State News : Texas

The Division is accepting public comment on revisions to the DWC-48, the form used to request travel reimbursement from Carriers for certain travel expenses to attend a DD exam, RME, post-DD RME, or  for travel expenses incurred for medical treatment not reasonably available within 30 miles if the distance traveled is greater than 30 miles one way. These revisions update the format and style for consistency with other Division forms, and add an “FAQ” to provide additional information about travel reimbursement.  The form also provides a section for the Carrier to respond to the request, indicating approval, denial, or partial denial of the claim.  A response is due within 45 days of receipt, pursuant to Rule 134.110.  If the Carrier denies or partially denies the request, the Carrier must provide a plain language explanation to the injured employee, explaining the reasons for the denial or partial denial, without “unnecessary use of technical terms, acronyms, and/or abbreviations.”  The form includes a notice to the Claimant stating that he/she may request a BRC to dispute denials or partial denials.

Revisions to the DWC-48 would incorporate amendments to 28 TAC §134.110(a), effective March 30, 2014. 

The revised form is currently available on the Texas Department of Insurance website at http://www.tdi.texas.gov/wc/rules/drafts.html.  The public comment period closes June 1, 2015  at 5:00 p.m., and public comments may be submitted by email: InformalRuleComments@tdi.texas.gov

On May 3, 2015, the U.S. Food and Drug Administration announced the filing of a consent decree against Medtronic, Inc. for repeatedly failing to correct violations related to the manufacture of Synchromed II Implantable Infusion Pump Systems.   The consent decree cites violations of the quality system regulation for medical devices, and requires the company to stop manufacturing, designing, and distributing new Synchromed II Implantable Infusion Pump Systems except in very limited cases.  The consent decree also requires Medtronic to retain a third-party expert to help develop and submit plans to the FDA to correct violations. 

The FDA first identified problems with the manufacture of these pumps in 2006, including over-infusion,  under-infusion, and delays in therapy for patients.  The FDA issued three warning letters notifying the company of major violations, including inadequate processes for identifying, investigating, and correcting quality problems, failure to document design changes, and failure to ensure the finished products met design specifications.

The agency notes that patients who are implanted with a Synchromed II Implantable Infusion Pump System should maintain regular follow-up appointments with their physicians, and should contact their physician immediately if they experience a change or return of symptoms, or hear a device alarm.

The Division recently updated the DWC Form-042 (Beneficiary Claim for Death Benefits) to include a notice in Spanish providing instruction on how to contact DWC regarding questions about the form or claims and how to locate the Spanish version of the DWC Form-042 on the Texas Department of Insurance website.  Due to this revision, Carriers will need to update any automated notification systems currently in place, as well as any additional communication notices sent to potential claim beneficiaries, to reflect this change.

On May 22, 2015, Governor Abbott signed Senate Bill 901, which amends Texas Labor Code Section 408.103 to reflect that an employee receives 75% (versus 70%) of the difference between his post-injury earnings and his average weekly wage if the employee is making less than $10 per hour.  (Previously, an injured employee was entitled to 75% of the difference between his post-injury earnings and his AWW if making less than $8.50 per hour.)  This change is effective for dates of injury on or after September 1, 2015.  

 New Division Rule 131.1 and Form PLN-04 become effective June 1, 2015.   The new Rule requires Carriers to review a Claimant’s eligibility for lifetime income benefits (LIBs) in a timely fashion, including when a Claimant requests LIBs, and review all of the statutory criteria for determining entitlement.  The new Rule also outlines the time frames for determining LIBs eligibility in situations where a Claimant requests LIBs in writing, as well as the time frames for the payment of LIBs after the Carrier reasonably believes the Claimant is eligible for LIBs.  The Carrier shall either initiate LIBs or deny the Claimant’s eligibility for LIBs within 60 days from the receipt of the injured employee’s written request.  In addition, Carriers must initiate payment of LIBs without a final decision, order, or other action of the commissioner if a Claimant meets the eligibility criteria for LIBs listed under Section 408.161 of the Texas Labor Code as a result of the compensable injury.  The Division noted in the rule adoption preamble that the initiation of LIBs without a final decision, order, or other action of the commissioner does not waive the Carrier’s right to contest the compensability of the claim in accordance with Texas Labor Code Section 409.021. The first payment of LIBs must be issued on or before the 15th day after the date the Carrier reasonably believes that the Claimant is eligible for LIBs. 

Beginning June 1, 2015, Carriers must also use the new, June 2015 version of the Form PLN-04 (Notice Regarding Eligibility for Lifetime Income Benefits) to advise Claimants whether the Carrier is initiating LIBs or denying LIBs eligibility.  If the Carrier denies LIBs eligibility, the Carrier must do so within 60 days’ receipt of the Claimant’s written request by sending the PLN-04 to Claimant, the Claimant’s attorney (if any), and the Division, providing a full and complete explanation of the reasons for the denial.  Carriers are reminded that the statement must contain sufficient claim-specific substantive information to enable the injured employee to understand the insurance carrier’s position or action taken on the claim, and to explain the reasons for disputing the issue in plain language without unnecessary use of technical terms, acronyms, and/or abbreviations.  Denials should be based on the information the Carrier has obtained or verified.  A Claimant may contest the Carrier’s denial by requesting a BRC.

Carriers may use only the Form PLN-04 for initiating or denying LIBs, as provided under Rule 124.2(e)(1) and 131.1(d).  Claimants requesting LIBs are not required to use a particular form; any manner of written request for LIBs by Claimant is permitted.   A Carrier’s failure to respond to a Claimant’s request for LIBs within 60 days from the receipt of the written request does not constitute a waiver of the Carrier’s right to dispute eligibility to LIBs.  

New Rule 131.1 does not limit the Carrier’s duty to initiate LIBs on or before the 15th day after the date the Carrier reasonably believes that the Claimant is eligible for LIBs as a result of the compensable injury. For example, if a Carrier receives a written request for LIBs, and then five days later has a reasonable belief that the Claimant is entitled to LIBs, Rule 131.1 requires the Carrier to initiate payment of LIBs within 15 days.  In other words, the deadline to initiate LIBs is not extended to the 60th day after receipt of Claimant’s written request. 

Note that the new Rule retains the Labor Code §408.161’s statutory eligibility requirements for LIBs.  

Additional information relating to the PLN-04 is available in the instructions on the form, and in the Division’s memo dated February 19, 2015. 

A claimant’s testimony that pain caused by his compensable injury led to his resignation is sufficient to support disability, but only up until such time as the claimant retains new employment earning at least as much as his preinjury wage. APD 141958, decided November 24, 2014.

The Appeals Panel has authority to recalculate an impairment rating based on the figures provided by the certifying doctor in order to correct a mathematical error. APD 141980, decided November 10, 2014.

Where a Hearing Officer finds a Designated Doctor’s certification of MMI/IR is contrary to the preponderance of the evidence based on a misinterpretation of the Designated Doctor’s opinion, the Appeals Panel will remand the issue if there is more than one certification in the record that could be adopted.  APD 141917, decided November 4, 2014.

A Claimant can show good cause for failing to appear at a CCH, even after the 10 day period, if they also have good cause for failing to respond to the 10-day letter. APD 141918, decided November 3, 2014.

A finding that lumbar radiculitis is part of the compensable injury requires expert medical evidence explaining how the mechanism of injury caused that condition. APD 141973, decided November 3, 2014.

This is good news, except it is a shame you have to go to court to get an agreement like this.  In this case, the Division appealed an agreed judgment entered by a trial court where the claimant and the carrier agreed to a reduced payment in amount less than the full amount of SIBs would have been. The Division claimed that the Labor Code is clear on this point, and SIBs can only be paid in the full amount or not at all. The Dallas Court of Appeals rejected all of the Division’s arguments and held that, while neither the Division nor the court could award partial SIBs, nothing prevented the parties from settling to an agreed partial amount.  Tex. Dept. of Ins, Div. of Workers’ Comp. v. Jones, 2014 WL 5768728 (Tex. App.–Dallas 2014, no pet. h.) (mem. op.).

Circumstantial evidence is enough to support a claim for retaliatory discharge. The claimant reported a work injury and was terminated after presenting a doctor’s note keeping him off work. He then brought suit against his employer alleging that he was terminated in retaliation for filing a workers’ compensation claim.   A claim for retaliatory discharge requires that filing a workers’ compensation claim isa reason, but not necessarily the only reason, that the employee was terminated. The burden is on the employee to show the causal connection, the burden then shifts to the employer to show that there was a legitimate reason for the termination, and if it does so the burden then shifts back to the employee to show that the reason was a mere pretext. The Austin Court of Appeals reversed and remanded a summary judgment in favor of the employer because the employer’s stated reason, that the employee was unable to perform his job, was not a nondiscriminatory reason as a matter of law where there was not a uniformly applied termination policy.Phillips v. SACHEM, Inc., 2014 WL  7464035 (Tex. App.–Austin 2014, no pet.).

An injured worker brought extra-contractual claims against her worker’s compensation carrier after the Division held that her injury was compensable.  She claimed damages from misrepresentations under the Insurance Code and unconscionability under the DTPA.  The San Antonio Court of Appeals held that a denial of compensability or payment does not constitute an actionable misrepresentation of the policy, even when later reversed by the DWC. Questions that deal with whether a claim falls within the scope of coverage is not an interpretation of the policy. The court also held that an alleged failure to investigate a claim does not defeat the Supreme Court’sRuttiger holding. In other words, “the sole remedy against [the carrier] for failing to timely pay benefits to [the claimant] is under the Workers’ Compensation Act.”  Vause v. Liberty Mutual Ins. Corp., 2014 WL 6687598 (Tex. App.–San Antonio 2014, no pet.).

Anybody remember Blazing Saddles? The Court will hear argument from Seabright Insurance Company that section 401.011(12) of the Labor Code, regarding course and scope of employment, is ambiguous.  A worker was driving other employees in a company truck from a hotel paid for by the company to a jobsite when the truck was struck by a semi, leading to his death.  Seabright denied the beneficiary’s claim for death benefits because the worker was traveling at the time of the accident and was thus not in the course and scope of employment. In its attempt to avoid paying death benefits to the deceased worker’s beneficiary, Seabright argues thatLeordeanu v. American  Protection  Insurance  Company  has  led  to  confusion  over  section 401.011(12) among Texas’ appellate courts. The Court will determine if the ‘but for’ test is appropriate in this situation; that is, but for his employment, the deceased worker would not have been in the situation that led to his death.  The case isSeabright Insurance Company v. Maxima Lopez, appealed from the Fourth Court of Appeals, Cause No. 01-12-00863-CV and the 229th District Court of Starr County, Cause No. DC-08-484.