As we continue to acclimate and adapt to the continuing measures being implemented to address COVID-19, we are providing this update to keep you informed regarding the impact on the Texas workers’ compensation system.
Division of Workers’ Compensation Precautionary Measures for Coronavirus (COVID-19)
As a result of COVID-19, the Division of Workers’ Compensation (DWC) has taken the following steps regarding operations:
Benefit Dispute Process
The Division has implemented the following changes regarding the benefit dispute process:
- Benefit Review Conferences: As of Monday, March 16, 2020, DWC will hold Benefit Review Conferences by telephone. DWC staff will contact parties to provide details.
- Contested Case Hearings: Contested Case Hearings (CCH) scheduled for March 16-27, 2020, will be rescheduled. Beginning March 30, 2020, CCHs will resume and be conducted by telephone. Parties should send exhibits they will offer into evidence to DWC and other parties at least three business days prior to the scheduled CCH. DWC encourages parties to use encrypted email or fax when exchanging evidence.
The Division has implemented the following changes regarding the designated doctor process:
- Designated Doctors Scheduling: Designated doctors should inform DWC if they decline an appointment offer as a precautionary measure related to COVID-19.
- Injured Employees: To reschedule a designated doctor exam, contact the designated doctor listed on the appointment notice.
- Testing: DWC’s designated doctor and MMI/IR certification testing vendor, PSI, has instituted enhanced procedures and test center closures in certain areas. Please visit the PSI website to find out more.
Injured employees may receive telemedicine and telehealth services in the Texas workers’ compensation system regardless of geographic location. TDI has provided additional information regarding telemedicine on its website.
Carriers Austin Representative Boxes
The carrier boxes at the Austin Metro office remain in use. Safety precautions, including disinfectant and strict use of the glass barrier, will be utilized.
First Report of Injury
When reporting a claim, DWC requests that carriers clearly specify if a claim involves COVID19. This can be done in the incident description field on the first report of injury (Box 20 on the DWC-1). This will help DWC monitor the impact of this event.
DWC has provided the following contact information for inquiries:
Health care providers: firstname.lastname@example.org, 800-252-7031, Option 3
Employers: email@example.com, 800-687-7080, 512-804-4600 in Austin
Media inquiries: DWCCommunications@tdi.texas.gov
Injured employees: 800-252-7031, Option 1
To report a safety or health hazard: firstname.lastname@example.org, 800-452-9595
All other inquiries: DWCExternalRelations@tdi.texas.gov
Texas Courts respond to the Coronavirus (COVID-19)
By emergency order, the Texas Supreme Court has stayed limitations, jury trials and scheduling orders until May 8, 2020. The order may be extended beyond May 8, 2020, if necessary. The order may be found at http://www.txcourts.gov/media/court-procedures-for-the-2019-novel-coronavirus-covid-19/.
Generally, most Texas courts are conducting necessary, non-emergency, hearings by telephone or video conferencing. However, most hearings and depositions are temporarily postponed. The following is a link of court closures across Texas: http://www.txcourts.gov/programs-services/court-security/emergency-court-preparedness/closures/
[Repost from earlier update]
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.
Measures taken by BAJB
Our hearts go out to the individuals, businesses and communities that have been affected by COVID-19. In response to the increasing number of cases and uncertainty domestically and around the world, we want to make you aware of the precautions BAJB is taking to protect the health and safety of our employees, their families, our clients and our communities while maintaining a consistent level of client service.
We are proud to have technology in place that enables many of our employees to efficiently and effectively provide client services remotely. Accordingly, like many of you, many of our attorneys and staff are now working remotely. For those attorneys and staff who, due to the nature of their job, are unable to work remotely, we have instituted additional protocols to help keep them healthy and safe for our people and our clients. BAJB continues to monitor developments and has contingency plans in place to insure our exemplary level of service to our clients.
BAJB is committed to working with our colleagues and clients to meet the unprecedented and unique challenges we face. Please contact us if we can be of assistance with any matters. Our office phone is (512) 338-5322. You should also feel free to contact any BAJB team member. Our office lines are forwarded to our remote phones and we stand ready to assist.