D&S Straight Out of CompTown – January 2023

We are well on our way into the new year!  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.

February 10, 2023 from 12:00 P.M. to 1:00 P.M.:  2023 Winter Appeals Panel and Case Law Updates Webinar with Stuart Colburn and Chris Esson

DWC Happenings

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

A new year begins, and happenings continue at the DWC.  The most significant news to come out of the DWC was the announcement that Jessica Barta, who for years has been the Public Counsel for OIEC, has been appointed as general counsel for the Texas Department of Insurance, starting February 1, 2023.  Congratulations to Jessica on this promotion, and it will be interesting to see who will fill those very large set of shoes at OIEC going forward.   

The DWC is going to be providing an 8 part “boot camp” for health care providers starting at the end of January.  Among the topics to be addressed include health care provider roles and responsibilities, medical billing and processing, and training regarding return to work issues and DWC-73’s.

Finally, the Texas Department of Insurance recently issued their annual report and it contained some interesting facts pertaining to workers’ compensation.  Many of these issues have been previously covered, but among the highlights noted was the fact that 2,600 medical fee disputes with a total disputed amount of $11.5 million were resolved, both in settlements and decisions.  The DWC also performed 2,731 safety inspections and consultations during 2022, as well as providing training for nearly 1200 employers and other system participants in improving employee return to work outcomes.  Finally, the Fraud Prosecution Unit resolved 114 workers’ compensation fraud investigations, while receiving 1,323 reports of workers’ compensation fraud.  They obtained a total of 8 indictments, and had 7 successful prosecutions.

Of more direct importance was the information provided regarding hearings.  In 2022, 7,119 BRC’s were held, and 4,053 CCH’s were held in Texas.  The average time to resolve disputes dropped from 144 days in 2021 to 135 days in 2022.  This reduction in time to resolve disputes is one of the “hot button” issues for the Division of Hearings, and is often the reason that you will see cases pushed forward to a CCH that may not be ready to go. It is our understanding that this metric is being used as a means of evaluating Benefit Review Officers and Administrative Law Judges in their case handling.  Finally, with regards to the Appeals Panel, they drafted a total of 112 written affirmed and/or reversed decisions of the 2,134 Requests for Review which were filed in 2022.

Compliance and Investigations Corner

When a Claimant submits a request for reimbursement, whether for medical, prescription, or even travel, a written denial must be sent within 45 days of receipt by the Carrier explaining all the reasons the Carrier will be denying the Claimant’s request for reimbursement.  If the Carrier reimburses in full, the Carrier does not need to send a letter.  If the Carrier only pays partial reimbursement, the Carrier has to send a letter to the Claimant explaining what was paid for reimbursement and what was not and state the reasons why.

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

•  Univ. of Tex. Sys. v. Bartek, __ S.W.3d __, 2022 Tex. App. LEXIS 9557 (Tex. App.—Dallas Dec. 29, 2022, no pet. h.)

DECISION: After an ice storm in February 2015, water damage caused mold in the police building the employee worked. Unreliable expert testimony must not suffer analytical gaps where (1) the expert improperly applies otherwise sound principles and methodologies, i.e., examining the facts relied upon; (2) expert’s opinion assumed facts that vary materially from the facts in the record, i.e., examining the facts in the record; and, (3) the expert’s opinion is based on tests or data that do not support the conclusions reached, i.e., examining the expert’s ultimate opinion. Unreliable expert opinion, including an unsupported expert opinion, is legally no evidence. In toxic tort cases, the worker must prove both general and specific causation and when other potential causes are plausible, the worker must offer evidence excluding those causes with reasonable certainty. In this case, Dr. Rea based his opinion on working in a moldy building since 2010 where the evidence showed the mold did not occur until 2015. Dr. Rea used tests that are not generally accepted. Dr. Rea did not offer any opinions negating a potential source of toxins: livestock feed which the employee was exposed daily as she owned and cared for horses. Other expert opinions were hearsay and suffer from some of the same gaps as Dr. Rea.

WHAT THIS MEANS FOR YOU: Parties should closely analyze expert testimony for analytical gaps.

• APD 221815

DECISION: The DD considered a broken hearing aid when determining the worker was not at MMI. The TDR considered a cervical injury that had not yet been determined as part of the compensable injury. Both the DD and the TDR considered conditions that have not been accepted or determined to be part of the compensable injury and therefore their opinions regarding MMI/IR could not be adopted.

WHAT THIS MEANS FOR YOU: Make sure a rating is proffered that considers and rates the compensable injury.

• APD 221776

DECISION: The ALJ determined the employer was not the employer of the worker for purposes of workers’ compensation. The employer was not a party to the CCH. Neither the IW nor the carrier appealed. The employer filed a request for review. The employer only has a right to contest compensability when the carrier accepts liability for the payment of benefits. Hence, the AP found the employer did not have standing to appeal.

WHAT THIS MEANS FOR YOU: DWC findings can impact an employer’s rights in other legal proceedings (regarding other legal causes of actions outside WC) without an appellate remedy.

• APD 221773

DECISION: The RME improperly calculated IR for left shoulder ROM. Using the AMA Guides, the AP performed a mathematical correction raising the IR to 15%.

WHAT THIS MEANS FOR YOU: Carriers may want to have each IR (including their own RME) independently reviewed before the CCH to determine if the 10-14% IR is properly calculated and won’t be increased to 15% by the AP performing a mathematical correction.

If you have any general questions regarding Longshore or would like a seminar regarding Longshore Claims, please emailLongshore@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.