NWCDN Members regularly post articles and summary judgements in workers’ compensations law in your state.
Select a state from the dropdown menu below to scroll through the state specific archives for updates and opinions on various workers’ compensation laws in your state.
Contact information for NWCDN members is also located on the state specific links in the event you have additional questions or your company is seeking a workers’ compensation lawyer in your state.
For over 2 years now,
the Division has been collecting information from Carriers on COVID-19 claims.
The Research and Evaluation Group recently published their findings from
the collection of that data. A complete analysis of the information can
be found at:
https://www.tdi.texas.gov/wc/information/documents/covid19txwc0822.pdf.
Some of the key findings of the study were:
Copyright 2022, Stone Loughlin & Swanson, LLP
As the DWC continues
to see the number of designated doctors dwindling (there are now less than 300
on the list and only 65 of those are MDs), the agency has posted proposed
changes to various DWC rules dealing with the designated doctor program
including billing and reimbursement for designated doctor, RME and MMI/IR
examinations performed by treating and referral doctors. The first
informal proposal to the billing rules details changes to the methods for
billing – so no information is available regarding changes to the actual rates
charged for these examinations, which begs the question – will the
reimbursement rate increase enough to entice medical doctors to return to the
fold?
DWC will offer a virtual DD Billing and Reimbursement Rule Stakeholder Meeting
Thursday, September 8, 2022.
For more information: https://www.tdi.texas.gov/alert/event/2022/09/dwc0908.html.
At a recent conference, Division staff addressed an increasing problem in
finding qualified doctors to perform examinations for more complex injuries and
offered as a potential solution the plan to open up the qualification standards
to include all board certifications for those examinations requiring a
specialization and allowing the Division more discretion in appointing doctors
without specialization in those geographical regions where qualified doctors
are not currently on the list.
The Division focus certainly appears to be more on process and procedure rather
than addressing the more systemic problems of quality, quantity and oversight
of the remaining doctors on the list. For now, the Division appears to be
streamlining and reducing the amount of training, the frequency of testing and
the certification process in efforts to make being a designated doctor less
administratively burdensome for doctors.
Designated doctors and their administrators will, however, be required to use
the Division’s own TXCOMP system to accept and manage appointments AND file
their reports online beginning 9/19/22. The Division will be training
doctors in the use of the system. Apparently, RME doctors will also see pending
RME appointments in their TXCOMP profile and enter basic information to upload
their reports as well.
Copyright 2022, Stone Loughlin & Swanson, LLP
The question of
exclusive jurisdiction of the Texas Workers’ Compensation Act comes up often
and we get many questions about its application. The Austin Court of
Appeals recently took a look at a wrongful death case where a worker’s
potential beneficiaries did not file a claim for death benefits. The
beneficiaries took the position that he was not an employee. Texas Mutual
filed a BRC request. The Division held that the worker sustained a
compensable injury and his beneficiaries were entitled to death benefits.
However, his beneficiaries didn’t want death benefits. They wanted
to sue the worker’s employer in court without the limitations imposed by the
Act’s exclusive remedy provision. Therefore, the worker’s beneficiaries
argued that the Division did not have jurisdiction to determine they were
entitled to benefits because they didn’t file a workers’ compensation claim.
The Court of Appeals held that it didn’t matter whether the beneficiaries
filed a claim: “However,
we need not resolve that question to dispose of this case, as we conclude that
DWC had exclusive jurisdiction over the question of eligibility regardless of
whether there was, in fact, a pending claim or merely a potential claim.”
Long-standing case law holds that the Division, with its unique
expertise, has exclusive jurisdiction to resolve any question regarding
eligibility for workers' compensation benefits, including questions over
employment status. Sometimes plaintiffs seek to avoid the workers'
compensation system in hopes of a bigger payday in the courts. This case affirms that plaintiffs cannot
avoid the Division’s exclusive jurisdiction simply by electing not to file a
workers’ compensation claim. In Re Hellas Construction, Inc.
2022 WL 2975702 (July 28, 2022).
Copyright 2022, Stone Loughlin & Swanson, LLP
Earlier this month, we
at SLS experienced a first in appellate jurisprudence when our own Robert
Greenlaw was tasked with responding to an appeal in which the claimant
requested the Division Appeals Panel reverse a CCH Decision in his favor on issues
of extent of injury, MMI, impairment rating and disability. Yes, you read
that correctly – despite the fact that the Carrier had accepted all conditions
previously in dispute, and the fact that the designated doctor and post-DD RME
doctor agreed (as did the Carrier) that the claimant reached MMI on the
statutory date, rather than an earlier clinical date – the claimant insisted on
a CCH. Not surprisingly – at least to the Carrier – the ALJ found that
all of the claimed conditions were compensable, pushed the MMI date out to the
latest dated allowable by law, assigned the impairment rating agreed upon by
both the designated doctor and the RME doctor, and awarded almost 10 months of
disability.
Incredibly, for reasons known only to the Claimant, he asked the Appeals Panel
to reverse that decision. As Mr. Greenlaw pointed out in his response to
this novel appeal, the claimant expended extraordinary efforts throughout the
life of his claim in complaints about his adjusters, doctors, ombudsmen and, of
course, the Carrier’s attorney. While the Carrier did not appeal the
D&O, Rob found himself agreeing with the claimant on appeal and joining in
his request that the Appeals Panel reverse the CCH D&O in his favor on all
of the issues.
Copyright 2022, Stone Loughlin & Swanson, LLP
As we come to the end
of July, Texas continues to bake even more than most summers with no relief in
sight. This means more workers’ compensation claims from heat-related
injuries such as heat stroke. To help prevent heat-related illnesses, the
Division provides a great deal of useful information on its website including
fact sheets and videos. Here are just a few examples:
https://www.tdi.texas.gov/tips/safety/heathazards.html
https://www.tdi.texas.gov/pubs/videoresource/fsheatinjur.pdf
The pandemic-induced work from home trend has yielded some surprising
advantages. However, one of the most unexpected may be that you never
have to leave your house for your job and risk a work-related sunburn.
For those of us lucky enough to be working in air-conditioned offices or
spare bedrooms this summer, let’s take a moment to say thanks for everyone
toiling outside in the blazing inferno.
Copyright 2022, Stone Loughlin & Swanson, LLP
The Division entered
into a consent order with American Zurich Insurance Company fining it
$72,000.00 for multiple violations including failure to pay accrued income
benefits based on a designated doctor report, failure to timely pay impairment
income benefits, failure to timely act on a medical bill, failure to timely
initiate payment of accrued temporary income benefits, failure to timely pay
initial TIBs, failure to timely or accurately report EDI data to DWC, failure
to pay subsequent quarters of supplemental income benefits, failure to timely
pay attorney fees ordered by DWC, failure to timely comply with a final
contested case hearing decision and order, and failure to timely notify of
decision for preauthorization. Consent Order No. 2022-7361, July 6, 2022.
The Division entered into a consent order with South Texas Health System fining
it $6,500.00 for improperly pursuing a private claim against an injured
employee. Consent Order No. 2022-7363, July 7, 2022. The
Workers’ Compensation Act prohibits health care providers from billing injured
employees for treatment of their work injuries. While some hospitals may
not be aware of this prohibition, others are so concerned about violating it
that they bill the workers’ compensation carrier for all treatment rendered to
an injured employee regardless of whether the treatment had anything to do with
the work injury. This practice, done out of an abundance of caution,
often creates unnecessary subclaimant disputes.
Copyright 2022, Stone Loughlin & Swanson, LLP
Temporary worker
Demetrius Grant was hired by staffing company Arrow Personnel and assigned to
work at client company Wind Turbine and Energy Cables (WTEC) where he was
injured. He sued Arrow, WTEC, and other entities for negligence.
The Fort Worth Court of Appeals held that Grant’s suit against WTEC is
barred by the exclusive remedy defense because: 1) WTEC was Grant’s employer at
the time of the injury based on a right-of- control analysis, and 2) WTEC was
covered by a workers’ compensation policy. Arrow was not a subscriber to
workers’ compensation and therefore, not entitled to assert the exclusive
remedy defense. The court nonetheless held that Grant could not sue Arrow
for negligence because Arrow was not his employer under the right-of-control
test with respect to the work at issue and therefore, owed him no duty.
Although not expressly stated by the court, the takeaway here is that
Grant’s remedy for his injury is workers’ compensation benefits under WTEC’s
policy.
Grant v. Wind Turbine and
Energy Cables Corp., et al., No.
02-21-00036-CV, 2022 WL 2840142 (Tex. App.—Ft. Worth July 21, 2022, no pet.)
(mem. op.).
Copyright 2022, Stone Loughlin & Swanson, LLP
Pro se workers’
compensation claimant Alvy Childress filed suit for judicial review of a
Division decision denying his claim for benefits. Childress named as defendants
his employer, the carrier, and the Division. The Division filed a plea to the
jurisdiction which the trial court granted, and Childress appealed. The Third
Court of Appeals affirmed the trial court’s order granting the Division’s plea
to the jurisdiction. Childress complained on appeal about the hearing he
received at the Division including the fact that it was held by telephone due
to the pandemic and that he was allegedly prevented from presenting evidence or
reviewing or verifying evidence presented at the hearing.
The court of appeals’ decision doesn’t announce any new law but does affirm
some long-held principles. First, pro se litigants are held to the same
standards as represented parties, even at the appellate level. “We
construe appellant’s brief liberally, attempting to discern and comprehend his
appellate issues as best we can, but we must hold him to the same standards as
appellants represented by counsel.” As courts have explained before, if
this were not the case, unrepresented parties would have an unfair
advantage. Second, the Division is not a proper party to a suit for
judicial review. The court cites numerous cases for the proposition that the
Texas Workers’ Compensation Act does not waive the state’s sovereign immunity
and provide a claimant with the right to sue the Division in a judicial review
action.
Childress v. Travelers
Indemn. Co., et al., No.
03-21-00579-CV, 2022 WL 2542005 (Tex. App.—Austin July 8, 2022, no pet.) (mem.
op.).
Copyright 2022, Stone Loughlin & Swanson, LLP
We can officially report
that Robin Holm (known to system participants as Robin Lowenkron) is the new
Administrative Law Judge in the Houston West Field Office. She replaces
Eric Robertson who left the Division to enter private practice. Ms. Holm
née Lowenkron worked for Smith & Carr for more than a decade and was a very
well-respected attorney among the Division judges. We welcome Judge Holm
to the bench!
Copyright 2022, Stone Loughlin & Swanson, LLP
The Division announced
its health care provider PBO assessment methodology on July 26th. The memo states that one of the assessment
measures will be whether the provider explained how the work injury prevents
the injured employee from working in any capacity.
This is a perennial problem where the provider checks the “complete inability
to work” box but doesn’t explain how the injury prevents the injured employee
from returning to work:
Division Rule 129.5 requires the doctor to explain how the claimant’s injury
prevents them from working in order for the report to be considered complete.
Carriers are not required to reimburse doctors for incomplete work status
reports. In addition, the failure to provide a complete report may also
constitute an administrative violation.
Requiring providers to explain why the claimant can’t return to work in any
capacity may cause providers to consider more closely whether the claimant
could be working with restrictions. Doing so may facilitate early return to
work which benefits the injured employee and the employer.
Copyright 2022, Stone Loughlin & Swanson, LLP