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WORKERS’ COMPENSATION UPDATE

We hope everyone is well as we welcome fall.  F. Scott Fitzgerald said “Life starts over again when it gets crisp in the fall.”  It is with this inspiration that we bring you this Texas Workers’ Compensation Update.  The Division of Workers’ Compensation (DWC) Appeals Panel has issued two decisions related to COVID-19.  Additionally, the DWC has adjusted the discount and interest rates and set new minimum and maximum compensation rates.  In September, the DWC Commissioner was appointed as the Commissioner of Insurance and a new DWC Commissioner will be appointed.  Finally, BAJB seminars are returning, beginning October 11, 2021.

The Appeals Panel Issues Decisions related to COVID-19

By Dennis Grebe

The DWC Appeals Panel issued its first two opinions regarding COVID-19.

APD 211026-s

In the first significant or “s-opinion” of 2021, the Appeals Panel issued a decision related to the applicability of the COVID-19 presumption.  In APD 211026-s the Appeals Panel confirmed that  expert medical evidence is required to establish that an employee’s employment was a producing cause of  the employee’s COVID-19.  The Appeals Panel primarily addressed the recent presumption created by Senate Bill (SB) 22.  In this case, a deputy sheriff detention officer tested positive for COVID-19 and passed away two days later.  At the contested case hearing, the Administrative Law Judge (ALJ) applied the presumption contained in Texas Government Code Section 607.054 (regarding first responders and tuberculosis, or any other disease or illness of the lungs or respiratory tract) and found the claimant sustained a compensable injury.

The Appeals Panel reversed the ALJ’s decision, finding the evidence was insufficient to invoke the presumption contained in Government Code Section 607.054.  The Appeals Panel went into a lengthy explanation of Government Code Section 607.0545, which was the recently passed by the legislature in SB-22.  Section 607.0545(b) creates a presumption that applies to only detention officers, custodial officers, firefighters, peace officers, and emergency medical technicians (EMTs).  If such a person is employed on a full-time basis and diagnosed with COVID-19 using an FDA approved test, it is presumed the employment was a producing cause of the disease. The presumption only applies if the person’s last day on duty was not more than 15 days before the person was diagnosed.   The presumption is rebuttable.  The presumption became effective on June 14, 2021 and is to be retroactively applied.  Therefore, the Appeals Panel remanded the case back to the ALJ to consider the case using the new presumption.

APD 211005

In APD 211005 the Appeals Panel addressed a case where the claimant, a senior patrol officer, responded to a call regarding a death of a person who died from COVID-19.  The claimant spent three to four hours at the scene.  The next day, the claimant went on vacation, including traveling by plane.  The ALJ found that the claimant’s employment did not place him at a greater risk of COVID-19 than employment generally and determined that the claimant did not sustain a compensable injury.

The ALJ did not apply the new COVID-19 presumption contained in Government Code Section 607.0545.  The Appeals Panel noted that SB-22, which created Section 607.0545, had not been passed into law at the time of the contested case hearing.  As SB-22 applies retroactively to claims before the effective date of the law, the Appeals Panel reversed the ALJ’s decision and remanded the case back to the ALJ to apply Section 607.0545’s presumption.

The Division Adjusted the Discount and Interest Rates

The DWC has determined that, effective October 1, 2021, any interest or discount provide for under Texas Workers’ Compensation Act will be at a rate of 3.57 percent.  The DWC posts information related to discount or interest rates at:

https://www.tdi.texas.gov/wc/carrier/disint.html.

The Division Adjusted the Maximum Minimum Compensation Rates

The DWC has set the state’s average weekly wage at $1,058.38 for dates of injury starting October 1, 2021, through September 30, 2022.  The maximum and minimum compensation rates are based on the state average weekly wage. Accordingly, those rates will change regarding dates of injury on or after October 1, 2021.  The new rates will be:

 

Year Max

TIBs

Min

TIBs

Max

IIBs

Min

IIBs

Max

SIBs

Min

SIBs

Max

LIBs

Min

LIBs

Max

Death

Benefits

Min

Death

Benefits

2022

(10/1/21-

9/30/22)

$1,058 $159 $741 $159 $741 N/A $1,058 $159 $1,058 N/A

Information regarding the minimum and maximum compensation rates may be found at:

https://www.tdi.texas.gov/wc/employee/maxminbens.html.

DWC to get new a New Commissioner

In September 2021, the Texas Governor appointed the current Commissioner of the DWC, Cassie Brown, as the Commissioner of Insurance for a term to expire on February 1, 2023.  A new Commissioner will be appointed to replace Commissioner Brown at the DWC.

BAJB October 11, 2021 CE Seminar in Dallas

BAJB and MedConfirm will host a free Continuing Education Luncheon on October 11, 2021 from 11:00 a.m. to 1:30 p.m. in the McKinney Room at the Cooper Hotel Conference Center & Spa. It is located at 12230 Preston Road, Dallas, Texas, 75230. Lunch will be provided and Bob Graves and Lance Mullins will present a two-hour course on Occupational Diseases and Repetitive Trauma Injuries.  The course is approved for two hours of continuing education by the Texas Department of Insurance.  Space is limited, so please RSVP with Lindsey Heaney at lheaney@bajb.com,  (512) 338-5322.  If you are unable to attend, we are also able to provide this course, as well as others, virtually.