D&S Straight Out of CompTown – January 2021

What’s New in Texas Workers’ Compensation?  Plenty!

2020 — What a year.  It gave us a pandemic, face masks, social distancing, and many changes to Texas Workers’ Compensation.  For most of us, it was changing our work style from the office to home and dealing with work life and home life at the same time.  The Division’s Dispute Resolution Process changed from in-person hearings to Zoom Teleconferences. Now that we are in the new year, let’s take a look at what we may anticipate in 2021.

When is COVID-19 a Compensable Occupational Disease?

Our office receives daily calls asking whether specific facts give rise to a compensable claim for COVID-19 exposure. Many contend it is an undisputed fact that a claim for COVID-19 is never compensable because it is an ordinary disease of life. Others argue for certain professions, it is a compensable occupational disease. Some are concerned that even if a denial is valid and likely would be upheld by a trier of fact, the social/political ramifications are not worth asserting a denial.

COVID-19 is now a daily occurrence. While we may not fully understand the disease, we all talk about it, know someone who has had it and sadly, may know someone who has perished from it. In fact, the CDC and WHO provide ever-evolving information, numbers, and projections of COVID’s reach. As of January 19, 2021, the WHO reported there have been 93,956,883 confirmed cases of COVID-19 globally, including 2,029,084 deaths. The confirmed number of Texas cases, as of January 19, 2021 is between 1.8 million and 2.14 million (according to different sources). The numbers are staggering and unprecedented. The position that COVID-19 is an ordinary disease of life is certainly valid and a basis to dispute compensability. But is it always a winnable position? Let’s venture down that rabbit hole…<<Read More>>

Decisions, Decisions, and More Decisions
The Most Current AP Cases that You Need to Know

APD 201642, 2020 TX Wrk. Comp. LEXIS 55
DECISION: The ALJ held the IW did not suffer disability because the employer paid full wages while the IW was off work for his injuries. IWs suffer disability when the compensable injury is a producing cause of the inability to perform personal services in exchange for pay. Disability is distinct from payment of TIBs. TIBs are due when the IW suffers disability and is calculated by subtracting Post-Injury Earnings (PIE) from the Preinjury AWW (AWW-PIE). In this case, the IW suffered disability since he did not perform personal services in exchange for pay; but he would not have been eligible for TIBS since his PIE was equal to his AWW.

What this means for you: Salary continuation may affect payment of TIBs, but not the finding of disability, including the calculation of the accrual date. A carrier’s failure to properly count a day of disability even when the employer continues to pay full salary could expose the carrier to sanctions. Carriers may also wish to include as an issue for the CCH the proper payment of TIBs when the employer pays full salary. 

APD 201505, 2020 TX Wrk. Comp. LEXIS 51 
DECISION: The employer provided an apartment to the IW free of rent. But the employer’s policy limited the apartment to employees only–no family members. During the 13 weeks prior to the injury, the IW voluntarily chose to move as he had custody of his minor child. The ALJ excluded the value of the employer-provided nonpecuniary benefits because the IW chose to move out. The Appeals Panel held the reason the non-pecuniary benefits were stopped is immaterial. 

What this means for you: AWW includes the market value of ALL nonpecuniary benefits for the weeks such benefits were provided during the 13 weeks prior to the DOI. 

APD 201401, 2020 TX Wrk. Comp. LEXIS 53
DECISION: The IW was present for the BRC but not the CCH. The ALJ sent the 10-Day Letter to an address different than the address found in the DWC records. The IW made factual allegations that, if true, could constitute good cause for the IW’s failure to attend the CCH requiring reversal.

What this means for you: Everyone makes mistakes; even DWC. Because addresses and phone numbers can be wrong, parties should timely follow-up with DWC if they believe DWC should have taken some action by a date certain.

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