Author
To assist RPC consultants in personal injury cases, we asked James Loughlin, an attorney who represents workers’ compensation insurers, to explain what information we can expect to find in a claim file at the Texas Division of Workers’ Compensation (DWC), and what additional information would only be found in the insurer’s claim file. We also asked him to explain how to request documents from DWC. James is a partner in the Austin firm Stone, Loughlin & Swanson.
His memo was extremely helpful to RPC staff, and I thought it might also be helpful to personal injury attorneys who do not routinely represent parties at DWC. James gave RPC permission to share his memo, and here it is.
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What documents should we expect to find in DWC’s files for an injury if the employer was a subscriber?
The Division of Workers’ Compensation (DWC) claim file consists primarily of DWC forms required to be filed with DWC but will generally contain any document a party files with DWC for that claim. Here are the most common DWC forms required to be filed with DWC:
- DWC022 Request for a required medical examination (RME)
- DWC024 Benefit Dispute Agreement
- DWC032 Request for designated doctor examination
- DWC041 Employee’s Claim for Compensation for a Work-Related Injury
- DWC042 Claim for workers’ compensation death benefits
- DWC045 Request to schedule a Benefit Review Conference (BRC)
- DWC052 Supplemental Income Benefits (SIBS) Application — first quarter
- DWC053 Employee Request to Change Treating Doctor
- DWC068 Designated doctor examination data report
- DWC069 Report of Medical Evaluation
- DWC150 Notice of Representation
- PLN01 Notice of Denial of Compensability/Liability and Refusal to Pay Benefits
- PLN11 Notice of Disputed Issues and Refusal to Pay Benefits
- PLN12 Notice of Potential Entitlement to Workers’ Compensation Death Benefits
There are many forms that are not required to be filed with DWC and that are just sent to the injured employee or the carrier. For example, the DWC001 is called the Employer’s First Report of Injury. However, it is not filed with DWC. The instructions on the DWC001 state, “Send this form to your workers’ compensation insurance carrier and to the injured employee or the injured employee’s representative. Do not send this form to the Texas Department of Insurance, Division of Workers’ Compensation unless DWC specifically requests it.”
Therefore, the carrier claim file will generally include more forms (and other documents) than the DWC claim file.
A complete list of DWC forms can be found on DWC’s website here. Most forms include FAQs or instructions for the use of that form including whether to file it with DWC.
The DWC claim file also includes a document titled Claim Details with categories of information reported to DWC through its Electronic Data Interchange (EDI) system including Policy Details, Injured Worker Personal Information, and Claim Information.
For each claim, DWC also maintains what it calls Dispute Resolution Information System (DRIS) Notes or DRIS Contact Data. The DRIS Notes/Contact Data include a summary of phone and written contacts with DWC by the parties to the claim including the claimant, carrier, employer, and their legal representatives. The Office of Injured Employee Counsel (OIEC) also uses the DRIS Notes system so some discussions between the claimant and OIEC or one of OIEC’s ombudsmen may also be recorded in the DRIS Notes.
If there has been a disputed issue in a claim, the DWC claim file will also contain documents for that dispute which may include a benefit review conference report, contested case hearing decision, and appeals panel decision.
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What documents should we expect to find in DWC’s files for an injury if the employer was NOT a subscriber?
If the employer was not a subscriber, the only document likely to be in DWC’s file is a DWC007 form, Employer’s report of noncovered employee’s work-related injury or illness.
A non-subscribing employer is required to file this report with DWC “for each on-the-job injury that results in the employee’s absence from work for more than one day and for an occupational disease of which the employer has knowledge.”
Some non-subscribing employers may not comply with the requirement to file the DWC007 form. DWC does not have any other injury-specific filing requirements for non-subscribing employers.
To determine whether an employer had workers’ compensation coverage on a particular date, DWC provides a coverage verification website. This site will provide the name of the insurer that wrote the policy and its contact information.
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What processes can the defendant in a Personal Injury case use to obtain the DWC file? (time to respond, documents exempt, need for court order to DWC, etc.)
The attached DWC153 form is used to request both a record check and copies of confidential claim information which includes the DWC file. Requesters eligible to receive this information include: “A third-party litigant in a lawsuit, in which the cause of action arises from the incident that gave rise to the injury.” The DWC-153 form states that in this situation, the requester must provide the injured employee’s date of injury and attach a copy of the petition and answer.
In response to a request for a record check, DWC will provide a list of all workers’ compensation claims filed by that employee with the DWC claim number, date of injury, and employer. Copies of confidential claim information that may be requested with the DWC153 form include the DWC claim file, DRIS Notes only, medical fee dispute resolution file (if there was a medical fee dispute), and indemnity dispute resolution file (if there was a disputed issue in the claim).
The DWC153 form cannot be used to request both a record check and confidential claim information at the same time. This is explained in more detail in the instructions on the form.
The DWC claim number is required to request the DWC claim file. If the defendant in a PI case does not have the DWC claim number for the injury made the basis of the lawsuit, the defendant should file a record check first to obtain the DWC claim number and then file the request for the DWC claim file. DWC will generally not provide the claim number over the phone.
As previously noted, the carrier claim file will include documents not found in the DWC file such as additional DWC forms, medical records, medical bills, EOBs, and the medical and indemnity payment history. The defendant in a PI case can obtain the carrier’s claim file with a subpoena. The carrier may be identified through the DWC file or DWC’s coverage verification website.
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What are the possible physician reports in a DWC file and their timing?
The physician report most likely to be in the DWC file is the required narrative report that accompanies the DWC069 form, Report of Medical Evaluation, which must be filed with DWC.
The DWC069 form with required narrative report may be filed by the treating doctor, doctor selected by the treating doctor, designated doctor, or carrier-selected RME doctor. There may be more than one DWC069 with narrative report in the DWC file.
The DWC069 form is used to indicate whether the employee has reached clinical or statutory maximum medical improvement and if so, whether the claimant has permanent impairment. Therefore, the DWC069 form will usually be filed near the end of the claim.
The DWC file may also include the narrative report that must accompany the DWC068 form, Designated doctor exam data report. The DWC068 form is used when the designated doctor is asked to address extent of injury, disability, or other similar issues. The DWC069 is the MMI/IR report. It must be filed with a narrative report. Work status reports are not filed with DWC unless a DD is asked to address disability or return to work.
RPC is not a law firm and nothing in this email or blog post is intended as legal advice. The information and attachments are offered as general information. Readers who are not attorneys should consult their legal counsel before taking any action or using the attachments.