D&S Straight Out of CompTown – May 2024

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 14, 2024 from 12:00 P.M. to 1:00 P.M.:  Injuries Working From Home – When Are They Compensable? Presented by Stuart Colburn and Chris Esson.

June 28, 2024 from 12:00 P.M. to 1:00 P.M.:  Spring AP and Case Law Update 2024.  Presented by Pamela Pierce and Charles Morse.



At the most recent DWC quarterly meeting, the focus was on the Commissioner’s biggest priority going forward in the next 12 months regarding the AMA Guides.  More specifically, Commissioner Nelson stated that the DWC will be putting together a group to look at transitioning from the 4th Edition of the AMA Guides to the 6th Edition, which is the most recent edition.  The focus will be on the impact that such a change will have on stakeholders, whether this change will make the Designated Doctor process easier, and what impact it will have on impairment ratings.  Expect to hear more on this in the coming months, but the stated goal was to have a plan released in Spring of 2025 to address this issue.  

The DWC Workers’ Compensation Research and Evaluation Group has released their 2024 Access to Care report.  This report looked at injured workers’ access to medical care between 2017 and 2022.  Some of the significant findings include the fact that there are currently 17,659 physicians participating in the workers’ compensation system as of 2022, and of that group, 75% practice in the five largest metropolitan areas.  82% of claims (non-emergent) were seen within the first seven days of an accident.  Finally, the retention rate for doctors (those who entered and stayed in the WC system) is approximately 76% as of 2022.

Finally, the DWC is offering an upcoming webinar regarding Presiding Officer Directives (PODs) on May 22, 2024 at 2:00 P.M.  The webinar is for adjusters, employers, medical providers, and injured workers, and will address the differences between PODs and Letters of Clarifications, the procedural steps for issuing a POD, and real world examples of PODs.  We are seeing an increase in the number of PODs being sent to Designated Doctors to address extent and MMI issues, so this webinar (which is for CE credit) can be a very useful tool to anyone interested. To register, please go to the DWC website, tdi.texas.gov/wc/events/compcourses.html.

Judge Judy L. Ney Honored

The State Bar of Texas Women and the Law Section announced the inaugural Judy L. Ney Serviam Award, dedicated to recognizing exemplary section members who have dedicated their time, effort, innovation, and service to the Women and the Law Section.  This award is named in honor of Judge Judy L. Ney, a well-established Administrative Law Judge in Texas’ Division of Workers’ Compensation.  The Serviam award acknowledges service to the improvement of, and access to, legal services, mentorship, volunteerism to professional and legal organizations, and the continuing effort to advance female attorneys in the State of Texas.

Judge Ney will be honored at the Women and the Law Annual Meeting on June 20, 2024, at 1:45 p.m. at the Dallas Anatole Hotel.

Congratulations Judge Ney!

Head Scratcher


For those of you who work on claims involving Supplemental Income Benefits (“SIBs”) at the Judicial Review level, you need to be aware that your exposure for the Claimant’s attorney’s fees may not be limited to payments out of the Claimant’s recovery or by the statutory cap. In fact, §408.147(c) of the Texas Labor Code holds that Carrier-pay fees are appropriate when the Carrier unsuccessfully disputes a DWC determination. Therefore, any claim for such attorney’s fees must be evaluated with this in mind.

Carrier-pay attorney’s fees are always appropriate, even when it is the Claimant who seeks a Judicial Review of a decision against the Carrier, so long as DWC initially determined that the Claimant was entitled to the first quarter, even if that quarter is at issue later on. Liberty Mutual Insurance Company v. Montana, 49 S.W. 3d 599 (Tex. App. – Fort Worth 2001, no pet.). (Emphasis added). Other courts have not reached the same result. Home Insurance Company v. Garcia, 74 S.W. 3d 52 (Tex. App. – El Paso 2002, no pet.).

It is helpful to look at the El Paso Court of Appeals’ decision in Home Insurance v. Garcia to understand the distinctions that the Courts are making and determine if your case requires the payment of the Claimant’s attorney’s fees at the Judicial Review level. In Garcia, the El Paso Court of Appeals held that §408.147 (c) is clear and unambiguous that attorney’s fees are recoverable when the insurance carrier disputes a commission finding. Id. at 60.

However, the Garcia court stated that there was no provision for the recovery of attorney’s fees when the employee disputes a commission finding. Id. The court in Garcia agreed with the insurance carrier that because the Administrative Law Judge ruled against the Claimant at the Contested Case Hearing, the Claimant was not entitled to the payment of his attorney’s fees pursuant to §408.147 (c) at the Judicial Review level.

Unfortunately, more recent case law indicates that Carrier-pay attorney’s fees are called for in cases where the commission made an initial determination the Claimant was entitled to SIBs regardless of who appealed the Decision and Order at the Contested Case Hearing levelDallas National Insurance Company v. Morales, 394 S.W. 3d 826 (Tex. App. – El Paso, 2012, no pet.) (Emphasis Added). In Morales, the El Paso Court of Appeals found that both trial courts and the Division have construed §408.147(c) to mean that the term “commission determination” means the “commission’s initial determination of eligibility for SIBs’ with respect to the first compensable quarter. Id. at 836.

The El Paso Court of Appeals further noted that the Montana Court, cited previously, held that the commission later broadened its holding to, “conclude that when the commission initially determines that the Claimant is entitled to SIBs and an insurance carrier challenges a Claimant’s entitlement to SIBs for subsequent quarters, the requirement that the Carrier is disputing a ‘commission determination’ is satisfied.”Montana, 49 S.W. 3d at 602.

The Morales court also noted that both the Montana case and the case of Texas Mutual Insurance Company v. Baker, 292 S.W. 3d, 798, 803 (Tex. App. Fort Worth 2009, no pet.) concluded that an award of attorney’s fees is permitted in cases where the commission initially determined that an employee was eligible for SIBs and the Carrier challenged eligibility for a subsequent compensable quarter while finding error in an award of attorney’s fees where the Claimant challenged both the initial and continuing determination that the employee was not eligible for SIBs. Id.

Fortunately, there is a straightforward way to determine if the Carrier may be responsible for the Claimant’s attorney’s fees that are not limited by the statutory cap or a percentage of the Claimant’s recovery. All you have to do is look at the “Notice of Entitlement to SIBs for quarter number 1” issued by the Division in your claim. If the Division ordered the payment of the first quarter of SIBs, and the Carrier challenges the Claimant’s eligibility for subsequent quarters, the Carrier will be responsible to the Claimant’s attorney for attorney’s fees according to §408.147(c).


Compliance and Investigations within the Division of Workers’ Compensation continues to focus on the timely initiation of temporary income benefits (“TIBs”).  Pursuant to Tex. Labor Code Sections 408.081, 408.082, and 409.021 and 28 Tex. Admin. Code Sections 124.3 and 124.7, insurance carriers are required to initiate payment of TIBs no later than the 15th day after the carrier receives written notice of the injury or the 7th day after the accrual date, unless the carrier notifies DWC and the injured employee in writing on a PLN-11 of the carrier’s refusal to pay TIBs.  If the carrier fails to follow the statute and rules regarding the initiation of TIBs, the carrier will be subject to a violation and may receive a monetary penalty for the offense.  This type of enforcement reflects DWC’s position that failure to provide income benefits in a timely and cost-effective manner is harmful to injured employees and the Texas workers’ compensation system.

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

• APD 240324

DECISION: The carrier information form (or in this case, the self-insured’s information form) provided only the name of the self-insured; not the name of the registered agent for service of process as required by statute.

WHAT THIS MEANS FOR YOU: Even a self-insured must have an agent for service of process.

• APD 240224

DECISION: The ALJ stated the DD never found the mechanism of injury (hand crushed between a safe weighing 1,000 pounds and a door frame) caused or aggravated a radial nerve crush injury. However, the AP found numerous instances in various reports where the DD opined the injury did indeed cause this condition. The ALJs are free to accept or reject a medical opinion, but they cannot misstate the medical opinion.

WHAT THIS MEANS FOR YOU: ALJ’s power does not extend to misstating the evidence.

• APD 240249

DECISION: There were four separate certifications of MMI/IR in evidence. However, only one certification rated only the compensable injury as found by the ALJ. However, the ALJ adopted the wrong certification. The AP rendered a decision adopting the only MMI/IR certification that considered and rated the compensable injury.

WHAT THIS MEANS FOR YOU: Know your extent/MMI/IR certifications.

• APD 240217

DECISION: The decedent sustained a compensable injury when he fell through a skylight thirty feet landing on a wooden floor. The decedent sustained numerous injuries requiring multiple surgeries. The ALJ determined the compensable injury caused seizures and hypertension which contributed to the decedent’s death without explaining the nature of the compensable injury. The AP writes, “Without knowing what comprises the compensable injury in this case, it cannot be determined whether the decedent’s death was a result of the (date of injury), compensable injury.” On remand, the parties are to enter into stipulations as to the conditions the compensable injury extends to or the ALJ must make findings of facts regarding the extent of the injury. Then the ALJ should determine if the death was a result of the compensable injury.

WHAT THIS MEANS FOR YOU: In cases where the extent of the injury is undetermined, the ALJ must ensure the compensable injury, as it is stipulated or determined, is the producing cause of the death.

• JNM Express, LLC v. Lozano, __ S.W.3d __, 2024 Tex. LEXIS 289 (Apr. 19, 2024)

DECISION: The Texas Supreme Court determined the defendants properly preserved error and therefore remanded to the court of appeals for a determination of whether the definitions from the federal regulations or the definitions from the Texas Pattern Jury Charge (and the right of control test used in Texas workers’ compensation applies to a motor carrier) are appropriate. The expansive definitions in the federal regulations specifically apply to causes of action filed by members of the public, not by employees. Removing the distinctions between common law employee/independent contractor protects the public by expanding the duty of motor carriers. There remains the question if this expansion of duty applies to actions filed by workers in tort claims and workers’ compensation cases. The court determined the court of appeals should get the first crack at determining if the definition of employee should retain the independent contractor distinction.

WHAT THIS MEANS FOR YOU: Are commercial truck drivers considered employees using the definition found in federal regulations? Or does the employee definition retain the distinction between common law employee and independent contractor?

•  In re All Repair & Restoration, __ S.W.3d __, 2024 Tex. App. LEXIS 2856 (Tex. App.—Houston [14th Dist.] Apr. 25, 2024, no pet. h.)

DECISION: Two workers were involved in a MVA and filed suit alleging various claims against the defendant who hired them. One worker non-suited his claims when DWC found he was the employee of the employer. But DWC found the other worker was not an employee and the carrier sought judicial review. The trial court granted the worker’s motion to consolidate the judicial review case with the lawsuit alleging claims of personal injury, violations of the FLSA, Texas Payday Act, fraud, civil conspiracy, gross negligence, and intentional infliction of emotional distress. The court also denied the carrier’s motion to stay and abate the personal injury lawsuit. On mandamus, the court held the two cases may involve the same accident but substantially differ in the causes of action and evidence causing confusion to a jury. Indeed, an appellate body would have difficulty untangling the jury’s findings. Further, the personal injury case should be abated until the judicial review case is concluded. Abatement is required when there are parallel compensability proceedings and negligence suits.

WHAT THIS MEANS FOR YOU: Judicial review suits should proceed first to determine if the exclusive remedy bars negligence cases. Judicial review and negligence cases should rarely be consolidated, especially in cases like this one where the plaintiff has filed wide-ranging claims quite different from the actual accident causing the injury.

• APD 240115

DECISION: In response to a Presiding Officer’s Directive (POD), the DD issued a report with a certification of MMI in the narrative report that was different than the MMI date listed on the DWC-69. The internal inconsistency of the MMI date was not a clerical error the AP could correct.

WHAT THIS MEANS FOR YOU: Compare the DWC-69 to the narrative report for internal consistency.

• APD 240353

DECISION: The ALJ issued a Decision and Order (D&O) finding the worker did not sustain a compensable injury. The D&O included a Conclusion of Law on the issue of disability; however, the ALJ did not make a Findings of Fact on the disability issue. The AP reversed for the ALJ to make a Finding of Fact on all issues.

WHAT THIS MEANS FOR YOU: Every Conclusion of Law must be supported by a Finding of Fact.

•  Progressive Cty. Mut. Ins. Co. v. Freeman, __ S.W.3d __, 2024 Tex. App. LEXIS 3307 (Tex. App.—Houston [14th Dist.] May 14, 2024, no pet. h.)

DECISION: While driving a police cruiser in the course and scope of her employment, the worker was struck from behind by a negligent driver who maintained insufficient insurance. The officer filed suit under her personal auto insurance’s UM/UIM coverage provisions. Her auto carrier denied the UM/UIM claim under the Regular Use exclusion which limits UM/UIM coverage to injuries resulting from the use of the officer’s owned and covered vehicle or a vehicle that is only used occasionally. The trial court struck the Regular Use exclusion as it applied in this case as against public policy of protecting innocent and conscientious drivers who purchase insurance protection from financial loss caused by negligent and irresponsible drivers. The majority stated the officer did not meet her burden of proof that the exclusion violated the public policy of protecting her against financial loss because she did not offer any evidence of how much benefits she received in workers’ compensation. The dissent argued the Regular Use exclusion should not prevent recovery just because the insured was injured while in an employer-owned vehicle. Many other states have struck the Regular Use exclusion as against public policy. Further, the dissent argued consideration of WC benefits were not relevant based in part on the WC carrier’s right to subrogation.

WHAT THIS MEANS FOR YOU: In Texas, a worker injured while driving an employer-owned car cannot recover benefits from her own UM/UIM policy under the Regular Use exclusion.

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.