NEW RULES FOR FIRST RESPONDERS

 The Texas Department of Insurance, Division of Workers’ Compensation (DWC) adopted amendments to Rules 124.2, 124.3, 180.8, and 180.26 to implement Senate Bill 2551. These amendments involve process changes for claims by first responders that may qualify for a presumption under the Texas Government Code.  Generally, first responders include peace officers, paramedics, firefighters, or emergency medical attendants and technicians who work for a political subdivision, like a city, county, or school district. The rules become effective January 12, 2020 and the full text of the amendments can be found at:

• https://www.tdi.texas.gov/wc/rules/adopted/documents/ao1241219.pdf;
• https://www.tdi.texas.gov/wc/rules/adopted/documents/ao1801219.pdf.

The amendments include:

Rule 124.2 (Insurance Carrier Reporting and Notification Requirements)

• Adds Subsection (f) that describes the three alternative actions that an insurance carrier must take no later than the 15th day from the notice of injury: pay the claim, deny it, or issue a Notice of Continuing Investigation.
• Adds Subsection (g) which provides that a “claim for benefits” means the first written notice of injury.
• Adds Subsection (h) that describes the elements of a Notice of Continuing Investigation, as authorized under Texas Labor Code §409.021(a-3).
• Adds Subsection (j) that lists requirements for a notice of denial for a disease or illness covered by Texas Government Code, Chapter 607, Subchapter B.
• Adds Subsection (s) to require insurance carriers to provide all required plain language notices to claimants using plain language and a minimum font size of 12-point.

Rule 124.3 (Investigation of an Injury and Notice of Denial or Dispute)

• Amends Subsection (a)(1-5) to provide for a Notice of Continuing Investigation.
• Amends Subsection (a)(4) to provide that an insurance carrier’s failure to file a timely Notice of Continuing Investigation obligates the insurance carrier to pay all accrued and accruing income and medical benefits, subject to contesting compensability on or before the 60th day from written notice of injury.
• Deletes Subsection (a)(5)(A-C) to remove outdated penalty provisions.
• Amends Subsection (d) to provide for a Notice of Continuing Investigation relating to a claim for death benefits.
• Adds Subsection (e) to provide for a Notice of Continuing Investigation relating to a claim for burial benefits.
• Deletes the obsolete text of Subsection (f).
• Adds Subsection (g) regarding an insurance carrier’s investigation of a claim and any applicable statutory presumption. Provides that a claimant is not required to expressly claim a presumption and that an insurance carrier is required to investigate the applicability of the statutory presumption.

Rule 180.8 (Notices of Violation; Notices of Hearing; Default Judgments)

• Amends Subsection (b)(4) to include the factors from Labor Code §415.021(c-2).

Rule 180.26 (Criteria for Imposing, Recommending and Determining Sanctions; Other Remedies)

• Adds Subsection (f) to provide that when an insurance carrier has provided a Notice of Continuing Investigation, DWC must consider the factors under Labor Code §415.021(c-2).
• Amends Subsection (i), previously (h), to note that DWC must consider the factors from Labor Code §415.021(c-2) as part of the appropriateness of a sanction.
• Amends Subsection (j)(2), previously (i), to note that a consent order will include an acknowledgement that DWC considered the factors from Labor Code §415.021(c-2).

DWC has also adopted a new PLN-14, Notice of Continuing Investigation, as a template for an insurance carrier to use when communicating with a first responder whose claim may be subject to a presumption under Government Code Chapter 607.

NEW RULES REGARDING FEDERAL MILITARY TREATMENT FACILITIES

 The DWC adopted new rules implementing Senate Bill 935 changes regarding requirements for processing medical bills for services provided to an injured employee by a federal military treatment facility (FMTF), as well as a separate medical dispute resolution process designed to address disputes over charges billed by FMTFs. The change in law made by SB 935 applies to health care services provided to an injured employee on or after January 1, 2020, regardless of the date of injury.  The changes became effective on January 1, 2020 and the full text of the changes can be found at https://www.tdi.texas.gov/wc/rules/adopted/documents/ao1341119.pdf.  The DWC’s rule changes include:

Rule 134.150. (Reimbursement of Services Provided by a Federal Military Treatment Facility)

• Establishes applicability of rules in subsections (a)-(b).
• Clarifies bill processing requirements in subsection (c)-(d).
• Clarifies that an insurance carrier may only deny a medical bill based on medical necessity, compensability, extent of injury, or liability in subsection (e).
• Requires carriers to report the first bill received from an FMTF to DWC.
• Clarifies that unreported bills are subject to a request for information under Rule 102.9 in subsection (g).

Rule 134.155. (Federal Military Treatment Facility Disputes)

• Provides that disputes for medical necessity will be adjudicated under Rule 133.308, except that an injured employee may initiate a dispute, may request reconsideration, and the insurance carrier will be responsible for all independent review organization fees in subsection (a)(1).
• Provides that all other disputes will be handled under the existing process for benefit review conferences in subsection (a)(2).
• Notes that a first responder may request expedited dispute resolution in subsection (c).

Under Rule 134.150 (f), insurance carriers are required to report the first bill received from an FMTF to DWC. Instructions about where to submit the first bill can be found on the TDI website.

SIGNIFICANT APPEALS PANEL DECISION-IMPAIRMENT RATING INCLUDING DISPUTED CONDITION BECAME FINAL, DISPUTED CONDITION FOUND COMPENSABLE.

In Appeals Panel Decision 191874-S, the Appeals Panel addressed a case where the Administrative Law Judge (ALJ) found, among other things, the first certification the claimant reached MMI on July 26, 2018 with a six percent impairment rating became final and the compensable injury did not include numerous conditions, including a right hip labral tear and hamstring tear.  The Appeals Panel reversed the ALJ’s decision the right hip labral tear and hamstring tear were not compensable and found the conditions part of the compensable injury.  In reaching its decision, the Appeals Panel stated:

“Dr. B, a doctor selected by the treating doctor to act in his place, indicated in his October 17, 2018, report under “assessment” that the conditions he considered and rated are a right hip contusion/sprain and labral tear, lumbar strain, right hamstring tear, and right shoulder strain. As Dr. B’s six percent IR, which has become final pursuant to Section 408.123 and Rule 130.12, included a rating for the conditions of right hip labral tear and right hamstring tear, we hold that the compensable injury extends to a right hip labral tear and right hamstring tear.”

The Appeals Panel went on to note the designated doctor also provided a detailed analysis supporting the causation of the right hip labral tear and right hamstring tear.  This decision is significant as it indicates that, if a first certification of MMI and impairment includes a disputed medical condition, is not timely disputed and becomes final, the disputed condition could be found compensable.