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 12, 2024 from 12:00 P.M. to 1:00 P.M.: Subsequent Injury Fund with Adrienne Gasser and Wendy Schrock.
April 26, 2024 from 12:00 P.M. to 1:00 P.M.: Supplemental Income Benefits with Pamela Pierce and Chris Esson.
DWC HAPPENINGS
YOUR MONTHLY LOOK AT WHAT IS HAPPENING AT THE DIVISION AND HOW IT IMPACTS CARRIERS
The DWC has rolled out “CompCourses”, a webinar series for CE credit, with the first one occurring on February 21, 2024 regarding return to work. These courses will include a 45-minute presentation followed by 15 minutes of Q&A to earn CE credit. DWC plans to offer various courses throughout the year, and in October, they plan on having a 2-day virtual seminar. We will supply additional details as they become available.
The DWC has adopted new rules concerning Designated Doctor billing and reimbursement rates that we discussed in a prior newsletter. These rules will become effective June 1, 2024, and will likely result in higher fees for Designated Doctors due to the one-time adjustment of fees by applying the Medicare Economic Index percentage adjustment factor for the period 2009-2024. There will also be an annual adjustment to fees going forward. DWC is accepting public comments on proposed amendments to Chapter 166 of the Administrative Code regarding accident prevention services.
Finally, a look at the most recent disciplinary orders issued by the DWC reveals thatfailure to timely act is resulting in carriers receiving disciplinary orders and fines. This includes failing to timely pay a medical bill ($800 on 2/28/24), failing to timely comply with a Benefit Dispute Agreement ($2500 on 2/28/24), and failing to timely pay or dispute TIBs ($7000 on 2/28/24). A carrier was fined $26,700 for failing to timely pay accrued IIBs and TIBs. On the medical provider side, Rhema Medical failed to timely comply with a refund request from a carrier, and then failed to timely comply with a DWC order to produce documents; these failures to act earned them a $5,500 fine.
Odd Case of the Month
We are starting a new section in our newsletter that brings out an “odd” case that our attorneys or our clients have seen in recent months. If you have any suggestions for submission, please send them to Q&A@downsstanford.com. If you deal with Texas workers’ compensation cases long enough, something will come across your desk that will make you scratch your head, laugh out loud, or just sigh in disbelief.
This month, one of our attorneys attended a CCH involving the mundane issues of MMI and IR on a relatively minor injury (a lower leg contusion). Claimant was adamant that her injury continued to cause her significant pain and suffering. However, she failed to lock down her social media, which told a very different story. In addition to her videos depicting her dancing and singing with no noticeable issues, she also posted a video of herself in a gym, teaching others a number of dances, all of which would be impossible if her leg was hurting as much as she complained. Unfortunately, we were not afforded the opportunity to introduce the modern-day Jane Fonda videos into evidence, as Claimant failed to attend the CCH and then failed to properly respond to the 10-day letter. The lesson to be learned from this story is to always look at a claimant’s social media, because you just might find proverbial “gold” for your case.
COMPLIANCE AND INVESTIGATION CORNER
What a carrier states on an Explanation of Benefits (“EOB”) is important. Recently, a carrier issued an EOB which stated the healthcare provider’s medical bill was “denied by adjuster.” This type of language is not allowed and can be used by the Division of Workers’ Compensation to issue penalties against a carrier. This is because adjusters are not licensed as utilization review agents and, as a result, adjusters cannot support the basis for denial of medical bills. Adjusters are not licensed medical or chiropractic doctors, and do not have the requisite expertise to opine on whether medical services are or are not reasonable, related to, or medically necessary to treat a compensable injury. So, be careful about the basis used to support the denial of a medical bill. An EOB should only use American National Standards Institute (“ANSI”) codes as the reason and support for denial of a medical bill, such as lack of documentation, extent of injury, no compensable injury, etc. Use of non-ANSI codes or descriptions may result in a monetary penalty against the carrier.
Decisions, Decisions, and More Decisions
Current Cases that You Need to Know
• ExxonMobil Corp. v. Alvarez, __ S.W.3d __, 2024 Tex. App. LEXIS 1534 (Tex. App.—Houston [14th Dist.] Feb. 29, 2024, no pet. h.)
DECISION: Employees of four subcontractors (SC) were injured during an explosion at the Exxon plant in 2019. Exxon asserted the exclusive remedy defense arguing it provided WC coverage through its OCIP. Plaintiffs made numerous arguments (including arguments over the existence and use of a comma in a blurry contract) seeking to sue Exxon in tort. The court held that Exxon provided WC insurance through its OCIP by establishing the two necessary elements: there was a written agreement between Exxon and the SC to provide WC insurance and that Exxon was subscribed to WC insurance.
WHAT THIS MEANS FOR YOU: OCIPs extend WC coverage to all SCs providing significant protections for general contractor and SC employers if they meet the two elements, and employees will make every available argument to negate same.
• Trevino v. Jalapeno Tree Operating, LLC, __ S.W.3d __, 2024 Tex. App. LEXIS 1279 (Tex. App.—Dallas Feb. 21, 2024, no pet. h.)
DECISION: Texas Mutual issued a WC policy to Golden Operating Corporation with Jalapeno Tree named as an additional insured. The IW was hurt at Jalapeno Tree and received WC benefits. Plaintiff argued the exclusive remedy defense did not apply because the Certificate of Insurance did not list Jalapeno Tree and DWC could not locate proof of coverage. The court held a policy naming the employer as an additional insured is sufficient summary judgement proof of WC coverage. The court also held that DWC’s inability to locate proof of coverage is not evidence there was no coverage and the record contained ample evidence of a WC policy covering the insured
WHAT THIS MEANS FOR YOU: A WC insurance policy covers an additional insured the same as the purchaser of the policy.
• Long v. R.E. Watson & Assocs., __ S.W.3d __, 2024 Tex. App. LEXIS 1504 (Tex. App.—Fort Worth Feb. 29, 2024, no pet. h.)
DECISION: The plaintiff got into two altercations with his foreman after showing up for work drunk and possibly high. The exclusive remedy bar does not apply to injuries caused by the intentional act of the employer. However, the employee who allegedly committed the intentional act must be a vice-principle of the employer. A mere supervisory relationship or a simple respondent superior relationship are insufficient. A lower-level supervisor is not the alter ego of the company. A vice-principle of the company must have the power to both hire and fire employees.
WHAT THIS MEANS FOR YOU: Only the intentional acts of a vice-principle of a company waives the exclusive remedy defense, not a mere supervisor.
• APD 231788
DECISION: No certification in evidence rated the compensable injury. Either conditions found compensable were not rated or the certification rated conditions that were not compensable.
WHAT THIS MEANS FOR YOU: The extent of injury findings must match the conditions rated.
• APD 231908
DECISION: The name of the insurance carrier on the carrier information sheet was different than the name the parties stipulated.
WHAT THIS MEANS FOR YOU: Some carriers have too many versions of their name. Confirm the applicable name to the case before entering stipulations.
• APD 231890
DECISION: No certification in evidence rated the compensable injury requiring reversal. The AP also notified the ALJ that the DD report awarded 2% IR for elbow ROM loss for extension but did not document any measurements for supination and pronation.
WHAT THIS MEANS FOR YOU: The certifying report should include all ROM measurements for the AP to review.
• APD 231871
DECISION: The IW only made two job searches in week 13 of the qualifying period instead of the required three searches. The AP reversed holding the IW failed to qualify for SIBs.
WHAT THIS MEANS FOR YOU: SIBs criteria are strict.
• Orta v. SN Operating, LLC, No. 04-23-00062-CV, 2024 Tex. App. LEXIS 1634 (Tex. App.—San Antonio Mar. 6, 2024, no pet. h.)
DECISION: Plaintiff sustained a heat stroke on the second day of the job working a 12-hour shift and died after falling at home that night. The plaintiff offered no expert medical testimony regarding causation. The court held that heat strokes require expert medical evidence. Temporal proximity “only raises a suspicion that the event caused the condition, but it is not legally sufficient to support a finding of causation.” An expert properly credentialed as a professional engineer, safety professional, and industrial hygienist is not qualified to give a medical opinion on causation.
WHAT THIS MEANS FOR YOU: Courts usually require expert testimony regarding causation in anything but the most rudimentary of cases.
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.