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.
June 9, 2023 from 12:00 P.M. to 1:00 P.M.: Avoiding Sanctions Webinar with Rynn Freiling and John Fundis
June 23, 2023 from 12:00 P.M. to 1:00 P.M.: Calculating Indemnity Benefits Webinar with Stuart Colburn and Adrienne Gasser
Are Zoom CCHs Coming Back?
Currently, Contested Case Hearings are held live with parties appearing in person. As a general rule, lay witnesses appear in person although experts typically attend telephonically. House Bill, 4214 and Senate Bill, 1640 may change the status quo. These bills provide that upon mutual agreement of the parties, certain contested case hearings may be held remotely, with DWC conducting the proceedings telephonically or by videoconference.
The pros and cons of attending CCHs remotely have been the source of debate among attorneys and parties for quite some time. Certain CCHs are appropriate for remote proceedings. Such hearings would include proceedings in which an injured worker has failed to participate in the dispute resolution process. Likewise certain maximum medical improvement and impairment rating disputes may be appropriate for remote proceedings if the issue relies solely on expert testimony.
Cases that would not lend themselves to remote proceedings would include those in which compensability is disputed. In compensability disputes, and in some extent of injury disputes, witness testimony is of utmost importance. As the administrative law judge is the sole judge of the weight and credibility to be given to the evidence, a judge’s ability to see a witness and judge the witness’s demeanor, facial expressions, and gestures is important.
We will keep you apprised of developments as these bills move forward through the process.
DWC HAPPENINGS
YOUR MONTHLY LOOK AT WHAT IS HAPPENING AT THE DIVISION AND HOW IT IMPACTS CARRIERS
The DWC has been relatively slow this month, so we will focus on just a few of the bills involving workers’ compensation matters currently before the Texas Legislature. As a preface, these are just proposed bills at this time, but all of the listed bills have been moving steadily through the system as we approach the end of the Legislative session.
As many of you know, the Texas Legislature is currently in session and there are a number of bills concerning workers’ compensation and the DWC currently pending before the Texas House and Senate. HB102 has been passed by the House, which would allow the estate of a deceased worker to pursue exemplary damages for a death that occurred because of an intentional act or gross negligence of the employer. Presently, the only entities that can pursue such an action would be the surviving spouse or the heirs of the body (children). It is currently in Senate Committee. HB2702 would give the DWC Commissioner authority to adjust on a yearly basis the amount of money paid to a Designated Doctor for an examination, in an attempt to keep doctors in the system.
Another bill that is winding its way through the system could have major impacts on Lifetime Income Benefits, as well as providing a more updated definition to “incurable insanity or imbecility”. HB 2468 has already passed the House, and is out of committee in the Senate. This bill would allow the Carrier, by and through a Designated Doctor to discontinue LIBs if the Designated Doctor determines that the Claimant is not longer entitled to those benefits. Additionally, it provides a new definition for brain injuries that states, “a physically traumatic injury to the brain, that as determined using evidence based medicine, results in a permanent major neurocognitive disorder: (A) for which the employee requires occasional supervision in the performance of routine daily tasks of self care and (B) that renders the employee permanently unemployable” At the current time, once a Claimant establishes entitlement to LIBs, the Carrier cannot go back and re-evaluate the Claimant’s condition. This would allow this, as well as potentially providing a more palatable definition of brain injuries. The second part of this bill will provide first responders with even more ways to establish entitlement to LIBs, outside the scope of the reasons in §408.161 of the Texas Labor Code. It would also allow the Carrier to dispute entitlement to LIBs, and if the Claimant somehow gets a job, his LIBs entitlement would end.
Finally, in what appears to be an attempt to bring additional doctors into the Designated Doctor process, HB 4524 is looking into an expanded use of telehealth services, even in the context of Designated Doctor examinations. More specifically, this bill would amend the Labor Code to authorize the DWC Commissioner to order a medical examination to resolve a question about an employee’s compensable injury for the purposes of workers’ compensation benefits to be conducted using telehealth, if this will ensure timely access to an examination by a qualified doctor. The bill would require a health care professional (such as a nurse) to be present in the room to assist in conducting and administering any testing. It would also allow MMI/IR examinations for musculoskeletal injuries involving the hand/arms, foot, and the spine.
Compliance and Investigations Corner
Carriers are seeing an uptick in consent orders for failure to timely and accurately pay designated doctors. We have learned that due to the reduction in designated doctors the Commission has made it a priority to get designated doctor’s paid timely and accurately. While the Division of Workers’ Compensation is making other efforts to increase the designated doctor pool, it is felt the enforcement of reimbursement violations will also assist in retaining the current number of designated doctors in the state of Texas. As a result, please make sure that designated doctors and any referral doctors from the designated doctor are timely and accurately paid or your Carrier may have to pay a monetary penalty for that violation.
DWC Releases Updated COVID-19 Results Factsheet
As of February 5, 2023, carriers reported nearly 98,000 COVID-19 claims and 468 COVID-19 fatalities to DWC. Just over half of all reported COVID-19 claims and fatalities involved first responders and correctional officers.
The majority (62%) of the state’s COVID-19 cases were concentrated in ten counties. According to Texas Department of State Health Services, as of February 8, 2023, the ten counties where most COVID-19 cases were reported were: Harris, Dallas, Bexar, Tarrant, Travis, El Paso, Fort Bend, Collin, Hidalgo, and Denton. The majority (56%) of the state’s COVID-19 workers’ compensation claims were concentrated in the same ten counties.
The largest number of COVID-19 claims for all employees were reported in January 2022 (12,352), followed by July 2020 (8,918), December 2020 (5,987), and August 2021 (5,341). Note that the monthly counts change over time as carriers file updated claim reports with DWC.
The majority of COVID-19 claimants were male. Regardless of gender, a majority of COVID-19 claimants were under 40 years of age. Four out of five (80%) of the COVID-19 fatality claims involved males, and nearly two-thirds (66%) of the COVID-19 fatality claims involved employees who were 50 years of age or older.
Employees covered by the presumption had the right to file a request to reprocess their previously denied COVID-19 claims by filing a PLN-15 (Notice of Request to Reprocess a COVID-19 Claim Subject to Texas Government Code §607.0545). Their deadline to do so was June 14, 2022. As of February 5, 2023, 182 PLN-15s were filed. Carriers accepted 113 and denied 69 of the requests to reprocess. As of February 5, 2023, 36 PLN-15s for COVID-19 fatal claims were filed, of which 21 were accepted and 15 denied.
Beginning on December 14, 2020, Texas first responders began receiving the COVID-19 vaccine. Vaccines became available for some of the public in February 2021. A small number of employees had adverse reactions to the vaccine, resulting in workers’ compensation claims. From December 15, 2020, through February 5, 2023, carriers reported 720 COVID-19 vaccine reaction claims. Most of the reported COVID-19 vaccine reactions occurred in January 2021 (221), followed by February 2021 (114), and December 2020 (66).
This article is based on information from 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 DWC’s fact sheet include administrative claim data reported to DWC by carriers as of February 5, 2023, and a data call with 74 selected carriers which gathered information on claims involving positive COVID tests or diagnoses as of December 31, 2022. DWC’s full report is here.
Decisions, Decisions, and More Decisions
Current Cases that You Need to Know
• APD 230369
DECISION: The carrier requested the disability issue be modified to extend the dates under consideration through the date of the CCH. The IW objected. The ALJ indicated the issue would remain as written in the BRO report. However, the D&O determined disability through the date of the CCH. On appeal, the AP struck the findings to exclude the time periods that exceeded the disability issue as stated in the BRO report.
WHAT THIS MEANS FOR YOU: The D&O can only resolve issues that are in dispute at the CCH.
• Cook v. Tex. Mut. Ins. Co., __ S.W.3d __, 2023 Tex. App. LEXIS 2372 (Tex. App.—El Paso Apr. 12, 2023, no pet. h.)
DECISION: The ALJ ruled for the IW, but the AP reversed. The district court granted the IC’s Motion for Summary Judgment, but the AP reversed. The IW was ordered by his supervisor to drive out to his employer’s yard the next morning to inspect some equipment. The IW left his house at 5:00 a.m. in a company vehicle and sustained a MVA blocks from his house. The evidence included (1) he was the only mechanic and was expected to go where he was summoned, (2) he was ordered to go to the yard earlier than normal; (3) the truck was owned by the employer and was not for personal use, and (4) the truck contained tools owned by his employer.
WHAT THIS MEANS FOR YOU: Courts generally find for workers involved in MVAs involving a company vehicle while traveling for work purposes.
• APD 230237
DECISION: The ALJ’s POD mistakenly asked the DD to rate right wrist polyarthritis instead of polyarticular osteoarthritis; and therefore, it did not rate the compensable injury.
WHAT THIS MEANS FOR YOU: Must compare the diagnoses rated by the DD against what the D&O states.
• APD 230290
DECISION: The carrier disputed the SIBs carrier-pay attorney fees by requesting an expedited CCH. However, the IC filed its dispute more than 20 days after receiving the orders to pay attorney fees. Therefore, the carrier waived its right to dispute the attorney fee order which became final.
WHAT THIS MEANS FOR YOU: Texas has a timeline for everything. For carrier-pay attorney fees, that timeline is 20 days which begins running the day after the orders are placed in the IC’s Austin Rep box.
• APD 230349
DECISION: The DD issued a report with an attached DWC-69. However, the DD failed to sign the DWC-69. The ALJ commits error adopting an un-singed DWC-69.
WHAT THIS MEANS FOR YOU: The DWC-69 must be signed before an ALJ can adopt it.
• APD 230302
DECISION: The IW sustained a compensable injury. Three months after the IC received notice, it filed a PLN-11 disputing disability. The ALJ held the IC waived its right to dispute compensability and therefore owed all income benefits pursuant to Rule 124.3 resulting from its failure to dispute within 15 days of receiving notice of the injury. The AP reversed noting the carrier did not file a PLN-1 disputing compensability and instead filed a PLN-11 disputing disability. The AP affirmed the finding of disability in the IW’s favor.
WHAT THIS MEANS FOR YOU: There is a difference between filing a PLN-1 disputing compensability and a PLN-11 disputing entitlement to benefits.
• APD 230331
DECISION: The IW filed a month late is SIBs application for the first quarter. The ALJ found the IW was not entitled and the carrier is relieved of liability for the first month because the worker’s failure to timely for the SIBs application. However, the AP writes, “We note that by its plain language, Section 408.143(c), which provides that the claimant’s failure to timely file a DWC-52 relieves the carrier of liability for the period during which the statement is not filed, does not apply to the first quarter.”
WHAT THIS MEANS FOR YOU: The IW can file his first quarter application late without repercussions.
• APD 230308
DECISION: The evidence included conflicting names for the carrier requiring reversal. The BRO report and Carrier Information Sheet used one name, but the 10-Day letter and the carrier stipulated to another name.
WHAT THIS MEANS FOR YOU: The carrier may not have a dual personality.
• APD 230373
DECISION: The ALJ left the record open, ordered the DD to exam the worker, and allowed the parties to respond to the DD report. The DD closed the record believing the carrier never responded. On appeal, the IC provided evidence it emailed the closing argument to the PRO, the IW, and OIEC. The AP reversed for the ALJ to consider the IC closing arguments.
WHAT THIS MEANS FOR YOU: The prohibition against emailing the judge directly has its drawbacks.
• APD 230373
DECISION: The ALJ left the record open, ordered the DD to exam the worker, and allowed the parties to respond to the DD report. The DD closed the record believing the carrier never responded. On appeal, the IC provided evidence it emailed the closing argument to the PRO, the IW, and OIEC. The AP reversed for the ALJ to consider the IC closing arguments.
WHAT THIS MEANS FOR YOU: The prohibition against emailing the judge directly has its drawbacks.
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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.