October 2021 | Newsletter from Shanley Price
|
|
Greetings from Shanley Price!
October brings crisp, cool nights and Halloween frights. There isn’t anything too spooky in this month’s Comp SPeak, but we do have some treats for you: the inside scoop on proposed amendments to the new BRC rule, some new Appeals Panel decisions, and a handy chart outlining the new maximum and minimum benefits rates. And be sure to check out our tips for limiting claim exposure in our Comp SPeak Claims Management Tip of the Month!
Wishing you a spooky good October and a fang-tastic Halloween!
|
|
 Proposed Amendments to DWC Rules
The Division of Workers’ Compensation is accepting public comments on proposed revisions to DWC Rule 141.1. The purpose of the revision is to conform the methods of conducting a Benefit Review Conference (BRC) to newly-amended Texas Labor Code §410.005. As you may recall, in the 87th Regular Legislative Session, the Legislature amended that section of the Texas Workers’ Compensation Act to require all BRCs to be conducted either by video conference or by phone on a permanent basis, unless there is “good cause” for an in-person BRC.
The proposed changes would amend DWC Rule 141.1(j) to: (1) add videoconference as a way DWC can conduct a BRC, and (2) provide that DWC will hold a BRC in person if a requesting party shows good cause for conducting the BRC in person. To date, the DWC has provided no guidance as to what will be considered “good cause” for holding an in-person BRC. In addition, as currently drafted, the proposed rule would provide that an in-person BRC only be held within 75 miles of the Claimant’s residence while a remote BRC could be handled by any Field Office.
The proposed rule was published in the September 17, 2021, issue of the Texas Register and is available on the TDI website at www.tdi.texas.gov/wc/rules/2021rules.html. You may submit suggestions or written comments on proposed Rule 141.1 to RuleComments@tdi.texas.gov. The deadline to submit suggestions or comments is October 22, 2021.
DWC is also asking for input from stakeholders on rule amendments DWC should consider during the interim between legislative sessions. If you have a suggestion, complete the template and email it to RuleComments@tdi.texas.gov by Friday, October 22, 2021.
Copyright 2021, Shanley Price, LLP
|
|
 New Weekly Benefits Minimums and Maximums Set
The DWC has set the state’s average weekly wage at $1,058.38 for dates of injury starting 10/01/21 through 9/30/22. Based on the new state average weekly wage, the new weekly maximum/minimum benefits rates for 10/01/21-9/30/22 dates of injury are:
If you have any questions related to the maximum or minimum benefits rate, please contact a Shanley Price attorney.
Copyright 2021, Shanley Price, LLP
|
|
 DWC Sets New Discount/Interest Rate
DWC has set new discount and interest rates, applicable to any interest or discount provided for in the Texas Labor Code. The new discount rate and interest rate, effective 10/01/21 through 12/31/21, will be 3.57 percent.
The interest rate applies to late or delayed payments and the discounted rate applies to commuted payments of death benefits to the Subsequent Injury Fund (SIF) and discounts for present payment of accelerated IIBs payment ordered by the DWC. The DWC determines the interest or discount rates provided for in the Texas Workers’ Compensation Act on a quarterly basis.
Copyright 2021, Shanley Price, LLP
|
|
 Texas Appeals Panel Update
An update on what the Appeals Panel has been doing in the previous month.
IR Calculations Addressed by AP
The Appeals Panel issued two new decisions in July addressing errors in the certification of impairment ratings. In Appeals Panel No. 210693, decided July 15, 2021, the Appeals Panel reversed and rendered the ALJ’s decision regarding the correct IR. The ALJ had adopted the DD’s certification that Claimant reached MMI on 09/21/20 with a 23% IR. However, on review, the Appeals Panel determined that the DD had erred when combining the whole person impairments of the body parts of the lower extremity. The DD incorrectly included in his calculation of the combined value of the lower extremity by including 1% impairment for the ankle rather than the 4% impairment he certified for the ankle. Correcting this error, yielded a correct whole person IR of 26% rather than 23% certified by the DD. See Appeals Panel No. 210693, decided July 15, 2021. In another decision, the Appeals Panel corrected an impairment rating when the DD mistakenly indicated that 40° of radial abduction in the thumb resulted in 0% impairment, instead of 1% impairment, as shown in Table 6, page 3/28 of the AMA Guides, 4th Edition, to arrive at the impairment for the left thumb. Therefore, the corrected IR was 9% rather than 8%. See Appeal No. 210690, decided July 15, 2021.
Another Look at the First Responder COVID-19 Presumption
The Appeals Panel continues to provide guidance on the application of the presumption of compensability of COVID-19 for certain first responders outlined in Senate Bill 22 and codified at Texas Government Code Sec. 607.0545(a). This new presumption, provides, in pertinent part, that a peace officer who suffers from COVID-19 resulting in death or total or partial disability is presumed to have contracted the virus or disease during the course and scope of employment as a peace officer if the peace officer is: (1) employed in the area designated in a disaster declaration by the governor under Section 418.014 of the Government Code or another law and the disaster is related to COVID-19; and (2) contracts the disease during the disaster declared by the governor described above. The governor declared a state of disaster in Texas due to COVID-19 on March 13, 2020. Senate Bill 22 became effective on 06/14/21, and applied to COVID-19 claims for benefit made on or after the date the date of the Governor’s disaster order. At a CCH held on May 12, 2021, the parties argued about the applicability of the presumption of compensability for first responders provided in Texas Government Code Section 607.054. to a case of COVID-19. This presumption, which predates the COVID-19 pandemic, applies to a first responder who “suffers from tuberculosis, or any other disease or illness of the lungs or respiratory tract that has a statistically positive correlation with service as a firefighter, peace officer, or emergency medical technician, that results in death or total or partial disability.” During the hearing, the Claimant raised the COVID-19 compensability presumption established by Senate Bill 22 but was not aware of whether the bill had become effective. The ALJ determined that there was no statistical correlation between COVID-19 and the first responder’s employment, therefore, the presumption in Texas Government Code Section 607.054 did not apply.
The Appeals Panel reversed and remanded the decision. The Panel noted that the ALJ was correct that the presumption in Texas Government Code Section 607.054 did not apply to this case, but for a different reason. That is, the SB 22 specifically states that Section 607.045 does not apply to a COVID-19 case. However, the SB 22 COVID-19 presumption is available on this claim because the “claim was pending” at the time SB 22 went into effect. Because the COVID-19 presumption is rebuttable, the case was remanded to the ALJ for further proceedings. See Appeal No. 211005, decided August 25, 2021.
Copyright 2021, Shanley Price, LLP
|
|
 DWC Hosts Insurance Carrier Quarterly Meeting
The DWC will hold its quarterly meeting for insurance carriers on 10/14/21 via Zoom. The quarterly meeting will be held from 1:30 to 3:00 p.m. Issues impacting the Texas workers’ compensation system will be discussed, including issues impacting medical benefits, compliance and investigation, forms, DD operations, EDI and Rule status, new legislation, litigation, and hearings.
The meeting agenda and Zoom information are posted here.
Copyright 2021, Shanley Price, LLP
|
|
 Commissioner Cassie Brown Takes on New Role as Commissioner of Insurance
Cassie Brown, Commissioner of Workers’ Compensation since June 2018, has been appointed as Commissioner of Insurance. Governor Greg Abbott appointed Ms. Brown for a term set to expire on February 1, 2023. Prior to serving as Texas Workers’ Compensation Commissioner, Ms. Brown served as TDI’s Deputy Commissioner for Regulatory Policy.
Gov. Abbott will need to appoint a new Commissioner of Workers’ Compensation; as of today’s date, there has been no announcement on who that will be.
Our congratulations go out to Commissioner Brown, and we wish her well in the new role.
Copyright 2021, Shanley Price, LLP
|
|
 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.
This month’s form of the month is the DWC-24 Benefit Dispute Agreement. The form is used to reduce an agreement to writing when the parties to a disputed issue or issues reach an agreement to resolve one or more disputes. The form sets out each individual issue, with the corresponding Division “issue code,” and the parties’ agreement or “Resolution” on each issue.
The DWC-24 must be signed by the carrier and the claimant, and must be approved and signed by an authorized DWC employee before it is effective and binding. The DWC designated staff member (e.g. Benefit Review Officer or Administrative Law Judge) will review the proposed agreement to ensure it complies with the Texas Labor Code, DWC Rules, and “Division policy” prior to signing and approving the agreement.
The agreement is effective and binding on the parties the date it is signed by the designated Division staff member. Unless the agreement shows a specific compliance date, the carrier must comply with the agreement within five days’ receipt of the approved agreement.
Copyright 2021, Shanley Price, LLP
|
|
 Comp SPeak Claims Management Tip
of the Month
Tools for the claims management trade.
This month’s Claims Management Tip of the Month ties in with the above discussion related to DWC-24 Benefit Dispute Agreement. Unlike other jurisdictions, claims in Texas may not be “settled” (i.e., parties may not agree to resolve all issues in a claim, nor may they agree to limit or terminate a claimant’s right to lifetime medical benefits). However, the parties may enter an agreement on specific elements of a claim, such as the existence or non-existence of disability for an accrued period, the extent of the claimant’s injury, the date of maximum medical improvement (MMI), or the impairment rating (IR). Therefore, while it’s not possible to agree that the Carrier is no longer liable for the claim, it is possible to enter an agreement that the Carrier is not liable for certain aspects of the claim.
For example, the parties may agree that the injury does not include specific diagnoses other than sprains/strains to the affected body parts, thereby significantly limiting liability for medical benefits after a specific time duration and/or after all ODG-recommended treatment modalities have been completed. The parties may also agree to a specific date of MMI and/or IR, which achieves resolution of indemnity benefits exposure. Therefore, while a claim cannot technically be closed out in its entirety, a DWC-24 Benefit Dispute Agreement can essentially achieve the same effect.
If you have any questions related to use of the DWC-24 Benefit Dispute Agreement as a tool to limit exposure in a specific claim, please contact a Shanley Price attorney.
Copyright 2021, Shanley Price, LLP
|
|
|
|
|
