Goodbye MDGuidelines; Hello, ODG by MCG

Effective September 29, 2026, DWC changed its adopted return-to-work guidelines from the MDGuidelines to ODG by MCG.  System participants are now required to use the disability duration values in the ODG by MCG, rather than the MDGuidelines, as guidelines for the evaluation of expected return-to-work periods.
 
The duration periods for both guidelines are similar.  The impetus for the change was to avoid the hassle and added cost to designated doctors and other system participants of maintaining two separate subscriptions—one for treatment guidelines and one for return-to-work guidelines.  This is a welcome relief for those of us already suffering from subscription fatigue for everything from streaming services to the seat warmers in our cars.
 
For background, the Texas Workers’ Compensation Act requires the Commissioner to adopt treatment guidelines and return-to-work guidelines.  In 2007, DWC adopted the Medical Disability Advisor, Workplace Guidelines for Disability Duration (now called the MDGuidelines) as its return-to-work guidelines and at the same time it adopted the ODG by MCG as its treatment guidelines.  The ODG by MCG also contains return-to-work guidelines. 
 
Division rule 137.10 states that the disability duration expectancies provided by the return-to-work guidelines “shall be presumed to be a reasonable length of disability duration.”  For example, the ODG by MCG provides the following durations for a back sprain/strain:
 

 
DWC provided the following rationale for switching its return-to-work guidelines from the MDGuidelines to the ODG by MCG:
 

"To fulfill their role in the Texas workers' compensation system, designated doctors are required to subscribe to these guidelines, which includes purchasing access to them. The current adopted treatment guidelines are published by ODG by MCG, and include access to return-to-work guidelines. Designated doctors cannot currently use ODG by MCG's return-to-work guidelines because the return-to-work guidelines in the current rule are published by MDGuidelines. MDGuidelines will change its pricing model and raise its rates substantially starting on October 1, 2026. Since the ODG by MCG treatment guidelines subscription already includes access to return-to-work guidelines, the amendments will allow system participants to use the ODG by MCG services they already subscribe to instead of maintaining a separate, costly subscription to MDGuidelines. Amending the rule to update the reference from Medical Disability Advisor to ODG by MCG is necessary to ensure continued participation in the workers' compensation system by avoiding unnecessary administrative and monetary burdens on doctors in the system. The change will promote efficiency by allowing system participants to benefit from a single subscription instead of maintaining two separate subscriptions to substantially similar services. Avoiding those unnecessary costs also complies with the requirement in Labor Code §413.011 that the commissioner's adopted return-to-work guidelines help achieve effective medical cost control."

 
We can personally attest to the fact that DWC just saved us $1,000 which is how much MDGuidelines wanted to charge us to renew our subscription. 

Sometimes, rule changes really do save money.
 

Copyright 2026, Stone Loughlin & Swanson, LLP 

DWC Proposes to Raise the Cap on Attorney Fees

 
DWC has posted an informal working draft of a rule that would raise the cap on attorney fees from $200 to $300 per hour.  The hourly rate has been capped at $200 per hour since 2017, before the significant inflation that followed the COVID-19 pandemic.
 
Attorneys may charge less than the $200 cap, but they cannot charge more—which is the problem.  In Texas, workers’ compensation law has the second lowest average hourly rate of any practice area at an average of $181.  Only juvenile law is lower at $158.  The average hourly rate for all practice areas is $366. Hourly Rates in Texas.  Thus, even the proposed $300 per hour price ceiling remains well below the average hourly rate for Texas attorneys.
 
The current ceiling of $200 is not sufficient to attract new attorneys to practice workers’ compensation law once the overhead costs of running a law firm are taken into account.  As a result, the workers’ compensation bar is aging and shrinking.  In DWC’s memo accompanying the working draft rule, it explained the reason for the proposed change as follows:
 
"These changes are necessary to ensure injured employees have access to quality legal representation. DWC attorney fee billing data reflects that the number of attorneys representing injured employees has steadily declined over time, from 134 attorneys in 2017 to 80 in 2026. This data also shows a drop in the number of attorneys representing workers’ compensation insurance carriers, from 168 attorneys in 2017 to 103 in 2026."
 
A similar trend is playing out across the country.  The Wall Street Journal published an article in August entitled “Workers Seeking Compensation for Injuries Face New Challenge: Fewer Lawyers.”  The article reported:   
 
"The pool of lawyers pursuing workers’ compensation cases is shrinking in some states.  State laws have dialed back payouts and benefits enough that young lawyers are turning to more-lucrative specialties, rather than replacing veteran attorneys who are retiring."
 
The Wall Street Journal reported that only two claimant attorneys remain in North Dakota, both of whom are in their late 60s and expected to retire soon.  It is encouraging to see DWC taking a proactive approach to this issue in Texas before it becomes a crisis.
 
Copyright 2026, Stone Loughlin & Swanson, LLP 

AI Comes to DWC

 
DWC announced it is launching a new program area, AI Innovation and Integration, which will hopefully not be referred to by the acronym “AIIAI.” 
 
Some people claim that artificial intelligence will destroy humanity by 2030 but it also holds great promise in many areas including workers’ compensation.  DWC intends to use AI to modernize its processes and reduce administrative burdens.  The new program will also evaluate how system participants are using AI services.
 
DWC Commissioner Jeff Nelson discussed the new program at the State Bar of Texas Advanced Workers’ Compensation Conference in August.  Nelson said the program will focus on using AI to improve agency efficiency and to help streamline software development and training.  Nelson said the program should also allow DWC to provide training more quickly and tailor it to specific issues.  Nelson emphasized that AI will not play any role in the decision-making process in case that was a concern of anyone.  We look forward to seeing how AI can help modernize DWC.

Copyright 2026, Stone Loughlin & Swanson, LLP 
  

AI Brings Organizational Changes with It

Allen Craddock, formerly DWC’s chief administrative law judge, has been tapped to serve as deputy commissioner of the AI Innovation and Integration section, overseeing the new program area.  Craddock is expected to bring the same unique skill set he applied to improve operations in hearings to help improve the efficiency of the agency as a whole.

Gerri Thomas has been named DWC’s chief administrative law judge for Hearings. Thomas joined DWC in 2012 and previously served as regional director for the Northern and Western regions.  Thomas discussed several well-received initiatives in her new role at the State Bar of Texas Advanced Workers’ Compensation Conference, including the Zoom interpreter project, short-notice “rocket docket” hearings, and the continued use of video CCHs.

Copyright 2026, Stone Loughlin & Swanson, LLP

The mileage reimbursement rate in Alabama tracks the rate used by the federal government.  Apparently, the feds increased the reimbursement rate effective July 1, 2026.  Did they tell anyone?  Of course not.  Is anyone surprised?  Of course not.

So, after allowing us to spend the last 2½ months blissfully reimbursing mileage at the wrong rate, we have now discovered that the rate increased from 72.5¢ to 76¢ per mile effective July 1, 2026.

We apologize for the delay in passing along this information.

About the Author:

This article was prepared by Mike Fish, an attorney with Fish Nelson & Holden, LLC, a law firm dedicated to representing self-insured employers, insurance carriers and funds, and third-party administrators in all matters related to workers’ compensation. Fish Nelson & Holden is a member of the National Workers’ Compensation Defense Network. If you have any questions about this article or Alabama workers’ compensation in general, please contact Fish by e-mailing him at mfish@fishnelson.com or by calling him directly at 205-332-1448.

In a recent decision, the Alabama Court of Civil Appeals reaffirmed an important limitation on workers’ compensation benefits for scheduled-member injuries: an employee cannot avoid the statutory schedule simply by proving that the injury has resulted in substantial vocational disability.

In Harris v. Lineage Logistics, 2026 WL 2207386 (Ala. Civ. App. July 31, 2026), Roderick Harris sustained severe cold exposure at work that resulted in the partial amputation of his right index and middle fingers and his left index finger. The trial court found that Harris was permanently and totally disabled but nevertheless limited his compensation to the benefits provided under Alabama’s schedule for injuries to the fingers.

Harris appealed, arguing that because he was permanently and totally disabled, he should receive benefits based on his vocational disability rather than being restricted to the scheduled-member benefits under Ala. Code § 25-5-57(a)(3).

In rejecting Harris’ position, the Court of Civil Appeals emphasized that it was bound by Alabama Supreme Court precedent. Under Leach Manufacturing Co. v. Puckett and Ex parte Drummond Co., when an injury is confined to a scheduled member and does not extend to or interfere with other parts of the body, the statutory schedule controls compensation.

Importantly, the schedule applies without consideration of vocational disability when the injury does not extend beyond the scheduled member. As Puckett explained, the scheduled amount is intended to fully compensate the employee for the injury, including any resulting loss of earning capacity or inability to obtain employment.

The court also relied on Advantage Sales of Alabama, Inc. v. Clemons, which had previously rejected essentially the same argument Harris presented.

One particularly interesting aspect of Harris is how narrowly the issue was presented to the appellate court.

Although Harris's history included allegations of a cervical-spine injury, the Court noted that he ultimately pursued only the argument that his permanent total disability should permit him to recover outside the schedule. The appellate court therefore did not have before it an argument that the finger injuries extended to and interfered with other parts of the body, nor did Harris rely on the recognized pain exception.

About the Author:

This article was prepared by Mike Fish, an attorney with Fish Nelson & Holden, LLC, a law firm dedicated to representing self-insured employers, insurance carriers and funds, and third-party administrators in all matters related to workers’ compensation. Fish Nelson & Holden is a member of the National Workers’ Compensation Defense Network. If you have any questions about this article or Alabama workers’ compensation in general, please contact Fish by e-mailing him at mfish@fishnelson.com or by calling him directly at 205-332-1448.

The Exclusivity Doctrine is alive and well in Alabama that to the Alabama Supreme Court’s opinion in Duke v. Walmart, Inc., 2026 WL 785243 (Ala. Mar. 20, 2026), wherein it affirmed summary judgment in favor of Walmart and its employee, Qeon Gray, after an employee attempted to pursue tort claims arising from an accident for which he had already received workers’ compensation benefits.

Phillip Duke was employed by Walmart and was struck by a Walmart tractor-trailer driven by co-employee Qeon Gray in the parking lot of Walmart's distribution center.  Duke claimed that he was “off duty” and jogging in the parking lot when the accident occurred.

Duke received workers’ compensation benefits, including medical and temporary-total-disability benefits.  He nevertheless filed a civil lawsuit against Walmart and Gray asserting negligence, wantonness, negligent hiring and supervision, and other tort theories.

Walmart moved for summary judgment based on the exclusive-remedy provisions of Alabama's Workers’ Compensation Act, Ala. Code §§ 25-5-52 and 25-5-53.  The trial court granted summary judgment, and Duke appealed.

On appeal, Duke argued that workers’ compensation exclusivity did not apply because he was off duty and was not performing work for Walmart when he was injured.  The Supreme Court rejected that argument because, regardless of whether Duke was technically “off duty,” he had accepted workers’ compensation benefits for the injury.

The Court explained that Alabama law has consistently held that acceptance of workers’ compensation payments constitutes an election that prevents an employee from pursuing another remedy for the same injury.  In short, an employee cannot accept workers’ compensation benefits and then attempt to characterize the same injury as outside the Workers’ Compensation Act in order to pursue tort damages against the employer.

The Court also noted that Walmart established through its records that Duke had received medical, temporary-total-disability, and other workers’ compensation benefits.  That shifted the burden to Duke, who failed to present substantial evidence demonstrating that the Act did not apply.

The Court separately addressed Duke's claims against Gray.

Under Ala. Code § 25-5-11, an employee may pursue a claim against a co-employee in certain circumstances involving willful conduct.  The statute imposes a significantly higher standard than ordinary negligence.

The Court found no evidence that Gray intended to injure Duke or that a reasonable person in Gray's position would have known that injury was substantially certain to result from his conduct.  Although Duke alleged that Gray may have been under the influence of illegal drugs, he failed to present substantial evidence supporting his claim of willful conduct at the summary-judgment stage.  As a result, the Supreme Court affirmed.

About the Author:

This article was prepared by Mike Fish, an attorney with Fish Nelson & Holden, LLC, a law firm dedicated to representing self-insured employers, insurance carriers and funds, and third-party administrators in all matters related to workers’ compensation. Fish Nelson & Holden is a member of the National Workers’ Compensation Defense Network. If you have any questions about this article or Alabama workers’ compensation in general, please contact Fish by e-mailing him at mfish@fishnelson.com or by calling him directly at 205-332-1448.

On July 1, 2026, the maximum weekly workers' compensation benefit became $1,219.00 per week, and the minimum weekly compensation rose to $335.00 per week.

It is important to remember that these updated rates apply only to Alabama claims where injuries occurred on or after July 1, 2026. Claims arising from injuries before this date remain governed by the Average Weekly Wage (AWW) in effect at the time of injury.

About the Author:

This article was prepared by Mike Fish, an attorney with Fish Nelson & Holden, LLC, a law firm dedicated to representing self-insured employers, insurance carriers and funds, and third-party administrators in all matters related to workers’ compensation. Fish Nelson & Holden is a member of the National Workers’ Compensation Defense Network. If you have any questions about this article or Alabama workers’ compensation in general, please contact Fish by e-mailing him at mfish@fishnelson.com or by calling him directly at 205-332-1448.