D&S Straight Out of CompTown – June 2022

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We are here to help you with your every day questions with Texas Workers’ Compensation.  Please see the newest information below.

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

Want Some Credit?  Come and Get It!

Here are 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; 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. 

June 10, 2022 from 12:00 P.M. to 1:00 P.M.:  COVID-19 Webinar ( 123071 ) with Pamela Pierce and Chris Esson
June 24, 2022 from 12:00 P.M. to 1:00 P.M.:  Basics of Handling a Death Claim Webinar with Charles Morse and Adrienne Gasser
July 8, 2022 from 12:00 P.M. to 1:00 P.M.:  First Responders and Cancer Claims Webinar (125363) with Pamela Pierce and Chris Esson
July 22, 2022 from 12:00 P.M. to 1:00 P.M.:  Summer Appeals Panel and Case Law Updates Webinar with Stuart Colburn and Adrienne Gasser

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.

COVID-19 Presumption Update

Over One Half of the COVID-19 Claims and COVID-19 Fatality Claims Involved First Responders and Correctional Workers

As of May 1, 2022, carriers reported over 83,000 COVID-19 claims and 448 COVID-19 fatalities to DWC. Just over half of all reported COVID-19 claims (51%) and fatalities (55%) involved first responders and correctional officers.

The largest number of COVID-19 claims for all employees were reported in January 2022 (12,305), followed by July 2020 (8,922), December 2020 (5,984), and August 2021 (5,336). Most COVID-19 claimants were male (62%). Regardless of gender, most COVID-19 claimants were under 40 years of age (57%). Four-fifths (80%) of the COVID-19 fatality claims involved males (80%), and one-third (67%) of the COVID-19 fatality claims involved employees who were 50 years of age or older.

Employees covered by the presumption have the right to file a request to reprocess their previously denied COVID-19 claims. Their deadline to do so was June 14, 2022. As of May 1, 2022, 141 PLN-15’s (Notice of Request to Reprocess a COVID-19 Claim subject to Texas Government Code §607.0545) for COVID-19 claims were filed, of which 95 were accepted and 46 denied. As of May 1, 2022, 30 PLN-15’s for COVID-19 fatality claims were filed, of which 19 were accepted and 11 denied.

Beginning on December 14, 2020, first responders began receiving the COVID-19 vaccine in Texas. Vaccines became available for some of the public in February 2021. A small number of employees had adverse reactions to the vaccine, resulting in workers’ compensation claims. From December 15, 2020, through May 1, 2022, carriers reported 701 COVID-19 vaccine reaction claims. Most of the reported COVID-19 vaccine reactions occurred in January 2021 (221), followed by February 2021 (114), and December 2020 (66).

This article is based on information the Texas Department of Insurance, Division of Workers’ Compensation’s fact sheet which provides information on the impact of COVID-19 on the Texas workers’ compensation system. Data sources for DWC’s fact sheet include administrative claim data reported to DWC by carriers as of May 1, 2022, and a data call with 74 selected carriers which gathered information on claims involving positive COVID tests or diagnoses as of March 31, 2022.  DWC’s full report is here.

DWC Corner

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

It has been a relatively slow month in DWC Land, but there have been a few actions the Division took that impacts Carriers.  First off, the DWC is currently soliciting comments about a new DWC-3 form, and in reviewing this document, they appear to be attempting to make it more user friendly. A draft copy can be found at the TDI website.  It is designed to be easier to read, and if you have any comments about this proposed form, they can be submitted to RuleComments@tdi.texas.gov by June 21, 2022.

While many people hoped the COVID-19 data calls were a thing of the past, the Division has determined otherwise and  extended the data call to December 31, 2022.  It is likely that this was done to ensure that the reprocessed claims for first responders were accurately reflected in the data that the Division wants to examine to determine the impact of COVID-19 injuries on the Texas Workers’ Compensation system.

One of the other areas that the DWC is working on right now is attempting to expand the scope of available doctors to examine Claimants with complex injuries through the Designated Doctor system.  The stated goals of these new rules would be to increase physician participation while maintaining chiropractic participation, as well as decreasing the administrative burden for doctors. Amongst the proposals is one to allow all physician board specialists to examine traumatic brain injuries.  This might result in less referrals to other health care providers in these types of cases. The DWC is also looking at possibly requiring a DD template to create some degree of uniformity.  The comment period for these changes closes on June 23, 2022.

Finally, we are now in our 10th month without a Commissioner of Workers’ Compensation since Cassie Brown was appointed the Insurance Commissioner in September of 2021.  Additionally, there is no indication at the current time that the DWC plans on replacing the Benefit Review Officers and Administrative Law Judges who have left or retired in recent months, if the current TDI job board postings are to be believed.

Death Benefit Deadlines

  • Potential Beneficiaries have one year from the date of the work-related death to file his/her claim for death benefits (DWC-42) with the Division.  If the potential Beneficiary files his/her DWC-42 more than one year after the date of death, then Carrier must file its PLN-1 (for failure to timely file a claim for compensable within one year) within 60 days after the one-year expiration date. 
  • If Carrier wishes to dispute compensability of the death claim, it must file its PLN-1 no later than 60 days after it was notified of the death; otherwise, the dispute it waived.
  • If Carrier wishes to dispute the eligibility of a potential Beneficiary to receive death benefits, the Carrier must file its PLN-1 within 15 days after receiving the claim unless it has not had 60 days to investigate the claim, i.e., 75 days.  (Texas Administrative Code § 132.17 is the main rule governing these deadlines.)  NOTE: the deadline to dispute beneficiary status is tied to a determination that the claim is otherwise compensable, i.e., if Carrier has disputed compensability, it is not required to also dispute beneficiary status until the claim has been determined to be compensable.  
  • After learning of a potential Beneficiary, Carrier has 7 days to notify the potential Beneficiary of potential entitlement to benefits by sending him/her a PLN-12 and a DWC-42.
  • Death benefits are to be paid at 75% of the Average Weekly Wage (AWW), not 70%.

 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 220552

DECISION: The worker failed to appear at the Contested Case Hearing. The 10-day letter was mailed to the wrong address, but the decision and order was mailed to the correct address. The case was remanded for the Administrative Law Judge (ALJ) to consider if the worker had good cause for failure to appear.

WHAT THIS MEANS FOR YOU: Texas Department of Insurance Division of Workers’ Compensation (DWC) ensures parties receive proper notice.

• APD 220498

DECISION: The Designated Doctor (DD) erroneously combined various components of elbow impairment resulting in a 2% upper extremity impairment instead of 1%. The Appeals Panel (AP) performed a mathematical correction.

WHAT THIS MEANS FOR YOU: The AP is better at calculating Impairment Rating (IR) than DDs.

• APD 220521

DECISION: The Benefit Review Conference (BRC) Report lists lumbar strain as an issue set for resolution. The ALJ determined the lumbar strain is compensable in a conclusion of law and in the Decision section of the Decision and Order (D&O). But ALJ included no findings of fact regarding the lumbar sprain.

WHAT THIS MEANS FOR YOU: For each issue in dispute, the D&O must include a finding of fact, a conclusion of law, and a decision.

• APD 220497

DECISION: The DD correctly calculated left Upper Extremity (UE) impairment in the worksheet. But the narrative report lists a different IR for Left Upper Extremity (LUE). The AP performed a mathematical correction resulting in an increase by one percent to the Whole Person Impairment (WPI).

WHAT THIS MEANS FOR YOU: The AP is better at calculating IR than DDs.

• APD 220417

DECISION: The ALJ ruled in favor of the worker and ordered carrier-pay attorney fees. The ALJ issued an order for attorney fees in the amount of $2,050. The Appeals Panel reversed. The attorney argued the ALJ failed to address the issue of whether the self-insured failed to timely dispute the Attorney Fee Order. The AP agreed the self-insured failed to timely contest the Order. The party disputing the attorney fee order must request a Contested Case Hearing (CCH) by the 20th day (unless that day falls on a weekend, holiday, or other closed day) after the self-insured receives, or is deemed to receive, the Attorney Fee Order.

WHAT THIS MEANS FOR YOU: A carrier must challenge an Attorney Fee Order by requesting a CCH within 20 days of receiving, or deemed to have received, the Order.

• APD 220457

DECISION: The extent of injury issues included a multitude of conditions including thoracic strain. The AP reversed holding the ALJ committed error when requiring the worker present expert medical evidence to establish the injury was a producing cause of the thoracic strain. The ALJ could believe all or none of the evidence regarding the sprain but could not require the worker to meet a higher causation standard than required by law.

WHAT THIS MEANS FOR YOU: AP maintains a strict line that sprains and strains do not require expert medical evidence to prove causation.

• APD 220645

DECISION: The AP affirmed but wrote to clarify statements made by the ALJ. First, the ALJ erroneously rejected the report of one doctor who the ALJ said failed to adequately identify a degloving injury which was not part of the injury. The AP felt this error was “typographical.” Second, the AP affirmed the ALJ’s statement that certifying doctor failed to explain the date of Maximum Medical Improvement (MMI). The certifying doctor failed to consider what treatment was reasonably anticipated to bring lasting improvement or material recovery and instead compared the Range of Motion (ROM) on the selected MMI date with the ROM found on the Statutory MMI (SMMI) date and found no difference.

WHAT THIS MEANS FOR YOU: Typographical errors are expanded to its perceived limits.

• APD 220510

DECISION: The Injured Worker (IW) presented evidence and statements the worker was not intoxicated at the time of the injury. The ALJ discounted the statements because none had any professional training to recognize the mental effects of intoxication. The AP reversed holding that intoxication does not require expert medical evidence.

WHAT THIS MEANS FOR YOU: Workers need not produce expert evidence they were not intoxicated.

• APD 220479

DECISION: The AP affirmed the decision despite the ALJ using the wrong name of the clinic where the IW first sought treatment. Such error was considered a typographical error and did not lead to an improper decision.

WHAT THIS MEANS FOR YOU: Typographical errors are expanded to its perceived limits.

• Stevenson v. Tex. Mut. Ins. Co., __ S.W.3d __, 2022 Tex. App. LEXIS 3292 (Tex. App.—Dallas May 13, 2022)

DECISION: After a compensable injury, a medical provider committed malpractice resulting in a $270K medical malpractice recovery. The lien was greater than $310K. The court reiterated the Insurance Carrier (IC)’s right to first monies before any amount to the recovery is distributed to the worker or the worker’s representatives. The worker’s attorney is entitled to reasonable attorney fees not to exceed one third of the recovery and a pro rata share of expenses The court of appeals affirmed an award of $180K ($270-$90) to the IC and $90K in attorney fees but reversed for a determination of expenses.

WHAT THIS MEANS FOR YOU: ICs have first rights to all monies in a subrogation case before distribution to the worker or the worker’s representatives.

• Balderas v. Zurich Am. Ins. Co., __ S.W.3d __, 2022 Tex. App. LEXIS 2768 (Tex. App.—Houston [14th Dist.] Apr. 28, 2022)

DECISION: CorTech purchased the staffing company Job Express of Wyoming, who operated in Texas under the assumed name (d/b/a) of Port City Staffing and purchased a WC policy from Zurich. Plaintiff argued that Port City Staffing was not named in the WC policy. The court held that an assumed name is not a separate legal entity.” Therefore, Port City Staffing, after the asset transfer, was CorTech company that did have a WC policy.

WHAT THIS MEANS FOR YOU: Asset transfers and assumed names complicate the proper purchase of Workers’ Compensation insurance.

• Balderas v. Zurich Am. Ins. Co., __ S.W.3d __, 2022 Tex. App. LEXIS 2768 (Tex. App.—Houston [14th Dist.] Apr. 28, 2022)

DECISION: An hour after the injury, the hospital blood test revealed a BAC of .0117 and a second test a couple of hours later was .066. Plaintiff argues the test results were on serum and not whole blood and the carrier’s expert used retrograde extrapolation. The court held there is no requirement that a BAC test must be performed on whole blood instead of blood serum. Also, retrograde extrapolation is not per se junk science and may be appropriate in the right case.

WHAT THIS MEANS FOR YOU: Know your science when intoxication is the issue.

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.