State News : Texas

The Division of Workers’ Compensation has proposed rules for implementing House Bill 2468, which expanded LIBs entitlement to first responders in Texas Labor Code Section 408.1615 and went into effect on September 1, 2023.  Among the more notable changes, Section 127.25(a) permits insurance carriers to suspend LIBs in accordance with Section 408.1615. Reinstatement of LIBs is compulsory under subsection (f) on the date the injured worker attends the designated doctor examination or the date the claimant reschedules the exam.  The Carrier has seven days after receiving notice that the injured worker submitted to the exam (or that the DWC finds good cause for his/her not attending) to reinstate LIBs.  

New rules include Section 131.12, 131.13, and 131.14 pertaining to the provisions contained in Texas Labor Code 408.1615.  Rule 131.12 sets forth the requirement that the injured first responder must certify annually his or her complete non-employment to the insurance carrier. Failure to do so within thirty days of the anniversary of the date LIBs accrued permits the insurance carrier to suspend LIBs.  

The Carrier is likewise entitled to suspend LIBs on a showing that the injured first responder has returned to employment in some capacity or failed to submit to a designated doctor examination without good cause, per the proposed Rule 131.13. A Plain Language Notice to the injured worker is a prerequisite for such a suspension. The worker must respond to such a notice within twenty days of its receipt by providing the certification of non-employment, alerting the Carrier to a scheduled DD exam, or by requesting dispute resolution.  

Finally, Rule 131.14 compels the insurance carrier disputing the accuracy of the first responder’s annual certification to supply a copy of it to the DWC and the injured worker. The DWC will then determine whether a DD exam for the purpose of establishing continued LIBs entitlement is appropriate.  Both the DWC’s and the designated doctor’s determinations are subject to the dispute process if a party so requests.  

In accordance with the changes to the Act and Division Rules, the DWC has proposed the new DWC039 form, “First responder’s annual certification for lifetime income benefits.”  The PLN-4 “Notice of Eligibility for Lifetime Income Benefits” has been revamped to include a section for first responders to maintain entitlement and instructions to the insurance carrier to provide the annual certification period (if applicable) to the injured employee in that same section.

 

The DWC has proposed revisions to a slew of forms recently.  Among them:

The DWC Form-001, “Employer’s First Report of Injury or Illness,” has been re-formatted with one noticeable change.  Previously, the employer was asked to provide the “Date Lost Time Began.”  The new version inquires instead after “First day absent from work.”  The same change can now be found in the DWC-002, “Employer’s Report for Reimbursement of Voluntary Payment,” and the DWC-006 “Supplemental Report of Injury.”

The latest alteration to the perpetually revised DWC032 “Request for Designated Doctor Examination” corrects some wording in the extent of injury issue, but more importantly amends the “Other similar issues” (Box 31 G) to incorporate a request for an examination to determine “eligibility to receive lifetime income benefits,” which was not previously specified.  

A new form, the DWC038 “Application for lifetime income benefits,” has been proposed.  The form sets forth a section listing the possible bases for the injured worker’s entitlement to LIBs, including one for a “first responder with a serious bodily injury that makes you permanently unemployable.” 
 

Copyright 2024, Stone Loughlin & Swanson, LLP

On July 24, 2024, at 2:00 p.m. Central Time, the Division of Workers’ Compensation will offer a free webinar to instruct system participants on the usage and correct completion of the DWC Form-003 Employer’s Wage Statement.  Adjusters, employers, and attorneys are invited to attend and earn an hour of general education credit. Those interested may register here.

The DWC Form-003 is (spoiler alert!) essential for establishing an injured worker’s average weekly wage and, by extension, the rates for income benefits to follow.  No word on the precise topics to be covered in the program, but some suggestions would include:

•    Why is the DWC-003 required?
•    To whom is it then sent?
•    What is considered a non-pecuniary wage?
•    How should wages paid on a biweekly basis be recorded?
•    What if the injury occurred in the middle of the week?
•    Or if the injured worker was not employed for thirteen weeks?
•    Can I get Glenda in H.R. to do this, or do I have to?

The DWC announced on June 21 that interest on benefits owed under the Texas Labor Code will now be at the rate of 8.57%, up infinitesimally from the prior rate of 8.55%.  The new rate went into effect on July 1, 2024.  So, if you spent your Canada Day watching Letterkenny with a six-pack of Molson instead of obsessively checking interest rates on past due workers’ compensation benefits, now you know.

Copyright 2024, Stone Loughlin & Swanson, LLP

Vindication for the Appeals Panel!  The Court of Appeals in Amarillo determined this month that an insurance carrier may take credit for previously paid Indemnity Income Benefits (IIBs) and Supplemental Income Benefits (SIBs) by redesignating them as Lifetime Income Benefits (LIBs) if either were paid prior to the LIBs accrual date.  Lubbock County v. Reyna, No. 07-23-00380-CV, 2024 WL 2925337.

The injured worker sustained a traumatic brain injury entitling him to Lifetime Income Benefits. However, Claimant had already received approximately four and a half years of IIBs and SIBs after the LIBs accrual date.  He won a summary judgment decision at the district court level, where he asserted his right to collect LIBs during the same time frame he previously received IIBs and SIBs.  Lubbock County’s summary judgment motion, asserting that such double recoveries are prohibited as a matter of law, was denied.

The Court of Appeals reversed the trial court in holding that an injured worker may recover only one form of income benefits for a single compensable injury at any given time.  Referencing the Appeals Panel’s decision in the case that both IIBs and SIBs could properly be redesignated as LIBs, the Court of Appeals concurred.  To permit receipt of multiple forms of income benefits for the same period would potentially allow an injured worker to recover more than his or her average weekly wage in indemnity benefits, something the Texas Labor Code forbids.

Instructions to the insurance carrier on the PLN-7 form (“Notice of Change of Indemnity Benefit Type”) have been changed to advise that the form is to be used when an injured worker gains entitlement to LIBs following payment of a previous income benefit type.  

Copyright 2024, Stone Loughlin & Swanson, LLP

Effective July 11, 2024, the DWC will adopt changes to 28 Texas Administrative Code Section 102.2, pertaining to gifts, grants, and donations made to the Division.  

Heretofore, a gift of $500.00 or more to the agency necessitated a majority vote by the commissioners at a public meeting to acknowledge the gift within 90 days of its acceptance. Now, the DWC will be required to post any gift/grant/donation of $500.00 or more to its public website for at least five years from the date of receipt, identifying the donor, the amount, and the date and purpose of the bequeathment, if known. Left intact is the prohibition on a donation or gift (again, ≥ $500.00) from anyone who is a party to a contested case until thirty days after the decision in that case has become final.  

So, if you have $500.00 burning a hole in your pocket and don’t know what to do with it, you can always hand it over to the DWC.  But we have a better idea.

Copyright 2024, Stone Loughlin & Swanson, LLP

On May 23, 2024, the Ninth Court of Appeals in Beaumont held that political subdivisions, including school districts, have governmental immunity from workers’ compensation retaliatory discharge claims brought by their employees under Chapter 451 of the Workers’ Compensation Act, except when the employee is a first responder. The case is Conroe Independent School District v. Osuna.

Maria Osuna, a custodian for Conroe Independent School District, sued her employer alleging she was wrongfully terminated in violation of section 451.001 of the Act which provides in part that a person may not discharge or in any other manner discriminate against an employee because the employee has filed a workers’ compensation claim in good faith.  The law provides for reasonable damages incurred by the employee as a result of the violation and reinstatement in the former position of employment.  

Osuna alleged in her lawsuit against the District that she was exposed to a chemical disinfectant that caused her to feel sick and that she was terminated when she got into a disagreement with the District over her work restrictions which provided that she not be exposed to the chemical disinfectant or other allegedly hazardous chemicals.  She claimed her termination was in violation of Chapter 451.

The court of appeals held that the trial court erred when it denied the District’s plea to the jurisdiction asserting that it had immunity from chapter 451 retaliation claims: “We hold the trial court erred by implying that the Legislature waived the immunity of the District to Osuna’s retaliatory discharge claim.”  The court of appeals granted the District’s plea and dismissed Osuna’s lawsuit.