doctors were evaluated with regard to the proper and timely filing of DWC-73s, and of those providers, forty-five were determined to be High tier performers.

In 2023, the DWC Fraud Unit received 1,325 fraud referrals. The Unit opened forty-nine fraud cases and closed fifty-eight. The Unit referred three cases for prosecution. The DWC Fraud and Prosecution Units obtained only two fraud convictions – one against a claimant and one against an attorney.


TDI Enforcement is penalizing insurance carriers for failure to timely pay attorney fees to attorneys who represent claimants.  As with designated doctors’ bills, monetary penalties for failure to make accurate attorney fee payments are increasing.  We suspect this is being done in an effort by DWC to help retain the few attorneys remaining in the system who represent claimants.  As a result, please make sure that when issuing income benefit payments, a review of the claim is made to see if there remain any outstanding and unpaid attorney fee orders.  Also, we recommend handling adjusters make sure to keep a log of the amount of attorney fees in each order that is received, and the payments made each week, so the amount owed to claimants’ attorneys is reconciled and accurately paid.

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

• APD 231747

DECISION: At the CCH, the parties agreed to modify the disability issue from an open period to a closed period. But the ALJ made a determination for the entire open period through the date of the D&O. The AP struck that portion that exceeded the scope of the issue as modified.

WHAT THIS MEANS FOR YOU: Modified issues increase the error rate.

•  HNMC, Inc. v. Chan, 2024 Tex. LEXIS 35 (Jan. 19, 2024)

DECISION: A nurse left the premises of her employer when struck by a careless driver on a public road running between the hospital and parking lot. Her employer installed on the county’s right of way, and not on its own property, a traffic control sign and a concrete pad for drop off/pick up. However, neither improvement factored into the accident. The court finds a “property owner … has no duty to ensure the safety of a person who leaves the owner’s property and suffers an injury on an adjacent public roadway or to ensure that person’s safety against the dangerous acts of a third party.” The property owner does have a limited duty under premises liability for the improvements the employer made on the county land, but the concrete pad and traffic control system did not cause the accident.

WHAT THIS MEANS FOR YOU: Landowners are generally not liable for the conduct of others on public roads.

•  Gemini Ins. Co. v. Indem. Ins. Co. of N. Am., 2024 U.S. App. LEXIS 920 (5th Cir. 2024)

DECISION: An employee of the subcontractor (SC) died while working on a project under the general contractor’s (GC) OCIP program that included an endorsement that expanded the definition of an employee. The decedent was both an employee of the subcontractor and was “doing work for the (GC); and (GC) exercised or retained control over the operations, activities, and construction at the designated premises at the time of Ms. Espinoza’s death.” The court also stated an employer does not lose status as an employer just because it did not control the details of the work at the jobsite. Thus, the decedent was an employee for both the GC and the SC for purposes of both WC and EL under the endorsement.

WHAT THIS MEANS FOR YOU: Insurance contract cases are a boring read.

• APD 231757

DECISION: ALJ’s decision was reversed because the D&O listed the wrong agent for service of process.

WHAT THIS MEANS FOR YOU: The Legislature requires the D&O to list the correct agent for service of process.

• APD 231650

DECISION: Parties amended the issues at the CCH. However, the D&O resolved the issues as they were originally stated in the BRO report and exceeded the scope of the issues as modified at the CCH requiring reversal.

WHAT THIS MEANS FOR YOU: Modified issues often result in errors.

• APD 231689

DECISION: The D&O was reversed for reconstruction of the record based on missing exhibits. The AP discussed the underlying facts and asked the ALJ to make additional findings. The parents alleged they had good cause for not filing their DWC-42 timely. The ALJ did not make any findings on when the parents received the PLN-12. In the discussion section, the ALJ found the PLN-12 was provided to the decedent’s sister in the USA. However, the parents never lived in this country. The ALJ stated it was unclear when the parents received the PLN-12. On remand, the ALJ is to make a finding of fact on when the parents were informed of the notice for death benefits.

WHAT THIS MEANS FOR YOU: The D&O should include findings of when claimants receive the PLN-12 in cases where the claimants allege good cause for their failure to file the DWC-42 within 1 year of the decedent’s death.

• APD 231691

DECISION: Neither the TFCC tear nor the “TCC” were accepted or administratively determined to be part of the compensable injury. A right wrist sprain (among other diagnoses) was accepted. But the DD and the treating doctor each erred twice by failing to consider the right wrist sprain and by rating one of the conditions that is so far not part of the compensable injury.

WHAT THIS MEANS FOR YOU: All certifications must strictly rate only the injury considered compensable at the time of the CCH.

• APD 231735

DECISION: AMA Guides Chapter 3, Figure 29 on page 38 uses increments of five degrees for calculating IR for Abnormal Radial and Ulnar Deviations of the Wrist Joint. But Figure 29 is trumped by the directions on Page 37 that state the motions of abnormal radial and ulnar deviation should be rounded to the nearest 10 degrees.

WHAT THIS MEANS FOR YOU: Radial and ulnar deviation measurements are rounded to the nearest ten degrees, not 5 degrees as Figure 29 shows.

• APD 231830

DECISION: The DD used the certification from an examination closer in time to the SMMI date that rated the IW under Table 36 for requiring the use of a cane. But the narrative report from that examination states the IW is independent with ambulation activities without the need of an assistive device or orthosis. The RME arrived at his certifications despite not conducting a physical exam because the claimant, when told he could not record the examination but could have the treating doctor present, refused to be examined and left. The RME arrived at his MMI/IR determinations based on the observations of the IW while he was in and out of the office. The AP held the RME did not conduct a certifying exam since the IW did not permit the RME to do so.

WHAT THIS MEANS FOR YOU: The AP creates a blueprint for IW who do not want an RME certification.

• APD 231843

DECISION: It appears one of the Hartford insurance companies provided WC insurance on the date of injury. There was a conflict in the record of the identity of the actual insurance carrier requiring reversal.

WHAT THIS MEANS FOR YOU: Wish these umbrella companies would use different names.

• APD 231850

DECISION: The AP found the PLN-1 language was sufficient to raise the horseplay defense when it stated, “The claimant did not sustain an injury in the course and scope of employment. Investigation reveals the injured worker was riding a co-worker’s motorcycle recklessly at the time of the injury and was not furthering the affairs of the employer at the time of the injury.” No magic words are necessary, and the statute does not specifically define horseplay.

WHAT THIS MEANS FOR YOU: A good PLN-1 should include the legal defense and claim-specific facts that support the legal defense as the carrier did in this case.

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.