D&S Straight Out of CompTown – November 2022

We 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!

We only have two more 1-hour webinars set for the rest of 2022!

We are offering a Special Brunch and Learn on November 18, 2022 for a 1-hour credit and our normal 1-hour credit Lunch and Learn for December 9, 2022. See the list of classes 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. 

The Zoom link will be emailed the Monday before each Webinar. 

November 18, 2022 from 10:00 A.M. to 11:00 A.M.:Fall Appeal Panel and Case Law Updates Webinar (132261) with Chris Esson and Rynn Freiling

December 9, 2022 from 12:00 P.M. to 1:00 P.M.DWC-Required EDI and PLN Notifications in Workers’ Compensation Webinar (132263) with Stuart Colburn and Wendy Schrock

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.

Compliance and Investigations Corner

Peer-to Peer attempts and/or discussions are  necessary for any medical bill denied for lack of medical necessity.  Texas Administrative Rule §133.240(q) states that when a carrier questions the medical necessity or appropriateness of health care, the carrier shall first attempt a Peer-to-Peer and allow the health care provider to provide a reasonable opportunity to discuss the billed health care.  The Peer-to-Peer must be between doctors, or, in cases of dental or chiropractic services, with a dentist or chiropractor, respectively.  Failure to do so can result in a violation and issuance of a monetary penalty.

Please contact us at Q&A if you have a specific question about which PLN to file or what language to use on a claim.

DWC Corner

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

Things are somewhat quiet in DWC world this month, as the holiday season rapidly approaches.  However, all of that will change when the Texas Legislature comes back into session in early 2022.  We will be sure to let you know what bills impacting workers’ compensation are filed, and will discuss the potential impact of them.

Workers’ compensation does go on; however, and there have been a couple of recent hires to discuss.  As many may have heard, the Administrative Law Judge for the Waco Field Office, Ms. Amber Morgan, has taken a job with the Division’s Appeals Panel, thus leaving the Waco ALJ slot open.  Filling that position will be Nick Morgan (Amber’s husband), who has an extensive background in workers’ compensation matters, having represented both injured workers and Carriers in his career.  Additionally, the ALJ in Tyler, Mr. Kevin Henry, recently announced his retirement, and he will be replaced by Cole Fulks, who also is versed in workers’ compensation matters, having been representing Claimants for a number of years.  Best of luck to both of these men as they start their new positions inside the DWC.

In other news, the annual actuarial analysis of the Subsequent Injury Fund was recently completed.  This is always important for Carriers, as this is the entity that Carriers can seek reimbursement from for a variety of different reasons.  As you know, the Subsequent Injury Fund is wholly funded by death benefit payments from insurance carriers in situations where a compensable death occurs and there are no eligible beneficiaries. For fiscal year 2022, the SIF ended up with a balance of $98,947,000, after reimbursing Carriers a little more than $9.2 million.  Suffice it to say, at the current time the SIF is in strong financial shape, and there should be little concern of its solvency going forward.

Finally, the Workers’ Compensation Research and Evaluation Group recently released an Overview of COVID-19 Claims in the Texas Workers’ Compensation System, and it contained some interesting results.  As of August, 2022, there have been more than 90,000 reported COVID-19 claims and 459 fatalities in Texas.  Over $121 million has been paid by insurance Carriers on COVID claims.  While 75% of the COVID claims were made by people under 50 years old, almost 70% of the deaths involved persons over 50. Not surprisingly, the majority of COVID claims came from first responders, and surprisingly, over the 90,000 claims, 65% of them did not involve receipt of indemnity or medical benefits, making them essentially “report” only claims.  The final conclusions note that while there was significant concern about the financial impact of these claims, a significant fiscal impact never materialized (although political subdivisions bore the brunt of the impact).  A full breakdown can be found  here.

So Far for 2022, Downs & Stanford Recovered over $800,000 from the Subsequent Injury Fund, and We Are NOT Done Yet. 

Our Subsequent Injury Fund Department is working diligently with adjusters in recovering the maximum amount from Texas’ Division of Workers’ Compensation Subsequent Injury Fund Department (SIF) for Carriers.  

  • Are you paying TIBs based upon a DWC-3ME?
  • Have you overpaid per a DD which was ultimately overturned by a Decision and Order?
  • Did you pay on a Decision and Order that was later overturned by the Appeals Panel in your favor?

If you have one of these scenarios or any other questions about SIF Recovery, please contact Attorney Adrienne Gasser at agasser@downsstanford.com for any SIF Questions you may have.

DWC Continues ‘Brown Bag Series’ on Dispute Resolution

Deputy Commissioner of Hearings Allen Craddock and his staff continue their series of meetings with stakeholders in the Texas workers’ compensation system. You’re invited to bring a lunch to this Brown Bag Series.
Sessions begin at 11 a.m., Central time. Here are dates and locations:

  • January 5, 2023 – Fort Worth field office
  • January 6, 2023 – Dallas field office
  • January 12, 2023 – Houston East field office
  • January 13, 2023 – Houston West field office
  • January 19, 2023 – Austin field office
  • January 20, 2023 – Zoom meeting – summary of findings

Details on the TDI website.

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Helpful Thoughts When Handling a Judicial Review Case:  Part 3 of a 3 Part-Series

By now, it may have already happened, or it could be just around the corner. You are involved in a judicial review action, either as a Plaintiff or Defendant.  The scene may be something similar to this: you walk into your office and see an urgent email or received some documents in the mail pertaining to a case that you handled several months ago and since you are not sure what the documents are, you forward them to your Attorney.  Your Attorney explains you received an Original Petition for Judicial Review naming you (the Carrier) as Defendant.  The time to act is fast and imminent. It may be your first judicial review action, or it may be your tenth; however, since deadlines are nearing, it is time for action.   

1.    “You’re gonna need a bigger boat.” Jaws (1975). Be prepared your attorney will need to call in the cavalry in some large judicial review cases. The mindset of trying a judicial review action has certainly changed throughout the years since the “new law” came into effect in 1991, over thirty years ago. Prior conventional thinking was judicial review actions could be tried similar to “old law” cases where the maximum exposure potentially was a “T&P” verdict. (For those who don’t know, this means “total and permanent” incapacity). With lifetime future medical benefits attached to injuries, and with the proliferation of extent of injury conditions/diagnoses, with the explosion of medical costs; what used to be a relatively simple judicial review trial akin to an old law “T&P” case may now be one that has much greater exposure. Not only should you be prepared of the maximum amount of exposure, but ensure you prepare for and acknowledge the magnitude of the case. The trial may necessitate a second chair and/or other administrative resources that can assist on a case. This certainly should factor into formulating a realistic budget of the case. 

The takeaway – of my current judicial review caseload, more than half are death and/or LIBs cases. Exposures in such cases have grown exponentially. Greater exposure likely necessitates more resources at trial. Which in turn demands increased costs at trial.

2.    “Round up the usual suspects.” Casablanca (1942). Know your opponent. Even in judicial review actions, we see many of the same attorneys on both sides of the bar. Claimant’s attorneys who may have handled the administrative cases are usually the same ones who will try the JR case. The same may be said for defense attorneys. Trying a JR case with attorneys who are familiar with workers’ compensation is likely going to result in a smoother trial. The trial should be calmer and quicker given agreements that may be reached in the case involving evidence and testimony of witnesses. On the other hand, trying the case with an attorney who is not familiar with workers’ compensation can be arduous and difficult and result in laborious proceedings which in turn may incur the wrath of the court. 

The takeaway – attorneys familiar with the workers’ compensation process are encouraged to work towards trying a smoother case which benefits all parties at trial. 

3.    “I have always depended on the kindness of strangers.” A Streetcar Named Desire (1951). Reach out. Reach out. Reach out. Trying a judicial review action is not “rocket science” but may “science”. There is an art form to trying a judicial review case. However, one does not learn from the sidelines. Get involved with a judicial review case in some manner if you can. 

The takeaway – there are opportunities for those who want to learn or advance their skills in handling JR cases.  

4.    “I feel the need – the need for speed!”  Top Gun (1986). Did I say multitasking is extremely hard? Because there are immense differences between an administrative action at the CCH/AP level, as opposed to a judicial review case, be prepared that handling both can be a daunting task. Administrative cases work on accelerated deadlines and must be worked up and tried in an extremely short period of time. It is easy to get into the mode of litigating cases quickly, at a rapid pace with limited discovery. One can easily get into the mindset of handling fast-paced administrative cases, which may be a disservice in a judicial review action where greater discovery is allowed, analysis is deeper, and more comprehensive. Additionally, the handing of breakneck administrative matters often leaves little, to no time to devote to litigation matters which are of longer duration. Be prepared to adjust from the speedy disposition of administrative cases to the more slower, methodical moving JR actions. A JR action is not a sprint but more of a marathon. Know the differences of both actions and adjust your handling accordingly.

The takeaway – you will have to become disciplined to handle the immediate tasks of an administrative case and the slower developing burn of a JR action. 

We would be happy to assist you with any questions regarding this or any other issues you may have.  Please email us at Q&A.

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

• APD 221481

DECISION: The IW exchanged a causation report from the treating doctor at the 7/28/22 CCH. The BRC was on 2/16/22 and the report was dated 5/30/22. There were two prior settings of the CCH. The ALJ excluded the document. The AP noted, “A party who belatedly investigates the facts and then does not disclose known information in order to make further investigation and development runs the risk of having evidence excluded for failure to exchange.” DWC took the opportunity to change the AP Precedent Manual. The ALJ must apply a two-prong test: (1) did party exercise due diligence in obtaining the evidence, and (2) after obtaining the evidence, the party promptly provided the evidence to the other party. 

WHAT THIS MEANS FOR YOU: The rumors of the demise of the exchange deadline are perhaps premature.

• APD 221500

DECISION: None of the certifications from the DD or RME rate the compensable injury as found by the ALJ. The certification adopted by the ALJ calculates the IR using the cervical region when the primary injury was to the thoracic. One of the DD’s certifications was not at MMI when the SMMI date had passed, a legal error. 

WHAT THIS MEANS FOR YOU: Parties must ensure they have a certification that rates the injury found compensable by the ALJ. 

• APD 221447

DECISION: The ALJ kept the record open and submitted a POD to the DD regarding the SMMI date. The ALJ indicated the parties were given time to respond to the report. The IC submitted a peer review report and written closing arguments. Neither were listed as exhibits in the D&O nor were considered by the ALJ. The IC appealed submitting DRIS note entry stating the DWC received the documents before the deadline. The case was remanded for the ALJ to consider the evidence. 

WHAT THIS MEANS FOR YOU: Submit your post-CCH documents timely and make sure the ALJ considers them in the D&O.

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.