D&S Straight Out of CompTown – June 2024

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 12, 2024 from 12:00 P.M. to 1:00 P.M.:  Work As a Safe Space: Workplace Violence Claims.  Presented by Stuart Colburn and Adrienne Gasser.

July 26, 2024 from 12:00 P.M. to 1:00 P.M.:  It Is All In Your Head: Head Injuries To Psychological Claim.  Presented by Chris Losey and Adrienne Gasser.



Governor Abbott recently announced that Mary Landrum, Deputy Commissioner of Health and Safety for the DWC, was awarded the 2024 Women in Texas Government Award for Outstanding Leadership.  In a similar vein, Judy Ney, an Administrative Law Judge in the Houston East Field Office, was recently bestowed the Serviam Award from the Women and the Law Section of the State Bar of Texas for her years of service to the Section. The award acknowledges her service to the improvement of, and access to, legal services, mentorship, volunteerism to professional and legal organizations, and her continuing effort to advance female attorneys in the State of Texas.  Congrats to both Ms. Landrum and Judge Ney for the recognition and awards.

A public hearing will be held on June 25, 2024 on proposed rules recently put forth by the DWC.  More specifically, this public hearing will address the rule changes related to HB 2468, concerning Lifetime Income Benefits for certain first responders, as well as proposed rules concerning designated doctor procedures. 

In recent months, a number of ALJ’s have retired or moved onto to other jobs outside of the workers’ compensation system.  Amanda Barlow recently left the Fort Worth Field Office to move to the Appeals Panel, and Pamela Delgado in the Corpus Christi Field Office has decided to join another state agency.  We wish Judge Barlow and Judge Delgado the best of luck in their new ventures.

Finally, a review of the most recent disciplinary orders once again shows the DWC is hyper focused on failure to timely pay violations.  In one case the DWC issued an $18,000 violation for a Carrier’s failure to pay TIBs in accordance with a Designated Doctor’s report, failure to timely pay attorney fees ordered by the DWC, and failure to pay accrued IIBs.   Another Carrier was fined for failing to timely pay pursuant to the certification of MMI by a certifying doctor, while a third Carrier was fined for failing to timely act on a medical bill.  Given that the DWC can make these determinations largely from a review of EDI data submitted by the Carriers, it seems reasonable to expect that this focus will continue on the DWC’s part going forward.


Death Claims – Required Forms

A carrier is required to send a blank DWC-42 with a PLN-12 to notify any person identified as a potential beneficiary about their potential entitlement to receive death benefits.  A PLN-12 must be sent to every eligible beneficiary unless all beneficiaries live in the same household.
Death Claim Check List:

  • Provide the PLN-12 to the potential beneficiary and the potential beneficiary’s representative (if applicable).
  • Send the PLN-12 within seven days of the date the insurance carrier identified or became aware of the identity and means of contacting the potential beneficiary.
  • Attach a current version of the DWC Form-042, Claim for Workers’ Compensation Death Benefits and mail it with the PLN-12.
  • Send to DWC a copy of the PLN-12 that was sent to the potential beneficiary. Do not send DWC a blank copy of the DWC-042.
  • Provide a full and complete statement of the facts that justify and serve as the grounds for identifying that person as a potential beneficiary.

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

• APD 240341

DECISION: Following a hotly contested and multi-issue CCH, the ALJ included conclusions of law and a decision regarding all the issues, including the certified disability issue. But the D&O did not include findings of facts regarding the disability issue, requiring reversal.

WHAT THIS MEANS FOR YOU: Quality control folks.

• APD 240440

DECISION: IW failed to attend the CCH resulting in a 10-day letter. But DWC sent that letter to a different address than the correct address which the CCH set notice was sent. The ALJ is to determine if there is good cause for her failure to attend the CCH, and if so, to allow the parties the opportunity of presenting their evidence.

WHAT THIS MEANS FOR YOU: Not everyone, including DWC staff, is right all the time.

• APD 240312

DECISION: The parties agreed on the record to modify the extent of the injury issue and then agreed to resolve some of those issues. The record is unclear if the parties agreed to drop (for now) the remaining extent of the injury issues or to agree those conditions are not compensable. Further, none of the certifications in evidence rate the compensable injury as the parties agreed to at the CCH. On remand, the ALJ is to determine if the parties agree that the conditions the BRO certified as the disputed conditions (but not included in the agreed modification of the issue) are not compensable or whether the parties agree to drop those conditions from the certified EOI issue. Then the parties must present an MMI/IR certification that is adoptable and rates the compensable injury.

WHAT THIS MEANS FOR YOU: Marry-up the extent with the DWC-69.

• APD 240492

DECISION: The AP found none of the three MMI/IR certifications in evidence were adoptable. The certification adopted by the ALJ considered conditions that neither have been accepted nor administratively determined to be part of the compensable injury. The other two certifications only considered sprains/strains, and the injury extends to and includes multiple disc pathologies.

WHAT THIS MEANS FOR YOU: The MMI/IR certification must rate the compensable injury and only the compensable injury.

• APD 240482

DECISION: The worker sustained among other injuries a thoracic strain. The certifying doctor used the Cervicothoracic Category from the AMA Guides when the Thoracolumbar Category would have been appropriate.

WHAT THIS MEANS FOR YOU: Thoracic injuries are not cervical injuries. 

• APD 240501

DECISION: The AP mathematically corrected the IR. The certifying doctor incorrectly used the AMA Guides tables for upper extremity IR and converted to a 6% instead of a 7%. The AP did not specify at what stage the doctor erred in the calculation. The AP did not discuss if there was another adoptable rating in evidence. Instead, the AP did the math for the doctor.

WHAT THIS MEANS FOR YOU: Learn how to use the AMA Guides for upper extremity impairment.

• APD 240429

DECISION: The record was held open after the CCH in part to receive the DD’s Figure 1 ROM worksheets. The ALJ relied upon these measurements when rendering the D&O. But Figure 1was not included in the case file forwarded to the AP, requiring reversal.

WHAT THIS MEANS FOR YOU: ROM documentation is everything, especially when the ALJ has it, and the AP doesn’t.

•  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: The exclusive remedy defense bars negligence actions filed by an employee of a Temporary Services Company (TES) against the client company of TES pursuant to Texas Labor Code Section 93. In this case, the employee of the TES was placed with a client company. The TES had a contract with the client company and agreed to provide workers’ compensation. TES maintained workers’ compensation insurance for its employees.

WHAT THIS MEANS FOR YOU: TLC 93 applies the exclusive remedy bar to claims against TES and its client company.

•  Conroe Indep. Sch. Dist. v. Osuna, __ S.W.3d __, 2024 Tex. App. LEXIS 3581 (Tex. App.—Beaumont May 23, 2024, no pet. h.)

DECISION: The custodial worker was injured working as a custodian when sprayed with a chemical used for cleaning. The doctor eventually returned the worker back to work with a restriction of not being exposed to the chemical found in the cleaning spray. Eventually, the district terminated her employment. She sued for retaliatory discharge. But the Texas Tort Claim Act does not waive governmental immunity from discrimination or discharge claims brought by a custodian who filed or instituted a workers’ compensation claim. (The legislature did waive such claims if the worker is a first responder.)

WHAT THIS MEANS FOR YOU: Political entities enjoy governmental immunity from Chapter 451 claims unless the employee is a first responder.

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.