WORKERS’ COMPENSATION 101 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
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 optional. 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 3 rd 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 a course & scope/compensability dispute, the proper dispute form is the PLN-1 (15-day & 60-day deadlines). If an extent of injury dispute, the dispute form is the PLN-11 (no deadlines). If a dispute of disability, the dispute form is the PLN-11 (no deadlines). 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).
What’s the Proper Dispute Form? If a dispute of supplemental income benefits, the dispute form is the DWC-45 and DWC-52 (10-day deadlines). If a dispute of the change of treating doctor, the dispute form is the DWC-45 (10-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 dispute of medical treatment, the dispute form is the DWC-62, Explanation of Benefits (45-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 of 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 on 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 1 st 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 or recovering from surgery. • Or IE is receiving physical therapy. Pain/Medications • Medications can affect an employee’s ability to do his or her job.
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