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!
Only 1 left for the year!
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).
December 13, 2024 – Fall Appeals Panel Decisions and Case Law with Chris Losey and Pamela Pierce
New Lifetime Income Benefits Forms and Rules Effective November 21, 2024
DWC released new and revised forms relevant to LIBs. In addition, DWC adopted the revised rules and new rules pertaining to LIBs. Many of these changes were necessary due to the adoption of Labor Code §408.1615 (effective September 1, 2023) in which the Texas legislature added an additional LIBs category for certain first responders. Specifically, first responders who suffer a “serious bodily injury” are entitled to LIBs. The “serious bodily injury” category is set forth in §408.1615 and is an additional category to the traditional LIBs criteria.
The Forms
• DWC Form–038, Application for Lifetime Income Benefits
• DWC Form-039, First Responders Annual Certification for Lifetime Income Benefits
The new DWC-038 and DCW-039 must be used as of November 21, 2024.
The DWC-038 is to be used by all injured workers applying for LIBs. The form sets out the criteria for eligibility in a format allowing the injured worker to check a box for the eligibility criterion the worker asserts applies to their claim. The worker must send the DWC-038 to the carrier. The carrier has up to 60 days to approve or deny the application.
The DWC-039 is for first responders only. A first responder who suffered a “serious bodily injury” qualifying them for LIBs must file the form annually with the carrier to certify they were not employed in any capacity during the preceding year. The first responder must send the form to the carrier no later than 30 days after the anniversary date of their LIBs accrual date. The carrier is required to provide the first responder with annual notice of the anniversary date at least 30 days prior to each anniversary date.
• PLN – 04, Notice of Eligibility for Lifetime Income Benefits
• PLN – 07, Notice of Change of Indemnity Benefit Type
The revised PLN-04 must be used as of November 21, 2024 for both initial payment of LIBs and change in benefit type to LIBs. As of that date, the PLN-07 will no longer be used to inform any injured worker of a change in benefit type to LIBs.
A carrier must provide the PLN-04 to the injured worker and the worker’s representative if applicable. The form requires the carrier to provide:
• the LIBs accrual date;
• the average weekly wage on which income benefits were based;
• the annual certification period, if applicable;
• and any explanatory comments that are needed.
The revised PLN-04 notifies first responders receiving LIBs due to a serious bodily injury that they may lose those benefits if they are working in any capacity. It further informs first responders that they must send the DWC-039 annually to certify they were not working during the certification period and that they must send their DWC-039 no later than 30 days after their certification period ended.
If a carrier denies an application for LIBs, the carrier must provide a full and complete statement describing the reasons for denial and base the denial on information the carrier obtained or verified.
• DWC – 032, Request for Designated Doctor
The revised DWC-032 is effective November 21, 2024.
The DWC-032 revision relevant to LIBs is Part 5, Section 31, G. The form now states that “other similar issues” for a Designated Doctor to consider include addressing whether a first responder is still eligible for LIBs pursuant to Labor Code §408.1615.
The Rules
• 28 Texas Administrative Code Chapter 127, Designated Doctor Scheduling and Examinations Rules 127.1 and 127.25
• 28 Texas Administrative Code Chapter 131, Benefits-Lifetime Income Benefits Rules 131.10, 131.12(c)(1) and (d), 131.14(b)
Amendments to Rules 127.1 and 127.25 reference Labor Code §408.1615. A Designated Doctor may be requested to address whether a first responder is still eligible for LIBs pursuant to §408.1615. Rule 127.1 was amended to include language regarding such exams. Rule 127.25 was amended to include language regarding the suspension, reinitiation, and reinstatement of LIBs when an employee fails to attend a Designated Doctor exam. The amendment to Rule 127.25 was necessary to include first responders receiving LIBs pursuant to §408.1615 who fail to attend a Designated Doctor exam. The new rules are effective November 21, 2024.
The amendments to Administrative Code Chapter 131 restructured that Chapter by dividing it into two subchapters (Subchapters A and B). New Subchapter A includes the existing sections of Chapter 131, which are §§131.1 – 131.4. New Subchapter B includes the new sections of Chapter 131, which are §§131.10 – 131.14. The new rules are effective November 21, 2024.
New Subchapter B Rules 131.10, 131.12, and 131.14 concern LIBs for first responders with serious bodily injuries. Rule 131.10 defines “first responder” and “serious bodily injury” without actually providing definitions. The definition of “first responder” refers back to the definition stated in §408.1615. The definition of “serious bodily injury” refers to the Penal Code §1.07 definition which is “bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.”
Rule 131.12 addresses the required annual certification (DWC-039) by first responders receiving LIBs due to serious bodily injury. Especially significant to carriers is 131.12(d). This subsection requires carriers to send the DWC-039 to first responders for completion AND requires carriers to send it 30 days prior to the date the first responder must return form to the carrier. Rule 131.14 provides the process regarding a dispute of continuing entitlement to LIBs under §408.1615.
The new forms and rules are effective November 21, 2024. If you have any questions or need assistance navigating these changes, reach out to us; we are here to help you.
DWC HAPPENINGS
YOUR MONTHLY LOOK AT WHAT IS HAPPENING AT THE DIVISION AND HOW IT IMPACTS CARRIERS
The DWC announced their most recent assessment plan for Health Care Providers, which will run from 10/1/24 through 3/1/25. The focus for treating doctors will be on ensuring that DWC-73’s are filled out correctly, as well as whether or not the off work status is supported by the medical evidence. The Medical Quality Review Panel will receive the DWC-73 referrals to decide if the off work status is appropriate. They also specifically noted in an addendum that explanations by themselves such as “work not available” “pending further tests, surgery, PT, etc.” or “pain” amongst others are not sufficient.
The DWC also released a report addressing nonfatal occupational illness and injury data. The injury rate per 100 full time workers in Texas is significantly lower than the national average, and continues to drop year over year. The national average for injuries is 2.4 per 100 full time workers, while in Texas it is 1.8 per 100 full time workers. In 2023, Texas private industry employers reported 175,900 total recordable nonfatal cases. Not surprisingly, transportation and warehousing had the highest rate of injuries, followed by the retail trade. The highest number of claims occurred in the health care and social assistance sector.
Finally, a quick review of the disciplinary orders issued over the past month reveal that the DWC continues to focus almost exclusively on untimely benefit payments. A carrier was fined $5,500 for failing to timely pay IIBS (they were 30 days late). Another Carrier was fined $4,000 for failing to timely reimburse travel expenses, while a 3rd was fined $3,000 for being 33 days late in paying a medical bill. It is obvious that the focus on timely payments is going to continue to occur by DWC, so please ensure that all benefits of all types are being timely paid.
COMPLIANCE AND INVESTIGATION CORNER
Pursuant to Rule 124.3, the insurance carrier has 15 days from notice of the injury to issue benefits or deny the benefits. In addition, the Carrier must file the appropriate EDI transmission at the time the PLN-11 is filed. (Texas Claim EDI Release 3.1.4 Event Table, Version 1.0, TWDWC SROI Event Table Tab, line 23). The denial is not considered complete until both the PLN-11 and SROI PD have been received by the DWC. The report is due at the time the insurance carrier disputes the accrued income benefits.
Decisions, Decisions, and More Decisions
Current Cases that You Need to Know
• APD 241172
DECISION: The ALJ determined the worker reached MMI with a 0% IR for a lumbar sprain/strain in accordance with the DD. One problem: the DD certified a 5% IR. No doctor, including the RME, certified a 0% IR. Thus, the AP reasonably concluded the ALJ meant to find in accordance with the DD certification of a 5% IR and reversed accordingly.
WHAT THIS MEANS FOR YOU: Even an ALJ can have an “oops” moment.
• Tex. Mut. Ins. Co. v. Laird, __ S.W.3d __, 2024 Tex. App. LEXIS 7388 (Tex. App.—Austin Oct. 16, 2024, no pet. h.)
DECISION: After a bench trial, the trial judge indicated he would rule for the widow overturning the final decision of DWC and asked the parties to prepare judgements. The parties agreed on a proposed judgement and filed it with the court but neither side filed the agreed upon proposed judgement with DWC. The trial judge signed the judgement and TXM appealed. The beneficiaries moved to dismiss the appeal because TXM failed to file the proposed judgement with DWC for 30 days prior to its signing. TXM cited precedent (Texas Property & Casualty Insurance Guaranty Ass’n v. Brooks, 269 S.W.3d 645 (Tex. App.—Austin 2008, no pet.)) holding parties did not have to file proposed judgments with DWC following fully adversarial proceedings. The appellate court disagreed, noting the legislature amended Texas Labor Code Section 410.258(a) in 2017 removing the language that Brooks relied upon. This court respectfully disagreed with and refused to follow its sister court holding in Ace Am. Ins. Co. v. Elmer, 2020 Tex. App. LEXIS 7476, 2020 WL 5525181, at *4 (Tex. App.—Dallas Sept. 15, 2020, pet. denied) (mem. op.). Instead, the court held all judgements must be filed with DWC, even after fully adversarial proceedings. The court declared the judgement void and thus dismissed TXM’s appeal.
WHAT THIS MEANS FOR YOU: DWC must receive all proposed judgements for 30 days before a trial court enters judgement or the judgment is void.
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