WORKERS' COMPENSATION UPDATE
December 2021
What’s Trending in Comp Right Now?
The hot new injury in workers’ compensation seems to be a head injury. Here at SLS we’ve noticed what appears to be an increase in claims with alleged head injuries.
We don’t mean the kind like Massive Head Wound Harry from Saturday Night Live. We’re talking about the ones where there is little or no evidence of a blow to the head such as a cut, bruise, or bump and diagnostic testing, such as CT scans or MRIs, is negative. These are often seen in slip and fall claims and other relatively minor incidents.
These claimants may be diagnosed with a concussion (aka mild TBI) and post-concussion syndrome which consists of a broad range of symptoms that may include headaches, dizziness, fatigue, anxiety, and depression. These claims often don’t follow a normal healing pattern where the symptoms get better over time. Instead, they get worse.
The problem with concussion and post-concussion syndrome is that the symptoms are difficult to independently verify. The symptoms don’t show up on testing. Instead, they’re based on what the patient tells the doctor and can be influenced by psychosocial factors and secondary gain issues. In other words, a mild head injury is easy to fake. For those that can’t figure out how, there are even detailed instructions available online:
One medical journal summarized the problem as follows:
These criteria are particularly difficult to confirm at the least severe end of the mild TBI continuum, especially when relying on subjective, retrospective accounts. The postconcussive syndrome is a controversial concept because of varying criteria, inconsistent symptom clusters and the evidence that similar symptom profiles occur with other disorders, and even in a proportion of healthy individuals.
Handbook of Clinical Neurology, Volume 127, 2015, Pages 131-156.
The apparent increase in claims with alleged head injuries may be due to more awareness of TBI by claimants generally as well as some doctors who are eager to diagnose concussion and post-concussion syndrome because they provide treatment for those conditions. Regardless of the cause, the increase seems to be borne out by recent DWC data.
DWC hosted a designated doctor stakeholder meeting on October 27, 2021. One of the issues identified was the lack of board-certified DDs to examine injured employees with TBI. According to DWC, there are only 13 qualified doctors available for about 1,000 exams of traumatic brain injuries which includes concussion and post-concussion syndrome.
At one time, carpal tunnel syndrome was all the rage in workers’ compensation until scientific studies showed it is not caused by typing or most other workplace activities. Hopefully, the same will happen with concussion and post-concussion syndrome and the frequency with which these conditions are alleged will drop as awareness of the science increases.
Carriers struggle to sort out legitimate claims from questionable ones because it is important to ensure that appropriate care is provided. It doesn’t benefit the claimant to treat non-existent conditions and treatment is likely to be ineffective in the context of malingering.
Copyright 2021, Stone Loughlin & Swanson, LLP
Covid by the Numbers
DWC just released its most recent statistics on Covid-19 claims. The data is presented in DWC’s Covid-19 fact sheet titled COVID-19 in the Texas Workers’ Compensation System, December 2021. The data runs through November 7, 2021.
Insurance carriers reported a total of 61,331 Covid-19 claims to DWC, including 371 fatalities, from January 1, 2020 through November 7, 2021. Almost half of the claims (45%) were from first responders and correctional officers.
Insurance carriers accepted 50% of Covid-19 claims with a positive test. There were 16,673 Covid-19 claims with a positive test denied by carriers, presumably on the grounds that the infection was not shown to be work-related. Of these denied claims, only 134 disputes were filed with DWC challenging the carrier’s denial.
Most of the benefits paid on Covid-19 claims were for indemnity benefits rather than medical benefits. For claims with medical or indemnity benefits payments, 15% were paid with both, 20% had only medical benefits, and 64% had only indemnity benefits. These numbers suggest that many claims were not severe enough to incur medical benefits payments.
However, we’re not out of the woods yet. Jeff Zients, White House COVID coordinator, said in a press briefing on December 17, 2021, “For the unvaccinated, you’re looking at a winter of severe illness and death for yourselves, your families, and the hospitals you may soon overwhelm.”
DWC continues to gather data on the impact of Covid-19 injuries on the Texas workers’ compensation system. In this regard, DWC has extended its data call for certain information related to COVID-19 injuries reported to selected insurance carriers until June 30, 2022.
DWC’s current Covid-19 fact sheet can be viewed here.
Texas to Get Its Own Basic Manual
As we all know, Texas is special. That may be the reason that the National Council on Compensation Insurance (NCCI) has proposed a Texas-specific edition of its Basic Manual for Workers Compensation and Employers Liability Insurance (Basic Manual).
Texas currently uses NCCI’s national Basic Manual with Texas exceptions. According to NCCI’s website, its Basic Manual contains rules, classification descriptions, and rates/loss costs for each classification, and state-specific exceptions for writing workers compensation insurance.
The new Texas edition does not make any substantive changes to any rule or classification that would result in premium impact.
TDI is taking comments on the proposed new Texas edition through January 14, 2022.
For those interested in perusing the manual’s 2,054 pages, you can do so here.
Death on the Job*
DWC announced the release of its 2020 annual report on fatal work injuries on December 16, 2021. Here are some of the key takeaways. There were a total of 469 fatal work injuries in Texas in 2020 which is a decrease of 139 fatalities, or 23%, from 2019. The incident rate of fatalities in Texas was 3.9 per 100,000 full-time employees compared to 3.4 nationwide. The construction industry had the highest number of fatalities with 127 incidents and the occupation with the highest number of fatalities was driver/sales workers and truck drivers with 101 incidents. Here is a breakdown of the 2020 fatalities by event or exposure:
Also noteworthy, 93% of the total fatalities were men and 47% were Hispanic employees.
You can view the complete report here.
* Death on the Job is a 1991 documentary film about work-related fatalities. The AFL-CIO also publishes an annual report by the same name.
Copyright 2021, Stone Loughlin & Swanson, LLP
Let’s Talk About . . . Workers’ Comp
There are some big words in workers’ compensation. To help everyone understand those words, DWC has created a glossary of terms with definitions in plain language. For example, one of our favorites:
Malinger – When an injured employee pretends to be sick or have an injury worse than it is to collect benefits longer than necessary.
Photo of injured employee malingering (DWC’s glossary does not include pictures but it may be something to consider for future editions).
Please let us know if you think of any alternate definitions for DWC’s workers’ compensation terms or any other terms that should be included.
Copyright 2021, Stone Loughlin & Swanson, LLP
From all of us at Stone Loughlin & Swanson, LLP, we wish you a happy and healthy 2022!
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