D&S Straight Out of CompTown – June/July 2021

We Hope Everyone Had a Happy 4th of July!

We have started the second half of 2021.  Now that the legislative session has ended, many new changes in the Workers’ Compensation world have arrived.

DWC Announces SIBs Work Search Requirements to Resume August 2, 2021, and
DD and RME Exams on Return to Work and Disability will be Processed Beginning August 2, 2021

Commissioner’s Bulletin # B-0018-21 issued July 2, 2021, announced the resumption of:

•    work search compliance for SIBs;
•    processing designated doctor requests for exams on RTW and disability;
•    processing required medical exam requests for exams on RTW and disability.

For each full week of a qualifying period on or after Monday, August 2, 2021, injured employees must meet at least one of the work search requirements to qualify for SIBs.

On Monday, August 2, 2021, DWC will resume processing requests for DD examinations and RMEs for all issues, including “return to work” or “disability as a direct result of the compensable injury”. DWC will contact DD requesters about pending requests to determine if the exam is still necessary. NOTE: DWC will not process pending RME requests on these issues; rather, carriers must submit new requests for RMEs for these exams.  A copy of Bulletin # B-0018-21 can be found at: https://www.tdi.texas.gov/bulletins/2021/B-0018-21.html.

NEW: COVID-19 Presumption for Certain Employees & DWC Forms

Governor Abbot signed SB 22 creating a new Covid-19 rebuttable presumption for all first responders. DWC is creating new forms and emergency rules to address the new presumption, requests to reprocess claims, and requests for reimbursement. First responders will be allowed to retroactively re-apply for benefits using the presumption for the next six months. The new provisions added to Texas Government Code §§607.051 et. al. generally, and 607.545 specifically are detailed below:

  • SB 22 creates a specific rebuttable presumption that a COVID-19 injury or death is compensable.
  • The rebuttable presumption applies to peace officers, firefighters, EMTs, custodial officers, and detention officers, hereinafter referred to a “covered employee(s).”
  • This bill applies to any new claim filed by a covered employee on or after June 14, 2021 AND is retroactive.
  • If a covered employee was diagnosed with COVID-19 on or after March 13, 2020, OR contracted COVID-19 between March 13, 2020 and June 14, 2021, the covered employee is entitled to pursue a claim under this presumption REGARDLESS of whether the claim was filed timely. Such claims must be filed on or before December 14, 2021.
  • If a covered employee filed a claim between March 13, 2020 and June 14, 2021 and the claim was denied – the covered employee is entitled to request the claim be reprocessed under the presumption. The deadline to request the reprocess is June 14, 2022.
  • DWC has drafted a Sample Request to Reprocess SARS-CoV-2 or COVID-19 Claim for an Injured Employee Covered under Texas Government Code Section 607.0545 Rev. XX/21 Sample Request to Reprocess a SARS-CoV-2 or COVID-19 Claim for an Injured Employee Covered under Texas Government Code Section 607.0545 for injured employees/beneficiaries to use.
  • Employees/beneficiaries may request a claim be reprocessed in any written form; they are not required to use the sample request.
  • Carriers must process requests to reprocess claims within 60 days after receiving a written request to reprocess and must notify the injured employee/beneficiary and DWC whether the reprocessed claim is accepted or denied. Carrier will be required to use a plain language notice (PLN) to notify whether it is accepting or disputing a COVID-19 claim.
  • DWC has proposed PLN-15 Notice of Request to Reprocess a SARS-CoV-2 or COVID-19 Claim Subject to Texas Government Code Section 607.0545 and is accepting public comment. The PLN-15 provides instruction on how to dispute a carrier’s denial.
  • DWC has updated the instructions on the PLN-14 Notice of Continuing Investigation to reflect its applicability in COVID-19 cases.
  • Employees/beneficiaries may seek reimbursement for COVID-19 under new §409.0092. Within 45 days of receiving a written request, carriers shall reimburse or deny reimbursement for health care received including deductibles and co-pays. Employees/beneficiaries may seek medical dispute resolution (MDR) of any denial by filing a request within 120 days of the carrier’s denial for reimbursement.
  • DWC will issue emergency rules to address procedures.

The Supreme Court of the United States Denies Review of Air-Ambulance Billing Issue

On April 26, 2021, the U.S. Supreme Court denied PHI Air Medical, LLC’s Petition for a Writ of Certiorari to address the Texas Supreme Court’s June 26, 2020, ruling that the Airline Deregulation Act does not preempt the Texas Workers’ Compensation Act’s requirement that air-ambulance providers be reimbursed a “fair and reasonable” amount for transport of injured workers.  This means the Supreme Court of the United States will not review the ruling of the Texas Supreme Court.

On June 26, 2020, the Texas Supreme Court held workers’ compensation insurers only had to reimburse air-ambulance providers, such as PHI Air Medical, LLC,  a “fair and reasonable” rate for their services, which is calculated at 125% of the Medicare rate.  PHI Air Medical, LLC was dissatisfied with that ruling, and on November 23, 2020, filed a Petition for Writ of Certiorari to the Supreme Court of the United States challenging the Texas Supreme Court’s ruling regarding the reimbursement rate for transport of injured workers by PHI Air Medical, LLC.  
Multiple carriers and the Texas Department of Insurance, Division of Workers’ Compensation filed briefs in opposition to PHI Air Medical, LLC’s Petition asserting the Texas Workers’ Compensation Act’s “fair and reasonable” reimbursement rate is not preempted by the Airline Deregulation Act, but rather is protected by the McCarran-Ferguson Act which protect state laws that were enacted to regulate the business of insurance.  After consideration of all briefing, the U.S. Supreme Court denied the Petition filed by Phi Air Medical.

DWC’s COVID-19 Data Call Extended (Again)

On June 28, 2021, DWC again extended the data call for information related to COVID-19 exposures and injuries. Selected insurance carriers must now respond by the end of December 2021.

In Commissioner’s Bulletin #B-0016-21, DWC reminded system participants that only selected insurance carriers/groups are required to comply with the data call. The bulletin sets forth the manner in which data should be submitted to DWC. The bulletin also states that data call submissions are cumulative.

Please find attached information regarding COVID-19 data call instructions and the updated DWC COVID-19 data call spreadsheet for information required from carriers.
The Commissioner’s Bulletin #B-0016-21 may be found at: https://www.tdi.texas.gov/bulletins/2021/B-0016-21.html.

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

APD 210056
DECISION: DWC appointed a DD for extent of the injury for conditions before the ALJ. Neither party offered the DD report into evidence. The AP held it was error for the ALJ not to request the parties to offer the DD report into evidence and then admit that report.

WHAT THIS MEANS FOR YOU: The evidence must include all DD reports regarding issues set for resolution at a CCH.

APD 210284
DECISION: The claimant attended a DD appointment who made a referral for additional testing. The IW failed to attend despite repeated attempts by the DD office to schedule the referral appointment. The ALJ determined the IC cannot suspend TIBs based on the IW’s failure to attend the additional testing ordered by the DD. The AP clarified the additional testing ordered by the DD is part of the DD exam. IC may suspend TIBs for the failure to attend the additional testing absent a finding of good cause, which in this case, the ALJ found.

WHAT THIS MEANS FOR YOU: Additional testing ordered by the DD is part of the DD exam. Failure to attend the DD exam or the DD-ordered additional testing is grounds for the IC to suspend TIBS absent a showing of good cause.

HB 1752 Representative Oliverson:  BRCs to Remain by Zoom unless Good Cause Exists

DWC recommended the legislature allow Benefit Review Conferences (BRCs) be conducted through electronic means; and that in-person Benefit Review Conferences would only be held based upon the Division’s finding of good cause. The Division felt its experience in holding BRCs by Zoom as a result of the pandemic positively showed in-person BRCs were not necessary.

Significantly, groups representing employees, employers, health care providers, and carriers supported the bill. Only attorneys lodged any disagreement with the Division’s assertions. No representative or senator voted against the bill. The bill became effective upon the Governor’s signature on June 4, 2021.

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