August 2021 | Newsletter from Shanley Price
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Greetings from Shanley Price!
Well, it’s hard to believe that August is already upon us and that summer is nearing a close. While it certainly doesn’t feel like this is so, especially in terms of the temperature outside, the end of summer camp, conclusion of summer vacations, and the emergence of back-to-school commercials would tend to indicate otherwise. Although summer is nearing a close, we at Shanley Price are looking forward to in-person CCHs (which resume on August 2nd) and getting back to a more normal hearings process, including the elimination of technical problems associated with Zoom hearings, the preservation of a clear hearings record, and the ability to cross-examine witnesses face-to-face. It’s about time!
Here’s what else you need to know this month in the world of Texas Workers’ Compensation.
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 Clinton Battle, MD to Pay $376K in Restitution for Defrauding Texas Workers’ Compensation Carriers
As you may recall, Clinton Battle, MD and two members of his team at Arlington Occupational and Medical Clinic were indicted for drug crimes and fraud. On July 22, 2021, Dr. Battle plead guilty to mail fraud conspiracy in federal court and will pay $376,368.00 in restitution. Dr. Battle plead guilty to defrauding the federal workers’ compensation program and Texas workers’ compensation insurance carriers and admitted to submitting fraudulent bills for physical therapy, office exams, and functional capacity evaluations for a period of five years starting in 2012. As a result of his guilty plea, Battle will be excluded from federal health care and workers’ compensation programs, which will eliminate his ability to be paid for services he provides or prescribes. In 2017, the Texas Department of Insurance, Division of Workers’ Compensation (DWC) decided Battle would no longer be allowed to treat patients in the Texas’ workers’ compensation system.
Earlier in July, a federal jury found Battle guilty of drug crimes including distribution of controlled substances. Throughout the course of the five-year conspiracy, Dr. Battle issued more than 50,000 controlled substance prescriptions, 17,000 of which were for the powerful opioid hydrocodone. Dr. Battle faces up to 15 years in prison and will be sentenced on October 8, 2021.
Copyright 2021, Shanley Price, LLP
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 Texas Expands Medical Marijuana Provisions
The Texas legislature passed a bill that would expand the Compassionate Use Act, which allows for the use of low-THC cannabis products to be prescribed for certain conditions. Texas House Bill 1535 expanded eligibility for the program to include people with non-terminal cancer (previously, only terminal cancer patients were eligible) and post-traumatic stress disorder (PTSD). However, the Texas Senate deleted the provision that would have allowed individuals with chronic pain to be prescribed marijuana. The bill also increased the amount of THC that can be prescribed from 0.5% to 1%.
The expanded program has the potential to affect the compensability of claims in Texas Workers’ Compensation. The Texas Workers’ Compensation Act provides that a carrier is not liable for compensation if the employee is injured while in a state of intoxication. However, what happens if THC shows up on the employee’s drug screen, but the employee was “prescribed” marijuana? Could the claim be compensable? The injury would not be compensable if the employee was “impaired” at the time of the incident. This of course would be a question of fact.
What about the Carrier’s liability for prescription of medicinal marijuana under the Compassionate Use Act? For example, if the employee’s injury includes one of the covered conditions, such as PTSD, is the Carrier liable for a THC product prescribed by the Claimant’s treating doctor for this condition? Not likely. Medical marijuana is still a highly contested issue and its effectiveness when used in treatment is still unknown. Marijuana is not a recommended treatment, for any injury, under the ODG (the treatment guideline mandated by TDI-DWC). And marijuana/THC products are not included in the DWC’s drug formulary. At the very least, medical marijuana would require preauthorization via utilization review.
Copyright 2021, Shanley Price, LLP
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 New Legislation Allows First Responders Paid Time Off for Quarantine
The First Responder COVID-19 presumption established by S.B. 22 was not the only bill passed providing extra protection for eligible first responders who are dealing with COVID-19. H.B. 2073 provides that peace officers, detentions officers, EMTs, and professional firefighters are to be placed on paid leave by the political subdivision that employs them if they are ordered to quarantine/isolate due to a possible or known on-duty exposure to a communicable disease.
If an eligible first responder is required to quarantine due to COVID-19 exposure, the political subdivision must provide all employee benefits and compensation, as well as cover any costs specifically related to quarantine (including lodging, medical, and transportation costs). The political subdivision cannot reduce a paid leave balance (e.g. PTO or sick leave) for the quarantine.
The bill is beneficial to workers’ compensation carriers who insure political subdivisions in that it provides that the political subdivision is responsible for benefits while eligible first responders are in quarantine. However, should the first responder test positive for COVID-19, then the carrier could become liable for benefits if it is determined that the first responder contracted COVID-19 in the line of duty, especially in light of the new presumption of compensability established by S.B. 22.
Copyright 2021, Shanley Price, LLP
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 Remote Work: Compensability Considerations
The threat of COVID-19 is fading in the U.S., and we are slowly returning to “normal.” However, the pandemic will likely have a lasting effect on all of us, including the way we work. Many employees, and employers, have embraced remote work and it will likely continue in the future. A survey by Mercer in the summer of 2020 showed that 90% of U.S. employers felt that their employees’ productivity did not suffer with the transition to remote work and, in some cases, improved. Mercer’s research shows that one in three companies anticipate half or more of their employees to work remotely post-pandemic.
While remote work is positive in many ways and allows flexibility for many employees, remote work does have a few challenges, including injuries occurring in the employee’s home. Fewer than half of all employees working from home have dedicated home office space. A survey of Americans working from home in May and June 2020 also showed that 40% of workers reported new or increased shoulder, back, and wrist pain since beginning to work from home. The reported injuries also line up with pre-pandemic work-from-home injuries, which primarily consisted of repetitive stress injuries, slips and falls, and mental health issues.
Employers expecting large portions of their workforce to remain remote post-pandemic should develop clear policies and agreements that outline their expectations for such employees. This starts by defining the working hours of telecommuting employees (especially if they have flexible schedules), outlining productivity expectations, and clarifying how their output will be monitored.
In terms of determining compensability, the adjuster will need to investigate the claim by requesting a copy of the employer's remote work policy as well as details regarding the employee’s specific schedule. The adjuster will want to investigate if the injury occurred at a time the employee would normally be working; e.g., what activity the employee was engaged in when they were injured? Was another person (or pet) involved that is not an instrumentality of the employee's work? All of these factors are relevant to a determination on the issue of compensability.
If you receive a report of an injury involving a remote employee and have any questions regarding best practices for processing the claim, please contact a Shanley Price attorney.
Copyright 2021, Shanley Price, LLP
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 Texas Appeals Panel Update
An update on what the Appeals Panel has been doing in the previous month.
The Texas DWC Appeals Panel issued several decisions in June and July, many of which dealt with procedural/technicality issues, including proper page count of exhibits and providing the name and physical address of the carrier’s registered agent. Appeal Panel No. 210736, decided June 30, 2021; Appeal Panel No. 210679, decided July 8, 2021. In remanding some of these claims, the Appeals Panel reversed and remanded all of the issues since the Appeals Panel is only allowed one remand. Appeal Panel No. 210679, decided July 8, 2021.
Other issues included whether the ALJ made proper Findings of Fact to support the decision. For example, the Appeals Panel reversed and remanded one ALJ’s determination on disability because the ALJ failed to make a specific Findings of Fact regarding disability. Appeal Panel No. 210738, decided July 8, 2021. The Appeals Panel also remanded a case with instructions that the ALJ apply the correct legal standard when determining extent of injury when an “intervening injury” is involved, noting that the carrier is required to prove the intervening injury is the “sole cause” of the disputed condition. Appeal Panel No. 210736, decided June 30, 2021.
The Appeals Panel affirmed in part and reversed in part an ALJ’s decision regarding disability, noting that Rule 124.3, which provides that a carrier must file a PLN-1 Notice of Denial within 15 days of receiving the claim or be liable for any benefits accrued, does not apply to disputes of disability or extent of injury filed on a PLN-11. While the Appeals Panel affirmed the ALJ’s determination regarding disability, it reversed the ALJ’s determination regarding the carrier’s liability for paying accrued benefits due to its failure to dispute disability within 15 days of receiving notice of the injury. Appeal Panel No. 210517, decided June 3, 2021.
The Appeals Panel reversed and remanded the ALJ’s determinations on extent of injury, MMI, IR, and disability because it felt the ALJ misinterpreted the extent of injury opinion issued by the designated doctor. The ALJ found that the injury did not include the disputed shoulder issues, noting that the designated doctor’s extent of injury opinion was not consistent with the description of the injury event. Specifically, the designated doctor noted that the disputed shoulder conditions could be caused by repetitive trauma or a lifting and throwing motion. However, the designated doctor determined that the disputed issues were caused by the work-related injury even though the injury did not involve a lifting or throwing mechanism of injury. The Appeals Panel reversed the ALJ’s decision, noting that the ALJ relied on language contained in the designated doctor’s general explanation section rather than in the specific sections regarding causation. In the section regarding the claimant’s specific injury, the designated doctor opined that the mechanism of injury caused the disputed conditions and should be given the proper consideration. Appeal Panel No. 210651, decided June 23, 2021.
The Appeals Panel reversed and remanded a case regarding compensability and the intoxication presumption. The presumption provides that an employee is presumed to be intoxicated (relieving the carrier of liability from compensation) if there is a blood test or urinalysis showing that the injured worker tested positive for an illegal substance. The medical records documented that the injured worker had a urinalysis on the date of injury that was positive for marijuana. Specifically, the hospital records documented that a urine drug screen was positive for cannabis. Yet, the ALJ did not apply the presumption because the space for verification of results as “negative, positive, or refusal to test” on the form was blank. The ALJ viewed the blank space as “some evidence” that a drug test was not completed. He also noted that no drug screen report or lab test results were provided as evidence and found that there was no evidence that the injured employee voluntarily introduced marijuana into his body based on a urinalysis as required by the Act. However, the Appeals Panel held that medical records reflecting that a urinalysis was performed on the date of injury and that the injured employee tested positive for marijuana was sufficient evidence to require application of the intoxication presumption. Appeal Panel No. 210714, decided June 30, 2021.
Copyright 2021, Shanley Price, LLP
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 Texas DWC Adopts Forms Related to First Responder COVID-19 Presumption
Under the First Responder COVID-19 presumption established by S.B. 22, certain first responders who filed a claim between March 13, 2020 (the date the governor declared the COVID-19 disaster) and June 14, 2021 (the effective date of the bill), and whose claim was denied, are entitled to request reprocessing of their claims under the new presumption. The Division has adopted a new PLN carriers must use when reprocessing these claims: the PLN-15 (Notice of Request to Reprocess a SARS-CoV-2 or COVID-19 Claim Subject to Texas Government Code Section 607.0545). Carriers are required the use the forms beginning July 19, 2021.
The Division also adopted a “Sample Request to Reprocess COVID-19 Claim Subject to Texas Government Code §607.0545” that injured employees or beneficiaries may use when they request to have their claims reprocessed under the new COVID-19 presumption. However, use of the Sample Request to Reprocess Form is not mandatory; rather, a claimant or beneficiary may request reprocessing of their claim in any written manner.
Finally, the Division updated the font type and instructions on the PLN-14 (Notice of Continuing Investigation) to show that the notice applies to certain claims subject to S.B. 22. The PLN-14 is to be used by a Carrier to notify an injured employee and DWC that the carrier still needs to investigate whether the claim qualifies for a statutory presumption under the Government Code and whether the carrier is going to pay benefits for the claim. Carriers must use the new adopted PLN-14 by October 18, 2021.
If you have any questions related to proper use of these new forms, or regarding reprocessing of a first responder’s claim under the new COVID-19 presumption, please contact a Shanley Price attorney.
Copyright 2021, Shanley Price, LLP
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 Texas DWC Adopts Forms Related to Changes in the BRC Procedure
Previously, the Texas Labor Code provided that Benefit Review Conferences (BRCs) are to be held in person. Since March 2020, however, BRCs and Contested Case Hearings (CCHs) have been held by Zoom video-teleconference due to the COVID-19 pandemic. H.B. 1752 changes the procedure for conducting BRCs and allows the DWC to conduct all BRCs by video conference or by phone on a permanent basis, unless there is “good cause” for an in-person BRC.
The Division adopted revisions to PLNs 1 through 13 as well as the BRC Request forms (DWC-45 (Request to Schedule, Reschedule, or Cancel a BRC), DWC-45M (Request to Schedule, Reschedule, or Cancel a BRC to Appeal a Medical Fee Dispute Decision) to reflect the changes adopted by H.B. 1752. The forms were amended to remove reference to mandatory in-person BRCs.
H.B. 1752 made no similar changes to revise the process for CCHs, which, unlike the new BRC process mandated by H.B. 1752, will continue to be held in-person. In-person CCHs will resume on August 2, 2021.
Copyright 2021, Shanley Price, LLP
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 In Good Form
A regular feature highlighting one DWC form or PLN per month; including its purpose, potential pitfalls, and tips for using it correctly and properly.
As anyone familiar with workers’ compensation in Texas will know, forms are a very important component to adjusting claims. Every month we will be focusing on a specific form, be it a DWC form, a Plain Language Notice (PLN), a general notice form, or other form used in the context of workers’ compensation.
Last month we discussed the DWC-51 (Employee’s Election for Commuted (Lump Sum) Impairment Income Benefits). This month we are going to discuss the DWC-46 (Employee’s Request for Acceleration of Impairment Income Benefits).
Section 408.129 of the Texas Labor Code allows for accelerated payment of impairment income benefits (IIBs) under circumstances of hardship, and if the acceleration is in the best interest of the injured employee. Similar to a commuted payment, an accelerated payment results in a lump sum payment to the Claimant. However, the Appeals Panel has noted that, while both provide statutory provisions provide for a “lump sum” payment of IIBs, the two forms offer different results and careful consideration as to which form should be used is necessary.
If the injured employee is requesting an acceleration of IIBs due to a hardship, then the employee would submit a DWC-46 requesting the acceleration to the Division (as opposed to the carrier). The Division reviews the application to determine whether to accept or deny the request. If the request is approved, the Division will notify the carrier of the amount and number of accelerated payments that are to be made.
Once notified by the Division, the carrier must then issue the accelerated payment within 7 days of receiving notice. The accelerated payment will reduce the number of weeks the injured employee will receive IIBs (e.g. 10 weeks instead of 15 weeks). However, an acceleration does not reduce the impairment period for purposes of the date that the injured employee’s eligibility for Supplemental Income Benefits (SIBs) begins. Therefore, the injured employee could experience a gap in income benefits if IIBs are accelerated when he/she is also eligible for SIBs.
If you receive a notice from the Division providing for an accelerated IIBs payment and have questions regarding how to adjust the injured worker’s benefits, please contact a Shanley Price attorney.
Copyright 2021, Shanley Price, LLP
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 Comp SPeak Claims Management Tip
of the Month
Tools for the claims management trade.
This month’s Claims Management Tip ties in with the above article addressing a claimant’s request to accelerate IIBs. As noted above, if a claimant applies for and accepts an accelerated IIBs payment, he remains eligible for further income benefits (including SIBs), but the impairment period is not accelerated.
Remember, a claimant who wants to request an acceleration of IIBs must submit a DWC-46 form to the Division. However, if the claimant instead wishes to commute his IIBs, then he would need to file a DWC-51
with the carrier. If the adjuster receives either form, she should contact the injured worker and determine what type of lump sum he is seeking. If the claimant is seeking an acceleration, the adjuster may want to discuss whether the claimant instead wishes to commute his/her IIBs. In addition, the adjuster may want to advise the claimant of the possibility that (in the case of an acceleration of IIBs) he could be without benefits payments for several weeks and could experience a gap in his income benefits payments.
If you have any questions regarding best practices for responding to an injured employee’s request for accelerated or commuted IIBs, please contact a Shanley Price attorney.
Copyright 2021, Shanley Price, LLP
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 Erin Shanley to Speak at State Bar Advanced Workers Compensation Conference
Shanley Price’s own Erin Shanley will speak at the 18th Annual Advanced Workers Compensation Law Conference, which is sponsored by the Texas State Bar and will take place virtually on August 26 and 27, 2021. Erin will provide a “2021 Legislative Update” to course attendees, explaining new legislation adopted during the 87th Legislative Session having a direct impact Texas workers’ compensation, as well as new legislation that may have an indirect impact. The Course is Cosponsored by the Workers’ Compensation Law Section of the State Bar of Texas, and attendees will include Carrier attorneys, Claimant attorneys, Administrative Law Judges, Benefit Review Officers, ombudsmen with the Office of Injured Employee Counsel, and other system participants.
For more information, please visit TexasBarCLE.com.
Copyright 2021, Shanley Price, LLP
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