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!
***THE LAST LUNCH AND LEARN OF 2023***
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.
December 8, 2023 from 12:00 P.M. to 1:00 P.M.: Fall AP Decisions and Case Law Webinar with Charles Morse and Adrienne Gasser
Court Limits Immunity for Local Governments
The Austin Court of Appeals held Texas political subdivisions cannot use governmental immunity to avoid administrative penalties for failing to timely pay workers’ compensation benefits.
The Texas Division of Workers’ Compensation (“DWC”) sought sanctions against the Self-Insurance Fund (“Fund”) in November 2019 after an audit identified multiple instances where the Fund had failed to accurately pay death benefits or accurately report claim data. The DWC also sought penalties against the Fund for failing to timely pay benefits to an injured worker that should have started in October 2017.
An administrative law judge determined the Fund had underpaid death benefits in three cases by a total of $384,132 and levied $125,000 in administrative penalties. The ALJ agreed with the DWC that the benefit payments were late and levied a $7,500 sanction against the Fund.
The Fund sought judicial review in a Travis County district court where the district court judge upheld the sanctions. The Fund appealed.
The 3rd District Court of Appeals in Austin upheld the trial court’s ruling that the Fund must pay $132,500 in administrative penalties and attorney fees for paying claims late, or not at all. The Fund argued that lawmakers did not waive immunity until they passed Senate Bill 2551 in 2019. The DWC countered, arguing that the statute simply clarified existing law. The appellate judges agreed with the DWC noting the primary purpose of SB 2551 was to change the claim process for first responders’ cancer claims. One provision of the new statute states that political subdivisions that self-insure are liable for administrative penalties and other sanctions. The court further noted that it previously ruled in 2020 that political subdivisions are subject to administrative penalties assessed by the DWC.
DWC HAPPENINGS
YOUR MONTHLY LOOK AT WHAT IS HAPPENING AT THE DIVISION AND HOW IT IMPACTS CARRIERS
- A Travis County jury acquitted claimant’s attorney, Leslie Casaubon, on all three counts of insurance fraud that were brought against her.
- DWC Commissioner Jeff Nelson appointed Dan LaBuyere as DWC’s new Deputy Commissioner for Compliance and Investigations. This position will oversee Audits and Investigations, Enforcement, the Fraud Unit, and the Fraud Prosecution Unit.
- DWC wants your input on draft revisions to the following forms: DWC-52 (SIBs Application), DWC-55 (Request to Adjust Benefits for Seasonal Employees), DWC-42 (Claim for Workers’ Compensation Death Benefits), and PLN-12 (Notice of Potential Entitlement to Workers’ Compensation Death Benefits). Let DWC know what works for you, and what doesn’t, by emailing DWC at RuleComments@tdi.texas.gov before 5:00 p.m. on November 24, 2023. A copy of the drafts of these revised forms can be found at www.tdi.texas.gov/forms/form20.html.
COMPLIANCE AND INVESTIGATION CORNER
The Division of Workers’ Compensation’s Compliance & Investigation (“C&I”) section recently issued a violation against a carrier for failing to timely pay or dispute accrued impairment income benefits (“IIBs”) based on a certifying doctor’s report. C&I stated in the consent order that pursuant to Texas Labor Code 408.121(a-c) an insurance carrier shall initiate IIBs not later that the 5th day after the date on which the insurance carrier receives the doctor’s report certifying maximum medical improvement and impairment rating, and if the insurance carrier disputes the impairment rating, the insurance carrier shall pay the injured employee IIBs for a period based on the insurance carrier’s reasonable assessment of the correct rating. C&I applied this 5-day time limit to a certifying doctor, and not just a designated doctor.
Per C&I, the requirement to pay within 5 days applies to any certification of maximum medical improvement or impairment rating, even if issued by the treating doctor, treating doctor referral, or post-designated doctor required medical examination doctor. C&I also relied upon Rule 130.8 to further support its position.
The key takeaway is anytime an insurance carrier receives a valid DWC-69, from any certifying doctor, the payment of IIBs must be initiated within 5 days of receipt (as assigned or reasonably assessed), even if the assigned impairment rating is disputed by the insurance carrier.
Decisions, Decisions, and More Decisions
Current Cases that You Need to Know
• APD 231317, 2023 TX Wrk. Comp. LEXIS 69
DECISION: The DD stated he was relying on the ROM measurements from his previous exam. But the DD did not include the ROM measurements from the previous exam nor was the report from the previous exam in evidence. The AP could not verify from the evidence if the IR calculation based on the ROM measurements were accurate. Because the report does not document the clinical findings, it does not comply with Rule 130.1.
WHAT THIS MEANS FOR YOU: The evidence must include all components of the IR.
• Tex. Political Subdivisions Joint Self-Insurance Fund v. Tex. Dep’t of Ins.-Division of Workers’ Comp., __ S.W.3d __, 2023 Tex. App. LEXIS 8255 (Tex. App.—Austin Oct. 31, 2023, no pet. h.)
DECISION: The political subdivision argues that Governmental immunity protects it from DWC’s administrative violations issued prior to SB 2551 which waived sovereign immunity in 2019. DWC fined the self-insurance “pool” $132,000 for nonpayment or late payment of workers’ compensation benefits. The court finds the political subdivision chose to self-insure for purposes of workers compensation and is thus considered an insurance carrier and can be so regulated by DWC in that capacity. Those regulations would include subjecting the political subdivision to administrative violations. SB 2551 merely codified the existing law; the court finds instead of creating the waiver of governmental immunity.
WHAT THIS MEANS FOR YOU: Political subdivisions owe administrative violations no matter when the violations were assessed.
• APD 231224, 2023 TX Wrk. Comp. LEXIS 71
DECISION: The ALJ determined the worker did not sustain a compensable injury in the form of Covid-19 at work. The worker alleged he was one of seven out of nine employees that contracted Covid-19. The ALJ found the worker’s employment did not place him at a greater risk of developing Covid-19 than employment generally. But the AP reversed on the issue of filing the DWC-41 with the DWC. There was no DWC-41 in evidence to prove when the worker filed the form. The AP requires “an ALJ to take official notice of essential DWC forms where timely filing requirements are an issue.”
WHAT THIS MEANS FOR YOU: Covid-19 was not compensable, and ALJs must take official notice of their forms when timely filing is an issue.
• Accident Fund Gen. Ins. Co. v. Mendiola, __ S.W.3d __, 2023 Tex. App. LEXIS 7775 (Tex. App.—Corpus Christi Oct. 12, 2023, no pet. h.)
DECISION: The worker suffered an amputation of one lower extremity and burns to the left hand. The worker sought LIBs arguing the burns prohibited him from getting and keeping employment using his left hand. DWC found against the worker, and the district court judge found for the worker. The court of appeals stated it was constrained to rule in favor of the worker based on the doctrine of vertical stare decisis. Only the Texas supreme court can overcome the Seabolt Test. Applying the Seabolt Test, the worker did not have substantial utility even though he could use the hand for certain functions. The court stated, “Texas appellate courts have repeatedly held that the ability to perform certain tasks requiring only minimal assistance of the injured hand does not establish that the hands possesses substantial utility.” So, activities that do not rise to the level of substantial utility include driving, holding a phone, carrying groceries, opening doors, performing housework, cooking, and writing.
WHAT THIS MEANS FOR YOU: LIBs is the next (or current) hot topic.
• APD 230808, 2023 TX Wrk. Comp. LEXIS 68
DECISION: The AP allowed the ALJ to add an issue of carrier waiver over the objection of the carrier, finding the parties actually litigated the issue. But the PLN-1 was not in evidence. The AP held the ALJ is to take official notice of DWC documents (meaning DWC forms) when timeliness or sufficiency of the PLN-1 is an issue.
WHAT THIS MEANS FOR YOU: The ALJ has free reign in certain circumstances to rule against a party on issues not reported out of the BRC and with evidence neither timely exchanged nor admitted at the CCH.
• APD 231076, 2023 TX Wrk. Comp. LEXIS 63
DECISION: Miscalculation of an IR is compelling medical evidence of a significant error and thus an exception to the 90 day finality provisions. In this case, the significant error actually favored the worker when the certifying doctor provided a 1% IR for adduction when the actual IR should have been 0% for that ROM measurement.
WHAT THIS MEANS FOR YOU: A significant error is still significant even when it favors the party challenging the finality provisions.
• APD 230999, 2023 TX Wrk. Comp. LEXIS 64
DECISION: The AP determined that a pulmonary function test (PFT) was required. The DD determined a PFT could not be completed based on the pulmonologist’s statement the worker’s condition had deteriorated to the point that continuous mechanical ventilation was necessary to breath. The DD accordingly assigned the worker to the severe category under AMA Guides Chapter 5, Table 8. The AP states that the severe category is only appropriate if the necessary values are obtained (FVC, FEV1, ration of FEV1/FVC, and DCO Value). Because those values were not obtained, the DD’s IR could not be adopted.
WHAT THIS MEANS FOR YOU: The AP continues to be strict about obtaining the necessary values pursuant to Chapter 5, Table 8 before a respiratory IR can be adopted.
• APD 231193, 2023 TX Wrk. Comp. LEXIS 67
DECISION: Chapter 4 creates 9 different methods of calculating cerebral disturbance impairment. The 9 different methods are divided into two groups: the first five and the last four. The certifying doctor is to pick only one of the first five. The certifying doctor can then add to the most severe of the first five categories any of the remaining last four categories. In this case, the certifying doctor added two of the first five categories; and therefore, his certification could not be adopted.
WHAT THIS MEANS FOR YOU: Chapter 4 IRs should be scrutinized because they happen infrequently, and the doctors make as many mistakes as the lawyers.
• ADP 231122, 2023 TX Wrk. Comp. LEXIS 65
DECISION: The ALJ added 32 extent of the injury determinations to the accepted injury. Surprisingly, no DWC-69s in evidence rated the compensable injury.
WHAT THIS MEANS FOR YOU: Law of Large Numbers: a large number of extent conditions are directly correlated with a large percentage change that the IR will be wrong.
• APD 231210, 2023 TX Wrk. Comp. LEXIS 66
DECISION: The ALJ failed to document the carrier accepted a lumbar strain/strain as part of the compensable injury.
WHAT THIS MEANS FOR YOU: None of us is perfect.
• Gonzalez v. Dynamic Motors, Inc., __ S.W.3d __, 2023 Tex. App. LEXIS 7949 (Tex. App.—Austin Oct. 19, 2023, no pet. h.)
DECISION: The plaintiff was a porter at a used car dealership that was hired for car detailing, lot maintenance, and “other duties as assigned.” There was a roof leak, and the plaintiff agreed to get on the roof to help repair when he fell 20 feet through a skylight. The plaintiff argued the task he was assigned was outside the course and scope of his employment; and therefore, he was not an employee at the time of the injury. The court noted the worker was earning an hourly wage working on his employer’s property during his normal shift. The court noted that “the dispositive inquiry is only whether Gonzalez’s employment – not assigned task or miscellaneous activity – was in the usual course and scope of the employer’s business.”
WHAT THIS MEANS FOR YOU: The “other duties as assigned” clause has broad implications.
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