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.
August 16, 2024 from 12:00 P.M. to 1:00 P.M.: When, Why, and What to do with Post DD RMEs presented by Wendy Schrock and Chris Losey.
DWC HAPPENINGS
YOUR MONTHLY LOOK AT WHAT IS HAPPENING AT THE DIVISION AND HOW IT IMPACTS CARRIERS
TDI’s July news release covered the sentencing of Frances Hall, former co-owner of Billy Hall Jr. Trucking. Ms. Hall was sentenced for her role in a scheme to avoid over $9 million in workers’ compensation premiums. TDI/DWC fraud investigators determined that between 2009 and 2016, Ms. Hall underreported payroll information and concealed payroll reports to get lower premiums for her business. She received 10 years of deferred adjudication and was ordered to pay $150,000 in restitution. This felony conviction was not the first for Ms. Hall; in 2016 she was convicted of murder and aggravated assault with a deadly weapon after running her husband’s motorcycle off the highway while chasing his mistress! (She received only a 2-year prison sentence for that crime due to her “sudden passion” defense.)
On July 15, 2024, the DWC started accepting public comments on an informal draft of text that would amend Rule 133.30 regarding telemedicine, telehealth, and teledentistry services. The purpose of the amendment would be to allow treating doctors to perform MMI examinations by telemedicine. It is intended to allow telemedicine to determine whether a Claimant is at MMI for minor injuries that do not have any permanent impairment. If you have any comments or concerns about these proposed changes, they can be submitted to RuleComments@tdi.texas.gov.
Finally, the DWC is asking for stakeholder input on legislative suggestions to include in the upcoming 2024 biennial report to the Texas Legislature. The DWC has posted an online survey form at https://www.surveymonkey.com/r/L759MYL for those interested in proposing potential changes to the Texas Labor Code. Downs & Stanford, P.C. will keep you informed of potential changes to the Act as they wind through the next legislative session.
COMPLIANCE AND INVESTIGATION CORNER
We are seeing an increase in penalties for failure to pay interest on late medical bill payments. A carrier is required to act on a medical bill within 45 days of receiving the bill. Pursuant to Texas Labor Code §413.019(a) and Division Rules 133.240(l) and 134.130(a), a carrier must pay interest on medical bills paid on or after the 60th day after the carrier originally received the complete bill. Interest shall be paid at the same time as the medical bill payment. The reason for the late payment of a complete bill will not relieve the carrier of its requirement to pay interest. Failure to pay interest can result in a compliance violation and a monetary penalty against the carrier.
Decisions, Decisions, and More Decisions
Current Cases that You Need to Know
• Lee v. Grand Prairie Indep. Sch. Dist., __ S.W.3d __, 2024 Tex. App. LEXIS 4106 (Tex. App.—Austin June 13, 2024, no pet. h.)
DECISION: Pro se claimant sought judicial review 41 days after the Appeals Panel affirmed the Decision and Order finding against her on extent of the injury issues. The self-insured argued the claim is not governed by Texas Labor Code Section 410.301 and its 45-day deadline to file for judicial review because claimant raised issues such as due process, fraud, and conspiracy. Since these allegations went beyond compensability and income benefits, she must file her petition within 30 days in accordance with Texas Labor Code Section 410.255 referencing the APA and its 30-day deadline. The court acknowledged sister courts have reached the opposite conclusion; nevertheless, the court reaffirmed its precedent that Texas Labor Code Section 410.252 applies to all judicial reviews of Appeals Panel decisions. The court noted that failure to comply with the 30-day deadline does not necessarily remove subject matter jurisdiction from the court. Further, the AP notice affirming the Decision and Order specifically states the parties have 45 days to file suit pursuant to Texas Labor Code Section 410.252.
WHAT THIS MEANS FOR YOU: The Austin Third Court of Appeals believes all judicial reviews of an appeals panel decision are subject to the 45-day deadline to file the petition.
• Sentry Cas. Co. v. Bravin, __ S.W.3d __, 2024 Tex. App. LEXIS 4343 (Tex. App.—Dallas June 21, 2024, no pet. h.)
DECISION: Senty Insurance sold and assigned for $25K its $42k workers’ compensation subrogation lien to Germania Insurance, the auto carrier for the driver who caused the accident. The worker and her attorneys filed a lawsuit against Senty for its Texas Labor Code Section 417.003 attorney fees and then added Germania to that lawsuit. Two years later, the plaintiffs settled the original negligence action with Germania’s insured. In the attorney fees lawsuit, Plaintiffs non-suited Germania with prejudice. The trial court ruled Senty owed the Texas Labor Code Section 417.003 fees and an additional $10k in attorney fees under the Uniform Declaratory Judgement Act. On appeal, the court held Sentry was free to sell and assign its subrogation interest to Germania. As such, Germania was statutorily responsible for paying the TLC 417.003 fees. So, the plaintiff’s action against Sentry fails since the obligation to pay the fees rested with Germania who the plaintiffs previously non-suited with prejudice.
WHAT THIS MEANS FOR YOU: Practitioners who do not often practice workers’ compensation do not understand the intricacies of the Texas Labor Code.
• In re Recess Arcade Bar, LLC, __ S.W.3d __, 2024 Tex. App. LEXIS 4220 (Tex. App.—Austin June 19, 2024, no pet. h.)
DECISION: The plaintiff filed a negligence action against her employer who was covered by a workers’ compensation policy. The plaintiff apparently never pursued a claim for workers’ compensation benefits with DWC or with the workers’ compensation carrier. The employer filed a writ of mandamus regarding the trial court’s denial of its plea to the jurisdiction since DWC has exclusive jurisdiction for workers’ compensation disputes. The court wrote that exclusive jurisdiction “depends on whether the claim is based on claimant’s entitlement to workers’ compensation benefits.” The court held the present action does not so depend because the suit does not hinge on whether the worker is or is not entitled to workers’ compensation benefits. The court then explained the employer was conflating the exclusive jurisdiction doctrine with the exclusive remedy affirmative defense, which is properly raised by a MSJ or on the merits at trial.
WHAT THIS MEANS FOR YOU: Know the difference between the exclusive jurisdiction doctrine and the exclusive remedy affirmative defense.
• Lubbock Cty. v. Reyna, __ S.W.3d __, 2024 Tex. App. LEXIS 4002 (Tex. App.—Amarillo June 10, 2024, no pet. h.)
DECISION: The worker was paid IIBs and SIBs before qualifying for LIBs. The self-insured employer redesignated prior paid IIBs and SIBs as LIBs. The AP held redesignation was appropriate. But the trial court disagreed and did not allow the redesignation resulting in a double recovery of benefits to the worker. On appeal, the court held the worker is not entitled to a double recovery of income benefits for one injury at the same time. The worker can elect which benefit, and LIBs provides more money than either IIBs or SIBs.
WHAT THIS MEANS FOR YOU: The worker is entitled to only one kind of income benefit at a time.
• Waeli v. BWFS Indus., LLC, __ S.W.3d __, 2024 Tex. App. LEXIS 3915 (Tex. App.—Houston [14th Dist.] June 6, 2024, no pet. h.)
DECISION: A worker for a temporary employment service (TES) company was injured by a coworker while working at the TES’s client company. Both the TES and client company maintained a WC policy. The TES’s policy contained an endorsement covering TES’s employees injured while working at the client company. Nevertheless, the worker sued the client company. Under the TES statute, the exclusive remedy defense applies to both the TES and its client if the evidence shows the TES employee is injured working for a TES client and the TES has workers’ compensation coverage. There is no need for a TES to prove the traditional indicia of control over the employee.
WHAT THIS MEANS FOR YOU: Three elements of a TES case are fairly easy to prove.
• Old Republic Ins. Co. v. Evans, __ S.W.3d __, 2024 Tex. App. LEXIS 4577 (Tex. App.—Amarillo June 28, 2024, no pet. h.)
DECISION: A worker drove his personal motorcycle to work. After entering the building, he realized he forgot his work computer and travelled back home to retrieve it. He was involved in a fatal accident on the way back to the office. The question was whether the coming and going rule excluded compensability or the special mission doctrine applied as an exception. His employer was unaware he arrived at work and then left to retrieve his computer. They did not issue any order or directive to travel home and back. Hence, there was no special mission, and the worker was simply driving to and from work. In a footnote, the court dismissed the argument raised by the carrier that the worker violated a company rule by using a motorcycle when the company policy specifically precluded operating motorcycles for company business.
WHAT THIS MEANS FOR YOU: Special mission requires some directive or control issued by the employer.
• APD 240565
DECISION: The ALJ determined the worker did not sustain a compensable injury and the employee was in a state of intoxication. However, the D&O did not include a Finding of Fact supporting the Conclusion of Law regarding the compensable injury, requiring reversal.
WHAT THIS MEANS FOR YOU: Every Conclusion of Law requires a Finding of Fact.
• APD 240552
DECISION: The decision and order failed to resolve one of the extent of the injury issues certified out of the BRC, requiring reversal.
WHAT THIS MEANS FOR YOU: Issues stated in the BRO report must be resolved or withdrawn.
• APD 240569
DECISION: The ALJ selected a certification that did not rate the compensable injury. There were seven certifications of MMI/IR in evidence, but only two rated the compensable injury and only the compensable injury. The AP remanded for the ALJ to pick one of the two adoptable certifications.
WHAT THIS MEANS FOR YOU: The MMI/IR certification must rate the compensable injury and only the compensable injury.
• APD 240537
DECISION: The ALJ adopted a certification from the DD that rated a right shoulder sprain/strain instead of left shoulder sprain/strain. No other certifications rated the compensable injury and only the compensable injury.
WHAT THIS MEANS FOR YOU: Use a spreadsheet to make sure the certification is adoptable.
• APD 240521
DECISION: The AP held it was an error for the ALJ to adopt the DD’s certification since it was not signed as required by Rule 130.1. No other certifications rated the compensable injury and only the compensable injury.
WHAT THIS MEANS FOR YOU: Unsigned DWC-69s are not adoptable.
• APD 240484
DECISION: The ALJ determined the carrier was not relieved of liability because the worker failed to timely file the DWC-41 with DWC within one year. But the D&O did not include any Findings of Fact that supported that determination. The AP reversed and remanded.
WHAT THIS MEANS FOR YOU: Every Conclusion of Law requires a Finding of Fact.
• APD 240658
DECISION: In a death case, the wife testified that one of her daughters was under the age of 25 and a full-time student. But the daughter was not a party to the proceeding. Because the daughter was a potential beneficiary, she was a necessary party to the proceeding, The AP reversed for proper notice of the CCH and joinder.
WHAT THIS MEANS FOR YOU: A potential beneficiary is a necessary party who must be notified and joined for the CCH.
• APD 240647
DECISION: The D&O did not resolve one of the extent of the injury issues certified out of the BRC, requiring reversal.
WHAT THIS MEANS FOR YOU: Issues stated in the BRO report must be resolved or withdrawn.
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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.