D&S Straight Out of CompTown – May 2022

We thank all the people who serve and remember this Memorial Day. In dealing with Texas Workers’ Compensation, we are here to help you with your every day questions.  Please see the newest information below.

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Lunch and Learns – First Come, First Served CEU Credits for All Adjusters

Want Some Credit?  Come and Get It!

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WORKERS’ COMPENSATION PAYMENT TYPES AND DEADLINES

Types of Income Benefits

Temporary Income Benefits (TIBs)

• Entitled if EE has disability and not at MMI
• Accrual date is 8^th day of disability
• Initiate by 7^th day after accrual date
• Pay or dispute within 15 days of the Carrier’s first receipt of written notice of injury
• Pay waiting period after 14^th day of disability

Impairment Income Benefits (IIBs)

• IIBs accrue on the day after EE reaches MMI
• Paid after EE reaches MMI
• 3 weeks per every 1% of impairment
• Pay or dispute within 5 days of receiving certification from TD or referral
• Pay within 5 days of receiving DD certification

Supplemental Income Benefits (SIBs)

• Pay 1^st quarter by 10^th day after receiving DWC determination of entitlement or 7^th day of the quarter, whichever is later
• First payment of subsequent quarters due by 10^th day of receiving DWC-52 or by 7^th day of quarter, whichever is later
• Second and third payments due by the 37^th and 67^th days of each quarter

Lifetime Income Benefits (LIBs)

• Pay if EE meets criteria per Texas Labor Code Sec. 408.161
• Increases 3% per year for cost of living adjustment (COLA) as of the date LIBs were initiated

Death Benefits (DBs)

• Pay to beneficiaries 75% of AWW
• If no beneficiaries identified within 1 year, then 364 weeks of DBs are paid to the Subsequent Injury Fund (SIF)
• Burial benefits up to $10,000
• Special provisions for spouses of first responders, peace officers, volunteers

Payment of Benefits Timelines

• 5 Days – from receipt of DD report
• 5 Days – from receipt of interlocutory order
• 5 Days – from receipt of DWC-24, if no compliance date is specified
• 5 Days – from filing Request for Review (RFR)
• 7 Days – from payment of TIBs from 8^th day of disability (accrual date)
• 7 Days – from EE receipt of Bona Fide Offer of Employment – treat offered wages as PIE
• 36 Days – receipt of un-appealed Decision and Order
• 45 Days – receipt of medical bill (30 days upon receipt of reconsideration request)
• 1 Year – LIBs COLA payment increase

Medical Benefits

• Health Care Provider must submit medical bills by 95th day from the date of service
• Pay or dispute within 45 days after first receipt of medical bill
• If disputed, Health Care Provider may request reconsideration no later than 10 months from the date of service.
• Pay or dispute within 30 days of receiving request for reconsideration
• If DD report results in liability for medical benefits, carrier has 21 days to reprocess bills previously denied for reasons inconsistent with DD opinion
• Interest if not paid within 60 days

Claimant’s Attorney Fees

• Pay by 7^th day after receiving DWC order
• Continue to pay fees out of Claimant’s income benefits until fees are paid or benefits cease
• If EE prevails on a SIBs dispute, carrier pays fees in addition to paying EE’s full SIBs rate

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DWC Compliance Concerns

Are you conducting a thorough investigation?

It’s important to conduct a thorough investigation before issuing a denial.   A recent complaint arose from the insurance carrier issuing a PLN-11 to dispute disability.  The insurance carrier stated disability was being disputed due to a “lack of evidence that the injured employee was disabled from work, working reduced hours, or receiving reduced pay.”  A complaint was filed once the PLN-11 was issued and income benefits were stopped.  Compliance and Investigations (“C&I”) noted that an insurance carrier commits an administrative violation if the insurance carrier does not have reasonable grounds for a refusal to pay benefits.   C&I determined the insurance carrier had taken statements from both the injured employee and employer but did not ask about reduced post-injury hours or earnings, in either discussion.  It was also determined the insurance carrier did not have a DWC-3, wage statement, and one had not been requested from the employer. 

As a result, C&I determined the lack of a wage statement combined with a lack of information from the injured employee or employer prevented the insurance carrier from reliably determining if the injured worker, following his injury, was earning his average weekly wage or what hours were being worked on a weekly basis.  Due to these findings, C&I determined a violation was committed as the insurance carrier did not have reasonable grounds to dispute disability due to the lack of a thorough investigation and the denial of benefits unreasonably caused harm to the injured employee.

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DWC Corner

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

As we previously informed you, the Division of Workers’ Compensation is in the slow process of moving its headquarters from Metro Center Boulevard near Bergstrom International Airport, to the Capital Complex in downtown Austin.  With the bulk of the DWC leaving the Metro Center location, a determination was made to also move the field office as well to a temporary location at the Hobby Building in downtown Austin.  That decision has changed, however, and for the near future, the Austin Field Office will continue to be located at the Metro Center location.  At some point in time in the fall (hopefully), the Austin Field Office will rejoin the rest of the Division of Workers’ Compensation and move into the new Barbara Jordan building at the Capital Complex.

As some of you may recall from prior newsletters, a law passed by the Texas Legislature (SB 22) effectively gives first responders a second bite at the apple with regards to COVID-19 claims.  SB 22 allows first responders to resubmit their claim for reprocessing even if the claim was previously disputed, was submitted untimely, or the DWC issued a Decision and Order concerning the claim.  If the Claimant meets certain SB 22 requirements, a Carrier must apply the statutory presumption under Texas Government Code §607.0545 when processing the claim.  The statutory presumption that a COVID claim is compensable applies to detention officers, custodial officers, firefighters, peace officers, or EMTs.  In order for a COVID claim to be presumed to be work related, a first responder must show that they contracted COVID on or while employed full-time as a first responder, he or she worked in an area the governor designated as a disaster (the entire state) and contracted COVID during the disaster declaration, and was last on duty not more than 15 days before being diagnosed with COVID.  This request to reprocess must be done in writing, no later than June 14, 2022.  Be on the lookout next month for a more in depth review of the current COVID situation in the context of workers’ compensation claim. 

The DWC is also asking for feedback regarding forms and procedures for death benefits.  The DWC has determined that changes need to be made to address plain language concerns.  Additionally, clarification will be provided regarding an Insurance Carrier’s deadlines to file disputes over eligibility for death benefits.  The proposed rule will be published on May 20, 2022 at www.tdi.texas.gov/wc/rules/2022rules.html and if you have any comments on these proposed rules, you can send them to RuleComments@tdi.texas.gov.

Finally, a review of the disciplinary orders issued by the DWC in 2022 provides a clear map as to what the hot button issue is for the purposes of Carrier fines.  Since the beginning of 2022, the DWC has entered into consent orders totaling $162,500 against Carriers and self-insureds for failing to timely initiate TIBs benefits or improper payment of TIBs benefits. There were also multiple consent orders for improper payment of attorney fees (which typically means that Claimant attorneys are complaining about not getting paid), as well consent orders concerning late or non payment of medical bills. 

Mark your calendars for June 27-29, as the DWC has scheduled their 2022 Texas Workers’ Compensation Conference to be held live in Austin at the Hyatt Regency Hotel.  This 2+ day event contains a number of breakout sessions addressing various issues in the workers’ compensation system, as well as provide up to 11 hours of TDI CE credit.  To review the conference agenda, go to the TDI Website at https://www.tdi.texas.gov/wc/events/wcconference.html.

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 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.  

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

• APD 220411, 2022 TX Wrk. Comp. LEXIS 27

DECISION: The Designated Doctor (DD) made two mistakes using Table 40 to properly calculate Impairment Rating (IR) for loss of hip Range Of Motion (ROM). The Appeals Panel (AP) performed a mathematical correction.

WHAT THIS MEANS FOR YOU: The AP serves once again as quality control for ROM conversion to whole person impairment ratings.
 

• APD 220360, 2022 TX Wrk. Comp. LEXIS 31

DECISION: The worker sustained a compensable dog bite injury to his hand. The DD included ROM loss for supination and pronation. But IR for supination and pronation are for the elbow, not the wrist.

WHAT THIS MEANS FOR YOU: Wrist IRs do not include loss of ROM for supination and pronation.
 

• APD 220307, 2022 TX Wrk. Comp. LEXIS 28

DECISION: The AP affirmed the ultimate decision the Injured Worker (IW) was not at Maximum Medical Improvement (MMI) but clarified statements the Administrative Law Judge (ALJ) made about the evidence.  (The ALJ stated a doctor certified the IW was not at MMI when there was no such certification).  The AP stated that under the circumstances of the case, they viewed the statement as a typographical error.

WHAT THIS MEANS FOR YOU: The AP reads the discussion section carefully.
 

• APD 220303, 2022 TX Wrk. Comp. LEXIS 30

DECISION: The AP remanded because the extent of injury findings were incomplete. But the AP also noted the DD rated the elbow ROM loss at 1%. But the evidence did not include the ROM measurements and the narrative report indicated the IW had full ROM. The AP instructed the ALJ to make sure the IR was calculated correctly for both the extent of injury issues and the contradictory evidence regarding ROM.

WHAT THIS MEANS FOR YOU: ROM evidence should include the actual measurements.
 

• APD 220266, 2022 TX Wrk. Comp. LEXIS 29

DECISION: The ALJ adopted an IR that rated adhesive capsulitis, a condition the ALJ determined was not part of the compensable injury. No other DWC-69 rated the compensable injury.

WHAT THIS MEANS FOR YOU: Parties should make sure there is a DWC-69 that rates the extent of the injury they are pursuing.

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If you have any general questions regarding Longshore or would like a seminar regarding Longshore Claims, please email Longshore@downsstanford.com.

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You’ve got WC questions?  We have answers.  Send your questions to Q&A.

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For Employer’s Liability, General Liability, Subro, and all other areas of law, email questions here.

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Want some CE credit?  Come and get it!  Join us for Lunch and Learns every Friday.  For information and registration, email CE Department.

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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.

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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.