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 11, 2024 – Compliance and Investigations with John Fundis and Wendy Schrock
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 has released a proposed research agenda for the Workers’ Compensation Research and Evaluation Group, and this provides a roadmap of where the DWC wants to go, policy wise, in the next few years. At the top of the agenda is a study to evaluate the feasibility and impact of adopting a more current version of the AMA Guides, to be done along with the Medical Quality Review Panel. They also want to have an update on medical costs and utilization in the workers’ compensation system. Finally, WCREG is going to undertake an analysis of designated doctors and scheduling companies in the system by evaluating their performance using the metrics such as rescheduled exams, timeliness of reports, and timeliness of payments.
Please put on your calendars the upcoming Texas Workers’ Comp Conference, which will be held virtually for the first time, on October 22-23. The agenda lists sessions on the use of AI in the workers’ compensation system, a legislative and case law update, EDI 3.1, sessions on fraud, as well as a session on everyone’s favorite topic, calculating Average Weekly Wage. On day two of this virtual conference, Stuart Colburn of Downs & Stanford will be heading up a session regarding the current trends in workers’ compensation.
In a somewhat related note, the DWC has finally decided to launch a Texas Comp Update, with the goal of fostering communication and collaboration within the Workers’ Compensation community. This can be found athttps://tdi.texas.gov/wc/dwc/documents/texas-comp-update-fall24.pdf
A most recent look at disciplinary action by the DWC reveals that the DWC actually sanctioned an attorney in the system. This attorney represented a claimant in a SIBs case, and submitted a very high attorney fee request, which was initially granted by the DWC. The carrier disputed this, and ultimately a CCH Order was issued requiring this attorney to reimburse the carrier for a portion of these fees. In this instance, however, the attorney ultimately waited 1857 days after the CCH to fully reimburse the carrier! Not surprisingly, the DWC did not take kindly to such a delay in failing to comply with a DWC Order, and said attorney was fined $10,000 and ordered to take 6 hours of ethics in workers’ compensation in the next 6 months.
Finally, as of October 1, 2024, the Division lowered the interest rate from 8.57% to 7.46%. Also, for dates of injury on or after October 1, 2024, the State’s Maximum and Minimum Rates can be found here: https://www.tdi.texas.gov/wc/employee/maxminbens.html.
COMPLIANCE AND INVESTIGATION CORNER
Lifetime Income Benefits (“LIBs”) are unique. Remember LIBs are paid at 75% of the employee’s average weekly wage, subject to the maximum weekly benefits amount, and increased 3% each year, which is not subject to the maximum weekly benefits amount. LIBs are the only income benefit that increase on a yearly basis. It is important to keep this in mind because it is a violation to not pay LIBs accurately. Pursuant to Rule 131.1(a) and (c), a carrier must initiate the payment of LIBs without a final decision or order from the commissioner if the employee is eligible. The first payment of LIBs must be made on or before the 15th day after the date the carrier reasonably believes the injured employee is eligible. A carrier violates Tex. Labor Code Sections 409.023 and 415.002(a)(16), (20), and (22) when it fails to pay accurate and timely LIBs.
Decisions, Decisions, and More Decisions
Current Cases that You Need to Know
• APD 240974
DECISION: A high wage earner returned to work. For two weeks of a disability period, the evidence showed the IW did not earn her full pre-injury wages. Thus, the ALJ’s statement that the IW earned her preinjury wage is a material error. The AP reversed for the ALJ to determine if the compensable injury is the cause of the IW’s failure to earn preinjury wages.
WHAT THIS MEANS FOR YOU: For each week, TIBs are owed if (1) the AWW is greater than post-injury earnings (lost wages), (2) the injury is the cause of the lost wages, and (3) the claimant has not reached MMI.
• APD 240805
DECISION: The adopted IR rated conditions (lumbar radiculopathy) the parties stipulated as not related. No other certifications rated the compensable injury and only the compensable injury.
WHAT THIS MEANS FOR YOU: Rate only the compensable injury.
• In re Prentis, __ S.W.3d __, 2024 Tex. App. LEXIS 5988 (Tex. App.—Houston [1st Dist.] Aug. 20, 2024, no pet. h.)
DECISION: The IW was driving in a company vehicle when involved in an MVA. Instead of pursuing a WC claim, the worker filed a negligence suit arguing course and scope is an issue “hotly contested” and a trial court must first make that decision. The trial court denied the MSJ on the affirmative defense of the exclusive remedy or the plea to the jurisdiction based on DWC having exclusive jurisdiction. The appellate court held the DWC has exclusive jurisdiction, and the IW must first exhaust his administrative remedies. The court acknowledged a sister court (the 13th District) arrived at a different conclusion but nevertheless abated this action.
WHAT THIS MEANS FOR YOU: IW may not circumvent DWC and file negligence actions in district court (unless you are in the 13th District).
• Lane v. Odle, Inc., __ S.W.3d __, 2024 Tex. App. LEXIS 6155 (Tex. App.—Fort Worth Aug. 22, 2024, no pet. h.)
DECISION: The worker sued for negligence arguing the employer was a non-subscriber because the workers’ compensation policy in evidence was never approved by TDI, the insurance company was allegedly not approved to write insurance in Texas, and the employer failed to file the correct forms that it was a subscriber to WC. The policy provision was an all-states coverage of a policy that applied to forty states. The Texas location was listed in the policy and the employer was correctly listed as an additional insured. The worker received Texas WC benefits. The worker responded to the MSJ based on the exclusive remedy affirmative defense and alleged there was no evidence the WC policy was approved by TDI nor had the employer provided the required notice to DWC that it was a subscriber to Texas WC. Neither failure was an element to the affirmative defense of exclusive remedy. Failure to follow some procedures may have opened the carrier and the employer to possible administrative remedies, but such does not waive the exclusive remedy affirmative defense.
WHAT THIS MEANS FOR YOU: Multi-state employers may want to make sure the appropriate Texas forms are on file with DWC to save litigation costs.
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.