State News : Texas

NWCDN is a network of law firms dedicated to protecting employers in workers’ compensation claims.


NWCDN Members regularly post articles and summary judgements in workers’ compensations law in your state.  


Select a state from the dropdown menu below to scroll through the state specific archives for updates and opinions on various workers’ compensation laws in your state.


Contact information for NWCDN members is also located on the state specific links in the event you have additional questions or your company is seeking a workers’ compensation lawyer in your state.


Texas

STONE LOUGHLIN & SWANSON, LLP

  Our Website

  512-343-1300

  512-343-1385

Some Substance Over Forms


Speaking of DWC-73s, the Division is considering a change to its Work Status Reports and is inviting feedback from system participants until March 4, 2022. (Comments can be submitted at RuleComments@tdi.texas.gov or by mail to Legal Services, MC-LS, Texas Department of Insurance, Division of Workers’ Compensation, P. O. Box 12050, Austin, TX 78711.) The planned change would require health care providers to identify an injured employee’s job classification if work restrictions are to be imposed. The revised forms are available on TDI’s website. 

While we’re on the topic of form changes, the Division has adopted its revised DWC Form-007. Regrettably, the form does not grant one entry into Her Majesty’s Secret Service, but instead allows non-subscribing employers to report work injuries and occupational diseases.  

We here at the Comp-endium are all about segues, so here’s another: Texas employers who do not provide workers’ compensation coverage (the aforementioned non-subscribers), must file DWC Form-005, the Employer Notice of No Coverage or Termination of Coverage, which notifies the Division that the employer has either opted out of providing work comp coverage, or else that coverage has expired. The form must be filed annually between February 1 and April 30.  

Plain Language Notices are changing, too. A revised PLN-08 (Notice of Change of Amount of Indemnity Benefit Payment) will come with an instruction to file the new PLN-10B when lump sum payments are issued. The PLN-10B (Notice of Lump Sum Payment of Income or Death Benefits) requires insurers to notify injured employees or their beneficiaries when a lump sum payment is made. The erstwhile PLN-10 will be rechristened as the PLN-10A.  

But wait, there’s more!  Not to be outdone, the former PLN-02 (Notice of First Temporary Income Benefit) will also henceforth be known as PLN-02A following the creation of PLN-02B, Notice of First Payment of Income Benefits on an Acquired Claim. This new form (because, really, can we ever have enough forms?) will alert injured workers when a new claims administrator begins issuing benefit payments.  

From PB & J to PBO


On February 16, 2022, TDI released the results from its 2021 Health Care Provider Performance-Based Oversight (PBO), which evaluated medical providers’ responsiveness in two areas: timeliness of filing DWC Form-069 Reports of Medical Evaluation, and completeness of DWC Form-73 Work Status Reports.  

Of the 96 providers assessed for the former category, 66 were placed in the high performer category, indicating a timely filing of DWC-69 certifications of maximum medical improvement and impairment rating.  The remaining providers split equally into the average and poor performer groups, with 15 apiece.  

For the completeness of DWC-73 work status reports, 45 of the 91 reviewed medical providers were high performers, 38 were deemed average, and only 8 were found deficient. 

TDI posted these findings on its website with the courtesy warning that all health care providers, whether reviewed in this data or not, are required to comply with the Texas Labor Code and DWC rules regarding prompt and complete issuance of DWC forms.

The DWC will also evaluate insurance carriers sometime in 2022.

Focus Locus


The Division of Workers’ Compensation is convening its Designated Doctor Program Focus Group on March 10, 2022, between 9:00 and 10:00 a.m.  Those interested in attending may access the meeting via Zoom with meeting ID 968 9261 8132. Stakeholders are invited to raise ideas and concerns on the topic designated doctor billing and reimbursement.

The topic could not be timelier.  In recent months, system participants have noticed a marked uptick in the rate at which designated doctor exams are being rescheduled. When that occurs, parties (but perhaps not the DWC) receive notice from the designated doctor’s office of the need to reschedule the exam.  The reason most often cited is a “scheduling conflict,” but without any further information.  

Reasons for this noticeable increase in rescheduled exams may be the ever-dwindling number of available designated doctors. According to data accumulated by the Texas Department of Insurance, the ratio of medical doctors to chiropractors on the available designated doctor list has held steady: since February 2020 (the earliest month made available by TDI’s ‘Designated Doctors and Appointments by County and Month’ chart), medical doctors have consistently comprised between 25 and 26% of the available designated doctors in Texas.  Adding doctors of osteopathy to that number raises the percentage of availability to 29%, again, a consistent figure of the past two years.  

However, the alarming data involve the overall number of medical doctors, doctors of osteopathy, and chiropractors in the Texas work comp system. That number has decreased proportionately for each of the three aforementioned groups, falling from 376 in February 2020 to just 265 as of January 2022. As a point of reference, in September 2012 there were 1,247 designated doctors appeared on the list.  

The precipitous drop in the number of available designated doctors means that each remaining physician is called upon to examine injured workers far more frequently. Combining the increasing demand on their time with the stagnant rate of reimbursement for the assignments has led to something of a mass exodus from the system, a trend that may not slow or reverse as long as remuneration rates remain fixed, low, and out of synch with the changing costs of living.  

Or, as one designated doctor pleaded in a cover letter accompanying a recent reimbursement bill: “I am really good with peanut butter and jelly sandwiches, but I am tired of them!”

Tibial-Industrial Menace: What is Behind the Rising Tide of Injuries Affecting America’s Stock Photo Construction Workers?


We at SLS have noticed an emerging trend that has gone vastly unreported elsewhere: something is injuring America’s stock photo construction workers at an alarming rate. These injuries appear to affect the tibia (shin bone) of said fictional workers to a disproportionately high degree. Whether it is a workers’ compensation seminar brochure, a personal injury attorney’s homepage, or a state agency’s work comp website, rampant shin-related injuries are plaguing stock photo actors at unprecedented levels.  And while occasionally warehouse workers and semi-professional athletes suffer similar injuries, the greatest percentage of afflicted phony employees can undoubtedly be found in the construction sector.

Stock photo tibia injury can be identified by the following signs: a hard-hatted employee, in either the seated or prone position, will be splayed out on the floor, with both hands clutching the leg at the purported injury site.  




Frequently, a grimace accompanies the injury, which is also typified by the conspicuous absence of blood.






The most serious stock photo shin injuries give rise to immediate onset of existential dread.



Proper first-aid for stock photo shin injuries involves inviting a co-worker over to examine the wound, of which there will be none.  




Together, they roll up the pant leg of the distressed worker to ensure, once again, that there is neither a visible wound nor any other indication that anything injurious has just occurred.  




While the cause of Stock Photo Shin Injury is currently unknown, evidence suggests a common factor may be close proximity to ladders.








“Apparently, none of these stock photo construction workers bothered to watch ‘Stepladder Safety'," commented a representative from The American Ladder Institute.  

Kids' Chance of Texas Golfing Fundraiser




Everybody knows that SLS is a proud sponsor of Kids’ Chance of Texas.  We even went so far as to send a team of marginally experienced golfers to the October 28th fundraiser at the Dallas Cowboy Club in Dallas. Jane Stone with SLS and her husband, along with IMO’s Catherine Benavidez and her husband, made it all the way through 18 holes. The event raised over $100,000, ensuring Kids’ Chance’s ability to support even more children in 2022!  Save the date for next year’s event on October 28, 2022!

DWC Shows HCPs Some Love and a Friendly Reminder

 
In January, the DWC announced new training opportunities for health care providers and their medical staff who participate in the workers’ compensation system.  The Division’s on-demand training topics for HCPs include reimbursement policies and methodologies and billing and reimbursement for DDs, RMEs and other MMI/IR providers. The DWC also announced upcoming HCP Lunchtime Webinars.  February topics include Medical Fee Dispute Resolution and The Preauthorization Process: Utilization Review and Medical Necessity.  

You can take a look at the on-demand training topics here
 
Fun Fact:  No where in any of the DWC materials is there a provision for a designated doctor to seek reimbursement for a no-show appointment.  If you are seeing bills for claimant’s failing to attend a DD examination – you should not be!
 
The Division reminded HCPs that they need to disclose their financial interests (and those of their immediately family members) in imaging centers, physical therapy and work hardening clinics and other facilities if they refer patients to those facilities.  The reason for such disclosure – reducing the likelihood of HCPs making unnecessary referrals in order to pad their own wallets. 
 

Lonely Hearts' Club


Blame it on supply chain issues, COVID or Zoom BRCs, but we recently ran into one of the saddest things we have seen lately.  The winner of the Lonely Hearts’ Award February 2022 is this lonely vending machine in the corridor of the Lubbock Field Office of the DWC.
 

A Time for Love and A Time for Audit


Carriers:  It’s that time again.  Every two years, the DWC audits insurance carriers through PBO.  The majority of the audit focuses on timely payment of TIBs and processing of initial medical bills. Other measures include timely processing of requests for reconsideration of medical bills and timely submission of EDI data for initial payments and medical bill processing. The relevant time frame for the audit: 1/1/22 through 6/30/22. You can get more information here. 

HCPs: The DWC announced its approval of the 2022 Medical Quality Review audit this month. This year, the audit will focus on the reasonableness of return-to-work decisions and recordkeeping and the use and effectiveness of spinal cord stimulators.

We gave you a sneak peak of the proposed Shoulder Surgery Plan-Based Audit in our November newsletter. On 1/13/22, the DWC announced that audit plan was approved. It will be interesting to see if the audit results in a curtailing of distal clavicle resections in routine shoulder surgery as those procedures can, without careful monitoring and/or litigation, result in significantly higher impairment ratings for shoulder injuries.
 

 


Who Doesn't LOVE Safety?


The Division recently announced its 2022 Safety Pro Seminars.  New safety professionals and coordinators can enjoy free online courses in Safety and Health Program Development and Recordkeeping beginning in February.  

More information is available here.

Exclusive Love


On 1/25/22, in Reyes v. Lubrizol Corp., the Texas 14th Court of Appeals upheld an exclusive remedy defense asserted by a property owner in a lawsuit filed by a welder who alleged he suffered injuries as a result of the negligence of two employees.  The court addressed “the nuanced but not uncommon situation where a non-employer secures - by written agreement - workers’ compensation employer’s status over the employees of others.”  The court held that it was proper for the trial court to grant summary judgment dismissing the complaint made by the welder asserting the exclusive remedy. This was a classic scenario where a general contractor entered into a written agreement to provide workers’ compensation insurance coverage to the subcontractor and its employee. That agreement made the general contractor the employer for purposes of workers’ compensation law and, by extension, covered the actions of the subcontractor’s employees under the exclusive remedy provision of the Workers’ Compensation Act. See the entire opinion here.
 

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