D&S Straight Out of CompTown – March 2022

Happy St. Paddy’s Day!  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. 

March 25, 2022 from 12:00 P.M. to 1:00 P.M.:  How a Carrier Can Ethically Deny a Claim for WC Benefits (119462) with Rynn Freiling and Chris Esson.

April 8, 2022 from 12:00 P.M. to 1:00 P.M.:  Recorded Statements Webinar (129532) with Charlie Morse and Wendy Schrock.

April 22, 2022 from 12:00 P.M. to 1:00 P.M.:  Supplemental Income Benefits Webinar (129625) with Rynn Freiling and John Fundis. 

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

Nearly Half of the COVID-19 Claims, and More Than Half of the COVID-19 Fatality Claims Involved First Responders and Correctional Workers

From January 1, 2020, through February 6, 2022, carriers reported a total of 78,299 COVID-19 claims to DWC. The greatest number of COVID-19 claims were reported in January 2022, followed by July 2020, December 2020, and August 2021. Nearly one-half (48%) of all reported COVID-19 claims involved first responders and correctional officers. The majority of COVID-19 claimants were male (62%) and were less than 40 years of age (53%).

As of February 6, 2022, carriers reported 422 COVID-19 fatality claims to DWC. Slightly more than half (52%) of the COVID-19 fatality claims involved first responders and correctional officers. Slightly over three-fourths (79%) of the fatal claims involved male claimants. Nearly three-fourths (72%) of the fatal claims involved claimants 50 years or more in age.

Senate Bill 22 created a statutory presumption for COVID-19 claims involving most first responders, detention officers, and custodial officers. After passage of that bill, DWC began receiving PLN-15s (Notice of Request to Reprocess a COVID-19 Claim subject to Texas Government Code §607.0545). As of February 6, 2022, 129 PLN-15s were filed for COVID-19 claims, of which 91 were accepted and 33 denied. As of February 6, 2022, 24 PLN-15s for COVID-19 fatality claims were filed, of which 19 were accepted and 4 were denied.

Beginning on December 14, 2020, certain groups of employees, including first responders, began receiving the COVID-19 vaccine in Texas. From December 15, 2020, through February 6, 2022, carriers reported to DWC a total of 682 COVID-19 vaccine reaction claims. DWC has not provided information regarding the percentage of vaccine reaction claims filed by employees covered by the presumption.

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 the fact sheet include administrative claim data reported to DWC by carriers as of February 6, 2022, and a data call with 74 selected carriers.  DWC’s full report is here.

DWC Compliance Concerns

Is there anything in Texas Division of Workers’ Compensation Rules that state an adjuster cannot approve or deny medical treatment?  

Yes, based upon our review of Texas Administrative Code Sections 133.240 and 133.250 which specifically address medical payments, denials, and reconsideration of medical bills.  These rules, at §133.240(p) and §133.250(j), state that a utilization review must be performed by an insurance carrier that is registered with or a utilization review agent (“URA”) that is certified by TDI to perform utilization review in accordance with the Insurance Code.  This means that all medical bills must be reviewed by a utilization review agent, which is typically the bill review company used by the TPA or Carrier, before a payment, reduction or denial is issued.  An adjuster is typically not a licensed URA agent, and if the non-URA adjuster reviews the bill and determines whether to pay or deny the bill, that is a violation per these Rules.  It can also be a C&I violation if the adjuster determines medical necessity since the adjuster is not a medical professional.  These violations can result in a monetary penalty to the Carrier.  

DWC Corner

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

On February 6, 2022, the DWC announced their performance based oversight (PBO) results as it pertains to health care providers.  The health care providers were assessed in their performance on either the filing of DWC-69s (MMI and impairment ratings) or DWC-73s (work status).  96 health care providers were reviewed on the DWC-69s, with the vast majority (66) found to be in the “high” performing tier, while less than ½ of the providers reviewed through DWC-73s were found to be in the high performing tier.

The DWC has also requested comment on proposed changes to the Designated Doctor rules, some of which are designed to try and entice doctors back into the system.  Some of the “highlights” of the proposed rules include a change that a Designated Doctor can only provide multiple certifications of MMI and IR when directed by the Division, as well as revisions to the Rules that will no longer require doctors who passed the certification test after May of 2013 to retake the test every two years.  The DWC also proposed to increase the scope of doctors who can evaluate a traumatic brain injury to include board certified doctors in fields such as occupational medicine, orthopedic surgery, internal medicine and family medicine, among other specializations.  This is clearly being done in order to allow a greater range of doctors to take on TBI cases, as the number of doctors that can presently do this and are on the Designated Doctor list is quite limited.

Finally, a review of the monthly information concerning Designated Doctors shows that the number of available Designated Doctors continues to be quite low.  For the month of February, there were a grand total of 264 available Designated Doctors statewide.  Of those numbers, 70% were chiropractors.  Those 264 doctors performed a grand total of 2008 examinations in February.  This is obviously a concern going forward, as the lack of doctors will likely lead to longer wait times for examinations, as well as issues with availability of doctors on complex cases.

News from the DWC Designated Doctor Program Focus Group Meeting

On Thursday, March 10, 2022, the DWC hosted a Designated Doctor (DD) Focus Group Meeting.  The DWC held this meeting with system participants to gather feedback on ways to improve the DD program.  This was also a follow-up of the October 27, 2021, meeting to discuss in greater detail DD billing and reimbursement issues.  There were several comments from DDs that were quite interesting.  

First, the DDs expressed their displeasure with having to review records that had multiple duplications, bills, and even some files that had attorney/client privileged documents.  The DDs believe that some Carriers are requesting them to act as a record review agent because they are cheaper than a peer review.  One doctor was very upset about having to review 5300 pages of records which took 16 ½ hours to complete with multiple duplicates, yet he was only able to charge the minimum billing per the Rules.  The doctors believe that their rates are too low under the system and that they should be able to bill for reviewing “frivolous records.”  If they must travel out of town and the Claimant does not appear for the examination, per one DD’s comment, he is “making less per hour than a McDonald’s employee.”  

As a practice point, to appease the DDs which can have a major impact on your case, it’s best to organize the records, remove any duplicates, and put the records in chronological order.  

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

• Rodriguez v. Blaine Larsen Farms, Inc., No. 2:21-CV-52-Z, 2022 U.S. Dist. LEXIS 27705 (N.D. Tex. 2022) 

DECISION: Employer’s worker died of Covid-19. The workers’ compensation carrier denied compensability arguing Covid-19 is an ordinary disease of life. The workers’ beneficiaries filed a personal injury lawsuit against the employer. The plaintiffs argued the carrier’s denial of compensability deprives the employer from the exclusive remedy defense citing Texas Labor Code Section 408.011(d) which specifically retains the defense even if a determination is made under Texas Labor Code Sections 406.032, 409.002, or 409.004 that a work-related injury is not compensable. The Court reasoned the exclusivity rule applies to all claims that arise out of a work-related injury or death.

WHAT THIS MEANS FOR YOU: The courts retain the employer’s exclusive-remedy defense even if the carrier denies compensability. 

• APD 220068

DECISION: The DD’s DWC-69 finds MMI on 12/15/00. The narrative report explains why the IW reached MMI on the SMMI date of 12/15/20. This internal inconsistency is not a clerical error and requires reversal.

WHAT THIS MEANS FOR YOU: Do not rely upon the DWC-69; read the narrative report to see if the dates are internally consistent.

•  Maxim Crane Works, L.P. v. Zurich Am. Ins. Co., __ S.W.3d __, 2022 Tex. LEXIS 214 (Mar. 2022)

DECISION: Maxim was a vendor that provided a crane operated by Berkel on a jobsite where the CCIP covered Berkel but not Maxim. The jury found Berkel 90% at fault and Maxim 10%. The courts eventually found Berkel was a stated employer and covered by the exclusive-remedy defense. Maxim was included as an additional insured under Berkel’s policy, but the Insurance Carrier successfully argued the Texas Anti-Indemnity Act prohibited this type of indemnification. 

WHAT THIS MEANS FOR YOU: Just because a company is listed as an additional insured does not necessarily mean that company has coverage under that policy. 

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.