D&S Straight Out of CompTown – July 2023

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.

July 28, 2023 from 12:00 P.M. to 1:00 P.M.:  How to Investigate and Use PLN Forms Appropriately Webinar with Chris Losey and Pamela Pierce

August 11, 2023 from 12:00 P.M. to 1:00 P.M.:  Ethically Calculating Benefits Webinar with Chris Esson and Rynn Freiling

August 25, 2023 from 12:00 P.M. to 1:00 P.M.:  Summer AP & Case Law Webinar with Chris Esson and Pamela Pierce


The “COVID Presumption” for designated employees (detention officer, custodial officer, firefighter, peace officer, or emergency medical technicians) set forth in Texas Government Code §607.0545 is no longer in effect for dates of injury June 15, 2023, forward.

In our June Advisory, we announced the end of the COVID presumption. We raised the issue at DWC’s annual conference, but were met with resistance by DWC’s counsel.  However, on July 19, 2023, we received written acknowledgement from the Deputy Commissioner for Operations and External Relations stating, “The federal and state disaster declarations ended. Since the Governor’s declaration was not renewed, it expired June 15, 2023. For dates of injury after that the COVID presumption is no longer in effect.” 

Some have asked why and how this presumption can end prior to its stated expiration date of September 1, 2023. The answer lies in Government Code §418.014 combined with the specific language of the presumption.

The presumption only applied if the designated employee was employed in the area designated in a disaster declaration by the governor under Section 418.014 or another law and the disaster was related to severe acute respiratory syndrome coronavirus 2 or coronavirus disease; and contracted the disease during the disaster declared by the governor.

Texas Government Code §418.014 states that a state of disaster may not continue for more than 30 days unless renewed by the governor. (Texas Government Code §418.014).  Governor Abbott’s last 30-day renewal of Texas’ COVID-19 disaster declaration was May 15, 2023. He did not renew his COVID-19 disaster declaration on June 15, 2023; therefore, for dates of injury June 15, 2023, forward, the COVID presumption is no longer in effect.  Texas Government Code §607.0545 (a) (1) and (2).

What this means to you:

  • For dates of injury June 15, 2023 forward – the COVID presumption does not apply.
  • Employees previously covered by the COVID presumption who file a claim alleging COVID as an occupational disease will have the same burden of proof applicable in occupational disease claims.
  • For dates of injury on or before June 14, 2023, the statutory COVID presumption remains in effect.



It is that time of year again, where the DWC sets their interest/discount rates for the following quarter.  For the time period between 7/1/23 to 9/30/23, the interest rate for this quarter is now 8.74%.  These rates are tagged to current federal T-bill rates, and this current rate is almost 10% higher than last quarter.  The DWC has also approved an audit regarding spinal cord stimulators.  The audit will evaluate the appropriateness of a doctor’s decision and record keeping that support the use and effectiveness of spinal cord stimulators.

The Workers’ Compensation Research and Evaluation Group recently released their 2023 return to work (RTW) report, looking at RTW outcomes between 2007 and 2020.  Some of their more interesting findings include the fact that 92% of injured workers are back at work within 1 year of their injury, but it takes almost 2 years for an employee who RTW within 6 months to get back to their pre-injury wage.  However, it went on to note that employees not back to work within 6 months typically take over 3 years to get back to their pre-injury AWW.  The summary concludes that there have been steady improvements in RTW rates for injured employees in Texas over the last decade, but that enduring trends exist that older employees, employees with severe injuries, and employees in industries that rely on manual labor tend to have more lost time than other employees (not a huge surprise, all things considered!).

Compliance and Investigations Corner

The Division takes timely payment of medical bills seriously, especially medical bills from a designated doctor or designated doctor’s referral doctor.  Pursuant to the Workers’ Compensation Act, and Rule 133.240, a carrier is required to timely process and take final action on a completed medical bill within 45 days of receiving the medical bill.  A carrier commits a violation if it fails to pay, reduce, deny, or determine to audit a completed medical bill within 45 days of receiving the medical bill.  This violation, if discovered by the Division, can result in the issuance of a Consent Order and monetary penalty to the carrier.  The amount of the penalty will be determined based on the number of days the carrier was late in taking action, the amount of the medical bill, whether the provider is a designated doctor or designated doctor’s referral doctor, and past history of similar violations against the carrier.  Finally, if a medical bill is paid late, it must be paid with interest to be considered paid in full.

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

•  Mouton v. Hous. Indep. Sch. Dist., _ S.W.3d_,2023 Tex. App. LEXIS 4267 (Tex. App.—Houston [1st Dist.] June 20, 2023, no pet. h.)

DECISION: Pro se bus driver sued her employer and the TPA for a variety of issues including improper handling of her WC claim. The court writes, “Here, because Mouton stated allegations arising out of CCMSI’s investigation, handling, and settling of her claim for workers’ compensation benefits, the TWCA provides the exclusive procedures and remedies for those claims.”

WHAT THIS MEANS FOR YOU: WC disputes start with DWC.

Barker v. Sam Hous. State Univ., __ S.W.3d __, 2023 Tex. App. LEXIS 4416 (Tex. App.—Texarkana June 22, 2023, no pet. h.) 

DECISION: In a sovereign immunity case, the professor parked her car in a lot not designated for her. Between classes, she was moving her car to another parking lot when another SHSU employee struck her car on a public road dissecting two SHSU properties. The court agreed with SHSU that the Exclusive Remedy Bar prevented the professor from suing it. The court held the professor’s “actions and the collision were so closely connected with her employment as to render it an incident threreto.” The court did not address the access doctrine which (1) is usually considered an exception to the coming and going rule and (2) does not apply to public streets.

WHAT THIS MEANS FOR YOU: Courts sometimes miss the details when not looking for them.

 •  Diyenno-Messenger v. United States, No. 22-50303, 2023 U.S. App. LEXIS 15918 (5th Cir. 2023)

DECISION: The USPS, a federal employer, cannot directly pay WC benefits to non-federal employees or employees of independent contractors. But it can be a statutory employer if it provides WC premium payments as an allowable expense. In this case, the USPS entered into just such a contract with Le-Mar. The IW worked for Edwards Mail Service, a distinct business but a subsidiary of Le-Mar. The court found this “is sufficient.”

WHAT THIS MEANS FOR YOU: “[T]he Government’s consent to be sued must be construed strictly in favor of the sovereign.”

• APD 230503

DECISION: The IW suffered one injury, not two. IC established a claim using the DOI provided by the IW in a handwritten statement. The IW later said the DOI was a typographical error, and the IC established a new claim. The IW argued the IC waived its right to dispute the second claim/DOI. The AP held there was only one injury, and only one DOI, and the IC timely denied that claim. Changing the DOI does not later require the IC to file another dispute.

WHAT THIS MEANS FOR YOU: If there is only one MOI, the carrier does not waive compensability by filing a denial in one but not the other alleged DOI.

• APD 230641

DECISION: The certifying doctor transposed ROM measurements for abduction and adduction resulting in an incorrect IR. The DD believed ROM was normal and awarded a 0% IR. But the actual measurements would result in an IR. However, there were questions about the narrative report that prevented the AP from mathematically correcting the IR from the component parts.

WHAT THIS MEANS FOR YOU: Watch those ROM calculations.

• APD 230673

DECISION: The ALJ made several Conclusions of Law (COL) on the issues certified from the BRC but no supporting Findings of Fact (FOF).

WHAT THIS MEANS FOR YOU:  A D&O must include a FOF that support the COL for each issue.

• APD 230630

DECISION: The parties amended the issues to include additional extent of the injury conditions. The parties then stipulated as to those conditions. The D&O did not include the amended issues or the stipulation. The AP modified the D&O by reforming the issues and stipulations but otherwise affirming the decision.

WHAT THIS MEANS FOR YOU: Easy for the parties and the judge to record changes to the issues.

• APD 230723

DECISION: The ALJ found the worker did not sustain a compensable repetitive trauma injury. At the CCH, the parties agreed to modify the disability issue to provide a beginning and ending date to the disability period. But the D&O included FOF and COL regarding disability that exceeded the ending date by three days (January 25 instead of January 22). The AP reversed removing any finding of disability for those three days.

WHAT THIS MEANS FOR YOU: Amending issues are a repeated source of reversals.

• APD 230665

DECISION: A sheriff deputy was seeking a promotion. He participated in an off-duty agility test required for transfer or promotion. The AP held the worker was participating in an off-duty athletic activity not constituting part of the worker’s work-related duties.

WHAT THIS MEANS FOR YOU: Off duty tests required for promotions are not activities that originate in the work, business, trade, or profession of the employer.

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.