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LIBS UPDATE MATT LEWIS Booker Lewis P.C. 901 Waterfall Way Suite 105 Richardson TX 75080 972 644-1111 T 972 644-7600 F matt.lewisdallasworkcomp.com ROBERT R. BOB GRAVES Burns Anderson Jury Brenner L.L.P. 7804 Bell Mountain Drive Austin Texas 78730 512 338-5322 office 512 338-5363 fax rgravesbajb.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 § 408.161b: 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 Use” Brudine v. Muro • Hartford Underwriters Ins. Co. v. Burdine 34 S.W.3d 700 Tex. App.—Fort Worth 2000 no pet.. – Claimant’s 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 Burdines back injury in this case clearly fits that definition.” – Case further establish the concept that LIBs could be obtained even if the claimant’s 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 – § 408.0041a1: 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 employees compensable injury • whether the injured employees 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. – § 408.0041f “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 person’s rights and responsibilities under the system and how to appropriately interact within the system.

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Rule 131.1a • 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 131.1b • 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 employee’s 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 employee’s written request. • An insurance carrier’s 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 carrier’s right to dispute the injured employee’s eligibility for lifetime income benefits.”

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Rule 131.1c • “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 carrier’s right to contest the compensability of the injury in accordance with Labor Code §409.021c.” – What about Adcock how will it apply

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Rule 131.1d • 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 employee’s 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 carrier’s reasons for denial. The statement must contain sufficient claim-specific substantive information to enable the injured employee to understand the insurance carrier’s position or action taken under the claim. • “A generic statement that simply states the insurance carrier’s 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 adjuster’s 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 employee’s 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 131.1e • An injured employee may contest the insurance carrier’s 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 131.1fg • f Nothing in this section is intended to limit any insurance carrier’s 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 • § 401.01119 "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