Matt Lewis Law - Libs Update 2015

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LIBS UPDATE

• MATT LEWIS
• Booker Lewis, P.C.
• 901 Waterfall Way, Suite 105
• Richardson, TX 75080
• [phone] T
• [phone] F
• matt.lewis_at_dallasworkcomp.com
•  
•  ROBERT R. (BOB) GRAVES
• Burns Anderson Jury Brenner, L.L.P.
• 7804 Bell Mountain Drive
• Austin, Texas 78730
• [phone] (office)
• [phone] (fax)
• rgraves_at_bajb.com
•  

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Tex. Lab. Code 408.161 LIBS ARE PAID UNTIL
DEATH 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 or
• Third degree burns that cover at least 40 percent
  of the body and require grafting, or third degree
  burns covering the majority of either both hands
  or one hand and the face

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Loss of Use

• Tex. Lab. Code 408.161(b) total and permanent
  loss of use of a body part is the loss of that
  body part
• Travelers Ins. Co. v. Seabolt, 361 S.W.2d 204
  (Tex. 1962).
• Loss of use could be established through proving
  the absence of any utility in the body part or
• Claimant cannot obtain and retain employment
  requiring the use of the enumerated body part.

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Loss of UseBrudine v. Muro

• Hartford Underwriters Ins. Co. v. Burdine, 34
  S.W.3d 700, (Tex. App.Fort Worth 2000, no pet.).
  
• Claimants back injury resulted in radiculopathy
  that affected the nerve roots that went down the
  leg and into the foot resulting in footdrop.
• The definition of injury submitted to the jury
  was damage to the physical structure of the
  body that caused the incitement, precipitation,
  acceleration, or aggravation of the condition of
  both her legs and/or feet at or above the ankles,
  and Burdine's back injury in this case clearly
  fits that definition.
• Case further establish the concept that LIBs
  could be obtained even if the claimants initial
  and direct injuries were not to an enumerated
  body part.
• Insurance Company of the State of Pennsylvania v.
  Muro, 347 S.W.3d 268 (Tex. 2011)
• Claimant suffered bilateral hip injuries that
  developed into necrosis. She had multiple
  surgeries complicated by recalls of the hip
  replacement hardware used on her, and the failure
  of another hip replacement hardware device.
  While she never lost the complete utility of her
  legs, she did reach a point where she could no
  longer perform any work that required the use of
  her legs.
• there must be an injury or impairment to the
  enumerated body part in order to qualify for
  LIBs.
• The disjunctive Seabolt test for loss of use does
  not apply until there is evidence of a direct or
  indirect injury to the enumerated body part.
• an injury such as that described in Burdine
  (radiculopathy) would satisfy this requirement as
  an indirect injury resulting in impairment to an
  enumerated body part

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How Do you Establish Loss of Use?

• Treating Doctor Records
• Peer Review
• Designated Doctor
• 408.0041(a)(1) A party is entitled to a DD
  resolve questions about
• the impairment caused by the compensable injury
• the attainment of maximum medical improvement
• the extent of the employee's compensable injury
• whether the injured employee's disability is a
  direct result of the work-related injury
• the ability of the employee to return to work or
• issues similar to those described by Subdivisions
  (1)-(5).
• 408.0041(f) Unless otherwise ordered by the
  commissioner, the insurance carrier shall pay
  benefits based on the opinion of the designated
  doctor during the pendency of any dispute.
• Post-DD RME

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Accrual Date

• Mid-Century Insurance Company v. Texas Workers
  Compensation Commission, 183 S.W.3d 754 (Tex.
  App.Austin 2006, no writ).
• Held that LIBs accrue and become payable on the
  date that the Claimant suffers from one of the
  listed conditions and not before
• Once the Claimant is adjudicated eligible to
  receive LIBs, those benefits are then paid
  retroactively to the date they first became
  eligible
• Remember to ask the Doctor when the Claimant
  began to meet the LIBs criteria.

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No Subsequent Review of LIBs Entitlement

• Liberty Mutual Ins. Co. v. Adcock, 412 S.W.3d 492
  (Tex. 2013).
• that in the absence of express language in the
  statute giving DWC the power to revisit the issue
  of LIBs entitlement after a prior decision, there
  is no such power.

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28 TAC 131.1

• The new rule!

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Goals of Rule 131.1

• Help ensure that injured employees are provided
  income benefits in a timely and cost-effective
  manner.
• Effectively educate and clearly inform each
  person who participates in the system of the
  persons rights and responsibilities under the
  system and how to appropriately interact within
  the system.

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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.

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Rule 131.1(b)

• An injured employee may submit a written request
  for lifetime income benefits to the insurance
  carrier.
• The insurance carrier shall either initiate
  lifetime income benefits or deny the injured
  employees eligibility for lifetime income
  benefits considering all of the eligibility
  criteria listed under Labor Code 408.161 within
  60 days from the receipt of the injured
  employees written request.
• An insurance carriers failure to respond to the
  request for lifetime income benefits within the
  timeframes described in this subsection does not
  constitute a waiver of the insurance carriers
  right to dispute the injured employees
  eligibility for lifetime income benefits.

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Rule 131.1(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
  reasonably believes that the injured employee is
  eligible for lifetime income benefits as a result
  of the compensable injury.
• What does reasonably believes mean?
• The initiation of lifetime income benefits
  without a final decision, order, or other action
  of the commissioner does not waive the insurance
  carriers right to contest the compensability of
  the injury in accordance with Labor Code
  409.021(c).
• What about Adcock, how will it apply?

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Rule 131.1(d)

• If the injured employee submits a written request
  for 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
  sending a plain language PLN-4 notice of denial
  of eligibility to the division, the injured
  employee, and the injured employees
  representative, if any, in the form and manner
  prescribed by the division up to the 60th day
  after receipt of the written request. The notice
  of denial of eligibility shall include
• a full and complete statement describing the
  insurance carriers reasons for denial. The
  statement must contain sufficient claim-specific
  substantive information to enable the injured
  employee to understand the insurance carriers
  position or action taken under the claim.
• A generic statement that simply states the
  insurance carriers 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 is
  insufficient requirements of paragraph (1) of
  this subsection
• contact information including the adjusters
  name, toll-free telephone and fax numbers, and
  email address and
• a statement informing the injured employee of his
  or her right to request a benefit review
  conference to resolve the dispute.

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The PLN-4

• File when disputing entitlement to LIBs
• Must be sent to DWC, the injured employee and
  employees representative
• File when LIBs is the initial payment of
  indemnity benefits on a claim
• Do not send a notice to the DWC.

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Rule 131.1(e)

• An injured employee may contest the insurance
  carriers 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).

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Rule 131.1(f)(g)

• (f) Nothing in this section is intended to limit
  any insurance carriers duty to initiate payment
  of lifetime income benefits before the time limit
  established in subsection (c) of this section.
• (g) Effective date. This section is effective on
  June 1, 2015.

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Durable Medical Equipment (DME)

• 401.011(19) "Health care" includes all
  reasonable and necessary medical aid, medical
  examinations, medical treatments, medical
  diagnoses, medical evaluations, and medical
  services. The term does not include vocational
  rehabilitation. The term includes
• (A) medical, surgical, chiropractic, podiatric,
  optometric, dental, nursing, and physical therapy
  services provided by or at the direction of a
  doctor
• (B) physical rehabilitation services performed by
  a licensed occupational therapist provided by or
  at the direction of a doctor
• (C) psychological services prescribed by a
  doctor
• (D) the services of a hospital or other health
  care facility
• (E) a prescription drug, medicine, or other
  remedy and
• (F) a medical or surgical supply, appliance,
  brace, artificial member, or prosthetic or
  orthotic device, including the fitting of, change
  or repair to, or training in the use of the
  appliance, brace, member, or device.
• What about automobiles?
• Purchase v. Modification
• What about homes?
• Home modifications
• Home v. Inpatient Facility

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