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House Bill 2468 also amends Section 408.161(a)(7) which pertains to
serious burn injuries. Previously, an injured worker would be entitled to
LIBs if he/she sustained third degree burns to the majority of either both
hands, or one hand and the face. Now, third degree burns to both hands,
to one hand and one foot, or to the face and either one hand or one foot can
establish LIBs entitlement.
House Bill 2468 further expands LIBs entitlement to certain first responders in
the newly promulgated Section 408.1615. Peace officers, EMTs, and
firefighters (or those acting as EMTs or firefighters on a volunteer basis) who
are rendered “permanently unemployable” following a “serious bodily injury”
beyond those specifically enumerated in Section 408.161 may be entitled to
LIBs.
Qualifying claimants would be compelled to recertify their total unemployment
to Carriers annually. Carriers may audit the worker’s employment
status periodically, but not more than once in any five-year window, unless the
Carrier can show that the injured first responder’s assertion of non-employment
is false. Under such circumstances, the Carrier would be compelled to
request a designated doctor to evaluate the claimant’s employability.
LIBs may be suspended if the annual certification is not accomplished, or
if the first responder is employed in any capacity. Suspension of LIBs is
also codified under the new Section 408.0041(k-1).
Copyright 2023, Stone Loughlin & Swanson, LLP
The Texas Workers’ Compensation Act sets forth specifically prescribed
categories for grievously injured employees who qualify for Lifetime Income
Benefits (LIBs), most of which are straightforward: those who suffer permanent
loss of use in both eyes, both feet, or both hands, or a combination of one
hand and one foot; spinal injuries resulting in paralysis of both arms, both
legs, or one leg and one arm; and significant third-degree burn victims.
However, one classification has fostered equal parts ambiguity and scorn among
system participants for decades: head trauma injuries resulting in “incurable
insanity or imbecility.” The phrasing of this portion of the statute,
found in Texas Labor Code Section 408.161(a)(6), is not only inherently vague (as
neither “insanity” nor “imbecility” is defined anywhere in the Act), but also
antiquated, relying on medical terminology established during the reign of
Queen Victoria.
At long last, the Legislature is poised to rid us of the much-maligned clause.
House Bill 2468 replaces the unfortunate “incurable insanity or
imbecility” with “permanent major neurocognitive disorder.” But while the
revision may be exponentially more tactful, is it any clearer?
“Permanent major neurocognitive disorder” is not yet defined in the statute,
other than to say it necessitates “occasional supervision in the routine daily
tasks of self-care” and renders an employee “permanently unemployable.” What
constitutes “occasional supervision” or permanent unemployability remains to be
seen. If left unaddressed in the corresponding rules the DWC has been
charged with drafting, it is foreseeable that these phrases could generate as
much uncertainty as those they replace.
If signed by Governor Abbott, House Bill 2468 goes into effect September 1,
2023.
Copyright 2023, Stone Loughlin & Swanson, LLP
It never hurts to remember triumph over misfortune as a reminder that a work
injury - even a serious one - is rarely reason to despair. Maybe you never
thought about work injuries like that before, but if not, do you remember this
movie? Hard as it may be to believe, it has been thirty years since the release
of Dazed and Confused.
That’s almost twice the span of time between its premiere in 1993 and the
film’s setting: Texas, May 28, 1976. Since it’s late May in the Lone Star
state, it seems like the perfect time to revisit Richard Linklater’s
coming-of-age classic, shot in and around the director’s adopted home of
Austin. (Disclaimer:
Events depicted therein are for viewing enjoyment only, not for emulating.)
The ensemble comedy has gained a fanatical following far exceeding its paltry
box office grosses upon initial release, and some of today’s most recognizable
faces got their big breaks from the movie, including Academy Award winners Ben
Affleck, Renee Zellweger, and University of Texas alum Matthew McConaughey.
It turned the Texas capital into a viable alternative to Hollywood for
independent-minded filmmakers: Linklater co-founded the Austin Film Society.
It also spawned arguably the biggest movie catchphrase in recent memory,
albeit decades after the fact.
Melissa Maerz’s excellent book Alright,
Alright, Alright: An Oral History of Richard Linklater’s Dazed and Confused
(HarperCollins, 2020), is packed with insight and anecdotes about the making of
the film. Among those: the revelation that the movie’s two de facto
protagonists, freshman Mitch Kramer and senior Randall “Pink” Floyd, were
avatars for the writer/director at those ages, with his older, wiser self mentoring
his baby-faced doppelganger throughout the film. “Pink is me,” Linklater
admits to Maerz. “And so is Mitch.” (Eagle-eyed viewers will notice that
the characters are even dressed identically in gray t-shirts, blue pants, and
long brown hair when they first cross paths.)
When seeking the performers who would not only carry the film but embody its
creator, Linklater did not have to look far for his Mitch; Austin native Wiley
Wiggins happened to be outside a local coffee shop when the casting director,
looking for non-professional actors, offered him a chance to audition.
Finding the right person to play Pink, though, depended on an initially
horrific twist of fate in the form of a Texas work injury.
Jason London, who eventually won the role, never intended to become an actor
either. In Alright, Alright,
Alright, he recalls being fifteen and working construction for his
father in DeSoto, Texas, until his left foot got caught in the lift mechanism
on a forklift, amputating two toes. As he tells Maerz: “My whole life at
that point was all about sports, and the only way I was gonna get to go to
college was through scholarships in sports or the military. All of [a]
sudden, that path was gone. I thought it was the worst thing that could’ve
ever happened to me. But then I decided to take drama. I guess it was
destiny. I had to think about life beyond sports, just like Pink.”
London’s unfortunate Texas work injury inadvertently set him on an alternate
career trajectory, fortuitously intersecting with Richard Linklater in Austin
five years later and providing one of the most beloved Texas-based movies its
co-lead. The anecdote is one of triumph over misfortune and a reminder
that a work injury—even a serious one—is rarely reason to despair. As we
reminded you at the beginning, if you never thought of triumph over
misfortune before…
Copyright 2023, Stone Loughlin & Swanson, LLP
The Division, faced with a rapidly dwindling list of available designated
doctors (current numbers show 60 MDs, 9 DOs and 169 DCs for a total of 238 designated
doctors), has again changed things up in efforts to make more doctors available
to field the number of requests they receive each year.
The new rules change the qualification criteria to require less for certain
kinds of examinations and add to the list of board-certified doctors qualified
to evaluate traumatic brain injuries with the justification that those doctors
are to send out for testing anyway and they can then incorporate that testing
into their reports. These qualification changes are effective 6/5/23.
This is not the first rule change impacting the designated doctor suite of
rules, and it likely won’t be the last, but here are the high points:
• For DD
examinations involving traumatic brain injuries, the Division added doctors who
are or have been board certified in orthopaedic surgery, occupational medicine,
dermatology, plastic surgery, surgery, anesthesiology with a subspeciality in
pain medicine, emergency medicine, thoracic and cardiac surgery and family
medicine.
• For DD examinations involving injuries with multiple fractures, a
single spinal fracture or rib fractures where there is no vascular injury,
chiropractors are now qualified, in addition to MDs and DOs.
• DD examinations involving spinal cord injuries including spinal
fractures with documented neurological injury or vascular injury, more than one
spinal fracture or cauda equina syndrome are assigned to board certified
doctors in neurosurgery, neurology, PM&R or orthopedic surgery.*
• DD examinations involving multiple fractures accompanied by vascular
injury are assigned to board certified doctors in emergency medicine,
orthopedic surgery, plastic surgery, PM&R or occupational medicine.*
• Multiple certifications will no longer be ordered unless the Division
orders them as the result of a Presiding Officer Directive.
*These examinations are handled by the same specialties, but carve out the more complex fracture injuries for board certification while allowing chiropractors to evaluate multiple fractures, single spine fractures and rib fractures that don’t involve vascular injury.
• Doctors
who passed DWC certification on or after 5/13/13 don’t have to test again for
certifications that expire on or after 4/30/23.**
• Doctors still have to take required training and reapply every 2
years.
• The certification and re-certification rules have been streamlined.
• None of the
rule changes address billing and reimbursement for designated doctor
examinations. (Specifically, there is no mention of increasing
the reimbursement rate for designated doctor examinations. In 2022, the
Division posted and took comment on Rules 133 and 134 and the relevant sections
relating to billing and reimbursement for designated doctor examinations. The
second informal posting of those rules provided increased reimbursement for
examinations and even provided a $150.00 missed appointment fee. The
comment deadline for those rules was 12/16/22. There is no word yet on
the status of this rule project).
**The rule allows the
Division to require a doctor to take the test again on a case-by-case basis as
part of a performance review.
Copyright 2023, Stone Loughlin & Swanson, LLP
The El Paso Court of Appeals recently reversed a district court’s summary
judgment decision involving a coming and going case. Duane Cook was employed by
an oilfield fishing and rental tools company in far West Texas. The company
issued him a truck, which included tools, that he was to take to and from their
yard and other job sites as part of his job. He was allowed to drive the
truck to and from home and the employer’s shop, but could not use it for
personal errands. He was the sole mechanic employee and was responsible
for checking all of the company equipment before the crews took it to the
worksites from the shop.
The night before the accident in question, his supervisor told Cook to drive to
the employer’s yard the next morning to inspect some equipment that was to
leave the yard early in the morning to arrive on site at a designated delivery
time. Early that next morning, Cook began driving from his home to the
yard and was involved in a MVA only one or two blocks from his house.
The Division held Cook sustained a compensable injury and had disability.
The Appeals Panel reversed and rendered a decision against Cook and found
he was not acting in the course and scope of his employment. Cook filed
suit in district court and Texas Mutual filed a motion for summary judgment,
which the trial court granted. The El Paso Court of Appeals analyzed
Texas workers’ compensation course and scope law and the coming-and-going rule
with its exceptions and ultimately held that there was a genuine fact issue as
to whether Cook’s trip originated in the course and scope of his employment or
was in the furtherance of the affairs of his employer’s business and remanded
the case to the trial court. Cook v. Texas Mutual Insurance Company,
2023 WL 2919332, ___ S.W. 3d ___ (Tex. App. – El Paso, April 12, 2023).
In most Texas workers’ compensation cases, the question of venue is pretty straightforward. In the case of Dallas Cowboys offensive lineman, Alcus Reshod Fortenberry, however, it was less so. Texas Labor Code §410.252(b) requires suits to be brought in the county where the employee “resided at the time of the injury.” In this case, Mr. Fortenberry was injured while attending training camp in California on 8/2/15. He signed a 3-year contract in May of that year to play for the Cowboys. He stayed in a hotel in Dallas County while attending team practices that summer beginning in May. He sprained his knee in June and had to sit out practice for 2 weeks, but continued to attend and participate in other activities during that time. Later that month, he traveled to Louisiana to rehab his knee, but stayed in touch with the team regarding his progress and returned to Dallas for a conditioning test with his teammates in July before training camp began. On 8/2/15, he injured his knee and was added to the injured reserve list with an estimated recovery time of 9 to 12 months. His contract was ultimately terminated in May of 2016. He filed for workers’ compensation benefits and the Carrier denied them. The parties stipulated to venue in the Dallas Field Office at the DWC level. Unhappy with his impairment rating, Fortenberry filed suit in district court in Dallas, and the Carrier sought transfer to Travis County. Fortenberry alleged his residence at the time of the injury was the Marriott Residence Inn in Dallas. The trial court denied the Carrier’s motion and the trial went forward in Dallas. The jury returned a verdict for Fortenberry and the Carrier appealed. The Court of Appeals held Texas Labor Code § 410.252(b) did not apply and rejected his other venue arguments and reversed the trial court’s judgment. The Texas Supreme Court held the venue provision of Labor Code § 410.252(b) was mandatory and Fortenberry more than presented enough evidence that he “resided” in Dallas County at the time of his injury. The Court further held that the fact that he was staying in a hotel for a prolonged period of time did not preclude him from qualifying as a “resident” and found it probative that the parties stipulated to venue at the Division level. Fortenberry v. Great Divide Insurance Company, 2023 WL 2719475 (Tex., March 3, 2023).
Copyright 2023, Stone Loughlin & Swanson, LLP
In an unexpected move earlier this month, the Senate unanimously passed an
amended bill that would delay by four more years the scheduled sunset review
for TDI, DWC, OPIC and OIEC. This will push sunset review of the Division
of Workers’ Compensation and the Office of Injured Employee Counsel to 2029,
rather than 2025 as originally scheduled. SB1659, which was introduced by
Senator Charles Schwertner of Georgetown - current chairman of the Texas Sunset
Advisory Commission - will now go to the House of Representatives for further
deliberations. At this time, we have no idea what is behind the legislation to
postpone review of these agencies, but the legislation seeks to modify the
review process for more than 40 Texas agencies.
Copyright 2023, Stone Loughlin & Swanson, LLP
No rule change would be complete without changes to the corresponding forms and
no form gets more facelifts than our beloved DWC-32. Here are some fun facts
about the changes:
• She’s lost
some weight – down to four pages now – really 3-1/2 since the 4th page is just
signatures.
• Just the facts ma’am. The form has been streamlined to request
very basic identifying information of the parties, their representative and
doctors. Gone are the questions regarding authorized agents and bill
review agents.
• The accepted compensable injury is a thing of the past. Box 37 is gone – caput –
no one cares. Regardless of whether the designated doctor is asked to
address extent of injury. Fear not, dear reader - the designated doctor
will determine the compensable injury during the examination.
• Interestingly, there is a “yes” or “no” box” where you can tell
someone that a DWC-24, CCH Decision or final court order determining the
compensable conditions exists; however, there is no corresponding place to
elaborate on that determination.
The New DWC-32 must be
used starting 6/5/23 and can be found on the Division’s website at: https://www.tdi.texas.gov/forms/form20numeric.html.
There are also new forms for the doctors to apply for certification and new
DWC-68 forms for doctors to record extent of injury findings “more precisely.”
Copyright 2023, Stone Loughlin & Swanson, LLP
The National Workers’ Compensation Defense Network will host its Southeast
Regional Conference in Charlotte, North Carolina May 4-5, 2023. The conference
is set to focus on what is on the horizon for workers’ compensation, with the
keynote speaker – Mark Pew – speaking on managing pain through technology.
The conference is fee to guests of SLS. You can check out the
course agenda here:
While you are in Charlotte, be sure to swing by and visit the home of
world-famous race car driver Ricky Bobby – in fact, if you like it you can even
put in an offer as his palatial mansion is for sale!
Copyright 2023, Stone Loughlin & Swanson, LLP
SLS bids farewell to Administrative Law Judge Rabiat Ngbwa who presided over
Contested Case Hearings in the Austin Field Office. No word yet on who
will replace Judge Ngbwa, but we wish her well in her future endeavors.
Copyright 2023, Stone Loughlin & Swanson, LLP
If you live long enough things definitely seem to come full circle. I began my
workers’ compensation career as a Hearing Officer in the field when designated
doctors only addressed MMI and impairment ratings. As time went by, they added
other issues to their repertoire and the list grew. Local treating doctors
provided MMI/IR certifications and, if you didn’t like it, you requested a
designated doctor. Then the scheduling companies moved in and doctors started
traveling from Houston to Abilene to see patients and the whole landscape
changed. Seemingly before we knew it, the tail was wagging the dog and the
companies were making 60% of the amount billed for the examinations and
recruiting doctors from all disciplines, demographics and age groups to be
designated doctors. It was truly the wild, wild west.
The Division, spurred by the Sunset Advisory Commission and the 82nd
Legislature took action and in January of 2011, I was in Austin and was charged
– along with many others – with making changes to the designated doctor
program. Many people at the Division spent untold hours working very hard
to improve the program and developed new rules, qualification and certification
criteria, testing, and training curriculum that met the statutory requirements
and systems designated to ensure qualified doctors were selected for the
thousands of examinations that were requested each year. It was a
complete overhaul of the system that was not without its fits and starts, but
overall, we saw great improvement in the training, testing, and competence and
resources available to the doctors charged with providing the opinions
necessary for the system participants to use in resolving their disputes.
All of these changes came with consequences – some anticipated and some
unforeseen. The requirements to become a designated doctor – or even a
doctor certified to evaluate MMI/IR – were now more burdensome, time consuming
and costly. The number of examinations available no longer justified the
cost for many and some made the economic decision to let their certifications
lapse. The training for years had been perfunctory and the testing was
not monitored or meaningful. Now, the Division was requiring a three-day
training at no small expense and was requiring doctors to have access to the
ODG and MD Guidelines – additional expense items. Many doctors did not
want to take the time to learn or maintain the certification.
Some unintended problems with the way the Division selected the most qualified
doctors - and the additional costs associated with new training, testing and
administrative requirements under the new rules - pushed many MDs and DOs out
of the system. In September of 2012, there were over 1,200 doctors on the
Division’s list. As of the date of this newsletter, the list is down to
238 and less than 30% are MDs and DOs.
Over the years, the Division attempted to solve the problem of the
ever-shrinking list with rule changes. In December of 2018, they
implemented a rule change designed to change the way the examinations were
assigned and modified the qualification standards, yet the list continued to
shrink. This new set of rules has the stated goal of maintaining and increasing
participation in the designated doctor program and allowing better access to
certain kinds of examinations. While it may well achieve the latter,
there is little hope of it doing the former for one simple reason. In the
April 10, 2023 rule memo, the Division clearly stated that neither rule
concerns one of the most important issues that the Division has not changed in
decades – billing and reimbursement. While they may be working to
address that issue, the status of the billing and reimbursement rules project
remains unclear. In light of the current state of the list, a change to the fee
structure could be, at this point, too little too late.
The medical doctors and osteopaths left because it was no longer cost effective
for them to do the work. The medical fee guidelines for designated doctor
examinations have not been updated to adequately reflect the changes in the
designated doctor program. The administrative burden on designated
doctors – with or without scheduling company assistance – increased considerably
when the rules changed. The complexity of the cases the board-certified
doctors are asked to address – especially regarding the extent of the injury -
and the sheer volume of medical records they are asked to review in order to
adequately evaluate those kinds of issues – are not reflected in the medical
fee guidelines. There is no reimbursement when a doctor travels out of
town to see a claimant that doesn’t show up. There is no incentive for
local doctors who feel as though they are being priced out of the market by
traveling doctors.
The administrative burden has lessened to some degree, however. The
doctors, under the new rule, don’t have to test anymore. Over time other
requirements have lessened: training is no longer three days long every two
years and much of it is available by webinar instead of live training; doctors
are no longer required to have access to MDGuidelines or ODG, they just have to
“apply” them. The obvious casualty of these changes – report quality.
While the doctors have concerns that are no doubt legitimate, practitioners
have their own concerns about the rules. Notwithstanding the obvious
concerns about the declining quality of the designated doctor reports, we are
now back to square one (circa 2010) with the designated doctor deciding what is
compensable – without regard for what the carrier has accepted or disputed –
whether the doctor is addressing extent of injury or not. The designated
doctor will no longer provide multiple certifications unless the Division
orders it. This begs the question – how does this help us with informal
resolution?
Meanwhile, the Carrier is required to pay benefits based on the designated
doctor’s certification of MMI/IR – even if they have disputed the condition the
designated doctor has rated. The question then becomes, is this a
voluntary payment according to the SIF when it comes time to seek reimbursement
if the Carrier is able to get the MMI/IR determination overturned at a CCH?
How do we advise our clients?
A lot of very hard work went in to making positive changes to the designated
doctor program after the last Sunset Commission recognized the problems the
Division was facing. In this girl’s opinion the Division was on the right
track with training and testing and educating a group of doctors to provide
meaningful tools to aid system participants and the Division in dispute
resolution.
Unfortunately, just easing up on the administrative burdens and continuing to
change the qualification criteria will not bring more doctors into the system.
Changing the criteria to make it easier for a doctor to “qualify” does
not make a doctor more qualified.
Copyright 2023, Stone Loughlin & Swanson, LLP