We hope this finds you well. There has been a whirlwind of activity regarding workers’ compensation in Texas recently. The Division of Workers’ Compensation (DWC) issued numerous Updates and Bulletins outlining its changes to procedures and operations in response to COVID-19. The Texas Supreme Court issued an anticipated opinion in a case involving whether a peace officer injured traveling home, from work, was in the course and scope of employment and the Division’s Appeals Panel issued two noteworthy decisions. We hope you find this update informative and helpful.
DWC UPDATES AND BULLETINS
March 30, 2020 Update
On March 30, 2020, the Commissioner of the Division of Workers’ Compensation, Cassie Brown, issued an update noting Governor Greg Abbott declared COVID-19 a statewide public health disaster. The Division of Workers’ Compensation (DWC) is monitoring the latest developments on COVID-19 and the recommended social distancing measures. DWC shares the following information that may be of interest to governmental entities. In order to ensure that public safety employees of governmental entities are able to be reimbursed by their employer for reasonable medical expenses related to COVID-19, Governor Abbott has suspended Texas Government Code Sections 607.002(1) and (2) 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 set forth in Section 607.002 of the Government Code.
This suspension is in effect until terminated by the Office of the Governor or until the March 13, 2020, disaster declaration is lifted or expires. This suspension does not impact an employee’s eligibility to workers’ compensation benefits.
We are all working in a continually changing environment. We will provide frequent updates with new information when necessary.
Please refer to the DWC COVID-19 resource page, sign up for our GovDelivery email service, and follow us on social media for periodic updates.
The Government Code in the sections referenced in the update provide:
Sec. 607.001. DEFINITION. In this chapter, “public safety employee” means a peace officer, fire fighter, detention officer, county jailer, or emergency medical services employee of this state or a political subdivision of this state.
Sec. 607.002. REIMBURSEMENT. 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;
(2) the exposure to the disease occurs during the course of the employment; and
(3) the employee requires preventative medical treatment because of exposure to the disease.
March 30, 2020 Stakeholders Teleconference
On March 30, 2020, Commissioner Brown, held a teleconference with stakeholders addressing questions and outlining the actions taken by the Division in response to COVID-19, which are outlined below. Commissioner Brown emphasized the importance of the continued, prompt payment of benefits. The Commissioner clarified that the changes reflected in the Division’s bulletins and updates became effective on the day the bulletin or update was issued and the changes will remain in effect until rescinded by the Commissioner. Any rule or procedure not addressed in the Division’s updates or bulletins remain in effect. However, it is likely we will continue to see additional changes in response to COVID-19. Commissioner Brown also noted the Division’s 2020 Educational conference, scheduled for May 19-21 will be rescheduled.
March 27, 2020 Operations Update
On March 27, 2020, Commissioner Brown issued a update announcing additional steps the Division of Workers’ Compensation (DWC) is taking regarding operations. The Commissioner noted the recommended social distancing measurements being taken and the impact it may have on the delivery of workers’ compensation benefits. The Commissioner announced the following steps regarding operations:
Filing fees and payments
If a DWC filing requires a payment by check, such as DWC Form-155, Request for Record Check or DWC Form-156, Prospective Employment Authorization and Certification, you may submit it without payment.
Signatures and sworn statements, affidavits, and notarization
You may submit filings and consent orders with electronic signatures and without sworn statements, affidavits, or notarization until further notice. This includes:
- DWC Form-153, Request for Copies of Confidential Claimant Information;
- DWC Form-155, Request for Record Check; and
- DWC Form-156, Prospective Employment Authorization and Certification.
In addition, until further notice, DWC will also accept these forms by fax, without the need to mail the original form. Fax these forms to 512-804-4146.
As a reminder, there are criminal penalties for filing false information on a government document. Under Business and Commerce Code Section 322.009, an electronic record or signature is attributable to the named person.
Austin representative boxes
Effective Wednesday, April 1, 2020, DWC will initiate electronic carrier representative boxes. As a result, DWC will no longer accept hand-delivered documents from carriers at the Metro service window. In addition, DWC will no longer give a paper date-stamped receipt copy of its documents. These changes will be in effect until further notice.
DWC will provide documents normally placed in the carrier boxes through a secure file transfer protocol (SFTP) box. The Austin representative will be able to get documents from DWC and give all documents to DWC for the insurance carriers they represent through this process. Austin representatives can get a date-stamped receipt copy of their documents through the SFTP box, or they can use DWC’s fax-back receipt service.
Signing for documents
DWC currently requires insurance carrier Austin representatives, or their authorized couriers, to sign for receipt of contested case hearing decision and orders and Appeals Panel decisions. As of today, DWC will no longer require a signature for these orders. DWC also requires insurance carrier Austin representatives, or their authorized couriers, to sign for receipt of medical fee disputes, medical fee dispute decision and orders, and approved or denied DWC Form-064, Medical Interlocutory Order Requests. As of today, DWC will no longer require a signature for these items.
SFTP and fax-back receipts
Sometimes, faxes over 40 pages long can be interrupted. You should break your fax into sections and place a cover page on each section. Identify the claim number and which section you are faxing (for example, Section 1 of 4, Section 2 of 4, and so on). For more information about SFTP or fax-back receipts, contact Theol Jackman at 512-804- 4308 or [email protected].
New claims reporting codes for COVID-19
DWC encourages workers’ compensation insurance carriers to begin using the new International Association of Industrial Accident Boards and Commissions codes for electronic data interchange (EDI) claims reports: “cause of injury” code 83 – Pandemic and “nature of injury” code 83 – COVID-19 on April 1, 2020. The codes should be used for COVID-19 injuries occurring on or after December 1, 2019. DWC has updated its claims EDI collection systems to accept these new code values.
Insurance carriers should contact their trading partners to discuss reporting these new codes. For questions, contact Martha Luevano at 512-804-4858 or [email protected].
The Commissioner emphasized we are all working in a continually changing environment and the DWC will provide frequent updates with new information when necessary. She encouraged participants to refer to the DWC COVID-19 resource page, sign up for the GovDelivery email service, and follow the DWC on social media for periodic updates.
March 27, 2020 Commissioner’s Bulletin # B-0012-20
The Division issued Commissioner Bulletin B-0012-20 regarding Coronavirus (COVID-19) – Suspension of Certain Labor Code and DWC Rules Related to Workers’ Compensation. The Bulletin provides:
On March 13, 2020, Governor Greg Abbott declared COVID-19 a statewide public health disaster. The Division of Workers’ Compensation (DWC) is monitoring the latest developments on COVID-19 and the recommended social distancing measures as we consider the potential impact it may have on the delivery of benefits in the Texas workers’ compensation system. This bulletin is in effect for the duration of the governor’s COVID-19 declaration, or until further notice from DWC.
Governor Abbott approved DWC’s request to suspend the following requirements:
- work search compliance standards for supplemental income benefits under Labor Code Section 408.1415(a) and 28 Texas Administrative Code Section 130.102(d);
- testing, training, and application requirements for designated doctor and maximum medical improvement and impairment rating recertification under 28 TAC Sections 127.110(b)(1) and (3), 127.110(d), and 180.23; and
- required medical exams under 28 TAC Section 126.6(a).
As this issue evolves, DWC will continue to evaluate system and agency operations. If system participants are experiencing issues, contact DWC. Please refer to the DWC COVID-19 resource page for updates and follow the Centers for Disease Control’s recommendations.
March 25, 2020 Bulletin # B-0010-20
On March 25, 2020, the Division issued Commissioner Bulletin B-0012-20 regarding Coronavirus (COVID-19) – workers’ compensation issues. The Bulletin provides:
On March 13, 2020, Governor Greg Abbott declared COVID-19 a statewide public health disaster. The Division of Workers’ Compensation (DWC) is monitoring the latest developments on COVID-19 and the recommended social distancing measures as we consider the potential impact it may have on the delivery of benefits in the Texas workers’ compensation system. This bulletin shall be in effect for the duration of the governor’s COVID-19 declaration, or until further notice from DWC.
Workers’ compensation insurance carrier operations
Workers’ compensation insurance carriers must continue or begin:
- providing timely claims adjusting services;
- processing and delivering indemnity benefits and medical payments in a timely manner; and
- authorizing payments to pharmacies up to a 90-day supply for any prescription medication, subject to the remaining number of days authorized by the prescribing provider, regardless of the date the prescription was most recently filled.
Suspension of exams
DWC is taking the following action regarding designated doctor, required medical, and referral examinations:
- Ceasing orders for DD exams and holding requests. If you encounter special circumstances as a result of this suspension, please contact DWC at 1-800-252-7031 and select option 1.
- Suspending RME, DD, and referral exams that have already been ordered. Any RME, DD, or referral exams ordered and scheduled on or before the date of this bulletin are now suspended and should not occur until further notice from DWC.
Tolling of medical billing deadlines
Failure to submit a timely medical bill will be deemed an exception due to a catastrophic event under Labor Code Section 408.0272(b)(2).
DWC will take into account the challenges system participants are facing when considering enforcement actions.
As this issue evolves, DWC will continue to evaluate system and agency operations. If system participants are experiencing issues, contact DWC. Please refer to the DWC COVID-19 resource page for updates and follow the Centers for Disease Control’s recommendations.
March 24, 2020 COVID-19: Update Regarding Division of Workers’ Compensation Operations
On March 24, 2020, Commissioner Brown issued an update addressing the Division of Workers’ Compensation Operations. The update provides:
The Division of Workers’ Compensation (DWC) is monitoring the latest developments on COVID-19 and the recommended social distancing measures as we consider the potential impact it may have on the delivery of benefits in the Texas workers’ compensation system.
Your continued prompt actions and timely operations contribute to the success of the Texas workers’ compensation system during the state’s response to COVID-19. We appreciate the vital role you play in the system and wanted to keep you informed on agency developments. At this time, it is critical that injured employees continue to receive timely benefits, and health care providers continue to be timely paid for their services.
The majority of DWC staff are working remotely, and we continue to provide essential services, answer your questions, and work through issues as they develop. Please do not hesitate to contact us with any questions you may have.
We will be providing additional guidance to system participants in the form of a bulletin. In addition, today we are announcing these additional steps regarding operations:
Austin Metro Lobby Hours and Austin Representative Boxes
Effective Thursday, March 26, the hours of operation for the Austin Metro lobby and the carrier boxes will be 8 a.m. to noon. Many of you have asked if we can provide carrier box documents electronically, and we will have further guidance on this soon. (As noted above, effective Wednesday, April 1, 2020, DWC will initiate electronic carrier representative boxes and DWC will no longer accept hand-delivered documents from carriers at the Metro service window.)
Benefit Review Conferences and Contested Case Hearings
As a reminder, BRCs are currently being held by telephone. CCHs will resume on Monday, March 30, and will also be conducted by telephone. Until further notice, parties may file and exchange documents electronically, including with injured employees who have email addresses or fax numbers and agree to receive these documents electronically. DWC encourages parties to use fax or encrypted email and ensure that injured employees can Texas Workers’ Compensation System Participants March 24, 2020 Page 2 access exchange documents sent electronically. Parties to CCHs must also send a copy of their exhibits to DWC and the other parties at least three working days before the CCH. You may send your exhibits to DWC in one of the following ways:
- Email your exhibits to [email protected].
- Fax your exhibits to 512-804-4011. Sometimes, faxes over 40 pages long can be interrupted. You should break your fax into sections and place a cover page on each section. Identify the claim number and which section you are faxing (for example, Section 1 of 4, Section 2 of 4, and so on).
- SFTP—if you have an account with DWC, you can upload your exhibits by SFTP.
All of us are working in a continually changing environment. We will provide frequent updates with new information when necessary. Please refer to the DWC COVID-19 resource page, sign up for our Gov Delivery email service, and follow us on social media for periodic updates.
CANCELLATIONS OF DIVISION OF WORKERS’ COMPENSATION MEETINGS AND EVENTS
The Division of Workers’ Compensation (DWC) is postponing or creating online options for several upcoming meetings and events to help prevent the spread of COVID-19.
March 17-18: OSHA 10-Hour Construction Training (English), San Antonio
March 18-19: OSHA 10-Hour Construction Training (Spanish), Austin
March 24: Regional Safety Seminar, San Antonio
March 25-26: OSHA 10-Hour Construction Training (Spanish), Fort Worth
March 25-26: OSHA 10-Hour Construction Training (English), Houston
March 31: Interrogatories Stakeholders Meeting, Austin
Status: Postponed. The meeting will be rescheduled.
April 1: Regional Safety Seminar, White Settlement (Fort Worth)
April 1: OSHA 30-Hour Construction Class, Austin
April 7-8: OSHA 10-Hour Construction Training (English), Austin
April 7-8: OSHA 10-Hour Construction Training (English), Houston
April 8-9: OSHA 10-Hour Construction Training (Spanish), San Antonio
April 13-14: OSHA 10-Hour Construction Training (Spanish), El Paso
April 15-16: OSHA 10-Hour Construction Training (Spanish), Austin
April 15-16: OSHA 10-Hour Construction Training (English), El Paso
April 20-21: OSHA 10-Hour General Industry, El Paso
April 22: Insurance Carrier Quarterly and Healthcare Provider Quarterly Meetings, Austin
April 22-23: OSHA 10-Hour General Industry, Austin
April 28-29: OSHA 10-Hour Construction Training (Spanish), Houston
As noted above, the Division’s 2020 Educational conference, scheduled for May 19-21 will be rescheduled.
DWC CONTACT INFORMATION FOR ADDITIONAL INFORMATION
The Division of Workers’ Compensation, in its updates and bulletins, has identified the following contact information for people needing more information:
Health care providers
800-252-7031, Option 3
Questions from the media
800-252-7031, Option 1
Report a safety or health hazard
All other questions
NEW DWC-FORM 121, CLAIM ADMINISTRATION CONTACT INFORMATION
The Division of Workers’ Compensation (DWC) has adopted a new form: DWC Form-121, Claim Administration Contact Information. DWC posted a draft DWC Form-121 online for informal comment and considered all comments.
The DWC request that insurance carriers, including certified self-insurers, certified self-insurer groups, and governmental entities, update their claim administration contact information using this form no later than April 27, 2020. The DWC will use this form to verify that contact information for each insurance carrier is current.
28 Texas Administrative Code §124.2(r)(1) requires insurance carriers to provide contact information for:
- claims adjustment;
- coverage verification (policy issuance and effective dates of policy);
- medical billing;
- pharmacy billing (if different from medical billing); and
You must also submit DWC Form-121 to report new or updated claim administration contact information within 10 working days after making a change.
To get the form, go here: https://www.tdi.texas.gov/forms/form20numeric.html.
TEXAS SUPREME COURT ANALYZES WHETHER PEACE OFFICER’S TRAVEL HOME FROM AN EXTRA-DUTY ASSIGNMENT FALLS WITHIN THE COURSE AND SCOPE OF EMPLOYMENT IN OROZCO v. COUNTY OF EL PASO (By Belinda Arambula)
Cases involving an employee’s injury while traveling to and from work entail a labyrinthine analysis unique to Texas workers’ compensation. The Texas Supreme Court addressed another “travel case” in the matter of Orozco v. County of El Paso, Self-Insured, No. 17-0381, (Tex. 2020). The case involved a deputy sheriff who died in a motor vehicle accident while driving home, in his patrol car, from an extra-duty assignment. The Court concluded the deputy was in the course and scope of employment. This case is noteworthy in its reinforcement of the Court’s analysis of “coming-and-going” cases and its application of the analysis to peace officers.
Relevant Facts: The deputy (Ruben Orozco) was involved in a fatal motor vehicle accident while driving home from an extra-duty assignment at the University of Texas at El Paso (UTEP). Pursuant to El Paso County Sherriff’s Policy Manual, this type of extra-duty employment was permissible, but must be approved. It was anticipated law enforcement powers might be utilized in this type of activity. While employees where not permitted to use Department vehicles for personal use, the Department permitted the use of patrol vehicles for extra-duty employment with approval. The Department policy stated the vehicles “are provided for the enforcement of laws, responding to emergencies . . . the ultimate protection of all citizens, officers and property . . . [and] to support the functions of the department.” The evidence showed Orozco wore his uniform, badge, and gun to the extra-duty employment at UTEP and used his patrol car for his return travel home. Orozco also checked in through his patrol unit’s laptop before leaving UTEP, consistent with department policy, to notify dispatch that he was clear of other assignments, back in the patrol car and available for calls. The evidence also included the sheriff’s affidavit and other correspondence that Orozco was performing law-enforcement functions at the time of his accidental death.
The Court’s Analysis: Texas Labor Code Section 401.011(12) defines “course and scope of employment” as “an activity of any kind or character that has to do with and originates in the work, business, trade, or profession of the employer and that is performed by an employee while engaged in or about the furtherance of the affairs of business of the employer.” An activity within the “course and scope of employment” must: (1) relate to the and originate in the employer’s business and (2) further the employer’s affairs. State Office of Risk Mgmt. v. Martinez, 539 S.W.3d 266, 276 (Tex. 2017).
Section 401.011(12)(A), known colloquially as the “coming-and-going” rule, excludes travel to and from work from the course and scope of employment, unless certain exceptions are met. Here, the Court first found the travel originated in the deputy’s employment and furthered the employer’s affairs. Unique to law enforcement, the Court found that being in a marked patrol car relates to the Sheriff’s Departments role in patrolling streets and having uniformed deputies works to preserve peace and respond to citizens in need. Then the Court looked to the “coming-and-going” exclusion, and found, as the deputy was traveling from work to his home, the travel would be excluded from the course and scope of employment, unless one of the exceptions applied.
At issue were two of Texas Labor Code 401.011(12)’s exceptions providing transportation to and from the place of employment falls within the course and scope of employment if: (1) the employer pays for the transportation; or (2) exercises control over the transportation. Tex. Lab. Code. 401.011(12)(A)(i-ii). With little discussion, the Court found that both of these exceptions applied.
The Court concluded the authorized operation of the patrol car to and from the approved extra-duty assignment was a law-enforcement activity and this activity originated in the work of the Sheriff’s Department and was performed in furtherance of its and the county’s affairs. The Court further concluded the coming-and-going rule applied to the travel at issue; however, exceptions to that rule applied. Therefore, the travel was not excluded from the statute’s definition of course and scope.
Impact: The Court’s findings are consistent with other similar cases. However, the case is important in its description of evidence the Court found compelling. Accordingly, in analyzing a coming-and-going type case, particular attention should be paid to the employer’s policies for use of the vehicle, policies related to dispatch, permissibility of use of the vehicle for personal use, whether any type of approval was provided to the employee for use of the vehicle and compliance with the policies and procedures in place. We do caution that part of Court’s analysis appears unique to first responders and law enforcement.
APPEALS PANEL DECISION UPDATE
Appeals Panel Decision No. 200017 — ALJ Abuse of Discretion Regarding Appointment of New Designated Doctor (By Dennis Grebe)
The Appeals Panel found an Administrative Law Judge (ALJ) abused her discretion by appointing a second designated doctor, as well as, sending numerous, unwarranted letters of clarification to the designated doctors.
In this case, the initial designated doctor, Dr. L, examined the claimant and certified the claimant reached maximum medical improvement on August 29, 2017 with a 9% impairment rating. Dr. L considered the diagnoses of: third degree tar/asphalt burns, plantar aspect both feet, left more involved; status post-split thickness skin grafts to both feet; and approximately 20% skin graft bilateral heels. In assigning the 9% impairment rating, Dr. L placed the Claimant in Class 1 of Table 2: Impairment Classes and Percent for Skin Disorders. Class 1 applies when there is no limitation or limitation in the performance of few activities of daily living.
The ALJ sent a letter of clarification asking Dr. L to clarify his position as the Claimant had a slow shuffling gait and only bears weight on his toes when his shoes are removed. Dr. L responded and explained the Claimant’s limitations are related to his pre-existing diabetic peripheral neuropathy. The ALJ sent a second letter of clarification inquiring how the compensable burns did not aggravate Claimant’s weight bearing tolerance and whether the skin grafts were rated. In his response, Dr. L reiterated the skin grafts had healed without issues. Further, Dr. L explained the Claimant’s delayed wound healing and ongoing symptoms were related to his pre-existing diabetes. However, Dr. L amended his certification by assigning 9% impairment to each foot which equated to a 17% whole person impairment rating.
Apparently dissatisfied with this response, the ALJ issued a Presiding Officer’s Directive (POD) to have a second designated doctor appointed. Dr. A was subsequently appointed and certified claimant reached maximum medical improvement on August 29, 2017 with a 9% impairment rating. As this mirrored Dr. L’s initial certification, the ALJ wrote a third letter of clarification outlining Claimant underwent two debridement procedures after August 29, 2017. Further, the ALJ indicated Dr. A can combine range of motion and nerve deficits when assigning impairment. Additionally, Dr. A was instructed to provide impairment under Table 67: Impairments for Skin Loss. In response, Dr. A moved the maximum medical improvement date to June 28, 2018. However, Dr. A determined Table 67 would not provide additional impairment in this claim.
The ALJ sent a fourth letter of clarification instructing Dr. A to clarify his maximum medical improvement date and failure to rate range of motion deficits. In addition to other instructions, the ALJ instructed Dr. A provide two clarifications. The first certification was to be based upon Dr. A’s understanding of the AMA Guides, 4th edition. For the second certification, Dr. A was instructed to place Claimant in Class 2 of Table 2 , assign impairment for Skin Loss under Table 67, and assign impairment based upon range of motion deficits for the left and right ankles, as measured by Dr. O. In turn, Dr. A maintained his 9% impairment rating under scenario one and provided a 32% impairment rating under scenario two. In his report, Dr. A highlighted he disagreed with aspects of the impairment rating in scenario two which was mandated by the ALJ.
Once again, the ALJ sent another letter of clarification asking Dr. A to clarify his 5% impairment rating under Table 67 as this section provides for a 10% impairment for each foot. In response, Dr. A increased the impairment rating to 38%. A sixth letter of clarification was sent to clarify a mathematical error which resulted in a 39% impairment rating. The ALJ adopted this final certification.
The Appeals Panel determined the ALJ abused her discretion for two reasons. First, the appointment of a second designated doctor is appropriate only in the cases where the first designated doctor fails to comply with the required AMA Guides or requests from the Division, or the designated doctor otherwise compromises the impartiality demanded of the designated doctor process. The Appeals Panel highlighted the Dr. L responded to two letter of clarifications and there was no justification for appointing a second designated doctor. As such, the ALJ abused her discretion in appointing Dr. A. Second, the Appeals Panel highlighted letters of clarification must include questions for the designated doctor that are neither inflammatory nor leading. As the ALJ expressly directed Dr. A to provide a certification which was clearly contrary to Dr. A’s expert medical opinion, the ALJ abused her discretion by substituting her medical judgement for the expert medical judgement of the designated doctor.
The Appeals Panel went through the various certifications which resulted from the plethora of letters from the ALJ. Ultimately, the Appeals Panel adopted Dr. L’s initial certification, which placed the Claimant at maximum medical improvement on August 29, 2017 with a 9% impairment rating. In doing so, the Appeals Panel indicated Dr. L’s certification was afforded presumptive weight over Dr. A’s identical certification, as Dr. A’s appointment was an abuse of discretion.
Appeals Panel Decision No. 200100-S – Addressing the Firefighter Cancer Presumption (By Nick Morgan)
This case involved the application of the cancer presumption to a firefighter with a minimal history of smoking. The Administrative Law Judge (ALJ) found that Claimant met all of the requirements for the firefighter cancer presumption, though Claimant had “prior limited use” of tobacco (Claimant admitted to using tobacco six or seven times 15 years prior to this claim). The Appeals Panel held the applicable statutory provisions do not provide any discretion or time limit in determining prior use of tobacco. Accordingly, the Appeals Panel remanded the case back the ALJ to reanalyze the evidence taking into consideration Claimant’s tobacco use.
The Appeals Panel noted that this case began prior to the amendments of Senate Bill 2551, therefore, the amendments are not applicable in this case. Based on the Appeals Panel’s decision, it appears the bar to presumption involving tobacco use is absolute, with no consideration to the degree or length of use. If a firefighter used tobacco at any time, and the cancer is of the type caused by tobacco, the presumption should not apply.