State News

NWCDN is a network of law firms dedicated to protecting employers in workers’ compensation claims.


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.


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Retaliatory discharge claims are on the rise

 

While political subdivisions may be immune to retaliatory discharge lawsuits, private employers are not and in recent years; we have seen an increase in the number of such lawsuits.  For claimant attorneys, retaliatory discharge lawsuits can be a natural complement to their practice and an added revenue source.   

Retaliatory discharge lawsuits often seem to arise in situations where the employee and employer are not getting along, the employee realizes they are about to be terminated; and files a questionable claim, e.g., unwitnessed, late-reported, and/or with minor, non-verifiable type injuries.  The employer, already irritated with the employee, follows through with the termination.  

Employers can legally terminate an employee as long as they have a legitimate non-discriminatory reason for doing so.  However, employers should nonetheless be wary of terminating an employee shortly after the employee files a workers’ compensation claim because the employee is likely to sue the employer alleging that the employee was really fired for filing a workers’ compensation claim.

Employers should also keep in mind that the standard workers’ compensation policy does not provide coverage for retaliatory discharge lawsuits.  Therefore, the employer may have to defend the lawsuit and pay any settlement or judgment out of pocket.  Employment practices liability (EPL) insurance does provide coverage but it is expensive and not all employers carry it.
 

Copyright 2024, Stone Loughlin & Swanson, LLP 


School district has immunity so employee can’t sue for workers’ compensation retaliatory discharge

 

On May 23, 2024, the Ninth Court of Appeals in Beaumont held that political subdivisions, including school districts, have governmental immunity from workers’ compensation retaliatory discharge claims brought by their employees under Chapter 451 of the Workers’ Compensation Act, except when the employee is a first responder. The case is Conroe Independent School District v. Osuna.

Maria Osuna, a custodian for Conroe Independent School District, sued her employer alleging she was wrongfully terminated in violation of section 451.001 of the Act which provides in part that a person may not discharge or in any other manner discriminate against an employee because the employee has filed a workers’ compensation claim in good faith.  The law provides for reasonable damages incurred by the employee as a result of the violation and reinstatement in the former position of employment.  

Osuna alleged in her lawsuit against the District that she was exposed to a chemical disinfectant that caused her to feel sick and that she was terminated when she got into a disagreement with the District over her work restrictions which provided that she not be exposed to the chemical disinfectant or other allegedly hazardous chemicals.  She claimed her termination was in violation of Chapter 451.

The court of appeals held that the trial court erred when it denied the District’s plea to the jurisdiction asserting that it had immunity from chapter 451 retaliation claims: “We hold the trial court erred by implying that the Legislature waived the immunity of the District to Osuna’s retaliatory discharge claim.”  The court of appeals granted the District’s plea and dismissed Osuna’s lawsuit.


Penalty of the month

 
The largest fine levied against an insurance carrier in May was for $9,000.00 in Consent Order 2024-8648 dated May 7, 2024.  Violations included failure to timely pay TIBs, failure to timely act on a medical bill, failure to timely pay a designated doctor, and failure to respond to an injured employee’s request for reimbursement.  

The facts that caught our attention were for failing to respond to an injured employee’s request for reimbursement.  The order states that the injured employee obtained a travel reimbursement form from the carrier’s third-party administrator (TPA) website.  However, this form did not contain any language explaining the proper method for submitting travel reimbursement requests under DWC rules.  

When the employee submitted the request on this form, the carrier failed to respond and failed to direct the employee to use form DWC048, Request to Get Reimbursed for Travel Expenses.  In its defense, the carrier “cited the injured employee’s use of its own form as justification for the late payment.”  In other words, the carrier argued that it did not timely respond because the employee used the wrong form (which they gave the employee).  

This argument clearly did not go over well with DWC given that DWC chose to include it as a finding of fact in the consent order.  This order serves as a good reminder that carriers are responsible for the acts of their agents and need to keep a close eye on them.
 

Mental health post-pandemic


Our friends at IMO just published a new article that discusses many of the current stressors we are all facing that have led to an increase in mental health issues and it offers helpful strategies to maintain good mental health.  It’s well worth a read: Mental Health — Managing the Growing Chaos Among Us.

Copyright 2024, Stone Loughlin & Swanson, LLP

DWC closes medical billing complaint loophole


On May 7, 2024, DWC adopted amendments to rule 180.2 concerning filing a complaint.  The amendments prevent health care providers from using the complaint process to circumvent the one-year filing deadline for medical fee disputes. The amended rule states:    
A health care provider cannot submit a complaint about a medical billing issue if the date of service for the medical billing issue was more than 12 months before the date of the complaint, unless the issue qualifies for an exception to the filing deadline under §133.307(c)(1)(B) of this title, concerning medical fee dispute resolution. If the issue qualifies for an exception to the medical fee dispute resolution filing deadline under §133.307(c)(1)(B), then a health care provider cannot submit a complaint about that issue if the medical fee dispute resolution filing deadline in §133.307(c)(1)(B) has passed. 
The rule also notes, “This subsection does not apply to a health care provider submitting a complaint under Insurance Code Chapter 1305.”  Section 1305.401 of the Workers’ Compensation Health Care Network Act requires each network to implement and maintain a complaint system to resolve complaints.  A health care provider may submit a complaint to the network over a fee dispute and if dissatisfied with the outcome, the provider may file a complaint with TDI’s complaint resolution process.

In-network fee disputes are not governed by Section 413.031 of the Workers’ Compensation Act and so there is not a one-year filing deadline for those disputes. DWC also does not have jurisdiction to resolve disputes over fees for medical services provided subject to a network contract.  Those are contract disputes that are governed by the terms of the contract between the network and health care provider and if the dispute is not resolved through the complaint process, it can be resolved through litigation or arbitration, if the contract mandates arbitration.


DWC offers educational resources to help avoid penalties


Texas has a very robust enforcement system as demonstrated by the numerous disciplinary orders issued each month. While some system participants may view administrative penalties as part of the “cost of doing business” in this state, for those that don’t like to pay fines, DWC now offers its CompCourses live webinar series where system participants can learn more about the Texas workers’ compensation system.
 
The most recent CompCourses live webinar was presented on May 22, 2024 and covered presiding officer directives (PODs). The recording is now available on DWC’s website and can also be viewed here. As an added bonus, attendees also receive continuing education credit for attending a live CompCourses webinar so stay tuned for upcoming webinars.


Movin’ on up!


Amanda Barlow, Administrative Law Judge in the Fort Worth Field Office since 2015, is joining the Division Appeals Panel.  Judge Barlow is the current Secretary of the Texas State Bar workers’ compensation section.    Judge Barlow obtained her law degree in 2007 from Texas Wesleyan University which was acquired by Texas A&M in 2013 and is now known as the Texas A&M University School of Law.  In 2024, it was named the 26th best law school in the country by U.S. News & World Report. Gig Em, Aggies!  We look forward to her bringing her nine years of practical experience to the jurisprudence of the Appeals Panel.    

Copyright 2024, Stone Loughlin & Swanson, LLP

The Nebraska Workers' Compensation Court will hold the swearing-in ceremony for Judge Brynne Holsten Puhl today at 2 p.m. The public is invited to the ceremony, which will take place in the Warner Chamber of the Nebraska State Capitol, located off the Rotunda on the 2nd Floor, 1445 K St., Lincoln, NE. The newly appointed judge will be the guest of honor at a reception following the ceremony at the Nebraska Workers’ Compensation Court.

Select this link to view the news release.

Select this link to view the event's live video stream, provided by Nebraska Public Media.

 
Posted by Nebraska Workers' Compensation Court 

WORKERS' COMPENSATION LAW

The Films Matter: Employer Beats Adjacent Segment Spinal Surgery

Claimant was involved in a 4/30/21 work accident. Employer accepted a C4-7 fusion surgery performed on 11/16/21. Following this procedure, Employer filed a Petition to Review seeking to terminate total disability benefits. Employer filed a cross Petition seeking payment of additional surgery done on 9/11/23, extending the fusion to cover the adjacent C3-4 level.

Accepting the opinion of defense medical expert Dr. Kahanovitz over claimant’s treating surgeon Dr. Eskander, the Board found claimant’s more recent neck surgery not reasonable or necessary treatment, and also terminated total disability. The Board noted that Dr. Kahanovitz personally reviewed flexion extension x-ray and MRI films, and observed no changes to the C3-4 level or progression of Claimant’s condition. There was no evidence of instability or significant neurological compression. Without these factors, there was no indication to extend the fusion. The Board also agreed with Dr. Kahanovitz that it was questionable to extend the fusion when both doctors agreed that the level above at C2-3 had evidence of instability, putting the claimant at further risk down the road. As to the Petition to Review, the Board commented that even claimant conceded on cross examination that she was capable of doing a part time work from home job. In this context, the testimony of Dr. Kahanovitz as to return to work capability was deemed more credible.

Should you have any questions concerning this Decision, please contact Greg Skolnik or any other attorney in our Workers’ Compensation Department.

Patricia Abrams v. State of Delaware, IAB Hrg. No. 1510985 (Mar. 27, 2024). 


Movin’ on Up!


We’ve learned that Angel Hendricks, a Proceedings Resolution Officer (PRO) in the TDI-DWC Tyler field office, has been promoted to Benefit Review Officer (BRO) and will replace Olivia Turner, who is embarking on a well-deserved retirement. 

Ms. Hendricks is to start in her new position on June 1, and we are delighted to begin working with her in that capacity. Congratulations Ms. Hendricks!


Copyright 2024, Stone Loughlin & Swanson, LLP

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