WORKERS COMPENSATION 101 Presented by: The Law Office of Ricky D. - - PowerPoint PPT Presentation

Presented by: The Law Office of Ricky D. Green 9600 Escarpment Blvd, Suite 745-52 Austin, Texas 78749 (512) 280-0055 Phone (866) 853-9407 Toll Free (512) 280-0071 Fax www.rickydgreen.com

WORKERS’ COMPENSATION 101

What Is Workers’ Compensation?

“The Great Tradeoff”

• Workers’ compensation is a state-regulated insurance

program that pays medical bills and replaces some lost wages for employees who are injured at work.

• Every insurance carrier except a governmental entity must

pay an annual maintenance tax up to 2% of gross workers’ compensation insurance premiums to support the administration of the comp system.

• Texas is the only state in which comp insurance is
• ptional. But, “public employers” must carry workers’

compensation insurance.

History of the Texas Comp Laws

“The Great Tradeoff”

• 1913 (Employer’s Liability Act of 1913) – first workers’

compensation laws enacted in Texas.

• 1917 – US Supreme Court said that each state can retain

voluntary employer participation.

• 1917 (Texas Industrial Accident Board) – Texas created the

TIAB to administer the Texas workers’ compensation laws. Operated until the 1980’s.

• 1989 (12/13/1989). Texas Legislature adopted the Texas

Workers’ Compensation Act (Senate Bill 1). This reduced high insurance costs for employers and provided for more benefits rates for injured employees (comp premiums doubled between 1984 – 1988).

History of the Texas Comp Laws

“The Great Tradeoff”

• 01/01/1991 – (Texas Workers’ Compensation Commission).

Six commissioner system, 3 for employees and 3 for employers. Texas Workers’ Compensation Act became effective.

• 2005 (TDI – Division of Workers’ Compensation). The TWC

was abolished and moved under the Texas Department of Insurance after Sunset Review. 1 commissioner system. Established the Office of Injured Employee Counsel, started 1305 networks, adopted treatment and return-to-work guidelines, limited the number of dispute hearings, increased the role of mutual designated doctors, and more.

Claims Handling Road Map

• Receive notice of injury
• Deadline claim
• Investigate claim (talk with the employer, the claimant, and doctors)
• Send out the HIPAA release for medical records, follow up on witnesses
• Review all medicals to determine if mechanism of injury is correct, look

for pre-existing injuries, determine the extent of the injury for filing of the PLN-11

• Timely dispute the claim by PLN-1
• Base your denials on medical opinions, witness statements, employer

insight

• Document your file
• Use the Designated Doctor, Post-DD RME, Peer Reviews, and

Utilization Review Agents.

CONSIDERATIONS FOR ADJUSTERS & EMPLOYERS

Encourage prompt reporting of injuries

• Encourage employers to report injuries timely and accurately.

Act with a sense of urgency

• Don’t delay contacting parties.

Complete a prompt and thorough investigation

• Think 3-point contact.

Have a legitimate and arguable basis for denials

• Clearly state what you are accepting on the claim.
• Explain why a claim is denied.

Act with objective professionalism

ACT ONE You received a new claim. Now what?

Investigate the Claim

Perfect the Three Point Contact.

• Take a statement from the injured employee (obtain employee’s email address, fax

number, and request to sign a HIPAA release).

• Discuss the claimed injury with the employer.
• Review all medical records and speak with the doctors.
• A peer review might be needed if there are medical questions.

It is an administrative violation to deny the claim without proper investigation. Include every defense on your PLN-1. Defenses not pled are waived.

Statutory Exceptions and Defenses

Course and Scope Intoxication Willful attempt to injure himself or another person Act of a 3rd person intended to injure the employee because of personal reasons

Statutory Exceptions and Defenses

continued…

Voluntary participation in an off- duty recreational, social, or athletic activity Act of God Horseplay Timely Reporting

Forms, Forms & More Forms…

DEADLINES and FORMS: What’s What?

PLN-1 : To deny the claim in its entirety – 15-day and 60-day deadline to dispute, plus 8 days of disability to consider. PLN-11: Extent of injury, disability and beneficiary status. Please state what you are accepting and you can deny everything else. PLN-3: To inform claimant of a certification of maximum medical improvement and impairment rating DWC-32: To request a designated doctor DWC-45: To request a BRC Other Important DWC Forms – DWC-1, DWC-3, DWC-3ME, DWC-6, DWC-24, DWC-42, DWC-53, DWC-69, DWC-73, DWC-74 - DWC Website Link for Forms is - http://www.tdi.texas.gov/forms/form20numeric.html

What’s the Proper Dispute Form?

If dispute of impairment rating, the dispute form is the PLN-3, DWC-32 and/or DWC-45, depending on the circumstances (90-day deadlines). If a dispute of disability, the dispute form is the PLN-11 (no deadlines). If an extent of injury dispute, the dispute form is the PLN-11 (no deadlines). If a course & scope/compensability dispute, the proper dispute form is the PLN-1 (15-day & 60-day deadlines).

What’s the Proper Dispute Form?

If dispute of medical treatment, the dispute form is the DWC-62, Explanation of Benefits (45-day deadlines). If dispute of designated doctor setting, the dispute form is a letter to Request Stay of the Designated Doctor Exam (3 working-day deadlines). If a dispute of the change of treating doctor, the dispute form is the DWC-45 (10-day deadlines). If a dispute of supplemental income benefits, the dispute form is the DWC-45 and DWC-52 (10-day deadlines).

Extent of Injury, PLN-11 Considerations GENERAL

1.

Determine the extent of injury at the beginning of the claim from the recorded statement, employee/employer incident reports, first medicals, and most importantly, the mechanism

• f injury.

2.

When/if the extent of injury changes at later time, consider getting a peer review to address whether the compensable injury extends to the new diagnoses or any other diagnoses.

3.

List all injuries you are accepting.

BFOE – Rule 129.6

The carrier may suspend TIBs if an injured employee fails to accept a bona fide offer of employment from the employer. The employer may make a written job offer to the injured employee based on work restrictions from the treating doctor. The carrier may deem wages offered on a BFOE as PIE

• n the earlier of the employee rejecting the offer or the

seventh day after the employee receives the offer.

Types of Benefits

Temporary Income Benefits – TIBs

• Replace a portion of lost wages caused by a work-related injury.

Impairment Income Benefits – IIBs

• Compensate injured employees for permanent impairment

from their injuries.

Supplemental Income Benefits – SIBs

• Replace a portion of lost wages caused by a work-related injury

for impairment ratings higher than 15%. Paid after IIBs are complete.

Types of Benefits Cont.

Lifetime Income Benefits – LIBs

• Paid for life for specific, severe injuries.

Burial Benefits

• Pay for some of a deceased employee’s funeral expenses.

Death Benefits – DIBs

• Replace a portion of lost family income for eligible family members of

employees killed on the job.

Medical Benefits

• Pay necessary medical care to treat the compensable injury. Medical benefits

continue for life.

Temporary Income Benefits -TIBs

TIBs accrue on the eighth day of disability. Sec. 408.082. TIBs are paid during periods of disability until maximum medical

• improvement. Rule 129.2.

TIBs are paid at 70% of lost wages, unless the claimant earns less than $10.00 per hour and is then paid 75% for the 1st 26 weeks. Rule 129.3. The current TIBs maximum is $895 weekly and the minimum is $134 weekly. Website link is - http://www.tdi.texas.gov/wc/employee/maxminbens.html

TIBs – Tips and Traps

Disability is an injured worker’s inability to obtain and retain employment at wages equivalent to the pre-injury

• wage. Sec. 401.011(16).

Disability is a fact question. A doctor doesn’t have to write a medical report or file a DWC-73 for the claimant to establish disability. When calculating the accrual date, days of disability may be intermittent. Partial TIBs may be owed to employees working light duty. Salary continuation payments made by an employer for an employee's disability resulting from a compensable injury is considered payment of income benefits for the purpose of determining the accrual date of any subsequent income benefits. Sec. 408.003(f). TIBs can be owed for lost wages from secondary employers. (These payments may be reimbursable from the Subsequent Injury Fund).

Evidence that Disability Exists

Restricted Duty Release/Removal From Work

• Request regular DWC-73s from the treating doctor.
• Designated Doctor overrules the treating doctor.

Medical Care

• An injured employee can’t come to work if they are in the hospital
• r recovering from surgery.
• Or IE is receiving physical therapy.

Pain/Medications

• Medications can affect an employee’s ability to do his or her job.

Evidence that Disability Does Not Exist

Abandonment of Medical Treatment Full Duty Release Incarceration Resignation/Retirement/Termination that is not due to the compensable injury Reasonable Availability of Employment

• The law does not require the IE to engage in new employment while still

suffering from some lingering effects of the injury unless new employment is reasonably available and fully compatible with the IE's physical condition and generally within the parameters of the IE's training, experience, and qualifications.

Sole Cause

• If a pre-existing or intervening injury is the sole cause of the inability to

earn the pre-injury wage.

Impairment Income Benefits - IIBs

• IIBs accrue on the day after the injured employee reached
• MMI. Rule 130.8.
• Three weeks of IIBs are paid for each percentage point of
• impairment. Sec. 408.121.
• IIBs payments equal 70% of the average weekly wage.
• The current IIBs maximum is $627.00 weekly and the

minimum is $134.00 weekly. The DWC website link is - http://www.tdi.texas.gov/wc/employee/maxminbens.html.

IIBs – Tips and Traps

• The first valid certification of MMI and IR can become final if

not disputed within 90 days of receipt. Rule 130.12.

• Impairment ratings can only be disputed by requesting a BRC or

requesting a DD if one has not been appointed. Rule 130.12.

• Send the report to the injured employee through verifiable means

even if it comes from a treating/referral doctor or post-DD RME.

• IIBs should be paid per the opinion of the designated doctor

even if disputed. Sec. 408.0041.

IIBs – Tips and Traps Cont.

• Research previous injuries to decrease IIBs through
• contribution. Sec. 408.083.
• The Carrier can make a reasonable assessment of

impairment rating if it disputes the treating/referral doctor report or if the Carrier has not received a DWC-69 by statutory MMI. Sec. 408.121 and Rule 130.2.

• A doctor does not need to be certified to do impairment

ratings to make a finding of no impairment. Rule 130.1.

When to Request a Designated Doctor

When you want to bring closure to the claim. When ODG guidelines say claimant should be done treating. When claimant’s condition has stabilized or is no longer treating. When you are disputing a treating doctor or referral doctor’s opinion of MMI/IR.

How to Prepare for the Designated Doctor Exam

File any PLN-11s limiting the extent of the injury. Clarify

what you are accepting on the claim.

Do you have surveillance? If you think surveillance will

help your case, complete it BEFORE you request a DD.

Consider a Peer Review to send along with medicals to the

DD.

Do you have all medical records? Request any medicals

you are missing before you request the DD exam.

Designated Doctor Checklist

The carrier must pay medical and indemnity benefits based on the DD’s report because the DD’s report is binding during any dispute and has presumptive weight. Even if a treating doctor, referral doctor or post-DD RME examines the IW after the DD exam and gives a certification of MMI/IR, the carrier must still pay on the DD’s

• report. For medical benefits, the carrier has 21 days to reprocess the medical bills.

The DD can request additional testing, which doesn’t require preauthorization and cannot be retrospectively denied based on medical necessity, extent of injury or compensability. The DD can only provide multiple certifications if requested to address extent of injury, MMI and IR.

But wait! I Didn’t Do That!

When the other party incorrectly requests the DD

Stay of the Designated Doctor Exam Rule 127.1(f)

• A party may dispute the Division’s approval or denial of a

designated doctor request.

• The dispute may not be requested until the Division has

approved or denied the initial request.

• A party may request an expedited contested case hearing and

stay of the designated doctor exam once it is ordered.

• The request for CCH and stay must be made within three

working days of receiving the DD exam order.

When should you request a Stay?

When the Designated Doctor is asked to address issues that have already been addressed. When the doctor chosen does not have the proper credentials to perform the exam. When you have a possible 90 day issue.

You have the report. Now What?

You like the report from the Designated Doctor Pay indemnity benefits within 5 days of receiving the DD report and reprocess medical bills within 21 days, if necessary. Send the report by verifiable means to the claimant and claimant’s attorney. Calendar 90 day deadline to follow-up for any possible dispute by the claimant/claimant’s attorney.

I LIKE this report…

Use the DD Report to Bring Closure to a Claim, or Suspend Benefits

• The DD places the claimant at MMI (can request the

treating doctor to certify no permanent impairment also, and the TD doesn’t have to be IR certified).

• The IW doesn’t show for the DD exam.
• The IW doesn’t return to work based on a bona fide offer of

employment (Rule 129.6).

• The DD releases the IW back to full duty work or certifies

the IW doesn’t have disability.

I HATE this report…

If report is for MMI/IR send out for IR peer review. File a DWC-22 for a post DD RME for all issues DD examined for. Calendar 90 day deadline to file DWC- 45 Request for BRC if disputing MMI/IR. Consider a request for a Letter of Clarification, if necessary. Request another DD after 60 days.

Disputing the Designated Doctor Report

• The designated doctor’s report has presumptive weight

and controls during the pendency of the dispute.

• Dispute the designated doctor report by requesting a

BRC.

• Designated doctor reports are subject to 90 day finality.
• If the DD report is the first certification of MMI and IR,

it must be disputed by requesting a BRC within 90 days of

• receipt. DWC Rule 130.12.

Disputing the Designated Doctor Report Cont.

• To prevail in a designated doctor dispute for MMI and IR,

you must have an alternate certification.

• A designated doctor report is overcome by providing a

preponderance of the evidence to the contrary at the CCH.

• A preponderance means more likely than not.
• Evidence used to overcome designated doctor reports

include post-DD RMEs, peer reviews, medical testimony, and other medical records.

What if the Doctor Says Not at MMI?

Consider providing treatment that the DD recommends to get the claimant to MMI. You can request a DD every 60 days. If the carrier or claimant requests a letter of clarification, they must send the letter to the opposing party (administrative violation). Send claimant to a post DD RME to try and get an alternate certification or opinion on issues the DD examined for.

Letters of Clarification Rule 127.20

• Parties may request clarification from a designated doctor

through the Division.

• The request must be provided to the opposing party.
• The Division will contact the DD if it determines that

clarification is necessary to resolve an issue regarding the DD’s report.

• The Division is extremely strict about sending letters of

clarification.

Designated Doctor General Procedures Rule 127.10

The insurance carrier shall pay all benefits, including medical benefits, in accordance with the DD report. Medical bills previously denied for reasons inconsistent with the DD’s report must be reprocessed within 21 days of the receipt of the DD’s report. All other benefits shall be paid within 5 days of receiving the report.

Supplemental Income Benefits - SIBs Entitlement to SIBs requires:

• An impairment rating of 15% or more.
• Earning less than 80% of pre-injury average weekly

wage as a result of the compensable injury.

• Active work search efforts or total inability to work.
• The injured employee did not commute any IIBs.

Rule 130.102.

The current SIBs maximum is $602 weekly.

SIBs – Tips and Traps

To dispute the first quarter of SIBs or a subsequent quarter with prior payment, the carrier must file a DWC-45 within 10 days of receiving the determination or application. Rule 130.108. The carrier is liable for attorney fees on top of benefits and interest if it unsuccessfully contests entitlement to SIBs. Rule 130.108. Injured employees permanently lose entitlement to SIBs if they are not entitled to benefits for four consecutive quarters. Rule 130.106.

SIBs Scenario 1

• The claimant timely files SIBs applications for first

through fourth quarters and the carrier pays them.

• The carrier does not receive any additional applications for

two years.

• Two years after paying the fourth quarter, the carrier

receives applications for the fifth through twelfth quarters.

• What should the carrier do with these applications?

SIBs Scenario 2

• The Carrier paid SIBs quarters 1 and 2.
• Claimant faxed the 3rd quarter application to the

Carrier on March 1, 2015.

• The fax is misplaced and gets to the Adjuster on

March 12, 2015.

• The Adjuster immediately identifies that Claimant did

not do the required number of job searches and she files a DWC-45 to dispute.

• What will happen at a CCH?

Lifetime Income Benefits - LIBs

LIBs are paid until the death of the employee for:

• Total and permanent loss of sight in both eyes;
• Loss of both feet at or above the ankle;
• Loss of both hands at or above the wrist;
• Loss of one foot at or above the ankle and the loss of one hand at or

above the wrist;

• An injury to the spine that results in permanent and complete

paralysis of both arms, both legs, or one arm and one leg;

• A physically traumatic injury to the brain resulting in incurable

insanity or imbecility;

• Third degree burns that cover at least 40% of the body and require

grafting or third degree burns covering the majority of either both hands or one hand and the face. Sec. 408.161.

• The current LIBs maximum is $861 weekly.

LIBs – Tips and Traps

• LIBs are paid at 75% of the AWW and are increased by 3%

each year on the anniversary date of the date LIBs began to

• accrue. Rule 131.2.
• LIBs accrue and become payable on the date the injured worker

suffers from one of the conditions listed in Sec. 408.161(a). Mid-Century Ins. Co. v. Texas Workers' Compensation Commission, 187 S.W. 3d 754 (Tex. App.-Austin 2006, no pet.).

• The Carrier may petition SIF for payment of LIBs of

entitlement to LIBs occurs due to the effects of two combined

• injuries. Rule 131.3.
• The Carrier may purchase an annuity for payment of LIBs. Rule

131.4.

LIBs Scenario 1

The claimant injured his low back when he fell off a ladder. Following back surgery, the claimant began to experience weakness in his legs. His doctor felt that the spinal cord was damaged and scar tissue will eventually make the problem worse. The claimant eventually became paralyzed and won a CCH

• n entitlement to LIBs.

What is the LIBs accrual date?

Death and Burial Benefits

• DIBs are paid at 75% of the deceased employee’s AWW.

Rule 132.1.

• Burial benefits increased to $10,000 beginning September

1, 2015.

• Spouses, children, grand children, dependents, and parents

can potentially be eligible for DIBs. Rule 132.3-132.6.

• If there are no beneficiaries, payment of 364 weeks of

DIBs is paid to the SIF. If all beneficiaries cease to be eligible before 364 weeks are paid, the remainder of 364 weeks is paid to the SIF. Rule 132.10.

DIBs – Tips and Traps

• An eligible spouse receives DIBs until death or remarriage. Upon

remarriage, the spouse receives a lump-sum payment of 104 weeks of

• DIBs. Rule 132.7.
• Children receive DIBs until death or the child’s 18th birthday. Eligibility

may continue until age 25 if the child is a full time student. A child ceases to be a full time student after the child ceases to be enrolled for two consecutive semesters. Rule 132.8.

• DIBs shall be redistributed if a beneficiary dies or becomes ineligible.

Rule 132.12.

• The Carrier may purchase an annuity for payment of DIBs. Rule

132.16.

Death Benefits, SIF and Investigation of a Death Claim

• If all legal beneficiaries are no longer eligible to receive death benefits prior to the

carrier paying a full 364 weeks of benefits, the carrier must, without order from the Commission, pay the remainder of the 364 weeks of death benefits to the administrator of the SIF.

• If a carrier has denied compensability of or liability for a death pursuant and no

claim of entitlement has been filed by a potential beneficiary by the 60th day after the date the carrier received written notice of the injury/death, the carrier must provide to the SIF administrator within 14 days copies of all reports, notices, witness statements, and investigation notes relating to the compensability of the death or the carrier's liability for payment of death benefits.

• A carrier that is made aware of a death under must attempt to identify all potential

beneficiaries, and the carrier must maintain documentation relating to its attempt to identify potential beneficiaries.

• A carrier that identifies or becomes aware of a potential beneficiary must notify

the potential beneficiary of potential entitlement to benefits. This notice must be sent within seven days of the date the carrier identified the beneficiaries (DWC Form PLN-12).

DIBs Scenario

Claimant was killed in a work-related automobile accident. The Carrier’s initial investigation did not reveal a spouse or children. The Carrier receives an application from a woman claiming to be the deceased’s common-law wife. Are spouses of a common-law marriage eligible for death benefits? What evidence can the spouse provide to prove common law marriage?

Medical Benefits

• Injured workers are entitled to all health care reasonably required by the

nature of the injury as and when needed. Sec. 408.021.

• An insurance carrier’s liability for medical benefits may not be limited
• r terminated by agreement or settlement. Sec. 408.021.
• Medical benefits are paid per Division fee guidelines. Sec. 413.016.

Rules 134.201 – 134.204.

• Doctors cannot pursue payment from injured workers. Sec. 413.042.

Medical Benefits Cont.

• The insurance carrier shall take final action on medical

bills not later than 45 days after receiving the bill. Rule 133.240.

• The insurance carrier shall make a determination

regarding the relationship of the health care services provided for the compensable injury, the extent of the injury, and the medical necessity of the services provided. Rule 133.230.

• URAs may make adverse determinations that medical

services are not medically necessary or appropriate. Rule 19.2003.

Medical Benefits – Tips and Traps

Providers or injured employees may request independent review

• f medical necessity adverse determinations. Rule 133.308.

Bills that are denied for compensability, extent, liability, or medical necessity will be dismissed from MFDR. Rule 133.307. The adjuster may deny bills based on extent of injury but must rely on the URA for medical necessity determinations.

Medical Scenario 1

The carrier has filed a PLN-11 accepting a lumbar sprain/strain only based on a peer review. The peer review says that the sprain/strain has resolved and no further treatment is reasonable and necessary. The adjuster receives a medical bill for sprain/strain and lumbar intervertebral disc. Can the adjuster deny this bill?

THANK YOU FOR ATTENDING

HAVE A GREAT DAY

THE LAW OFFICE OF RICKY D. GREEN, PLLC