D&S Straight Out of CompTown – October 2023


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.

October 27, 2023 from 12:00 P.M. to 1:00 P.M.:  Compensability, Defenses, and Deadlines Webinar with Wendy Schrock and Rynn Freiling

November 17, 2023 from 12:00 P.M. to 1:00 P.M.:  Interpreting Common Orthopedic and Neurologic Tests Webinar with Pamela Peavy Pierce and Wendy Schrock

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



The DWC’s Insurance Carrier Quarterly meeting was held on September 20, 2023, and it summarized the recent activity of their Compliance and Investigations department.  From January through September 2023, the DWC received over 1,330 complaints, with the vast majority involving communication issues, indemnity benefit delivery and medical benefit delivery. Of those complaints, 841 were against Carriers, 264 against health care providers, 131 against Employers, 72 against attorneys, and just 12 complaints against claimants.  So far this year, the Division has received 900 fraud referrals, and has referred just two of those for prosecution.  Lastly, the Division signaled to Carriers that the main violation they need to watch out for right now is failure to timely comply with a CCH Decision and Order.

In other news from the quarterly meeting, it was pointed out that the system currently has just 274 approved Designated Doctors on the DD List, and 78 are either MDs or DOs, and the rest are chiropractors.  Additionally, EDI 3.1 was implemented on July 26, 2023, and EDI staff are monitoring PLN-1s, PLN-11s and PLN-14s for required reports.  Because of this, new implementation EDI scorecards are currently delayed.

Please note that it is that time of year when the DWC updates the state Average Weekly Wage (“AWW”), and along with that, the weekly minimum and maximum income benefit rates.  For the time period from October 1, 2023 to September 30, 2024, the state AWW is $1,173.81.  The max TIBs rate is now $1,174 (an increase of $62/week from last year), and interesting enough, this is over 20% higher than just five years ago. The max IIB/SIBs rate is now $822 (an increase of $44/week from last year).  The state minimum TIBs and IIBs rate is now $176/week.


It’s time to revisit payment of interest.  During a recent encounter with the Division of Workers’ Compensation (“DWC”), we were told that interest is a “hot-button” (their word not ours) issue right now. 

Per DWC, they are finding that Carriers are not paying interest when due on accrued but unpaid benefits.  Anytime an income benefit is paid late, it must be paid with interest.  A payment on income benefits is late if the payment is not made timely per the week or month of benefits being paid.  This means that even if a payment of income benefits is paid timely pursuant to a Decision and Order, Benefit Dispute Agreement, Interlocutory Order, or Designated Doctor’s opinion, if the payment is not timely for the week being paid, it must be accompanied with interest. 

DWC Compliance will not consider a late income benefit payment as completed until the benefit is paid along with interest.  This means that even if a weekly benefit is only a few days late, but interest is not paid for a longer period of time, Compliance with consider the weekly benefit not paid until the interest is paid.  This can cause an impact on monetary penalties.  And just like income benefits, any medical benefits not paid by the 60th day after receipt by the Carrier must be paid with interest.  So, remember interest is considered an important component of the benefit payment scheme and must be paid to bring late payments into compliance.

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

• APD 230904

DECISION:  The DD made multiple mistakes calculating ROM impairment for bilateral upper extremities (UE).  First, when calculating an IR for bilateral shoulders, the doctor calculated the whole person IR for each shoulder on a separate chart and then combines the percents for each limb (not combine the two UE impairments to arrive at the whole body IR).  Second, the doctor did not convert the ROM into the correct IR.  Third, the doctor did not explain where he obtained all the ROM measurements.  For the left shoulder, the certifying doctor properly used the ROM measurements from another doctor and converted the measurements into the correct whole person IR.  But for the right shoulder, the certifying doctor chose to use a different doctor’s measurements.  The AP could not find a report from any doctor that recorded the same ROM measurements the DD used.

WHAT THIS MEANS FOR YOU:  Certifying doctors must clearly explain the origins of the ROM measurements they use and bilateral UE impairments are calculated separately as whole person (not regional) impairments before using the combine values table.

• APD 230893

DECISION:  At the CCH, the parties agreed to amend the extent of the injury issue. But the D&O did not address the new conditions added at the CCH. The AP reversed as incomplete and remanded.

WHAT THIS MEANS FOR YOU:  Parties should ensure the D&O addressed the amended issues and not the issues certified on the BRO report.

• APD 230890

DECISION:  The certifying doctor rated a total shoulder implant arthroplasty. But the operative report in evidence did not reflect the IW underwent a total shoulder arthroplasty but instead had a hemiarthroplasty. Thus, the certification was unadoptable.

WHAT THIS MEANS FOR YOU:  A hemiarthroscopy is not a total shoulder implant arthroplasty for purposes of calculating an IR.

• APD 230873

DECISION: At a second CCH, the ALJ denied the request to add extent of the injury issues the IW argues the IC was not disputing for the first time. That motion was denied even though the issue was MMI/IR.  Thus, the AP is effectively holding that extent is not a threshold issue.  The IW underwent a third shoulder injury after statutory MMI.  The DD refused to use the ROM measurements after the SMMI date and after the surgery because the ROM measurements were much worse than they were during the previous exam.  The AP once again “noted that the question regarding the date of MMI was not whether the claimant actually recovered or improved during the period at issue, but whether based upon reasonable medical probability, material recovery or lasting improvement could not reasonable be anticipated.”  The DD erred by considering whether the IW actually recovered or improved between his prior examination and the right shoulder surgery.

WHAT THIS MEANS FOR YOU: Reasonable anticipation trumps actual recovery when calculating an MMI date.

• APD 230841

DECISION:  At the CCH, the parties agreed to amend the disability issue. But the D&O did not address the new periods of claimed disability added at the CCH.  The AP reversed as incomplete and remanded.

WHAT THIS MEANS FOR YOU:  Parties should ensure the D&O addressed the amended issues and not the issues certified on the BRO report.

• APD 231080

DECISION:  The carrier used a chiropractor as an RME. The ALJ rejected the chiropractor’s RME’s opinion on PTSD because Rule 127.130(a) requires the DD must be a licensed MD or DO to determine injuries and diagnoses relating to mental and behavioral disorders.  But that section only applies to DDs, not other doctors.  The ALJ was free to accept or reject the chiropractor RME’s opinion, the ALJ cannot exclude the opinion on that basis.

WHAT THIS MEANS FOR YOU: Any doctor can give an opinion on mental or behavioral disorders; but the DD must be an MD or DO.

• APD 231028

DECISION: The certifying doctor used ROM from a PT note.  But the PT note was not in evidence. And the certifying doctor switched internal and external rotation measurements and IR calculation.  The AP reversed so the DD could address the internal inconsistencies and ostensibly to provide the PT notes from which the ROM measurements were taken.

WHAT THIS MEANS FOR YOU:  Find and place into evidence all ROM worksheets/calculations when the certifying doctor relies upon measurements from another HCP.

• APD 230988

DECISION:  The IW received treatment from the subclaimant for a right wrist infection that was stipulated to be compensable.  The IW also received treatment for an unrelated medical condition.  The ALJ found no specific treatment was provided by the subclaimant.  Based on the stipulation, the AP reversed the finding that the IW was at least in part hospitalized and received treatment for the compensable right wrist infection.

WHAT THIS MEANS FOR YOU:  Stipulations can control the outcome.

• APD 230950

DECISION:  The ALJ failed to make a finding on all of the extent of injury conditions (depression) that were reported out of the BRC.  So, the AP remanded for findings on depression.

WHAT THIS MEANS FOR YOU:  Make sure the D&O determines all conditions that were certified in the disputed extent of injury issue.

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.