D&S Straight Out of CompTown – March 2023

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.

April 14, 2023 from 12:00 P.M. to 1:00 P.M.:  Ethical Decision Making for Adjusters Webinar with Wendy Schrock and Pamela Pierce
April 28, 2023 from 12:00 P.M. to 1:00 P.M.:  Basics of Handling a Death Claim Webinar with Adrienne Gasser and Charles Morse

The Third Court of Appeals in Austin Finally Issues A Decision Regarding SIBs Rule 130.102

 On February 28, 2023, the Third Court of Appeals in Austin issued a long awaited decision regarding SIBs rule 130.102. In a very long, and sometimes convoluted decision, the Third Court of Appeals reversed part of the District Court’s judgement and affirmed part of the District Court’s judgment regarding rule 130.102(d)(1)(D) & (f).
            The takeaways from the 30 page decision of the Court of Appeals, are summarized as follows:

  • Carriers had prevailed at the District Court level in showing that rule 130.102(d)(1)(D) was invalid because it created a fourth pathway for Injured Workers to receive SIBs and allowed jobseekers searching independently outside of the Texas Workforce Commission (TWC) for employment to count any “work search contact”, without having to document with job applications as the statute required.
  • The Court of Appeals determined rule 130.102(d)(1)(D) was not invalid on its face. The Court of Appeals acknowledged Carrier’s true complaint is that DWC is applying the rule to situations in which documented evidence of “work search efforts” does not constitute “job applications.” However, the Court of Appeals acknowledged whether DWC correctly applies the rule in specific situations cannot be challenged. Whether a specific way of requesting employment constitutes a “job application” is a fact specific question arising in certain situations and not properly before the Court of Appeals.
  • The Court of Appeals stated that DWC’s determination that a job application includes asking for a job by phone or in person rather than by a written document is not counter to the objectives of the statutory provision found in section 408.1415 of the Texas Labor Code. The Court of Appeals stated that defining “job applications” includes ways of applying for a job other than through a written form does not create any additional burdens in excess or inconsistent with the statute.  DWC’s exclusion of language “submitted by the recipient” from rule 130.102(d)(1)(D) does not make the rule invalid. Thus, rule 130.102(d)(1)(D) is not facially invalid. The District Court’s determination to the contrary is reversed.
  • The Carrier also asserted, and the trial court agreed, that rule 130.102(f)’s mention of “work search contacts” was invalid and inapplicable when applied to individuals seeking employment on their own, and not through TWC. The Court of Appeals acknowledged that rule section (f) required the number of job applications – combined with the number of work search contacts, to meet quantitative requirements set by TWC for unemployment compensation benefits.
  • The Court entertained DWC’s arguments regarding section (f) that TWC’s “work search contacts” included an expansive definition of “job applications”. The Court reasoned that section (f) does not apply to include all work search contacts within the definition of “job application,” or to allow work search efforts that are not documented by written or oral job applications to count towards the satisfactory evidence of an active work search effort for job seekers searching on their own.
  • The Court of Appeals further determined the challenged section of the Appeals Panel Decision manual and preamble to rule 130.102 do contain invalid rules and as such, DWC engaged in ad hoc rulemaking when it equated rule 130.102(d)(1)(D) & (f) as equating “job applications” and “work search contacts”. Because the new rule was not promulgated through proper process, it was invalid.
  • Finally, the Court of Appeals determined the SIBs application form did not contain any statement that equated job applications and work search contacts. Thus, the SIBs application did not contain an ad hoc rule.

What are the takeaways from the Court of Appeals’ Decision? The Court of Appeals determined the term “work search contacts” and rule applies only to claimants who are looking for work through the Texas Workforce Commission and does not apply to claimants who are looking for work on their own. As a result, injured workers who are looking for work on their own must document their work search efforts with job applications they have submitted in order to qualify for SIBs, and DWC may not allow injured workers to qualify for SIBs if they merely document “work search contacts” insteadAs such, DWC seems to differentiate between injured workers seeking work through the Texas Workforce Commission (TWC), and injured workers undertaking a work search on their own, without the assistance of TWC. However, the Court of Appeals stops short in invalidating the rule, and also stops short in defining “job applications” as only written applications.

Carriers should distinguish between injured workers conducting a job search through TWC, and injured workers conducting a job search on their own. The COA decision appears to scrutinize injured workers conducting job searches on their own to include some form of job applications submitted, either written or oral, to comprise their “work search contacts.”  



The Texas Department of Insurance, Division of Workers’ Compensation (DWC) is accepting public comments on proposed changes to DWC Form-022, Request for a required medical examination (RME); DWC Form-031, Request to change payment period or purchase an annuity for death or lifetime income benefits; DWC Form-051,Request for a lump sum payment of impairment income benefits (IIBs); and DWC Form-057, Request to extend the date of maximum medical improvement for an approved spinal surgery.

DWC is welcoming everyone’s input on the following draft forms. They want to know what works, or does not, so that they can make the forms better.

The DWC Form-022 is used by workers’ compensation insurance carriers to request a RME to have a doctor of their choice check the same issues as the designated doctor and provide that opinion for each examination. This form is not needed if the claim is in a health care network or political subdivision.

The DWC Form-031 is used by workers’ compensation insurance carriers to request a purchase of annuity for death benefits or lifetime income benefits, or to change the payment period for death benefits.

The DWC Form-051 is used by injured employees to request a lump sum for IIBs when they have returned to work for at least three months and are earning at least 80% of their average weekly wage.

The DWC Form-057 is used by injured employees, the injured employee’s attorney, or the insurance carrier to request to extend the date of maximum medical improvement for an approved spinal surgery.

As you can see, these new forms are simpler to read and comprehend. It is our opinion that these new forms are the Division’s continuing effort to follow the plain language format that the Division has been encouraging everyone to use for some time.

The proposed revised forms are not formal rule proposals under the Administrative Procedures Act. DWC will not treat comments as formal public comments. However, DWC will consider any substantive comment before the revised forms are adopted. The proposed forms are on the DWC website at www.tdi.texas.gov/forms/form20.html#drafts. Submit written comments on the forms to RuleComments@tdi.texas.gov or mail your comments to:

Legal Services, MC-LS
Texas Department of Insurance, Division of Workers’ Compensation
PO Box 12050
Austin, Texas 78711-2050

Submit your comments by 5 p.m., Central time, on April 3, 2023.

Finally, we have recently learned that the Division has selected Mr. Louis Sanchez to be a Benefit Review Officer in Houston. Mr. Sanchez had previously served as an Ombudsman with the Office of Injured Employee Counsel. We, here at Downs & Stanford, congratulate Mr. Sanchez on his new position and look forward to working with him.

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

• APD 230067, 2023 TX Wrk. Comp. LEXIS 11

DECISION: DWC initially approved a 50% contribution for a previous right wrist injury. The IW challenged that determination at a CCH upholding the DWC’s initial determination. The AP held the carrier has the burden of proof to establish entitlement to contribution by providing an adequate cumulative impact analysis. The AP likened the burden of proof analysis to the first quarter of SIBs where the carrier challenges DWC’s initial determination, and the IW still has the burden of proof to establish entitlement. In this case, the carrier failed to provide an adequate cumulative impact analysis requiring a reversal.

WHAT THIS MEANS FOR YOU: IC has the burden of proof at a CCH to establish contribution and must present a cumulative impact analysis to meet that burden.
•  Tex. Dep’t of Ins. v. Accident Fund Ins. Co. of Am., __ S.W.3d __, 2023 Tex. App. LEXIS 1291 (Tex. App.—Austin Feb. 28, 2023, no pet. h.)

DECISION: The court of appeals concluded the statute provides three categories of “work search efforts”: (1) active participation in a vocational rehabilitation program; (2) work-search efforts through TWC; or (3) work-search efforts done outside of TWC participation by an independent job seeker that must be documented by job applications submitted by the recipient. Tex. Lab. Code § 408.1415(a). The court held work search efforts outside of TWC are not job applications. The court writes, “as discussed above, work-search contacts not documented by job applications only count as a valid work-search effort for those going through TWC.” The court further folds that the Preamble and Appeals Panel Precedent Manual that conflate the terms “work search efforts” and “job applications” are invalid rules.

WHAT THIS MEANS FOR YOU: IW must present job applications and not simply work search efforts when applying for SIBs outside of TWC.
•  Murphy Oil USA, Inc. v. Stegall, __ S.W.3d __, 2023 Tex. App. LEXIS 1082 (Tex. App.—Dallas Feb. 22, 2023, no pet. h.)

DECISION: The IW dropped her aunt off at work and was walking to her employer in the parking lot when IW stepped in a pothole sustaining injuries. The employer argued the claim was compensable under the Access Doctrine and therefore the Exclusive Remedy Rule prohibited her lawsuit for personal injuries. The court disagreed holding the parking lot was for both workers and members of the public. The court writes, “Accordingly, Stegall’s injury cannot meet the first prong of the access doctrine test, because the injury did not occur where “the employer has evidenced an intention that the particular access route or area be used by the employee in going to and from work.” See Matthews, 519 S.W.2d at 632 (“no cause has extended the ‘access exception’ out into the public streets where other members of the public are subject to the same hazard”).

WHAT THIS MEANS FOR YOU: Parking lot injuries are not always covered by the Access Doctrine.

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.

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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.