Compensability Issues
An employer has the right to attend and to present information at a proceeding. Although an injured employee must show that an injury is work-related, an employer may contest the insurance carrier's acceptance of a compensable injury; however, the employer should be prepared to present information to support their contest of a claimed injury. A party should be prepared to discuss the following information at a BRC on a compensability dispute.
DWC Forms
- DWC Form-001, Employer's First Report of Injury or Illness (paper copy if filed electronically).
- DWCForm-004, Employer's Contest of Compensability.
- Plain Language Notice (PLN) 1, Notice of Denial of Compensability/Liability and Refusal to Pay Benefits, or PLN 11, Notice of Disputed Issue(s) and Refusal to Pay Benefits.
- DWC Form-045, Request to Schedule, Reschedule, or Cancel a Benefit Review Conference (BRC).
Parties to a dispute are also required to provide pertinent information to Texas Department of Insurance, Division of Workers' Compensation (DWC) not later than 14 days before the scheduled benefit review conference, but should NOT attach this information to the Request to Schedule, Reschedule, or Cancel a Benefit Review Conference (BRC) (DWC Form-045).
Pertinent information includes:
- Medical Records:
- Medical records from the employer's health care facility, if any;
- Medical information that shows a claimed injury/disease could not be a result of the original injury or a result of the injured employee's employment, if any;
- Doctor's narrative report resulting from a DWC or insurance carrier's required medical examination, if any;
- For an occupational disease, medical information that shows the disease is an ordinary disease of life and is not related to the injured employee's employment, if any;
- For a repetitive trauma injury, medical information that shows the duration, frequency, and nature of the activities were not repetitious or traumatic nor in the course and scope of employment, if any;
- For a mental trauma injury, information that shows the mental trauma resulted from a legitimate personnel action, demotion, termination, or over a period of time;
- For a heart attack, medical information to show that the natural progression of a preexisting heart condition or disease was a substantial contributing factor of the heart attack;
- Medical Release form - to obtain any additional medical records related to treatment provided outside of a workers' compensation claim or for a previous injury(s);
- Requests for a designated doctor exam:
- letters of clarification to a designated doctor and responses from the designated doctor, and
- treating doctor's response to a designated doctor's opinion;
- Transcribed Statement(s) - if the adjuster created a telephonically recorded interview with injured employee, supervisor(s), and/or other co-worker(s), a transcribed copy of the interview should be available;
- Witness Statements - while not all injuries are witnessed, it is beneficial to present the names and/or statement of any co-workers who support the insurance carrier's position that the claimed injury is not work-related;
- Video Tapes/DVDs that clearly show the identity of the injured employee - an insurance carrier should contact the handling DWC field office to request that proper equipment will be available for viewing at the proceeding;
- Death Certificate and Autopsy Report, if applicable - required when a work-related injury results in the injured employee's death;
- Employer's Accident Report - usually filled out by the injured employee's supervisor at the time the injury is reported to the employer, if any; and
- Any additional information that would support the employer's position that the injured employee did not have a compensable injury.
Exchange of Information
Pertinent information must be exchanged in accordance with Texas Administrative Code §141.4.
- Disputing party must exchange all documents in their possession with the other party before requesting a BRC.
- Opposing party must exchange documents within 10 working days after receiving the request for a BRC (DWC Form-045).
- Any additional documents that come into a party's possession after the initial timeframes must be exchanged no later than 14 days before the BRC (5 days if the BRC is expedited).
- All documents must be submitted to the DWC no later than 14 days before the BRC (5 days if the BRC is expedited).
- Any documents obtained after the exchange deadline should be brought to the BRC with sufficient copies for both the other party and the DWC.
Definition of Terms
"Injury" means damage or harm to the body, including infections from the injury. See Texas Labor Code §401.011(26).
"Compensable Injury" means an injury in the course and scope of employment. See Texas Labor Code §401.011(10).
"Course and Scope of Employment" means an activity performed by the injured employee originating in the work of the employer. See §401.011(12).
"Occupational Disease" means a disease or repetitious trauma arising from the injured employee's employment. See Texas Labor Code §401.011(34).
"Repetitive Trauma Injury" means damage to the body from repetitious activities related to the injured employee's employment. See Texas Labor Code §401.011(36).
"Mental Trauma" may be compensable if it is traceable to a traumatic event in the injured employee's employment. See Texas Labor Code §408.006.
"Heart Attack" may be compensable if it occurred at a definite time and place in the course and scope of employment. See Texas Labor Code §408.008.
"Employer's Bill of Rights" allows an employer to attend a proceeding, present information and contest an injury accepted by the insurance carrier. See Texas Labor Code §409.011.
"Required Medical Examination" is an exam required by the DWC to address the appropriateness of health care or other similar issues. See Texas Labor Code §408.004.