D&S Straight Out of CompTown – October 2024

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 2 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).

Don’t delay!  Email us today at CE@downsstanford.com.

November 8, 2024 – Fun with Forms – How To Use (Some) of Texas Workers’ Compensation Forms with Stuart Colburn and Chris Esson

December 13, 2024 – Fall Appeals Panel Decisions and Case Law with Chris Losey and Pamela Pierce


DWC HAPPENINGS

YOUR MONTHLY LOOK AT WHAT IS HAPPENING AT THE DIVISION AND HOW IT IMPACTS CARRIERS

The DWC recently released their network “report card” via the Workers’ Compensation Research and Evaluation Group.  As in past years, networks seem to have lower overall health care costs per claim than non-network claims at 6 months and 12 months maturity.  They have lower average professional and pharmacy costs, but higher hospital costs than non-network claims.  This is also seen in the higher percentage of network claims receiving professional services than non-network claims, and non-network claims had a higher percentage of hospital services.  Employee satisfaction appears to be higher with network over non-network claims, and network claims had a higher return to work rate than non-network claims.

DWC has also revised the DWC-1 (first report of injury), DWC-2 (employer’s report for reimbursement of voluntary payment), and DWC-6 (supplemental report of injury).  These revisions were made to conform to the agency’s push to utilize “plain language” on their forms as much as possible.  These forms are found on the TDI website, and will go into effect on 1/20/25.

A recent disciplinary order addressed a common issue seen by Carriers in the workers’ compensation system—health care providers directly billing claimants when they know there is a workers’ compensation claim.  In that case US Acute Care Solutions treated a workers’ compensation claimant, knowing that the services were for a work related injury.  In spite of that, they directly billed the claimant.  Even after promising the DWC that it would not happen again, they were still fined $3000.  Priority Health & Wellness in Pearland, Texas was also cited by the DWC and fined $3500, in this instance for failing to timely reimburse the Carrier for inappropriate charges and then failing to provide documentation to the DWC.  It is nice to see that even occasionally DWC disciplinary actions target other entities besides Carriers.


COMPLIANCE AND INVESTIGATION CORNER

There has been recent confusion whether Rule 130.8 requires a carrier to initiate payment within 5 days of receiving the Maximum Medical Improvement (“MMI”) and Impairment Rating (“IR”) evaluations that are not disputed and received from the treating doctor’s referral doctor and not the treating doctor as stated in Rule 130.8(b).  In looking at the Impairment Income Benefits chapter of the rules, there is a prior rule, Rule 130.2, which addresses certification of MMI and IR from the treating doctor.  In Rule 130.2(a)(1), the use of a referral doctor by the treating doctor to determine MMI and IR is discussed and authorized.  After making it clear that treating doctors can use referral doctors to evaluate MMI and IR, Rule 130.2, in referring to a referral doctor’s report, states the referral doctor’s report and “evaluation shall be considered to be the report of the treating doctor.”  This language would appear to make it clear that Rule 130.8(b) would then include both treating doctors’ and referral doctors’ reports and evaluations.  Certainly, this is the position taken by Compliance & Investigations when a referral doctor’s report and evaluation of MMI and IR is received by a Carrier and payment is not initiated within 5 days.  Further failure to initiate payment of impairment income benefits timely can result in a violation and administrative penalty.


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

• APD 241147

DECISION: The ALJ described a MOI of walking down a ramp and falling backward landing on pliers that were in worker’s back pocket. The worker pointed out his MOI was sanding an aircraft and injuring his left shoulder. The ALJ’s description of the MOI is a material error requiring reversal of the extent of the injury findings against him.

WHAT THIS MEANS FOR YOU: Even ALJs make cut-and-paste errors.

• APD 241035

DECISION: The D&O included “erupted” teeth numbers 9, 10, 23, 24, and 25 as stipulated by the parties. In fact, only numbers 9, 23, and 24 were properly stipulated to by the parties.  The AP reformed the D&O to exclude the improperly added teeth.

WHAT THIS MEANS FOR YOU: Read the D&O carefully upon receipt.

•  Old Republic Ins. Co. v. Morris, __ S.W.3d __, 2024 Tex. App. LEXIS 7066 (Tex. App.—Tyler Sep. 30, 2024, no pet. h.)

DECISION: A jury found the employer’s responsibility offset (ERO) was 65%. In a case of first impression (and 17 days after oral arguments), the court held the ERO does not apply to pre-judgement settlements. As to the one party that went to trial, the court determined the maximum amount they could have received is $33,967.20.

WHAT THIS MEANS FOR YOU: You can’t settle with all but one defendant before trial, go to court and have the jury award 65% fault at the employer, and apply the ERO to the pretrial settlements.


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.