D&S Straight Out of CompTown – March 2021

What?  It’s March Already??

The holidays are in the rear-view mirror, and Texas suffered the worst winter storm in history.  What do we have to look forward to in March this year besides Spring Break, warmer weather, and St. Paddy’s Day?  More COVID issues and DWC Announcements…

DWC Announces Performance Based Oversight (PBO) Results

DWC announced the insurance carrier biennial Performance Based Oversight (PBO) results. Overall, carriers did quite well. Forty carriers (1/3 of all carriers) scored 95% or better and qualified as High Tier Performers. Scoring between 94.99% and 80% were 76 Average Tier Performers. Only 4 carriers fell into the Poor Tier Performer category.

The Legislature requires DWC to monitor the performance of heath care providers and insurance carriers. DWC alternates the yearly review. The purpose of the yearly reviews is as follows:

•    Encourage and reward excellence and continuous improvement;
•    Foster improved and timely communications;
•    Establish performance objectives, measures and expectations; and
•    Focus on results rather than prescriptive requirements.

Insurance carriers are assessed on five metrics. The metrics are as follows:
•    paying initial temporary income benefits (50%);
•    processing initial medical bills (30%);
•    processing requests for reconsideration of medical bills (10%);
•    submitting initial payment data by electronic data interchange (EDI) (5%); and
•    submitting medical bill processing data by EDI (5%).

The metric with the most weight is also the metric with which carriers struggle the most: timely payment of Temporary Income Benefits. Only 25 carriers were high performers on this metric; 23 were poor performers. Carriers wishing to improve their score for 2023 might want to focus their improvement on this metric utilizing double diaries, better adjuster training, and working more closely with their insureds, especially in cases of delayed and intermittent lost time.  

February 10th:  DWC’s New Rule on Peers

On January 21, 2021, DWC issued Commissioner’s Order No. 2020-6662, adopting the amended 28 TAC §180.1.  Starting February 10, 2021, when a health care service is requested, ordered, provided, or to be provided by a physician, a physician performing a peer review, utilization review, or independent review must be of the same or similar specialty as that physician who requested or performed the health care service.  <<Read More>>

Does Texas Have a Presumption that COVID-19 is Compensable for First Responders?

No. There is no COVID-19 presumption in Texas – yet. However, one could argue that Texas Government §607.054 regarding tuberculosis or “other respiratory illness” applies.  Whether a first responder would be successful in establishing a presumption under §607.054 is unknown.  <<Read More>>

Question of the Month

Question:  Does filing a DWC-22 for an RME or filing the PLN-3 stop the 90-day clock?

Answer:  No, filing a DWC-22 or filing a PLN-3 disputing an Impairment Rating does not stop a valid first certification of Maximum Medical Improvement or Impairment Rating from becoming final.  Depending on your case, you will either need to file a DWC-32 to request a Designated Doctor or a DWC-45 to request a Benefit Review Conference.  A timely and properly filed DWC-45 always stops the 90-day clock.  Therefore, as a general rule, we recommend filing a DWC-45 to be sure a client timely disputes the first valid certification of Maximum Medical Improvement and Impairment Rating within 90 days of receiving the report.

Please contact any of our attorneys at Downs & Stanford for assistance with disputing a certification or any other Texas Workers’ Compensation questions.

DWC’s Guidance on Reporting COVID-19 Claims

On March 2, 2021, DWC released guidance to insurance carriers for submitting a First Report of Injury using electronic data interchange for claims alleging COVID-19 and for claims alleging a reaction to the COVID-19 vaccine.  DWC reminds insurance carriers when composing a First Report of Injury involving an alleged COVID-19 exposure or infection to use specific codes adapted by the International Association of Industrial Accident Boards and Commissions’ (IAIABC).  Such codes for EDI claims reports are: “cause of injury” code 83-Pandemic and “nature of injury” code 83-COVID-19.  Insurance carriers should also clearly indicate whether the claim involves COVID-19 in the incident description field.

DWC also explained if the COVID-19 vaccination relates to an employee’s job, and it causes the employee to miss one or more days of work, carriers should file a First Report of Injury with DWC.  Submitting a First Report of Injury to DWC does not mean a COVID-19 vaccine reaction is work-related or that the insurance carrier is liable for payment.

Insurance carriers should report COVID-19 vaccine reaction claims using the new “nature of injury” code 38-Adverse Reaction to a Vaccination or Inoculation combined with the “cause of injury” code 83-Pandemic.  Insurance carriers should also clearly indicate whether the claim involves an alleged COVID-19 vaccine reaction in the incident description field by using language such as “COVID-19 vaccine reaction.”  Additionally, carriers should not report vaccine reactions using “nature of injury” code 83-COVID-19.   <<Read More>>

Attorney Spotlight:  John Fundis

A shareholder of Downs & Stanford, P.C., Mr. Fundis’ legal experience spans thirty years.  John serves as the team lead for the firm’s compliance and investigation practice.  He regularly appears before the Texas Department of Insurance, Division of Workers’ Compensation in matters such as Medical Fee Dispute Resolution, Compliance and Investigations, Benefit Review Conferences, Contested Case Hearings, and administrative appeals.  John also represents insurance companies in disputes concerning workers’ compensation claims at the judicial and appellate levels.  His practice includes insurance defense litigation for both plaintiffs and defendants on claims related to subrogation, general negligence, professional negligence, and products liability.  Most recently, John prevailed in a COVID-19 case in which the disputed issue was whether the claimant sustained a compensable injury in the form of an occupational disease.  In that dispute, the Administrative Law Judge (ALJ) noted the injured worker only provided circumstantial evidence that COVID-19 was contracted at the work site.  The ALJ further noted the injured worker “did not present any persuasive expert evidence to establish a causal nexus between” the employment and COVID-19.  As a result, it was held the injured worker failed to meet his burden of proof to establish a compensable injury was sustained in the form of an occupational disease. 

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 or Peer Reviews or need help with them?  Email our DD Department!