D&S Straight Out of CompTown – January 2022

Downs & Stanford hopes you had a Happy New Year!  We are here to help you with the new (and old) challenges you may face.  Please see below for the newest updates and information we have you.

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

Want Some Credit?  Come and Get It!

As the year is ending, you may have realized you still need some Continuing Education Credits.  Downs & Stanford is here to help you.

We are starting off the New Year with 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, and the first 25 adjusters to sign up will be in the course.  Once you have registered, you will be emailed the Zoom link for the Webinar.

January 21, 2022 from 12:00 P.M. to 1:00 P.M.:  Claim Competency: SIBs, LIBs, and DBs, and Subrogation Webinar (128625)

January 28, 2022 from 12:00 P.M. to 1:00 P.M.:  Claim Competency: What to do in the First 15 Days Webinar (128621)

February 11, 2022 from 12:00 P.M. to 1:00 P.M.:  When to Engage Outside Experts Webinar  (125376)
**This presentation was rescheduled from January 7th.  If you have previously registered, there is no need to register again.**

February 25, 2022 from 12:00 P.M. to 1:00 P.M.:  Claim Competency Maximum Medical Improvement and Impairment Ratings Webinar  (128629)

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.

DWC Compliance Concerns

Deadlines are important.

An insurance Carrier entered into a Benefit Dispute Agreement (“DWC-24”) agreeing to a period of disability which meant the Claimant would receive additional Temporary Income Benefits (TIBs).  The DWC-24 usually requires payment within 5 days, but this DWC-24 was amended to allow the Carrier to pay the TIBs within 10 days.  The Carrier did not make payment for the agreed dates of disability until 111 days later.  Yes, that is 101 days late.

The Carrier was issued a monetary penalty for its violation when it failed to make the agreed upon payment of TIBs in a timely manner.  This violation cost the Carrier a monetary penalty of $19,500.  So, beware, DWC takes untimely payments of benefits seriously, and when that happens, it can be expensive.

DWC Corner

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

Over the past few months, there have been a number of changes within the Division of Hearings within the DWC system.  In September of 2021, Cassie Brown, the head of the Division of Workers’ Compensation, was appointed to serve as the Texas Insurance Commissioner, leaving her prior position as the Director of the Division of Workers’ Compensation vacant at the moment.  A few months prior to that, Allen Craddock was promoted to Deputy Commissioner of Hearings.  To replace Mr. Craddock, Ana Thornton (an Administrative Law Judge in San Antonio) and Gerri-Lynn Thomas (an Administrative Law Judge in Dallas) were promoted from their positions as Administrative Law Judges (ALJs) to work as co-directors of the Division of Hearings.

Due to these promotions, a San Antonio ALJ position was recently filled by Gilbert Atkinson, an attorney who worked on behalf of Carriers in Contested Case Hearings for a number of years prior to him taking the job as an ALJ. In addition to that, Ms. Alice Orta, the ALJ in Corpus Christi recently retired, and her replacement is in the process of being trained to preside over Contested Case Hearings there.

From a day to day impact, the Division has indicated they are significantly scrutinizing requests by parties for resets of Benefit Review Conferences (BRCs).  In many cases, a Carrier will request a continuance of a BRC due to the fact that tasks assigned after a first BRC were not completed (such as obtaining medical records, scheduling a post DD RME, etc.).  In most instances, these requests are made for judicial efficiency, but in the event that these requests are denied, and second BRCs go forward, it could very easily result in more managed cases on the CCH level.  In addition to this, we have heard Benefit Review Officers are only able to reset a BRC within 30 days.  Most likely, this will result in a greater number of continuance requests (more DWC-45s being filed), or more likely, more managed cases on the CCH level, which will delay the final adjudication of cases.  From a practical perspective, this will drive up legal costs, and it can be difficult for a party to get everything done that is needed before the second BRC in such a short time frame.  Requests have been made by our office for any and all documentation regarding this, and if we learn anything more, we will update you.

Finally, if you haven’t realized it already, there are significant staffing issues with the Office of Injured Employees Counsel (OIEC).  There are multiple field offices that have no Ombudsmen, and many of the Ombudsmen hired seem to go through training and then quit.  This can result in delays in cases being heard, as well as less than optimum service being given to injured workers.  Additionally, we are seeing multiple requests for continuances being made on the CCH level due to Ombudsman unavailability.  We will continue to monitor this, as it will have an impact on the claims handling process.

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

• APD 211756

DECISION: Carrier failed to dispute the first certification (24% IR) within 90 days. The Appeals Panel (AP) found an error the certifying doctor made calculating the Impairment Rating (IR). For right hip extension, the doctor’s ROM measurements should have warranted a 2% IR. Instead, the doctor awarded a 0%. The AP found this error was significant and qualified as an exception to 90-day finality.  Therefore, the 24% IR was not final. 

WHAT THIS MEANS FOR YOU: Any error calculating an IR is an exception to 90-day finality.

• APD 211507

DECISION: The worker believed the compensable injury extended to multiple conditions including Achilles tendinosis. The AP held that none of the medical records that recited the diagnosis of Achilles tendinosis provided a causal link. 

WHAT THIS MEANS FOR YOU: Each diagnosis requiring an expert medical opinion requires a causation report.

• Kaplowitz v. Lone Star Tan, __ S.W.3d __, 2021 Tex. App. LEXIS 10208 (Tex. App.—Houston [14th Dist.] Dec. 30, 2021, no writ hist.)

DECISION: The defendants argued the exclusive remedy should defeat the worker’s negligence claims. But the franchise location was not listed on the corporate company’s insurance policy. Thus, the defendants could not prove they were subscribers to workers’ compensation.

WHAT THIS MEANS FOR YOU: For companies with multiple entities/locations, the locations or business must be listed or properly referenced in the insurance policy.

• APD 211537

DECISION: The certifying doctor listed a date of Maximum Medical Improvement (MMI) on the DWC-69 which differed from the MMI date in the narrative report by 10 days. The AP held the difference of 10 days was an internal inconsistency that could not be considered a clerical error.  Therefore, the report was not adoptable.

WHAT THIS MEANS FOR YOU: Resolve any inconsistencies between the narrative report and the DWC-69 before the Contested Case Hearing (CCH), if the report is in your favor. 

• APD 211091-s

DECISION: Overturning prior Appeal Panel Decisions, the AP published this “significant” case holding IRs for lower extremities are combined, not added. 

WHAT THIS MEANS FOR YOU: Lower extremity IRs will likely be larger.

• APD 211752

DECISION: The AP reviewed the underlying calculations of the IR. Table 43 on Page 78 awards a 1% WBI for 10 degrees of eversion.

WHAT THIS MEANS FOR YOU: The AP will review in detail the IR calculation made by the certifying doctor. Might be a good idea to have every IR reviewed by an expert before litigation.

• APD 211628

DECISION: The Designated Doctor (DD) did not believe the IW needed surgery and certified MMI. But the record included multiple other opinions that surgery was necessary, including the opinion of the Required Medical Examiner (RME).

WHAT THIS MEANS FOR YOU: The DD must at least consider the opinions contrary to her own when determining MMI. 

• APD 211713

DECISION: The certifying doctor produced three DWC-69s. The Administrative Law Judge (ALJ) adopted a certification that included a diagnosis for a thigh strain. The AP writes, “As this certification considers and rates a right thigh strain, a condition that has not been accepted and has not yet been determined to be part of the compensable injury, it cannot be adopted.” IRs can only include conditions that are compensable.

WHAT THIS MEANS FOR YOU: Examine each of the DWC-69s to see if it includes a condition that is neither accepted nor has been determined as part of the injury.

• APD 211412

DECISION: There is a distinct difference between a certification of no impairment and a certification of a 0% IR. In this case, the DWC-69 indicates there is no impairment and the narrative report gives a 0% IR based on a DRE model. The AP believed the IR was not adoptable based on this internal inconsistency.

WHAT THIS MEANS FOR YOU: One more checklist item to make sure the certification is adoptable. 

Do You Have a Longshore Claim and Don’t Know It?

Fifth Circuit Clarifies Seaman Status

Gilbert Sanchez v. Smart Fabricators of Texas, L.L.C.,  (5th Cir. 05/11/2021)

In Sanchez, the U.S. Fifth Circuit reversed its controversial 2014 decision in Naquin v. Elevating Boats, LLC (5th Cir. 2014) (land-based crane operator who worked as a ship repairman on docked vessels and virtually never went to sea was a Jones Act crewmember). 

Sanchez was a land-based welder who was injured while assigned on a short-term contract to work on a jack up rig (vessel).  He performed repairs while the rig was dockside, two steps across a gangplank from land, and he commuted to work daily from his home. He worked to prepare the rig for future drilling operations, and he was going to move on to another job when the repairs were completed. He would not move with the rig when it went into operation.

The only issue being considered was whether Sanchez was a “seaman” i.e. vessel crewmember entitled to the crewmember remedies under the Jones Act and general maritime law. (Under the Longshore Act, crewmembers are excluded from coverage). 

The Supreme Court in Chandris, Inc. v. Latsis (1995) established a two-part test for seaman status: (1) the employee must contribute to the mission or function of a vessel, and (2) the employee must have a substantial employment relationship to a vessel in terms of both duration and nature. Sanchez adds additional elements or inquiries to the Chandris test with respect to the following:
(1) Does the worker owe his allegiance to the vessel, rather than simply to a shoreside employer?
(2) Is the work sea-based, or involve seagoing activity?
(3)(a) Is the worker’s assignment to a vessel limited to performance of a discrete task after which the worker’s connection to the vessel ends, or (b) does the worker’s assignment include sailing with the vessel from port to port or location to location?

The Court found that Sanchez’s work was clearly not “sea-based”. All his work was performed while the vessel was jacked-up deck level with the dock and a gang plank away from shore. After he finished his repair work he was not going to sail with the vessel. The Court offered the following helpful language: “Our case law reveals generally that two types of workers are found on drilling rigs. First, we have the drilling crew, who conduct the drilling operations (and workers who support that activity) and stay with the vessel when it moves from one drilling location to another. These workers are the members of the crew of the vessel and are seamen. The second group are specialized transient workers, usually employed by contractors. These workers are engaged to do specific discrete short term jobs. Discrete transient jobs are like the work done by longshoremen when a vessel calls in port. ..[These]… workers have only a ‘transitory or sporadic’ connection to a vessel or group of vessels and do not qualify for seaman status. Sanchez, as a transitory worker, falls into the second group, and thus does not satisfy the nature test.”  

So Naquin is overruled, and Mr. Sanchez is not a seaman. For employers and their insurance carriers, this is welcome clarity.

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.