It is a new year! 2022 was a year of amelioration. BAJB welcomed Mike Donovan, Ken Campbell, Bob Graves, and Lance Mullins as equity/voting partners. BAJB was also fortunate to add LeeAnna Gainer Mask as its newest partner as well as James Brenner, Bridget Chapman, Michelle Dunne, and Elizabeth Boateng as new attorneys. At the end of 2022, one of BAJB’s founding partners, Jeff Jury, retired to pursue a practice in alternative dispute resolution (mediation and arbitration). We are excited about what 2023 may hold.
Regarding Texas workers’ compensation, 2023, will be an interesting year. The Texas Legislature’s 88th regular session began on January 10, 2023. In August of 2022, Jeff Nelson was appointed Commission of Workers’ Compensation and will face his first year and legislative session as Commissioner. The Division of Workers’ Compensation (DWC) is finalizing new rules related to the designated doctor process. COVID-19 continues and there are new interest/discount rates. BAJB also started the year off with arguments before the Texas Supreme Court.
2023 Texas Legislature 88th Regular Session.
The Texas Legislature 88th regular session began on January 10, 2023. November 14, 2022 was the first date of bill filing and March 10, 2023 is the 60-day deadline for bill filing. May 29, 2023 is Sine Die, which is the end of the regular session.
The DWC has made its legislative recommendations and has recommended amending Texas Tax Code section 151.0039(b) to exempt medical examinations and services to determine the appropriate level of benefits under the Texas Workers’ Compensation Act from sales and use tax. This recommendation is based on an October 20, 2022 Texas Comptroller of Public Accounts private ruling letter finding designated doctors were obligated to pay sales tax. The DWC has been working with the Comptroller’s office regarding problems this might cause to the workers’ compensation system. As a result of those discussions, the Comptroller issued a November 10, 2022 memo delaying the implementation of its ruling until after the legislative session in order to allow the Legislature to address the issue.
The Division is also recommending amendments to Texas Labor Code, chapter 410 to provide a public information exception for working papers and electronic communications for administrative law judges and Appeals Panel judges. Texas Government Code section 552.144 already provides similar protections regarding administrative law judges at the State Office of Administrative Hearings (SOAH); however, no such protections currently exist regarding administrative law judges or Appeals Panel judges under the Texas Workers’ Compensation Act.
It is likely that there will also be legislation regarding first responders, including expanding the eligibility of certain benefits and presumption laws as well as broadening the definition of first responders. There will also be discussion regarding the COVID-19 presumption for detention officers, custodial officers, peace officers, firefighters, and EMTs, which is scheduled to expire on September 1, 2023. There will likely to be legislation to address studies or changes to the Division’s medical treatments guidelines and proposals regarding 24-hour coverage policies for work and non-work related injuries. There is also proposed legislation regarding workers’ compensation benefits for active duty National Guard serving on the border.
Commissioner Nelson is the New Commissioner of Workers’ Compensation.
Jeff Nelson was appointed to serve as the Commissioner of Workers’ Compensation in August 2022. Commissioner Nelson has been with DWC since March of 2016. Before being appointed commissioner, he served as the Director of External Relations. As director, he was the primary point of contact for legislative offices and stakeholders and worked to advance DWC’s policies and initiatives. Commissioner Nelson has more than 15 years of public service experience. He previously served as a senior campaign consultant for Congressman Kevin Brady, executive aide to Governor Rick Perry, and as a legislative aide to State Senator Tommy Williams, where he worked on insurance issues involving workers’ compensation and the Texas Windstorm Insurance Association. He is a board member of the Southern Association of Workers’ Compensation Administrators.
New Designated Doctor Rules are on the Horizon.
The DWC is amending the designated doctor rules in an effort to maintain and increase participation in the designated doctor program and to allow better access to certain types of specialized examinations. The DWC evaluated the program and identified several possible areas of improvement, including changes to address training and testing requirements; designated doctor qualifications, certification, and renewals; multiple certifications; and administrative burdens. The proposed amendments are intended to streamline and clarify the designated doctor process, revise training and testing requirements, reduce administrative burdens and update designated doctor qualifications to enable better access to traumatic brain injury and multiple fracture examinations for injured employees. The DWC is also informally proposing updates to three designated doctor forms: Request for Designated Doctor Examination (DWC-32), Designated Doctor Certification Application (DWC-67) and Designated Doctor Examination Data Report (DWC-68).
The proposed rules were published on December 23, 2022, and may be found on the TDI website at https://www.tdi.texas.gov/wc/rules/2022rules.html. System participants may submit formal written comments to the rules no later than 5:00 p.m. on January 30, 2023. Written comments may be submitted to RuleComments@tdi.texas.gov or mailed/delivered to: Legal Services, MC-LS, Texas Department of Insurance, Division of Workers’ Compensation, P.O. Box 12050, Austin, Texas 78711.
DWC will also consider written and oral comments on the proposal at a public hearing at 10 a.m., Central Time, on January 18, 2023. The hearing will take place remotely. DWC will publish details of how to view and participate in the hearing on the agency website at http://www.tdi.texas.gov/alert/event/index.html.
Once the rules are adopted, BAJB will provide CE approved training regarding the new rules, both in-person and virtual. If you are interested in such training, please contact Bob Graves at firstname.lastname@example.org or (512) 338-5322.
The DWC is also working on rules related to reimbursement of designated doctor and similar exams. The DWC is continuing to develop these rules and the informal draft of these rules may be found at https://www.tdi.texas.gov/wc/rules/drafts.html.
Government Code COVID-19 Suspension Lifted.
The suspension of Texas Government Code sections 607.002(1) and (2) due to COVID-19 has been lifted. Section 607.002 provides, in relevant part, that a public safety employee who is exposed to a contagious disease is entitled to reimbursement from the employing governmental entity for reasonable medical expenses incurred in treatment for the prevention of the disease if: (1) the disease is not an “ordinary disease of life” as that term is used in the context of a workers’ compensation claim; and (2) the exposure to the disease occurs during the course of the employment. In order to ensure that public safety employees of governmental entities were able to be reimbursed by their employer for reasonable medical expenses related to COVID-19, Governor Abbott has suspended these sections to the extent necessary to allow public safety employees, who were likely to have been exposed to COVID-19 while in the course of their employment, to be entitled to the reimbursements for medical expenses. The suspension was lifted effective December 21, 2022.
DWC Updated COVID-19 Data Call Results.
In December 2022, the Workers’ Compensation Research & Evaluation Group provided an updated report of the results of the COVID-19 data calls. As of November 6, 2022, insurance carriers reported nearly 95,000 COVID-19 claims and 465 fatalities. Half of these claims (50%) and slightly more than half of the fatalities (55%) involve first responders and correctional officers. Approximately $84.1 million in indemnity benefits and $45 million in medical benefits have been paid in COVID-19 Texas workers’ compensation claims. The Group’s report may be found at https://www.tdi.texas.gov/wc/information/documents/covid19txwc1222.pdf.
New Discount Interest Rates Set.
The DWC has determined that any interest or discount provided for in the Texas Labor Code shall be at the rate of 8.11 percent. The rate is effective January 1, 2023, through March 31, 2023. Information related to the interest or discount rates may be found at https://www.tdi.texas.gov/wc/carrier/disint.html.
BAJB Argues Before the Texas Supreme Court.
On January 11, 2023, BAJB’s David Brenner represented Great Divide Insurance Company in oral arguments before the Supreme Court of Texas in Cause No. 21-1047, Alcus Reshod Fortenberry v. Great Divide Insurance Company. This workers’ compensation case involves unique issues related to the proper venue of a judicial review proceeding involving a professional athlete.
2023 is going to be an exciting year. If we can be of any assistance, please let us know.