We hope you find our March, 2020 Workers’ Compensation Update helpful. If we can answer any questions or provide additional information, please feel free to contact us.
The Texas Department of Insurance published information as resources for Texas workers’ compensation system stakeholders regarding the Coronavirus (COVID-19). The resources include information for employers and health care providers and provides relevant links to the Center for Disease Control and United States Department of Labor (OSHA). This information may be found at https://www.tdi.texas.gov/wc/information/COVID-19.html.
It is likely inevitable that a workers’ compensation claim involving COVID-19 will be made. Under the Texas Workers’ Compensation Act, an “injury” includes an occupational disease. Tex. Lab. Code § 401.011(26). Occupational disease is defined as:
a disease arising out of and in the course of employment that causes damage or harm to the physical structure of the body, including a repetitive trauma injury. The term includes a disease or infection that naturally results from the work-related disease. The term does not include an ordinary disease of life to which the public is exposed outside of employment, unless that disease is an incident to a compensable injury or occupational disease.
As COVID-19 is new and the eventual spread is unknown, it is uncertain as to what extent legal authorities will determine COVID-19 is an ordinary disease of life to which the general public is exposed outside of employment. However, analyzing allegations a disease is related employment can be a complicated endeavor. To be a compensable injury, the employment must be a “producing cause” of the injury or occupational disease. In Transcon. Ins. Co. v. Crump, the Supreme Court held “producing cause in workers’ compensation cases are defined as a substantial factor in bringing about an injury or death, without which the injury or death would not have occurred.” 330 S.W.3d 211 (Tex. 2010). Accordingly, insurance carriers should perform a detailed investigation of any claim associated with COVID-19. Prompt reporting of any exposure to or diagnosis of the virus by the employer to the insurance carrier is essential to the investigation. During the investigation, attention should be paid to understanding the nature of the employee’s job, where and how the exposure occurred, whether the employee’s job placed the employee at a greater risk of contracting the virus than the general public, when the employee became symptomatic and when the employee reported the condition as work-related to the employer. The nature of COVID-19 and the attention and publicity being afforded the virus also raise unique claims handling issues, including reimbursement for proactive testing, and payment of benefits should an employee be instructed to self-quarantine, but has not been diagnosed with the virus. Additionally, there may be significant concerns raised regarding an infected employee’s privacy rights, which should be maintained, as well as coworkers’ and others’ rights to know of possible exposure to the virus. Please contact us if we can provide any assistance in navigating these issues.
Amended Rule 129.5 and Work Status Reports
The Division of Workers’ Compensation amended Rule 129.5, making it consistent with the 2019 amendments to Texas Labor Code Section 408.025(a-1) [Reports and Records Required from Health Care Providers]. Accordingly, both Section 408.025(a-1) and Rule 129.5 now permit treating doctors to delegate to a licensed advanced practice registered nurse the authority to complete and sign a work status report.
Report on Return-to-Work Outcomes
The Research and Evaluation Group released a report addressing return to work (RTW) regarding Texas workers compensation. The report may be found at https://www.tdi.texas.gov/wc/regulation/roc/rtw2020.html. The report addresses RTW findings from 2007 to 2017 and indicates there has been steady improvement in RTW rates for Texas injured employees. In 2017, more than three-fourths of the employees who were injured returned to work within six months and almost nine out of 10 injured employees went back to work within the first year of their injury. The report does note that findings reflect that older employees, employees with more serious injuries and employees in industry sectors relying on heavily manual labor tend to have more lost time than other types of employees. The report concludes this may signal the need for more focus on vocational rehabilitation and retraining options for these employees and increased claim coordination by insurance carriers to aid in the RTW.
Appeals Panel Update
The Division of Workers’ Compensation Appeals Panel issued two decisions in February (Appeal Numbers 192144 & 192264) where the Appeals Panel reversed an Administrative Law Judge’s (ALJ’s) decision regarding maximum medical improvement (MMI) and impairment. The Appeals Panel reversed the ALJ’s decision because the rating adopted by the ALJ did not address all conditions or injuries that were found to be part of the compensable injury. The Appeals Panel remanded the cases back to the ALJ, instructing the ALJ to obtain an opinion from the designated doctor addressing all of the compensable conditions. These decisions reiterate the legal requirement that certifications of MMI and impairment, including certifications that an employee is not at MMI, must be based on, and include, the compensable conditions and not include conditions that are not part of the compensable injury.