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.
June 23, 2023 from 12:00 P.M. to 1:00 P.M.: Calculating Indemnity Benefits Webinar with Stuart Colburn and Adrienne Gasser
July 14, 2023 from 12:00 P.M. to 1:00 P.M.: New Designated Doctor Rules Webinar with Wendy Schrock and Charles Morse
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
NEW DD RULES AND FORM
We knew it was coming but now it’s official. DWC adopted new rules regarding designated doctors. Here are the highlights. 28 Texas Administrative Code Section 127.130(b)(9)(B) was amended to add additional physicians for examining injured employees with traumatic brain injuries. Previously, the rule required a board certification in neurological surgery, neurology, physical medicine and rehabilitation or psychiatry. Now the list is expanded to also include: orthopedic surgery, occupational medicine, dermatology, plastic surgery, surgery, anesthesiology with a subspecialty in pain medicine, emergency medicine, internal medicine, thoracic and cardiac surgery, or family medicine.
28 Texas Administrative Code Section 127.130(b)(9)(C) and (F) were amended regarding qualification requirements for injured employees with multiple fractures and spinal cord injuries. If the injury is a single spinal fracture, multiple fractures or rib fracture with no vascular injuries, chiropractors have been added to the list in addition to the previous doctors of osteopathy and doctors of medicine. If the injury involves a spinal fracture with documented neurological injury, or vascular injury, more than one spinal fracture, or cauda equina syndrome, a DD must be board certified in neurological surgery, neurology, physical medicine and rehabilitation, orthopedic surgery or occupational medicine. If the injury involves joint dislocation, one or more fractures with vascular injury, one or more pelvis fractures or multiple rib fractures, a DD must be board certified in emergency medicine, orthopedic surgery, plastic surgery, physical medicine and rehabilitation and occupational medicine.
Doctors who have passed the certification test on or after May 13, 2013, are no longer required to take the certification test for certifications that expire on or after the effective date of the rule change, April 30, 2023. Doctors must still take required certification training every two years using the updated DWC Form-067.
New rules mean a new form; we know this is just what you wanted to hear!! The new DWC Form-032, Request for a Designated Doctor, must be used starting June 5, 2023.
DWC HAPPENINGS
YOUR MONTHLY LOOK AT WHAT IS HAPPENING AT THE DIVISION AND HOW IT IMPACTS CARRIERS
On June 5, 2023, DWC issued a memo concerning upcoming changes involving Designated Doctors, and forms associated with those examinations. As of April 30, 2023, doctors who have passed the certification test on or after May 13, 2013, are no longer required to take the certification test. They still must complete training every two years, but they do not have to take a test along with the training. Additionally, the scope of practitioners who can evaluate a traumatic brain injury has been expanded, and chiropractors can now provide certifications involving multiple fractures, so long as they do not involve vascular or neurologic injuries, or fractures of the pelvis and multiple rib fractures. All of these changes are clearly designed to keep as many doctors as possible in the system. Finally, effective June 5, 2023, Designated Doctors will no longer provide multiple certifications of MMI depending on extent issues, unless requested via Presiding Officer’s Directive (POD). These changes will likely result in additional Benefit Review Conferences regarding extent of injury questions, since the Carriers and Claimants will not get an opportunity to explain on the DWC-32 exactly what has been accepted.
We looked at some workers’ compensation bills winding their way through the Legislature last month. HB4524, which would have expanded telehealth in the workers’ compensation system, stalled out in the Texas Senate, after getting out the Senate Committee on Business & Commerce. HB102, which would have expanded the recovery of exemplary damages in workers’ compensation cases, passed in the House but was DOA in the Senate.
On the other hand, HB2468 becomes law on September 1, 2023. This bill made significant changes to Lifetime Income Benefits (LIBs) and provided new definitions to address traumatic brain injuries. The new law will allow a Carrier to re-open entitlement to LIBs regarding first responders based on an employee’s change in position. Previously, once an employee showed entitlement to LIBs, it was no longer subject to review. This law also gets rid of the concept of “incurable insanity or imbecility” as what is necessary to prove in order to show entitlement to LIBs based on a traumatic brain injury. Instead, the definition has changed to require a showing of a physically traumatic injury to the brain, “that as determined using evidence based medicine, results in a permanent neurocognitive disorder for which the employee requires occasional supervision in the performance of routine daily tasks of self care and that renders the employee permanently unemployable.”
Compliance and Investigations Corner
It is important to pay attention to requests for travel reimbursement. Per Texas Administrative Code §134.110, an injured employee is entitled to travel reimbursement when medical treatment for the compensable injury is not reasonably available within 30 miles from where the injured employee lives, and the distance traveled to secure the medical treatment is greater than 30 miles one-way or the distance traveled for a designated doctor or Post-DD RME examination is greater than 30 miles one-way. An employee has one year following the travel in which to submit a request for travel reimbursement. If an employee submits for travel reimbursement, the Carrier shall pay or deny the request within 45 days of receipt. Reimbursement is based on the travel rate for state employees on the date the travel occurred. Failure to pay or deny the request within 45 days can result in a monetary penalty. If payment is issued after 45 days, the Carrier must pay interest on the amount reimbursed.
Decisions, Decisions, and More Decisions
Current Cases that You Need to Know
• Cameron Int’l Corp. v. Martinez, 662 S.W.3d 373 (Tex. 2022)
DECISION: The worker was contracted for a three-day employment in the oil field. His employer asked him to stick around an extra day to see if he was needed for a different job. He drove his personal vehicle into town for personal reasons (purchase fuel for his truck and food and water for himself). He also had dinner with his boss. He was involved in an MVA heading back to the bunkhouse. His alleged employers were sued based on vicarious liability. The court stated, “Workers often travel for personal necessities during the workday or leave for a meal before returning to work, but these activities do not arise from the business of the employer. Rather, they are daily tasks in which workers and nonworkers alike engage, carrying the same attendant risks.” Further, the right of control test helps determine if an employment relationship exists but is not part of the analysis of whether to impose liability in a particular instance. A travel allowance is not sufficient evidence to create a fact question of whether the worker was acting within the course and scope of employment at a particular instance. The court noted that the distinction between workers’ compensation and vicarious liability when it stated, “Accordingly, the statutory definition of course and scope for workers’ compensation insurance purposes does not inform the concept under the common law for the purpose of imposing vicarious liability against an employer.”
WHAT THIS MEANS FOR YOU: Not every task that supports a worker’s needs and indirectly benefits the employer falls within the course and scope of employment for vicarious liability.
• APD 230494, 2023 TX Wrk. Comp. LEXIS 37
DECISION: The ALJ consistently used the wrong MMI date as certified by the DD throughout the D&O.
WHAT THIS MEANS FOR YOU: Even judges make cut and paste errors.
• APD 230400, 2023 TX Wrk. Comp. LEXIS 38
DECISION: The ALJ made a finding of fact (FOF) the employer and carrier were relieved of liability because the injury arose out of an act of a third person not directed at the worker as an employee but because of personal reasons. However, the D&O did not have a corresponding conclusion of law (COL) which the AP reformed without remanding.
WHAT THIS MEANS FOR YOU: The D&O needs FOFs and COLs.
• APD 230368, 2023 TX Wrk. Comp. LEXIS 39
DECISION: The parties agreed to modify the disability issue. The ALJ failed to make findings of fact for all dates of disability certified by the parties requiring a remand.
WHAT THIS MEANS FOR YOU: Parties should ensure care when dates are modified at the CCH and different than what is certified in the BRO report.
• Hartford Accident & Indem. Co. v. Francois, No. 05-21-00981-CV, 2023 Tex. App. LEXIS 3489 (Tex. App.—Dallas May 23, 2023, no pet. h.)
DECISION: The plaintiff lawyer convinced the trial court to punish the carrier for refusing to agree to a three-way split for subrogation purposes by an allocation of a settlement with a third-party tortfeasor that exceeds the one-third statutory cap on attorney fees. The court of appeals first held there is no statutory requirement that workers’ compensation carriers engage in a three-way split for subrogation purposes. The proper method is to subtract one-third (33%) statutory attorney fees and a pro rata share of expenses from the settlement recovery. The workers’ compensation carrier has a statutory right to first monies after the statutory fees and pro rata share of expenses are paid. The attorney is not entitled to reduce the contracted fees from the settlement and then charge the workers’ compensation carrier the statutory fees which by law are capped at one-third the insurance carrier’s recovery. Finally, the court reversed the trial court’s additional award of $10,000 attorney fees under UDJA since it too exceeded the statutory cap on attorney fees, and the carrier “was well within its rights to seek the full amount of reimbursement permitted under Chapter 417.”
WHAT THIS MEANS FOR YOU: Plaintiff attorneys and trial courts keep unsuccessfully challenging the statutory allocation of settlements and attorney fees in third party cases.
• APD 230606, 2023 TX Wrk. Comp. LEXIS 46
DECISION: The worker sustained an inhalation injury among other conditions. The DD could not find a facility near the worker willing to do the pulmonary function testing. The DD relied upon another doctor’s testing and IR, but the records were not clear if the AMA Guides were followed for pulmonary impairment testing. The AP writes, “The required methodology for rating pulmonary function as stated on pages 5/159-163 of the AMA Guides includes, in part, measurements made from at least three acceptable spirometric tracings of forced expiration: FVC, FEV1, and FEV1/FVC, a predicted normal single-breath Dco Value for an individual according to age, and utilization of Table 8 (page 5/162) for estimating the extent of permanent impairment. The AMA Guides also provide on page 5/159 that ‘[a] forced expiratory maneuver must be performed during the examination and evaluation of each patient for permanent pulmonary impairment.’” The DD can rely upon the examinations of other doctors so long as the required testing was completed. In this case, there was no such documentation.
WHAT THIS MEANS FOR YOU: The AP has written on a flurry of pulmonary cases recently and will not blindly accept what the DD opines is the proper IR.
• APD 230613, 2023 TX Wrk. Comp. LEXIS 45
DECISION: The worker sustained a compensable right shoulder injury. The DD chose to use ROM measurements from other providers including a TD and a PT. However, a certifying doctor must use all the ROM planes to properly calculate the IR for a shoulder. However, two such planes (extension and abduction) were missing. The AP stated, “…the ROM measurements that Dr. R used were incomplete and came, in part, from a physical therapy examination report that was not in evidence. As such, we cannot determine what the correct ROM measurements are regarding the right shoulder.”
WHAT THIS MEANS FOR YOU: The AP exercises its ability to calculate an IR better than any of the doctors in a case.
• APD 230230, 2023 TX Wrk. Comp. LEXIS 40
DECISION: Injured workers have 30 days to report their injuries to their employer. But when day 30 occurs on a non-working day, the “period is extended to include the next day that is a working day.” In this case, day 30 was a Saturday and the worker timely reported the injury to the employer on the following Monday.
WHAT THIS MEANS FOR YOU: Timelines that fall on a non-working day are extended until the next working day.
• APD 230546, 2023 TX Wrk. Comp. LEXIS 44
DECISION: The IC disputed the appointment of a second DD because the request took place within 60 days of the first evaluation. The AP held that a party need not show good cause to set the DD exam within 60 days of a previous examination and “in determining whether a requested designated doctor examination occurs within 60 days of a previous designated doctor examination the controlling date is the date of the actual subsequent examination, not the date the request is made. Therefore, the IC failed to show the DWC abused its discretion appointing a DD at the request of the IW.
WHAT THIS MEANS FOR YOU: It is the date of the subsequent DD evaluation and not the date of the DWC-32 that controls if good cause must be shown to have a DD evaluation within 60 days of a previous DD evaluation.
• APD 230296, 2023 TX Wrk. Comp. LEXIS 42
DECISION: The ALJ resolved the disability issue with a conclusion of law. But the D&O did not include a finding of fact for that issue. For each issue, the D&O must include both findings of fact and conclusions of law.
WHAT THIS MEANS FOR YOU: The D&O must include a FOF & COL for each issue.
• APD 230426, 2023 TX Wrk. Comp. LEXIS 43
DECISION: The ALJ once worked for a law firm representing ICs. In that capacity, the ALJ wrote a DD Analysis letter 30 months before the CCH. The AP held, “We hold that because the ALJ was an advocate for an interested party in this case prior to holding the CCH, it is inappropriate for the ALJ to hear and decide any issues in the same case.”
WHAT THIS MEANS FOR YOU: DDAs are important for more reasons that one might expect.
• Whitehurst v. N.H. Ins. Co., No. 14-21-00153-CV, 2023 Tex. App. LEXIS 3838 (Tex. App.—Houston [14th Dist.] June 6, 2023, no pet. h.)
DECISION: The pro se IW appealed to the AP and then to district court certain extent of injury determinations not in his favor. On appeal, he argued the IC failed to raise an extent of injury dispute within 45 days of receiving a medical bill and was estopped from denying conditions raised at the CCH. The IW also argued the DD failed to address 3 out of the 12 injuries he listed on the intake form, and the report could not be adopted. The court noted these issues were not raised at the DWC; and therefore, the IW waived them.
WHAT THIS MEANS FOR YOU: Issues not raised at the CCH are waived.
• Handy v. Zurich Am. Ins. Co., No. 03-21-00418-CV, 2023 Tex. App. LEXIS 3796 (Tex. App.—Austin June 2, 2023, no pet. h.)
DECISION: First the court addressed the pro se IW’s appeal and brief by stating, “We must ‘hold pro se litigants to the same procedural standards as we do litigants represented by counsel to avoid giving pro se litigants an unfair advantage,’ although we ‘will read the briefs liberally so as to obtain a just, fair, and equitable adjudication of the parties’ rights.’” The trial court sustained the IC’s timeliness objections to the pro se IW’s no evidence summary judgement exhibits produced the day of the hearing. Second, even if the records were considered, none of them rose to the level of expert medical evidence required to prove causation of the various extent of the injury issues. The court writes, “Moreover, the proffered documents indicate that after his workplace injury, he suffered from pain and eventually underwent surgery—they do not establish that the later pain and surgery were the result of the workplace injury and not some other source.”
WHAT THIS MEANS FOR YOU: Pro se litigants can have their day in court if they follow some basic rules of the court that an attorney must follow.
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.