Now with the holidays behind us, let’s take a look at the newest information regarding Texas Workers’ Compensation.
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 9, 2024 from 12:00 P.M. to 1:00 P.M.: When are Injuries While Traveling Compensable Webinar with Chris Losey and Rynn Freiling
February 23, 2024 from 12:00 P.M. to 1:00 P.M.: Winter APD and Case Law Webinar with Adrienne Gasser and Charles Morse
The Subsequent Injury Fund (SIF)
In 2023, Downs & Stanford, P.C. successfully recovered over $600,000 from the Texas Department of Insurance Division of Workers’ Compensation Subsequent Injury Fund for its clients. Most SIF recoveries were from overpayment per a Designated Doctor’s opinion–medical and/or indemnity–reversed by a Contested Case Hearing Decision and Order.
Did you know…
If the Carrier is paying a Claimant for wages earned by the Claim Employer and a Non-Claim Employer, the Carrier can be eligible for reimbursement of TIBs paid pursuant to the Non-Claim Employer’s DWC-3ME from the Subsequent Injury Fund (SIF).
Please contact any of our attorneys at Downs & Stanford for assistance with handling a Subsequent Injury Fund request or any other Texas Workers’ Compensation questions.
YOUR MONTHLY LOOK AT WHAT IS HAPPENING AT THE DIVISION AND HOW IT IMPACTS CARRIERS
As we kick off the new year, TDI/DWC has issued their annual report of fatal occupational injuries in Texas. For 2022, there were a total of 578 fatal occupational injuries in Texas, and a total of 5,486 fatal injuries in the U.S. Texas accounts for almost 11% of all fatal workers’ compensation injuries in the nation. This is over a 20% increase in fatal injuries since 2020, and almost a 10% increase between 2021 and 2022.
The DWC has drafted and published proposed rules addressing Designated Doctor billing issues, and will be holding a public hearing on the proposed rules on January 23, 2024. Among the proposals are fee adjustments and building in annual adjustments in future years, creating a $100 missed appointment fee when the Claimant no-shows an examination, and creating a $300 specialist fee for Designated Doctors. There is also a proposal to eliminate “tiering” so that all issues addressed by the DD and RME doctors will be paid at the established fee and not reduced. These rules are necessary in the eyes of the DWC “to attract and retain DDs, RME doctors, and doctors who perform MMI/IR evaluations by addressing billing and reimbursement issues, reducing disputes, and decreasing the administrative burdens of participating in the programs.”
In other news, the interest rate for January 1, 2024 through March 31, 2024 has decreased to 8.45% from 8.94% for the past quarter.
Also, the DWC-42 form (Claim for Workers’ Compensation Death Benefits) has been modified to help eligible beneficiaries file claims for death benefits with DWC or an insurance carrier. This form can be found on the DWC website at https://www.tdi.texas.gov/forms/dwc/dwc042benclm.pdf and is effective immediately.
Finally, highlights from the Carrier Quarterly Meeting are as follows:
- Current data show a reduction in the length of time for dispute resolution process from 135 days to 122 days.
- DWC secured $2.5 million in restitution through C&I in 2023.
- Implementation of 3.1 EDI was completed in 2023.
- DWC’s 2024 Conference will be virtual.
- In the Fall of 2024, DWC will begin to study moving from 4th to 6th Edition of the AMA Guides.
- Violations to Watch:
- paying interest on a medical bill paid on or after the 60th day; and
- paying interest on accrued but unpaid income benefits and paying interest in a lump sum.
COMPLIANCE AND INVESTIGATION CORNER
It is important to timely and accurately pay all billing received from designated doctors and their referral physicians. In recent months, DWC’s Compliance and Investigation department has elevated violations for failing to timely or accurately issue payments to designated doctors. The focus on these violations is due to DWC making a concerted effort to retain doctors willing to serve as designated doctors and to increase the number of doctors in the designated doctor system. Be aware that penalties for improper payments will typically be at least twice the amount of what the designated doctor billed with increased penalty amounts for multiple violations on this subject. And, as always, make sure to pay interest on any late payments issued to designated doctors.
Decisions, Decisions, and More Decisions
Current Cases that You Need to Know
• APD 231602
DECISION: The parties agreed to modify the issue at the CCH to “cover the whole period.” However, the ALJ only made a determination for the period of disability as worded in the BRO report and not the “whole period.” The AP reversed and remanded so the ALJ could issue a decision and order for the entire period as agreed to at the CCH.
WHAT THIS MEANS FOR YOU: ALJ is bound by issues as modified by parties at CCH and must issue findings of fact and conclusions of law on the issues as modified.
• APD 231563
DECISION: The parties stipulated that a sprain and strain are used interchangeably and have the same meanings for purposes of MMI/IR. The parties stipulated the injury extends to and includes at least a left knee strain. The ALJ determined the injury did not extend to a left knee sprain. The AP reversed and rendered a decision that the injury extends to and includes both a left knee strain and sprain. The AP wrote that because the parties stipulated that the terms sprain and strain are used interchangeably, the ALJ’s determination that the compensable injury does not extend to a left knee sprain is so against the great weight and preponderance of the evidence as to be clearly wrong or unjust.
WHAT THIS MEANS FOR YOU: Those stipulations can bite.
• APD 231558
DECISION: None of the certifications of MMI/IR rated the entire compensable injury. For example, one doctor rated 0% for right hand pain, a diagnosis neither accepted nor determined to be part of the compensable injury. Extent is no longer a threshold issue. MMI/IR ratings must match what is accepted or administratively determined to be part of the compensable injury. An adoptable rating may not consider conditions in addition to or less than those accepted or administratively determined to be compensable.
WHAT THIS MEANS FOR YOU: Perhaps, parties should use a spreadsheet to help determine if the various certifications rate the compensable injury.
• APD 231556
DECISION: During direct testimony of the employer, the recording failed, requiring reconstruction of the record.
• APD 231483
DECISION: At the hearing, the parties agreed to add the issue of extent to include, among other things, a left arm “injury.” But the ALJ discussed and made findings on left arm “abrasions” rather than a left arm injury thereby exceeding the scope of the extent-of-the-injury issue. The AP struck those findings. The ALJ also exceeded the disability issue by making a determination for a time period that was not at issue.
WHAT THIS MEANS FOR YOU: ALJ’s authority is bound by the issues identified in the BRO report and the parties’ modifications thereto.
• APD 231595
DECISION: The ALJ adopted the MMI/IR certification of the TDR (treating doctor referral). The AP did not discuss the other certifications, including the DD’s certification, and whether they were adoptable. The AP did not address the certification the ALJ chose and instead determined the TDR made errors converting ROM loss into an IR using the AMA Guides. The AP recalculated the TDR’s IR certification instead of considering one of the other certifications.
WHAT THIS MEANS FOR YOU: The AP might favor a recalculation of the IR using the component parts over consideration of other MMI/IR certifications, including the DD’s.
• APD 231700
DECISION: The ALJ adopted the MMI/IR certification of the DD. The AP did not discuss the other certifications and whether they were adoptable. The AP noted the DD made errors converting ROM loss into the correct IR using the AMA Guides. The AP recalculated the DD’s IR certification instead of considering one of the other MMI/IR certifications.
WHAT THIS MEANS FOR YOU: The AP might favor a recalculation of the IR using the component parts over consideration of other MMI/IR certifications.
• APD 231645
DECISION: The ALJ made a finding of fact the worker’s unemployment was not a direct result of the impairment from the compensable injury but did not make a finding of fact regarding the worker’s work search efforts. A conclusion of law must be supported by findings of fact. The AP reversed and remanded for additional findings of fact on work search efforts to support the conclusion of law the worker was not entitled to SIBS.
WHAT THIS MEANS FOR YOU: ALJs cannot issue conclusory opinions.
• APD 231650
DECISION: The D&O included findings on extent-of-the-injury issues not before the ALJ. In addition, the ALJ failed to make extent of the injury determinations on conditions that were in issue. The AP reversed for the ALJ to correct both errors.
WHAT THIS MEANS FOR YOU: The FOF must be married to the COL and be based on the BRO report and any modifications made by the parties at the CCH.
• City of Corpus Christi v. Nickerson, No. 13-22-00040-CV, 2024 Tex. App. LEXIS 55 (Tex. App.—Corpus Christi Jan. 4, 2024, no pet. h.)
DECISION: City employee sued her employer for negligence regarding a MVA caused by a co-worker. The court held the exclusive remedy defense can be raised by a plea to the jurisdiction. Texas Labor Code §504 does not waive governmental immunity. The employee cannot sue her employer for an injury covered by workers’ compensation. The trial court’s decision denying the plea to the jurisdiction was reversed and rendered.
WHAT THIS MEANS FOR YOU: Exclusive remedy bars a negligence lawsuit against an employer for a MVA when the driver of the offending vehicle is a co-worker, even if the employer is a political subdivision.
• APD 231438
DECISION: The ALJ found the first certification of MMI/IR became final because the carrier did not dispute the certification within 90 days of receipt. The evidence included a fax from the claimant’s attorney to the correct fax number of the carrier’s adjuster. However, there was no evidence the carrier received the fax. Without evidence verifying delivery, the 90-day finality provisions do not apply.
WHAT THIS MEANS FOR YOU: A finality defense requires evidence verifying receipt: for faxes, that includes confirmed delivery.
• APD 231626
DECISION: The AP reformed the decision to include the correct county.
• APD 231546
DECISION: The AP reformed the decision with the true name of carrier’s agent for service of process.
• APD 231491
DECISION: The AP reversed the ALJ’s IR determination finding none of the IR determinations were adoptable. The DD did not rate the injury as accepted or determined to be compensable. The TDR determined the IW was not at MMI. The RME did not correctly calculate the IR resulting from ROM loss.
WHAT THIS MEANS FOR YOU: An adoptable rating must (1) rate the compensable injury and (2) be calculated correctly.
• APD 231290
DECISION: The ALJ determined the 90-day finality provisions did not apply based in part on a DRIS note the ALJ found after the CCH. The ALJ took official notice of the DRIS note, but did not advise the parties of this action. The DRIS note indicated the worker moved and the carrier confirmed the new address. The AP remanded the case to the ALJ with instructions to notify the parties that he took official notice of DRIS note and admit the DRIS note as an ALJ exhibit. The parties were to be allowed an opportunity to review and respond to the DRIS note. The ALJ was further instructed to make findings of fact, conclusions of law, and a decision on the disputed finality issue.
WHAT THIS MEANS FOR YOU: The AP frowns on ALJs taking official actions after a CCH and not telling anybody.
• APD 231368
DECISION: The parties modified the disability issue at the CCH. The ALJ did not make a determination on the entire issue as modified. The AP reversed for the ALJ to make a finding for the additional 15 days in dispute.
WHAT THIS MEANS FOR YOU: Modified issues increase the likelihood of error.
• City of Euless v. Danylyk, No. 05-22-00898-CV, 2023 Tex. App. LEXIS 9278 (Tex. App.—Dallas Dec. 12, 2023, no pet. h.)
DECISION: DWC and a jury determined the decedent and the claimed beneficiary were common law married. In this case, the couple threw a proposal ceremony, but never had a ceremonial marriage. The evidence included the couple were introduced as the “The Hofers”, received invitations as the Hofers, and testimony of the decedent’s father that the couple conducted themselves as husband and wife. The attorney ad litem for the Probate Court testified that everyone she interviewed said they couple held themselves out as married. The claimed beneficiary testified the “proposal ceremony” did not change anything about their relationship and they previously agreed to be married. An intention to be ceremonially married in the future does not itself negate a present common law marriage.
WHAT THIS MEANS FOR YOU: Proving common law marriage is becoming easier.
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.