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Advisory 2001-02

Status of Downs Decision - Update #1

On August 16, 2000, the 4 th Court of Appeals in San Antonio issued a revised decision in the case of Downs v. Continental Casualty Co., Cause No. 04-99-00111-CV. That decision held "a carrier waives its right to deny compensability if it fails to comply with section 409.021(a) of the Texas Labor Code by either agreeing to begin the payment of benefits or giving written notice of its refusal to pay within seven days after receiving written notice of an injury." The Commission understands that further requests for review of that decision will be made by one or more of the parties to that case.

After consultation with the Office of the Attorney General and in light of 410.205(b) of the Texas Labor Code, the Commission understands that the August 16 th decision in the Downs case should not be considered as precedent at least until it becomes final upon completion of the judicial process. In addition, the related Commission's rules, such as those found at 28 TEX. ADMIN. CODE 124.2, 124.3, and 132.17, remain in effect. Those rules may be found at the Commission's web site at

However, while the Downs case is under review by the courts, any insurance carrier may receive an acknowledgment from TWCC of the insurance carrier's agreement to pay benefits as they accrue and are due. The insurance carrier may check the appropriate box in item number 1 on a TWCC-21 form (hereinafter referred to as "cert 21s") and forward the completed form to Texas Workers' Compensation Commission, 4000 S. IH-35, Cert 21s - MS 93A, Austin, Texas 78704. The form will be acknowledged as temporarily received by TWCC with a special TWCC stamp and then the form will be returned to the insurance carrier via the insurance carrier's representative's box at TWCC's Central Office. The TWCC will acknowledge and return the cert 21s received since the August 16 th court decision and will return them to the insurance carrier representatives. The TWCC will not retain copies of these cert TWCC 21 forms since they are not required to be filed by Commission rules.

As an alternative to filing the paper version of the cert 21s, the Commission will also accept electronic submission of cert 21s via e-mail. The Commission has established the e-mail address of for the receipt of these filings. The Commission will provide an automated electronic acknowledgment of the receipt of the insurance carrier's submission of electronic cert 21s. Only cert 21s should be submitted to this address. Other forms filed at this address will not be considered filed with the Commission and no action will be taken on those forms. Claim information required to be filed with the Commission via Electronic Data Interchange (EDI) must still be filed in accordance with the accepted EDI standards and protocols.

Signed this 20th day of February, 2001

Leonard W. Riley, Jr., Executive Director

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