D&S Straight Out of CompTown – October 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. 

October 28, 2022 from 12:00 P.M. to 1:00 P.M.:  Utilizing Texas Guidelines: AMA, ODG Treatment & MDA Webinar (132260) with Stuart Colburn and Adrienne Gasser

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

We have seen an uptick in Compliance & Investigations reviewing allegations of late or non-payment of designated doctor’s bills.  Compliance & Investigations considers these violations more severe as designated doctor’s play an important part of the workers’ compensation process.

Please make sure all designated doctor’s bills are paid timely within 45 days of receipt.

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

It is that time of year again—the time in which the new maximum and minimum weekly benefit amounts are calculated, and not surprisingly, we are seeing another increase this year.  More specifically, the DWC has set the state’s average weekly wage (AWW) at $1,111.55 for dates of injury starting October 1, 2022 to September 30, 2023.  As a result, the new maximum TIBS rate is $1,112, and the new maximum IIBS/SIBS rate is $778.  This equates to a 5% increase from last year.  The new TIBS minimum is now $167.

The Workers’ Compensation Research and Evaluation Group has released its Network report card results, with some interesting findings.  The conclusions indicate that networks tend to be more cost efficient than non-network claims, with these cost differences being partially driven by lower hospital utilization and lower prices per service.  Network claims appear to have a slighter better return to work and functional outcomes, and network claims appear to receive initial non-emergency care sooner than non-network claims.  In 2021, 94% of network employees reported that they returned to work, as opposed to 84% of non-network employees.

Finally, a review of the disciplinary orders over the last month make it clear that the DWC’s current focus is on insurance carriers, and more specifically, the timeliness of payments made to Claimants and their attorneys.  In fact, of the 20 disciplinary orders issued in September, all but one were directed to Carriers or Self-Insureds.  There were six disciplinary orders issued for failing to pay TIBs properly, and four each for failing to pay pursuant to a Designated Doctor and failing to properly pay SIBs.  Finally, there were three disciplinary orders issued for Carrier’s failure to timely pay attorney fees.  The takeaways from this review of these orders is that it is vitally important that benefits be timely paid, and that Carrier’s always make sure that they are paying pursuant to the findings of the Designated Doctor. 

Helpful Thoughts When Handling a Judicial Review Case:  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.  “Toto, I’ve a feeling we’re not in Kansas anymore.” The Wizard of Oz (1939). There are vast differences between handling an administrative workers’ compensation case versus that of a judicial review action. One of the most stark differences is the rules of evidence apply in judicial review actions and are real. Whereas, in administrative actions, the rules of evidence do not strictly apply. Sec. 410.165 of the Texas Labor Code specifically states, “Conformity to legal rules of evidence is not necessary.” What does this mean? Some Administrative Law Judges take this to mean rules of evidence are not applicable at all. While others believe the rules of evidence should be applied sparingly, only in certain instances; but not in all scenarios. Compare this with Texas Labor Code Sec. 410.306 which states evidence shall be adduced in judicial review actions as in other civil trials.

The takeaway – if you receive a lawsuit, contact your Attorney.

2.  “Show me the money!” Jerry Maguire (1996). Your Attorney should prepare you accordingly for the costs of litigation. The costs of handling an administrative case is vastly different from handling a litigation matter. Real discovery is allowed at trial. How much discovery is allowed or needed depends on the issues in your case. Depositions may be necessary. Plus, written discovery will be allowed. Court intervention may be needed if discovery disputes arise. Calculating what discovery will be needed in a judicial review action and calculating accordingly is a necessary component of budgeting for the lawsuit.  Many adjusters are unaware that handling a judicial review action may be double, triple, or even quadruple (or more), the costs of handling an administrative case.  Make sure your Attorney prepares you and lets you know from the outset that judicial review actions are much more costly than administrative cases.  Properly budgeting a judicial review action is critical and will change depending on the issues litigated, exposure and liability of an adverse determination, and venue of the case. Proper budgeting may even be a factor in possible resolution of the case.

The takeaway – We have handled judicial review cases for many years and our involvement in JR cases has not only become more complicated due to the issues involved (i.e. death claim, extent of injury), but also the value of lifetime future medical expenses. As a result JR litigation is much more expensive to handle.  Being involved in a litigation case may not necessarily be “cut and dried” like handling an administrative case. Realistic information regarding attorneys’ fees and litigation expenses leads to a better attorney/client relationship.   

3. “What we’ve got here is failure to communicate.” Cool Hand Luke (1967). Or “E.T. phone home.” ET: The Extra-Terrestrial (1982). 

Be prepared to be treated like an alien at trial because we will be speaking “WC Greek” to the judge or jury.

One of the biggest challenges we face in handling a judicial review case is a judge or jury will likely not understand the nuisances of a workers’ compensation case, and may have no idea what workers’ compensation is even about. Just think about the number of abbreviations or acronyms used in WC parlance (MMI, RME, DD, PIE, TIBS, SIBS, LIBS, DIBS, SIF, etc.). These terms are bandied about in administrative hearings without thought. But at a judicial review trial, the use of such terms may likely result in confusion and confoundment on the part of the judge or jurors.

In our experience, many jurors have prior experience with either civil or criminal jury trials. This normally cannot be said for workers’ compensation cases. Imagine you have a blank canvas and we need to paint a picture of a broader context of what a worker’s compensation case is and may be about. Throw out the “WC lingo” and prepare to educate the judge/jury. As such, a fair amount of the trial will be spent indoctrinating the judge and jury to the “WC world”. This may prove to be our ultimate challenge. In 1991, when the new (old) law came into effect it was a huge task to educate a judge or jury to the “new” workers’ compensation laws. Now, thirty years later, it still is difficult. Remember with the turnover in the judiciary in many regions, and the relatively small number of JR cases being litigated, workers’ compensation, now over thirty years old, is still not a familiar world. When speaking to a jury, the task can be monumental.  We will be prepared to explain the “nuts and bolts” of the workers’ compensation system, even before we launch into the specific facts/issues of the case.  We will need to explain what MMI, IR, CCH, BRC, AP, TIBS, IIBS, DIBS, etc., are in layman’s speak. This will take time at trial.

The takeaway– We take for granted certain terms/terminology, and knowledge of issues in the administrative arena. There, parties don’t have to explain what “MMI” or “TIBs”, etc., are. We don’t have to go into detail as to what a compensability dispute is or the deadlines inherent in the dispute (filing of PLN’s).  We must to adhere to “the KISS” theory – Keep It Simple Stupid (as much as we can). Without the nuts and bolts of explaining the WC world and painting a broad overview of what workers’ compensation is really about, the jury may be “lost in space” when we are trying to persuade a jury to our side of the case. You will see it in the faces of the judge or jury whether they get it or not.  We will be prepared to administer small doses of WC knowledge to our Judge or Jury with the goal that by the end of our case, the messages we sent are well received. 

Please join us next month for the continuation of this series of handling Judicial Review Cases.

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.


First Responders and Correctional Workers Over Half of the COVID-19 Claims and COVID-19 Fatality Claims Involved 


The Texas Department of Insurance, Division of Workers’ Compensation (DWC) issued an updated factsheet providing information on the impact of COVID-19 on the state’s workers’ compensation system. The factsheet provides information on COVID-19 claims, including the percentage of claims that insurance carriers accepted or denied, as well as indemnity benefits or medical costs paid on claims.

Data sources for DWC’s fact sheet included administrative claim data and information from a data call. The administrative claim data was reported to DWC by insurance carriers from March 13, 2020, through August 7, 2022. DWC also included data call information from 74 selected insurance carriers.

COVID-19 Claims as of August 7, 2022

Carriers reported over 90,000 COVID-19 claims to DWC. The greatest number of COVID-19 claims were reported in January 2022, followed by July 2020, and December 2020. The majority of all COVID-19 claimants were male (63%) and were less than 40 years of age (56%). Slightly over half (51%) of all reported COVID-19 claims involved first responders and correctional officers.

The majority (62%) of the state’s COVID-19 cases were concentrated in 10 counties (Harris, Dallas, Bexar, Tarrant, Travis, El Paso, Fort Bend, Collin, Hidalgo, and Denton). The majority (57%) of the state’s COVID-19 workers’ compensation claims were concentrated in the same ten counties. 

Carriers reported 459 COVID-19 fatality claims to DWC. Four out of five (80%) of all fatality claims involved male claimants. Two-thirds (67%) of all fatality claims involved claimants 50 years or more in age. More than half (55%) of the COVID-19 fatality claims involved first responders and correctional officers. Less than half (39%) of these fatality claims were concentrated in the same ten counties where the most COVID-19 cases and claims were reported.

Presumption Claims and Requests to Reprocess as of August 7, 2022

Senate Bill 22 resulted in Texas Government Code §607.0545 (effective June 14, 2021) which created a rebuttable statutory presumption for COVID-19 claims involving most first responders, detention officers, and custodial officers. This section of the Government Code expires September 1, 2023. 

§607.0545 allowed injured employees or beneficiaries to request their previously denied claims be reprocessed under the new presumption. The deadline to file a request to reprocess was June 14, 2022. 

§607.0545 further allowed those who did not file a claim prior to its effective date an opportunity to file a claim. New claims could be filed within 6 months from the effective date without being considered untimely. That deadline has now passed as well.

Carriers must use the PLN-15 (Notice of Request to Reprocess a COVID-19 Claim subject to Texas Government Code §607.0545) to communicate the outcome of a request to reprocess a COVID-19 claim that was previously denied. This form is available on the DWC website.

DWC has received 178 PLN-15s for COVID-19 claims, of which 111 were accepted and 67 denied. DWC has received, 36 PLN-15s for COVID-19 fatality claims, of which 21 were accepted and 15 were denied.

Claims for Adverse Reactions to COVID-19 Vaccine as of August 7, 2022

Beginning on December 14, 2020, certain groups of employees, including first responders, began receiving COVID-19 vaccinations in Texas. From December 15, 2020, through August 7, 2022, carriers reported to DWC a total of 710 COVID-19 vaccine reaction claims. The majority of these claims occurred in January 2021, followed by February 2021 and December 2020. 

DWC does not provide information regarding the number or percentage of these claims filed by first responders. However, the public administration industry sector which includes first responders and correctional officers/prison workers represented a majority of the vaccine reaction claims (70%).

This article is based on information 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. The full report is here.

Helpful Thoughts When Handling a Judicial Review Case:  Part 2 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. I’m gonna make him an offer he can’t refuse.” The Godfather (1972). Or “Quid pro quo, Doctor.” The Silence of the Lambs (1991).

There are certain constraints in settling or resolving cases at the judicial review level. If you don’t know what they are become acquainted with Texas Labor Code Sections 408.005, 408.021, 410.256 and Texas Administrative Rule 147.9. When contemplating whether an agreement can be reached on issues in the case, these statutory sections and rule provisions must be closely examined. Do not attempt to go outside the provisions of agreements or settlements at the judicial review level set forth in the statutory provisions. Big brothers – DWC and/or court will be watching. Don’t make the mistake of entering into any type of discussion or negotiations on matters that cannot be resolved according to the statute/rules.

The takeaway – On the other hand, explore viable options to resolve issues in judicial review cases. Perhaps extent of injury diagnoses/conditions can be agreed upon with a corresponding disability period paid that conforms to an adoptable impairment rating. Agreeing to certain matters at the Judicial Review level will involve taking extra steps other than just getting DWC to approve a DWC 24. Make sure you consult the statute and are following the strict statutory provisions. In your zest to get out of a judicial review case, don’t go to the ledge and jump blindly. It will not be a wise decision. If in doubt, consult an experienced judicial review litigator who is familiar with whether resolution can be made on issues in your case.

  1. “Say hello to my little friend!” Scarface (1983). Modified de novo. What does this mean?

You have to look at applicable case law and the statute to get the answer. For issues concerning compensability or income or death benefits, case law states that a modified de novo trial results at the judicial review level.  Issues regarding compensability or income or death benefits (except on extent of impairment), the judicial review action is modified de novo because the party seeking judicial review has the burden of proof by a preponderance of the evidence, but new evidence not previously presented at the contested case hearing is admissible at trial. Texas Workers’ Comp Insurance Fund v. Martinez, 30 S.W. 3d 490 (Tex. App. – Texarkana 2000, pet. denied). This means a trial concerning compensability or income or death benefits, is limited to issues decided by the Appeals Panel on which judicial review is sought. The pleadings must specifically set forth the determination of the Appeals Panel on which parties are aggrieved. Sec. 410.302 of the Texas Labor Code.

In other words, if your case concerns issues of compensability or income or death benefits, the judicial review trial is limited to the issues determined by the ALJ at the CCH/AP but there may be new evidence introduced at trial. (But be aware there still may be limitations to the evidence).

Modified de novo and preponderance of the evidence review, is contrary to a substantial evidence review which pertains to all other issues other than compensability and income benefits for which judicial review is sought. In these cases, the court conducts a review under the substantial evidence rule of the Administrative Procedures Act (APA). Under this standard of review, the court reviews only the reasonableness of the appeals panel decision, not its correctness, and the AP’s decision and findings are presumed to be supported by substantial evidence unless the challenging party can demonstrate otherwise.  

The takeaway – know what your issues are at the judicial review level so you can understand the proper standard of review and whether it is by substantial evidence or by preponderance of the evidence.

  1. “You’ve got to ask yourself one question: Do I feel lucky? Well, do ya punk?” Dirty Harry (1971).

Wait. Did you say judicial review actions involving compensability or income or death benefits allow all new evidence at trial? All the time? Answer – not entirely. Don’t forget in a judicial review action a judge or jury shall be informed of the prior administrative decision (used to be AP decision; now more frequently ALJ’s decision) in the court’s instructions, jury charge, or questions to the jury in a jury trial. And in a judicial review action to the court, the court (judge) is allowed to consider the decision of the Appeals Panel in their decision.

The takeaway – winning at the CCH/AP level certainly matters in a judicial review action. However, one must not become too reliant on a favorable CCH/AP decision, because judges/juries are allowed to decide the case on the evidence before them and may frequently determine the case differently given the fact they are unaware of the nuisances of workers’ compensation laws. Don’t ever underestimate the independent thinking of a jury, or perhaps their susceptibility to emotion given the specific facts of a case.  

  1. Houston, we have a problem.” Apollo 13 (1995).

In a judicial review case, you win until you finally lose and you lose until you finally win. The value of prevailing at the administrative level (CCH/AP) cannot be underestimated. While one should not be over-reliant, or overconfident on winning at the administrative level, case law mandates the Appeals Panel decision, whether granting or denying benefits, remains in effect until overturned by a final and enforceable judicial decision on appeal. See Lucas Lopez v. Texas Workers’ Compensation Insurance Fund, 11 S.W. 3d 490 (Tex. App. – Austin 2000, no pet.). What does this mean? If you win at the prior CCH/AP level, but such determination is overturned on judicial review, the CCH/AP decision which was favorable at the administrative level remains in effect until all appeals are fully and finally extinguished. For example, Carrier wins a LIBs issue at the CCH/AP hearing, but loses at the judicial review trial. Carrier has no obligation to pay LIBs until all appeals are finally exhausted. On the contrary, a CCH/Appeals Panel decision granting benefits, remains in effect even if overturned at the judicial review level. For example, if Carrier loses the LIBs case at the CCH/AP level but overturns LIBs entitlement at a judicial review trial, Carrier continues to pay LIBS until all appeals are exhausted. The Lopez case was decided in 2000 by the Austin Court of Appeals and has not been overturned subsequent to such date. So, if you won at the administrative level, you are treated as a winner even if you lose at the judicial review. You are still treated as the winner as long as you appeal. Conversely, if you lose at the CCH, you are treated as a loser even if you won at judicial review until all appeals are exhausted and there is a final enforceable decision.
The binding effect of the CCH/AP decision pending appeal cannot be ignored and should factor into trial strategy for both defense and claimants’ attorneys when handling a judicial review case.

The takeaway – be aware of the Lucas Lopez decision. The wait may be longer for paying/receiving benefits than anticipated.

Please join us next month for the continuation of this series of handling Judicial Review Cases.

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.

Monkeypox – Occupational Disease or Ordinary Disease of Life?

Monkeypox (poxvirus) is a viral zoonosis (a virus transmitted to humans from animals) with symptoms similar to those seen in the past in smallpox patients, although it is clinically less severe. With the eradication of smallpox in 1980 and subsequent cessation of smallpox vaccination, monkeypox has emerged as the most important orthopoxvirus for public health. Monkeypox primarily occurs in central and west Africa, often in proximity to tropical rainforests, and has been increasingly appearing in urban areas. Animal hosts include a range of rodents and non-human primates.

Monkeypox symptoms in humans usually start within 3 weeks of exposure to the virus. The illness typically lasts 2-4 weeks.  Symptoms include any one or a combination of the following:

  • Fever
  • Chills
  • Swollen lymph nodes
  • Exhaustion
  • Muscle aches and backache
  • Headache
  • Respiratory symptoms (e.g. sore throat, nasal congestion, or cough)

Monkeypox can spread to anyone through close, personal, often skin-to-skin contact, including:

  • Direct contact with monkeypox rash, scabs, or body fluids from a person with monkeypox.
  • Touching objects (clothing, bedding, or towels), and surfaces used by someone with monkeypox.
  • Contact with respiratory secretions.

A person with monkeypox can spread it to others from the time symptoms start until the rash has fully healed and a fresh layer of skin has formed. Again, the illness typically lasts 2–4 weeks. Scientists continue to research:

  • Whether the virus can be spread when someone has no symptoms.
  • How often monkeypox is spread through respiratory secretions.
  • When a symptomatic person is more likely to spread the virus through respiratory secretions.
  • Whether monkeypox can be spread through bodily fluids other than respiratory secretions.

There is a dearth of information regarding the virus in workplace settings. Based on information currently available from the World Health Organization and the Centers for Disease Control and Prevention, a valid argument can be made that the virus is an ordinary disease of life to which the general public is exposed outside of employment and is not an occupational disease as defined by Texas Labor Code §401.011(34).
If the virus is an ordinary disease of life, there is no connection (causal relationship) between the virus and employment; the virus is not inherent to the workplace or present at an increased degree in the workplace. Because this virus may be considered an ordinary disease of life, the employee must establish that an exposure to the virus actually occurred at work and that her or his work created a greater risk of exposure to the virus as compared to the general public. Expert medical evidence will be required to establish a causal relationship. The expert medical opinion must be based on reasonable medical probability with accurate information regarding the employee’s medical history and alleged workplace exposure.
Absent a documented exposure in the workplace, it will be difficult for an employee to prove when, where, or how exposure to the virus occurred. Proving the date of exposure may be more difficult in these claims than in COVID claims given the potential 3-week period subsequent to exposure during which symptoms may appear. Likewise, the employee must provide evidence of causation between contracting the virus and employment.
Each claim needs to be investigated for procedural issues. Specifically, date of injury and timely reporting must be fettered out during the initial investigation and documented in a recorded statement. As these claims allege an occupational disease, the date of injury is the date on which the employee “knew or should have known” the condition is related to employment. Thus, clarifying dates is critical. Important dates to confirm include: onset of symptoms, date of test, date of confirmed diagnosis, the first belief symptoms/diagnosis were related to work, and the date the condition was reported to employer.
Every allegation from an employee who may be suffering from the virus, allegedly as a result of a work-related exposure, will require a detailed analysis. There are certain steps an adjuster should take to ensure a thorough investigation and an accurate determination regarding compensability, date of injury, and timely reporting. We are available to help you investigate these claims.
(Fact sources: World Health Organization and Centers for Disease Control and Prevention)

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

• APD 221440

DECISION: The certifying doctor awarded a 0% IR. However, the AP recalculated the ROM measurements finding a 1% IR for the right thumb. The AP can recalculate the IR since the certifying doctor’s report provides the component parts. 

WHAT THIS MEANS FOR YOU: The AP is better than Texas doctors when calculating IRs. 

• APD 221447

DECISION: After the CCH, the ALJ sent a POD to the DD who responded with an amended report. The ALJ placed both into evidence and invited the parties to respond with any additional evidence and closing remarks. The carrier submitted a peer review report that was not placed into evidence by the ALJ and closing remarks that was not referenced or apparently considered by the ALJ. The DRIS notes indicated DWC received the carrier’s exhibit and closing remarks timely. The AP reversed to allow the ALJ to consider the peer review report and closing remarks.

WHAT THIS MEANS FOR YOU: Parties should document their timely efforts to provide post-CCH documents to the ALJ before the record closes. 

•  Hernandez v. King Aero., __ S.W.3d __, 2022 Tex. App. LEXIS 7272 (Tex. App.—El Paso Sep. 28, 2022, no pet. h.)

DECISION: The plaintiff was a FAA-licensed and skilled aircraft mechanic hired by ATG who then supplied the worker to King to perform aircraft maintenance at a hangar maintained by King on the grounds of Fort Bliss. Hernandez sustained an injury falling off a ladder owned by King. ATG issued clothes and paychecks, including deducting taxes and social security, and provided on-site supervisors who directed and supervised Hernandez’s day to day work. There was conflicting testimony on who signed off on the work performed. As with other mechanics, Hernandez provided his own tools, but King provided the other equipment. King would tell ATG what was to be done that day and those instructions were relayed to Hernandez by an ATG employee. Hernandez sued King arguing that he was controlled enough by King to make King liable for an injury but not so much as to confer employer status. The jury awarded over a million dollars in damages specifically finding Hernandez was not serving as King’s employee at the time of the injury. King argues Hernandez was its employee; therefore, the exclusive remedy provisions should bar the negligence suit. The court ruled post-verdict that Hernandez was a King employee and the court of appeals reversed. The contract was not dispositive of the right of control. King did not conclusively establish Hernandez was its borrowed servant. The court writes, “Therefore, the fact that King had the right to control the general timeline and the end goal of the project did not conclusively establish that Hernandez was King’s employee.”

WHAT THIS MEANS FOR YOU: An entity desiring the Exclusive Remedy Bar must present evidence it had the right of control or exercised the right of control over the workers on their day-to-day activities.

• APD 221349

DECISION: A DRIS entry documented the employee contacted DWC to dispute the initial certification. The ALJ relied upon the DRIS entry to establish the employee acknowledged receipt of the first certification of MMI/IR triggering the IW’s obligation to dispute the rating within 90 days. The AP states a DRIS entry is insufficient to establish a report was delivered to the claimant by verifiable means. The Preamble to Rule 130.12 states the 90 day period “begins when that party receives verifiable written notice of the MMI/IR certification.” The Preamble further states, “Written notice is verifiable when it is provided from any source in a manner that reasonably confirms delivery to the party. This may include acknowledged receipt by the injured employee or insurance carrier, a statement of personal delivery, confirmed delivery by e-mail, confirmed delivery by facsimile, or some other confirmed delivery to the home or business address. The goal of this requirement is not to regulate how a system participant makes delivery of a report or other information to another system participant, but to ensure that the system participant filing the report or providing the information has verifiable proof that it was delivered.”

WHAT THIS MEANS FOR YOU: A party wishing to prove written notice is verifiable as it “reasonably confirms delivery to the party” may not rely on a DRIS note documenting the party wishes to dispute the first certification of MMI/IR.

• APD 221345

DECISION: Following the D&O, the IW timely filed with DWC a copy of the D&O and a document titled “You Have the Right to Appeal this Decision.” The AP will liberally construe filings from unrepresented workers to invoke the jurisdiction of the AP. Previously, the AP has accepted simple, written statements that an IW believes the ALJ was wrong or did not agree with the decision. But simply filing copies of DWC-created documents does not “state the grounds upon which review was requested nor indicate disagreement with any portion of the ALJ’s decision.”

WHAT THIS MEANS FOR YOU: The AP will maintain some minimal standards for Requests For Review. 

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.