D&S Straight Out of CompTown – September 2021

As fall starts, hopefully we will get cooler weather but that does not mean claims are slowing down.

Lunch and Learns – First Come, First Served CEU Credits for All Adjusters

Want Some Credit?  Come and Get It!

As the year is ending, you may have realized you still need some Continuing Education Credits.  Downs & Stanford is here to help you.

We are offering Lunch and Learns for 1-hour credits.  See the first of our series in the list of classes being offered below, and the first 25 adjusters to sign up will be in the course.  Once you have registered, you will be emailed the Zoom link for the 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 8, 2021 from 12:00 P.M. to 1:00 P.M.:  Investigation, Causation, & Claims Handling Strategy Webinar  ( 125384 )

October 15, 2021 from 12:00 P.M. to 1:00 P.M.:  Denials, Documentation, and Deadlines Webinar  ( 125382 )

October 22, 2021 from 12:00 P.M. to 1:00 P.M.:  Calculating Indemnity Benefits Webinar  ( 125381 )

DWC Releases Plan to Conduct Compliance Audits

DWC has finalized its annual Compliance and Investigations’ audit plan. The Texas Labor Code authorizes DWC to conduct performance audits on participants in the Texas workers’ compensation system. This audit plan identifies issues to review during Fiscal Year 2022 and describes the scope and methodology related to each audit type.

For fiscal year (FY) 2022, Compliance and Investigations’ goal is to improve system performance in the following key areas: 

• timely and accurate benefit delivery; 
• timely medical reimbursement; and 
• timely and accurate reporting of electronic data to the Texas Department of Insurance, Division of Workers’ Compensation (DWC).

To obtain this goal, the Division will conduct performance audits on select system participants.  Texas Labor Code Section 402.075 specifically directs DWC to focus its regulatory oversight on insurance carriers and health care providers it identifies as poor performers in the Performance-Based Oversight (PBO) program.   You can find detailed information about PBO at www.tdi.texas.gov/wc/pbo/index.html.

DWC’s Discount Interest Rate Set

DWC announced that any interest or discount provided for in the Texas Labor Code shall be at the rate of 3.57 percent.  The rate is effective October 1, 2021, through December 31, 2021. More information is on the TDI website.

Need Help with Designated Doctors, Peer Reviews, or Required Medical Examinations?  You’ve Come to the Right Place!

Please contact dd-rme@downsstanford.com, and our office will be happy to assist you.

DWC Sets Weekly Benefit Rates for October 1, 2021, to September 30, 2022

DWC announced the state’s average weekly wage at $1,058.38 for dates of injury starting October 1, 2021, through September 30, 2022.  The max Impairment Income Benefit rate is $741.00.  More information on maximum and minimum weekly benefit amounts is on the TDI website.

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

• APD 211091-sr

DECISION: The ALJ found the certifying doctor used the combined values table to combine various lower extremity impairments instead of adding them together based on prior AP precedent. Overturning their previous precedent, the AP held lower extremity IRs are combined, not added.

WHAT THIS MEANS FOR YOU: Educate your doctors who perform IR reviews on this change in policy/interpretation.

• Harris County v. Dogan, __ S.W.3d __, 2021 Tex. App. LEXIS 7666 (Tex. App.—Houston [1st Dist.] Sep. 16, 2021, no pet. hist.)

DECISION: Recognizing a split in authority, the Court found the failure to file the proposed judgment with DWC was both mandatory and jurisdictional. Other Courts have found the provision to file a copy of the proposed judgment with DWC 30 days before entry are not required when the judgment is the result of an adversarial proceeding.

WHAT THIS MEANS FOR YOU: Know your jurisdiction or file the proposed judgment with DWC for 30 days before entry of judgment in all cases.

• E. Tex. Educ. Ins. Ass’n v. Ramirez, __ S.W.3d __, 2021 Tex. App. LEXIS 6876 (Tex. App.—El Paso Aug. 20, 2021, no pet. hist.)

DECISION: IW sustained a severe injury to her left leg resulting in the use of a wheelchair. Over the years, the IW’s left and right legs atrophied. The IW’s “left hip injury and complications therefrom resulted in lengthy immobilization and atrophy in both lower legs to the extent that she is unable to use her feet.” Therefore, she qualifies for LIBs for injuries to both extremities at or below the feet.  

WHAT THIS MEANS FOR YOU: Atrophy is now an injury and can be a basis for LIBs.

• APD 211026

DECISION: The ALJ ruled in favor of the IW, a first responder, who died as a result of COVID-19. The AP reversed because the ALJ did not consider SB22 even though the claim was pending at the time the law went into effect.

WHAT THIS MEANS FOR YOU: SB22 applies to every denied case or cases filed under SB22. There is a question if SB22 applies to accepted claims.  

• Wheeler v. Free, __ S.W.3d __, 2021 Tex. App. LEXIS 7093 (Tex. App.—Eastland Aug. 26, 2021, no pet. hist.)

DECISION: In a vicarious liability case, an employee tried to argue a co-worker was in the course and scope of employment; and therefore, his employer was vicariously liable for a MVA.  The Court held as a matter of law that an employee was not in the course and scope of employment because an “employer’s act of merely paying a travel reimbursement to an employee does not place the employee within the course and scope of employment . . .”

WHAT THIS MEANS FOR YOU: The exclusive remedy defense is both a sword and a shield. Coming and going rule applies even if there is a long distance between the home or remote work site or the employer pays a travel reimbursement.

Do You Have a Longshore Claim and Don’t Know It?

The United States Longshore and Harbor Workers Compensation Act  (USL&H) is a federal workers compensation law that applies to maritime employees who work on or over navigable waters in or adjacent to the United States. The workers subject to this Act might also be eligible for state workers compensation benefits depending upon the individual state law.  There are some states which allow for concurrent or dual jurisdictional benefits (AL, AK, CA, CT, GA, IL, MA, MI, MN, MO, NC, NY, RI, SC, TN, WV, WI.) Meaning an injured employee can seek workers compensation benefits in either or both the federal Longshore Harbor Worker’s Act and the State Worker’s Compensation Act.

You may have a scenario where the Injured Worker could be covered under the Longshore Act if he was working and the injury occurred upon the navigable waters of the United States (including any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employee in loading, unloading, repairing, dismantling, or building a vessel).  

In Longshore Act cases the Courts interpret the phrase “navigable waters of the United States” under the relatively straightforward “navigable in fact” test. That is, is the waterway used, or capable of being used, to carry interstate or international commerce?  You will also want to look at the employee’s job description and a breakdown of what percentage of time he spends on land versus on water.

If you have any general questions regarding Longshore or would like a seminar regarding Longshore Claims, please emailLongshore@downsstanford.com.


Did you know…

In order to recover an indemnity overpayment pursuant to a Designated Doctor’s opinion that was later overturned by a Administrative Law Judge’s Decision and Order, you will need a signed, dated, and complete DWC-3.  A complete DWC-3 means both the pecuniary boxes on the top portion of page 2 of the DWC-3 and the nonpecuniary boxes on the bottom half of page 2 of the DWC-3 need to be completed.  You may want to review the DWC-3s in your files to make sure they comply with this requirement.

Please contact any of our attorneys at Downs & Stanford for assistance with handling a Subsequent Injury Fund request or any other Texas Workers’ Compensation questions.

Downs and Stanford Speakers Around the State

Stuart Colburn and Adrienne Gasser will be presenting Empathy and Texas Workers’ Compensation at Texas’ PRIMA Conference on November 9, 2021, held this year in Galveston, Texas.

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.