Texas Workers Compensation News


Texas Division of Workers Compensation Seminar

posted Jan 10, 2016, 1:21 PM by Linda Thomson   [ updated Jan 10, 2016, 1:21 PM ]

The Texas Division of Workers Compensation is hosting a free seminar to provide practical information for medical office staff on managing the administrative processes related to Texas workers compensation claims.  The seminar covers an overview of the workers compensation system, coverage verification, medical bill processing, dispute resolution, and resources.  The seminar will be held on Thursday, January 28, 2016, from 9 a.m. to 4 p.m. at the Center for Community Cooperation, 2900 Live Oak Street in Dallas, Texas.  For seminar information call CompConnection at (800) 252-7031, option 3, or email medben@tdi.texas.gov.  Registration is available at www.tdi.texas.gov/alert/event/dwchealthcare.html and assistance with registration is available by contacting Janice Pousson at Janice.Pousson@tdi.texas.gov or (512) 804-4685.

Texas Division of Workers Compensation Recertifies 15 Employers as Self-Insured

posted Jan 10, 2016, 1:13 PM by Linda Thomson   [ updated Jan 10, 2016, 1:14 PM ]

The Texas Division of Workers Compensation has re-certified the following 15 employers to self-insure workers compensation claims, affecting 21,000 Texas employees: 
  1. AAA Cooper Transportation
  2. Associated Wholesale Grocers, Inc.
  3. Bradford Holding Company, Inc.
  4. E.I. du Pont de Nemours and Company
  5. Emerson Electric Co.
  6. FedEx Freight, Inc.
  7. Guardian Industries Corp.
  8. International Paper Company
  9. James Construction Group, L.L.C.
  10. Louisiana-Pacific Corporation
  11. Space Exploration Technologies Corp.
  12. The Procter & Gamble Company
  13. The Sherwin-Williams Company
  14. VF Corporation
  15. Weyerhaeuser Company


Texas Workers Compensation Updates Prescription Drug List

posted Jan 10, 2016, 1:05 PM by Linda Thomson   [ updated Jan 10, 2016, 1:05 PM ]

The Texas Division of Workers Compensation notified system participants on January 5, 2016, that effective February 1, 2016, the following prescription drugs will require preauthorization:  Fentanyl Transdermal Patches, MS-Contin, Levorphanol (Levo-Dromoran) and Morphine ER/Naltrexone (Embeda).  If these drugs are currently being prescribed, the Texas Division of Workers Compensation encourages system participants to discuss and coordinate the ongoing course of treatment.  The changes are being made in Appendix A of the ODG Workers' Compensation Drug Formulary by the Work Loss Data Institute, publisher of the Official Disability Guidelines, also known as the ODG.  Any questions regarding the changes are being directed to Comp Connection for Health Care Providers at (800) 372-7713, option 3, or by email at medben@tdi.texas.gov.

Appeals Panel Addresses Supplemental Income Benefits Workers Compensation Case

posted Dec 14, 2015, 7:53 AM by Linda Thomson   [ updated Dec 27, 2015, 7:23 AM ]

The Texas Division of Workers Compensation Appeals Panel addressed entitlement to supplemental income benefits for the sixth quarter of SIBs in Appeals Panel Decision 150797.  The parties had stipulated that the claimant had sustained a compensable injury which resulted in an impairment rating of 15% or greater, the claimant had not commuted any portion of his impairment income benefits, during the qualifying period for the sixth quarter, the claimant was unemployed, the minimum number of job applications or work search contacts for the qualifying quarter was five contacts per week, the Division of Workers Compensation had appointed a designated doctor to determine the claimant's ability to return to work for the purposes of supplemental income benefits, and the designated doctor had determined that the claimant was able to return to work in a sedentary capacity. 
    The claimant testified that he had injured his left knee in the course and scope of his employment and that during the qualifying quarter he was in compliance with his individualized plan for employment (IPE) by attending school full time.  His individualized plan for employment did not require him to look for work.  The claimant had knee surgery over four years prior to the qualifying quarter.  The claimant testified that due to scar tissue, he was unable to sit in one position or walk for a long time and had to keep his knee propped up during the day. 
    The claimant contended that he was entitled to supplemental income benefits because he had active participation in a vocational rehabilitation program during the qualifying quarter.  Under this theory of entitlement, a claimant must provide evidence satisfactory to the Division of Workers Compensation of active participation in a vocational rehabilitation program (VRP) conducted by the Department of Assistive and Rehabilitative Services (DARS) or a private vocational rehabilitation provider, as provided by Texas Labor Code section 408.1415(a)(1). 
    The vocational rehabilitation program (VRP) is a program that provides vocational rehabilitation services designed to assist an injured employee to return to work that includes a vocational rehabilitation program and is provided by (1) the Division of Assistive and Rehabilitative Services, (2) a comparable federally-funded rehabilitation program in another state under the Rehabilitation Act of 1973, or (3) a private provider of vocational rehabilitation services that is included in the Registry of Private Providers of Vocational Rehabilitation Services, under Rule 130.101(8) of the Texas Division of Workers Compensation. 
    The vocational rehabilitation program (VRP) is known as an individualized plan for employment (IPE) at the Department of Assistive and Rehabilitative Services (DARS).
    The vocational rehabilitation program includes at a minimum:
    1) an employment goal
    2) any intermediate goals
    3) a description of the services to be provided or arranged
    4) the start and ending dates of the described services, and
    5) the injured employee's responsibilities for the successful completion of the plan.
    If the injured employee is able to return to work during the qualifying period for entitlement to any particular supplemental income benefits quarter, then the injured employee must meet the requirements that show he demonstrated an active effort to obtain employment during the qualifying period. 
    The Texas Division of Workers Compensation uses Rule 130.102(d)(1) to determine whether an injured employee has demonstrated an active effort to obtain employment during the qualifying period for the supplemental income benefits quarter.  Rule 130.102(d)(1) provides that the injured employee demonstrates an active effort to obtain employment by meeting at least one or any combination of the following work search requirements for each week of the qualifying period.  The injured employee:
    A) has returned to work in a position which is commensurate with the injured employee's ability to work;
    B) has actively participated in a vocational rehabilitation plan (VRP) as defined in Rule 130.101;
    C) has actively participated in work search efforts conducted through the Texas Workforce Commission (TWC);
    D) has performed active work search efforts documented by job applications; or
    E) has been unable to perform any type of work in any capacity, has provided a narrative report from a doctor which specifically explains how the injury causes a total inability to work, and no other records show that the injured employee is able to return to work.
    In this case, the injured employee had entered into three individualized plans for employment (IPE's) with the Texas Division of Assistive and Rehabilitative Services (DARS).  In each IPE, the goal was to earn a degree.  The injured employee was required to maintain and complete a full-time course load and to obtain and maintain employment after earning a bachelor's degree.
    The qualifying period for the sixth quarter of supplemental income benefits included the college winter break for 2014-2015.  The winter break fell on weeks 12 and 13 of the qualifying period for the sixth quarter of supplemental income benefits.  
    The injured employee testified that during weeks 12 and 13, he studied and registered for the next semester.   
    The Texas Division of Workers Compensation Appeals Panel noted that Rule 130.102 provides that for supplemental income benefits, an injured employee demonstrates an active effort to obtain employment by meeting at least one or any combination of the specified work search requirements each week during the entire qualifying period.  The Appeals Panel noted that when the Texas Division of Workers Compensation adopted Rule 130.102, it amended subsection (d)(1) to add the phrase "each week" before "during" and the word "entire" before the phrase "qualifying period" to clarify that the injured employee's work search efforts are to continue each week during the entire qualifying period. 
    The Texas Division of Workers Compensation Appeals Panel also noted that Rule 130.102(d)(2) provides that an injured employee who has not met at least one of the work search requirements in any week during the qualifying period may still be entitled to supplemental income benefits if the injured employee can demonstrate that he or she had reasonable grounds for failing to comply with the work search requirements under this section for supplemental income benefits.
    The Contested Case Hearing Officer had found that even though the injured employee did not document any work search efforts for weeks 12 and 13, he was still actively involved in the individualized plan for employment, and he demonstrated that he had reasonable grounds for failing to comply with the work search requirements based on the injured employee's limited abilities and the short period of time between semesters.  The Contested Case Hearing Officer noted that the injured employee was actively enrolled and participating in 12 hours of credit and maintained a GPA over 2.0, in compliance with the requirements for his individualized plan for employment.
    The Appeals Panel noted that  in the preamble to Rule 130.102, the Texas Division of Workers Compensation stated that section (d) (2) was added to confirm that the Contested Case Hearing Officer would continue to retain discretion in determining if an injured employee had demonstrated reasonable grounds for failure to meet at least one of the work search requirements in the section during any week of the qualifying period for the supplemental income benefits quarter.
    

Worker Wins $5.3 Million Award in Texas Comp Case

posted Jan 28, 2015, 1:43 PM by Linda Thomson   [ updated Jan 28, 2015, 1:44 PM ]

The Texas 7th District Court of Appeals on January 23, 2015, unanimously upheld the jury's award of $5.3 million to Charles Robison for injuries he sustained while working for West Star Transportation in a Texas workers compensation nonsubscriber case.  The Appeals Court found that West Star "created an unusually precarious work environment and an unreasonable risk of harm to its employees -- a risk that proved to be true when Mr. Robison fell and was injured."  The Court found that "West Star did not even own the equipment necessary to safely perform the task at hand, choosing instead to borrow a forklift from another business in order to have a means of raising a 150 pound tarpaulin to the top of a load reaching 13 feet in height."  The Court upheld the $5.3 million award of damages. 

Texas Workers Compensation Division Increases Income Weekly Check Rates for 2015-2016

posted Sep 21, 2014, 9:43 AM by Linda Thomson   [ updated Dec 13, 2015, 7:04 AM ]

The Texas Division of Workers Compensation has increased the amount of weekly income benefits to be paid for claims with dates of injury that occur between October 1, 2015, and September 30, 2016. The maximum temporary income benefits rate is $895.00.  The maximum impairment income benefits rate is $627.00.  The maximum supplemental income benefits rate is $627.00.  The maximum lifetime income benefits rate is $895.00.  The maximum death benefits rate is $895.00.

The average increase since 2006 has been $38.75 per year.

It is important to review the average weekly wage calculation for employees.  Weekly income benefits are based on the average weekly wage of the injured employee.  The average weekly wage includes not just the actual hourly wages of the employee, but also several other benefits that are provided to employees as part of the job.  When the injured employee is out of work and these additional benefits are no longer being provided by the employer, they are to be included in the average weekly wage calculation. 

Appeals Panel Reverses and Renders Supplemental Income Benefits Case

posted Sep 17, 2014, 8:23 AM by Linda Thomson   [ updated Sep 21, 2014, 9:47 AM ]

In Appeal 140039, the Appeals Panel of the Texas Division of Workers Compensation reversed and rendered a Contested Case Hearing Decision and Order on a case involving supplemental income benefits.  The insurance carrier had accepted and paid the second and third quarters of supplemental income benefits.  The claimant had performed three job searches per week during the qualifying quarters of those accepted and paid quarters.  The insurance carrier had disputed the fourth and fifth quarters of supplemental income benefits.  The parties had stipulated at the contested case hearing that the minimum number of job searches per week for the claimant's county of residence was five. 

The Appeals Panel noted that the second quarter supplemental income benefit application did not provide the number of minimum weekly work searches required for the claimant's county of residence.  The third quarter supplemental income benefits application listed the claimant's county of residence and provided that three was the number of minimum weekly work searches.

The claimant continued to perform three job searches per week during the qualifying periods for the fourth and fifth quarters of supplemental income benefits.  The claimant stated that the claimant was unaware that the claimant was required to perform five job searches per week. 

Under Rule 130.104(b), when the insurance carrier makes the first payment for a quarter of SIBs or sends the carrier's determination of non-entitlement for that quarter, the insurance carrier is required to also send the supplemental income benefits application, or DWC-52, for the next quarter of supplemental income benefits.  Rule 130.104(b)(5) provides that the insurance carrier is required to include on the supplemental income benefits application the minimum number of work search efforts required during the qualifying period. 

On the applications for the fourth and fifth quarters of supplemental income benefits, the minimum number of work searches required was not listed.  There was no proof that the carrier had complied with Rule 130.104(b)(5).

The claimant testified that the insurance company never told her that she needed to apply for five jobs each week instead of three.  The Appeals Panel considered the fact that the claimant had been paid supplemental income benefits for the second and third quarters based on three weekly job searches.  There was no evidence that the number of weekly job searches for the county had changed.  The claimant also testified that after the second quarter of supplemental income benefits, her husband spoke to the adjuster for the insurance company and was told that the claimant was doing everything correctly.

The insurance carrier's response was that the claimant had the responsibility to know how many job searches were required, that ignorance of the law is no excuse, and any failure on the part of the insurance carrier was "simply a compliance issue." (In other words, the carrier is arguing that the Division may be able to issue a violation and/or fine the carrier for not following the rules of the Division, but that the carrier's failure to follow the rules should not be considered by the hearing officer.) 

The Appeals Panel found that the insurance carrier is first required to comply with its obligation to accurately provide the information required in Rule 130.104(b) on the supplemental income benefits application as a prerequisite to advancing the argument that the claimant failed to document a weekly job search in accordance with Rule 130.102(e).  The Appeals Panel cited Appeals Panel Decision 010617-s, a case in which the insurance carrier had provided inaccurate dates to the claimant for the qualifying periods for the supplemental income benefits on the supplemental income benefits application.  The Appeals Panel in that case found that it is axiomatic that there be accuracy on the part of the carrier in providing the information that is required in Rule 130.104(b).  Appeals Panel Decision 010617-s was decided prior to the current supplemental income benefits rules.  The Appeals Panel applied Decision 010617-s to the current case.  This decision provides that the insurance carriers will be required to be accurate in providing the information that is required in Rule 130.104(b) under the current supplemental income benefit rules.  The Appeals Panel reversed and rendered a decision that the claimant was entitled to the fourth and fifth quarters of supplemental income benefits.

Texas Division of Workers Compensation Requests Comment on Carrier's Dispute Form

posted Sep 13, 2014, 6:58 AM by Linda Thomson   [ updated Sep 13, 2014, 6:58 AM ]

The Texas Division of Workers Compensation has requested public comment on changes proposed to the Carrier's Dispute Form, the PLN-11.  The changes include new checkboxes to clarify whether the insurance company is disputing the existence, duration, or extent of disability, the extent of the compensable injury, and/or eligibility to receive death benefits.  The form still requires the insurance carrier to provide specific reasons for the dispute.  This form is separate from the PLN-01 that is required when the insurance company disputes the compensability of the claim, denying liability for the claim completely.  The proposed form can be viewed at  http://www.tdi.texas.gov/wc/rules/documents/pln11form.pdf.  Public comment is being accepted until Wednesday, October 1, 2014, at 5 p.m. and may be submitted electronically via email to mailto:InformalRuleComments@tdi.texas.gov.

Texas Division of Workers Compensation Hosts Compliance Conference

posted Sep 8, 2014, 4:58 AM by Linda Thomson   [ updated Sep 8, 2014, 4:58 AM ]

The Texas Division of Workers Compensation is hosting a compliance conference on September 12, 2014, at the Renaissance Austin Hotel in Austin and on October 21, 2014 at the Doubletree Houston Greenway Plaza Hotel.  Registration is $300. per person.  The conference is for employers, insurance carriers, health care providers, and designated doctors to provide education about common non-compliance issues.

Texas Workers Compensation Division Requests Comments on Proposed New Lifetime Income Benefits Rule

posted Aug 29, 2014, 5:37 AM by Linda Thomson   [ updated Aug 29, 2014, 5:37 AM ]

The Texas Workers Compensation Division has requested comments from the public regarding a new rule about lifetime income benefits.  The Workers Compensation Division has proposed a new rule that it may adopt regarding lifetime income benefits, Rule 131.1.  It has published the new rule and has requested that the public comment on the rule as part of the agency adoption process.  Here is the text of the proposed rule:
 

Rule 131.1

(a) The insurance carrier shall initiate the payment of lifetime income benefits without a final decision, order, or other action of the commissioner if an injured employee meets the eligibility criteria for lifetime income benefits listed under Labor Code §408.161 as a result of the compensable injury.

(b) An injured employee may submit a written request for lifetime income benefits to the insurance carrier. The insurance carrier has up to 60 days from the receipt of the injured employee’s written request to either initiate lifetime income benefits or deny the injured employee’s eligibility for lifetime income benefits considering all of the eligibility criteria listed under Labor Code §408.161. Failure to respond to the request for lifetime income benefits within the timeframes described in this subsection does not constitute a waiver.

(c) The insurance carrier shall make the first payment of lifetime income benefits on or before the 15th day after the date the insurance carrier should reasonably believe that the injured employee is eligible for lifetime income benefits as a result of the compensable injury. The initiation of lifetime income benefits without a final decision, order, or other action of the commissioner does not constitute a waiver.

(d) If the injured employee requests the payment of lifetime income benefits and the insurance carrier denies that the injured employee is eligible for lifetime income benefits, the insurance carrier shall deny eligibility by filing a plain language notice of dispute of eligibility in the form and manner prescribed by the division up to the 60th day after receipt of the written request.  The notice of dispute of eligibility shall include:

(1) a full and complete statement describing the carrier’s denial and its reason(s) for such action containing sufficient claim-specific substantive information to enable the injured employee to understand the carrier’s position or action taken under the claim. A generic statement that simply states the carrier’s position with phrases such as "not part of compensable injury," "not meeting criteria," "liability is in question," "under investigation," "eligibility questioned" or other similar phrases with no further description of the factual basis for the denial do not satisfy the requirements of paragraph (1) of this subsection;

(2) contact information including the adjuster’s name, toll-free telephone and fax numbers, and email address; and

(3) a statement informing the injured employee of their right to request a benefit review conference to resolve the dispute.

(e) An injured employee may contest the insurance carrier’s denial of eligibility for lifetime income benefits or failure to respond to the written request for lifetime income benefits by requesting a benefit review conference as provided by Chapter 141 of this title (relating to Dispute Resolution--Benefit Review Conference).

(f) Nothing in this section is intended to limit any insurance carrier’s duty to initiate payment of lifetime income benefits before the time limit established in subsection (c) of this section.


The comment period on the informal rule closes Tuesday, September 2, 2014 at 5 p.m. Central Standard Time.  

Comments may be submitted by e-mailing InformalRuleComments@tdi.texas.gov.


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