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.
Last week SLS attended
the National Workers’ Compensation Defense Network (NWCDN) meeting in Denver as
the Texas member. The group is comprised of one vetted law firm member
from each state. We were invited to be the Texas member 17 years ago and
continue to work with the group in support of Texas employers and insurance
carriers who insure them. Jane Stone gave a short presentation about
these disputes to the employers and decision-makers present at the meeting.
There are over 3,000 air ambulance fee disputes currently pending in the Texas
workers’ compensation system. The average amount in dispute in each case
is over $50,000 for a total at stake of at least one hundred fifty million
dollars plus interest. These disputes have gathering at the Division of
Workers’ Compensation since 2012 while the parties continue to litigate the
threshold issue of whether the federal Airline Deregulation Act of 1978
preempts the Texas Workers’ Compensation Act’s reimbursement standards for
medical care.
The ADA prohibits states from regulating the price, route or service of an “air
carrier.” The air ambulance companies argue that the ADA preempts Texas’
workers’ compensation laws that govern the amount of reimbursement owed to
health care providers and therefore, they are entitled to their full billed
charges for transporting injured workers. The air ambulance companies’ billed
charges are significantly more than the amount paid by the insurance carriers
which in most cases is 125% of the Medicare rate.
The air ambulance companies’ billed charges are generally 600% to 1,200% of the
Medicare rate. For the sake of comparison, the Division’s fee guideline
payment adjustment factors range from 125% of the Medicare rate for the Medical
Fee Guideline to 235% of the Medicare rate for the Ambulatory Surgical Center
Fee Guideline. In 2015, an ALJ at the State Office of Administrative
Hearings issued a decision finding that 149% of the Medicare rate was fair and
reasonable reimbursement for the air ambulance services at issue but on appeal
that amount was determined to be too high.
The Division of Workers’ Compensation has abated all of the pending individual
fee disputes while the preemption issue is litigated. However, the Division
recently issued decisions in the Air Evac fee disputes. The Division awarded
$0.00 additional reimbursement on the grounds that it cannot determine the
proper payment amount because of the federal injunction Air Evac obtained that
enjoins the Division from applying its “fair and reasonable” reimbursement
standards against Air Evac.
This preemption issue has been litigated in other states but none more than
Texas. The litigation in Texas over the preemption question has been going on
for over ten years. The issue has been litigated to the Texas Supreme Court and
Fifth Circuit Court of Appeals which reached different conclusions. The
Fifth Circuit held there is preemption while the Texas Supreme Court held there
is not.
Case law holds that Texas courts are not bound by the Fifth Circuit but
only higher Texas courts and the U.S. Supreme Court. Therefore, the ALJ
overseeing the air ambulance disputes currently pending at the State
Office of Administrative Hearings recently issued a ruling that he would follow
the Texas Supreme Court’s decision and apply Texas’ “fair and reasonable”
reimbursement standards for workers’ compensation to determine the amount of
reimbursement to which the air ambulance providers are entitled.
The ALJ has now set two groups of cases for hearings on the merits in April and
May 2025. The air ambulance providers are expected to appeal the ALJ’s
final decision when issued so the air ambulance litigation in Texas is far from
over.
Copyright 2024, Stone Loughlin & Swanson, LLP
Well, not really.
However the DWC has set weekly benefit rates for fiscal year 2025. For
dates of injury beginning October 1, 2024 through September 30, 2025, the state
average weekly wage is $1,218.62. Keep in mind that the rate applied to any
particular claim is set as of the date of injury.
Copyright 2024, Stone Loughlin & Swanson, LLP
Everyone remembers the
anxiety waiting for a report card brings. Insurance carriers and
employers are no different, and the news is good for those that take advantage
of the benefits provided by networks. According to TDI’s Division of Workers’
Compensation, what we at SLS have seen regarding the effectiveness of networks
certified under Chapter 1305 of the Texas Insurance Code is confirmed by the
numbers. Networks tend to be more cost efficient than non-network claims. The
cost differences appear to be driven in part by lower hospital utilization and
lower prices per service. Despite lower costs, network claims as a whole have
higher satisfaction levels with health care, faster return-to-work and better
functional outcomes. Network claims tend to receive initial non-emergency
medical care faster than non-network claims, which studies have shown may
assist in controlling health care costs and reducing missed time from work.
Injured workers’ early return to physical function and productivity is
the goal of the workers’ compensation system– and it is working!
Copyright 2024, Stone Loughlin & Swanson, LLP
We couldn’t resist this cartoon! The Fall is also the time carriers are asking SLS for Zoom training meetings, which made this especially relevant to those of us who teach!
Copyright 2024, Stone Loughlin & Swanson, LLP
DWC is putting on its
annual Texas Workers’ Comp Conference October 22nd and 23rd in Austin and
registration is still open. It is the “go to” event in the Fall every year for
anyone involved in the workers’ compensation process. A featured speakers is Mark
Pew who is well respected as one of the developers of the excellent Workers’
Comp College educational platform, for which SLS is the Texas contributor.
Check it out here.
Copyright 2024, Stone Loughlin & Swanson, LLP
Attorney Colby Liesman
is reported to be the newest ALJ to come on board at the agency. He got
his law degree at the Florida Coastal School of Law in 2017 and was licensed to
practice law in Texas in 2018. Prior to his employment at the agency, his
practice areas included business, criminal, family and probate law. His
wide range of expertise will serve him well in his new role dealing with
claimants, the administrative process, and the lawyers who practice the
interesting and complex field of workers’ compensation. Welcome, Judge Liesman!
Copyright 2024, Stone Loughlin & Swanson, LLP
DWC has proposed a
rule addressing a little-known problem. In some circumstances SIF can
issue Lifetime Income Benefit payments to an employee who meets the criteria.
Of course the employee must be alive to receive them. This new rule
proposal protects the Fund by providing a process to verify that a LIBs
recipient is still among the living before the payments are issued.
Public comments are being accepted to proposed Rule 131.5. (CITE)
Copyright 2024, Stone Loughlin & Swanson, LLP
VNA of St. Luke’s Home/Hospice, Inc., v. Ortiz (WCAB) A.3d. No. 1312 and 1362 C.D. 2022 (Pa Cmwlth. 7/23/2024)
Holding- Under Section 413(a) of the Pennsylvania Workers Compensation Act, an employer who initially agrees to a Stipulation of Facts can set aside the Stipulation if it is shown that the Claimant/employee falsely provided information material to the Stipulation. Claimant, Elizabeth Ortiz was an administrative assistant who initially claimed a November 2017 work injury in the form of a left shoulder strain alleging that she fell while attempting to sit on a chair and injured her shoulder. In May of 2018, the Employer issued a notice of temporary compensation payable (NTCP) accepting a left shoulder strain. In June 2019, the Claimant filed a claim petition seeking to expand the work injury to a left shoulder rotator cuff tear and biceps tendon injury. In September 2019, the parties entered into a Stipulation of Fact, approved by the trial judge, for additional injuries, specifically a full thickness tear and a biceps tenodesis of the left shoulder. While Claimant was being paid total disability benefits in October 2020 and January 2021 the employer filed two Modification petitions asserting that Claimant had failed to respond to modified-duty job offers that would have paid her wages less than her average weekly wage. In the course of litigating the Modification petitions, newly discovered medical records disclosed to the Employer revealed that a left shoulder rotator cuff tear and biceps tendon injury pre-existed the November 2017 work accident. The Employer sought to set-aside the Stipulation of Facts accepting the expanded injury description based on the newly uncovered medical records. The WCJ had found that the Claimant repeatedly under oath falsely denied having suffered and being treated for the stipulated before the work accident. The Judge ruled that, inter alia, Employer’s request to set aside the September 2019 stipulation of facts was denied for lack of sufficient competent evidence. The Employer appealed to the WCAB, but the Board affirmed the WCJ’s refusal to set aside the stipulation. The Board treated the matter as a legal issue, as one of waiver, determining that there was no indication that the Employer lacked the opportunity to fully investigate the challenged finding before entering into the stipulation and that it failed to act properly in seeking relief. The Employer appealed to the Commonwealth Court who noted that this case boils down to how much an employer is expected to do by way of investigation and within what timeframe when a claimant misrepresents her condition and/or existence of prior injuries. The Court in an opinion written by Judge Leadbetter noted “turning to the extent to which Employer should have conducted a more rigorous investigation before entering the stipulation, it bears repeating that Claimant time and again misled Employer, her own surgeon, and the workers compensation tribunal as to pre-existing left shoulder issues. It was noted that the Employer was not seeking to set aside its original acceptance of the work injury (left shoulder strain). It was disingenuous for the Claimant to attempt to shift blame for her repeated misrepresentations when such false statements had the practical effect of complicating the proceedings. The Court reversed the Board in deciding that the stipulation could be set aside based on the false statements by the employee.
Paul C. Cipriano Jr., Esquire
Rulis & Bochicchio, LLC
On August 16, 2024, the Alabama Court of Civil Appeals released its opinion in Victoryland v. Patricia Dianne Arnold wherein it addressed the Successive Compensable Injury Test. Specifically, it affirmed the trial Court’s judgment that a subsequent motor vehicle accident that exacerbated the Employee’s compensable low back injury did not qualify as the type of intervening event that would relieve the Employer from its responsibility to provide medical benefits.
The trial Court considered the Employer’s motion for relief from future responsibility based on an MVA that occurred approximately 9 years after the Court approved a workers’ compensation settlement concerning the low back which left medical benefits open. It also considered evidence that the Employee was deciding whether to proceed with a third low back surgery at the time she was involved in the MVA. The Employee testified that the accident resulted in exacerbated low back pain that radiated down into both legs.
The Employee took a position in the MVA lawsuit that her low back condition was exacerbated as a result of that accident. In the Workers’ Compensation matter, the Employee took the position that, despite the exacerbation, her Employer should remain on the hook for medical benefits. The trial Court denied the Employer’s motion for relief and so it appealed the decision.
On appeal, the Court of Appeals did not agree with the Employer’s position that the Employee was judicially estopped from taking inconsistent positions in the workers’ compensation case and the MVA case. Specifically, it was the Employer’s position that since the Employee alleged a permanent exacerbation of her low back as a result of the MVA in one proceeding that she could not also assert that an intervening event that severed the chain of causation had not taken place in another proceeding. The Court disagreed with the Employer’s position by stating that the positions, while inconsistent, were not so inconsistent as to warrant applying the Doctrine of Judicial Estoppel.
The Court also considered the Employer’s position that an MVA is not the type of routine event or “customary activity” that would allow the Employee to connect her current need for medical benefits to the original workers’ compensation claim under the Successive Compensable Injury Test (a test which states generally that employer is not relieved of responsibility when it is established that the later injury is the direct and natural result of the compensable work injury).
The Court noted that an MVA is an unusual traumatic event and pointed out that case law cited in the briefs did not address whether such events should be treated as intervening causes. The Court expanded its research beyond the cases cited by the parties to consider a case specifically involving an MVA wherein the Plaintiff filed a petition seeking an order compelling medical treatment after the Defendant denied treatment following the accident. In that case, the trial Court denied the Plaintiff’s motion and the Court of Civil Appeals reversed that decision.
Although it did not state as much, the Court applied what amounted to a reverse eggshell doctrine theory. The “eggshell doctrine” states that you take the plaintiff as you find him or her, for purposes of determining damages. It provides that plaintiffs who are far more susceptible to a particular harm than the average person may nonetheless recover their full damages without reduction. So applying the eggshell doctrine in the MVA case allowed the employee to maximize her recovery against the third party driver. In the Victoryland opinion, however, the Court relied on a reverse application because it found the Employee was more susceptible to a particular harm (aggravation to the compensable low back) than the average person. So, in the liability case, her eggshell condition put responsibility for the increased damage on the liable 3rd party and, in the workers’ compensation case, that same condition put the responsibility on the Employer.
My Two Cents: While the Court did not say as much, this type of situation really comes down to the specific facts of a case. The seriousness of the pre-existing condition versus the seriousness of the “unusual traumatic event.” Other factors to consider would be whether or not the injured Employee was actually acting in a routine and customary manner at the time of the accident. In the Victoryland case, it was noted that the Employee was driving her two grandchildren and so she was not likely to have been driving in a unsafe or erratic manner. However, in situations where the driver was driving in an unsafe manner, that could certainly be used in support of a motion for relief from future liability of medical benefits.
A Few More Cents: Of note, the Employer formerly asserted its subrogation rights in the MVA case. The Employer continued to pay for the low back injury medical treatment and, when the Employee recovered from the other driver in the motor vehicle accident case, the Employer received $46,950.81 in satisfaction of its subrogation lien. The lesson to be learned here is that the right to a subrogation recovery and the statutory right to reimbursement can extend to any event involving third-party liability that increases the amount or duration of medical benefits in your workers’ compensation case.
About the Author
This blog submission was prepared by Mike Fish, an attorney with Fish Nelson & Holden, LLC, a law firm dedicated to representing self-insured employers, insurance carriers, 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 submission 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.
TOY GROUP
How Exclusive is “Exclusive”
The stage is set for
the Supreme Court of Texas to weigh in on whether a plaintiff can bypass the
DWC adjudication process and, instead, have a trial court consider the merits
of a defendant’s exclusive remedy defense in a plaintiff’s personal injury lawsuit.
The courts are now officially split on the issue. In January of 2023, the
13th Court of Appeals decided UTRGV v Oteka, and decided Ms. Oteka
did not need to exhaust her administrative remedies with the DWC before filing
her personal injury suit and the trial court had jurisdiction to deny UTRGV’s
plea to the jurisdiction. No. 13-22-00063-CV, 2023-WL 413587 (Tex. App. –
Corpus Christi – Edinburg Jan. 26, 2023, pet. filed) (mem. op.)
Noting UTRGV had not had the merits of the exclusive remedies
defense considered by the trial court, instead moving for dismissal on the
grounds that the course and scope issue was the exclusive jurisdiction of the
Division, the Valley Court of Appeals concluded that “Oteka’s suit is not based
on the ultimate question of whether she is eligible for workers’ compensation
benefits. As we previously observed, it is ‘just the opposite, if
[Oteka’s] injury is compensable, this would likely bar [her]suit pursuant to
the exclusive-remedy defense.’”
Fast forward to August 20, 2024, when the 1st Court of Appeals in
Houston took the completely opposite position. The Houston Court spent
quite a bit of time unpacking the Texas Workers’ Compensation Act and the legal
precedent supporting their holding that failure to exhaust the administrative
remedies required by the Act deprived the trial court of subject matter
jurisdiction over the personal injury lawsuit filed by the plaintiff in In Re Prentis, a
mandamus action filed by the defendants in a personal injury suit filed by Desi
Sykes arising out of claimed work injury. (No. 01-23-00616-CV, 2024 WL
3862953(Tex. App. – Houston [1st. Dist] August 20, 2024).
The 1st Court of Appeals reasoned that the Act vested the Division
with the sole authority to determine whether an employee sustained a
compensable injury thereby entitling him to workers’ compensation benefits and
that same Act provides the mechanism for resolving disputes regarding those
claimed injuries.
Sykes’ thought that the fact that whether he was injured in the course and
scope of his employment was “hotly contested” conferred jurisdiction on the
trial court and allowed him to bypass the DWC administrative process. The
1st Court disagreed. The Court of Appeals held, to the
contrary, that the Legislature conferred exclusive jurisdiction on the DWC “to
consider in the first instance the question of compensability, including the
question of course and scope” and Sykes failed to exhaust his administrative
remedies, necessarily depriving the trial court of jurisdiction over the
matter. The 1st Court determined abatement, rather than
dismissal was the appropriate remedy, pending the exhaustion of Mr. Sykes’
administrative remedies. The 1st Court conditionally granted
the Petition for Mandamus feeling confident the trial court would vacate its
order denying the Plea to the Jurisdiction and issue and order abating the case
in accordance with its holding.
With the Courts of Appeal in a dogfight over this exclusive remedy issue, the
Supreme Court is primed to bring the issue to heel once and for all.
Administrative Violations Don’t Defeat Exclusive Remedies Defense
Meanwhile, over in
Cowtown, the Fort Worth Court of Appeals, upheld a trial court’s summary motion
judgment in Lane v. Odle,
2024 WL3897109 (August 22, 2024). Mr. Lane filed a third-party suit and
Odle, Inc., filed a summary judgment motion in district court alleging an
exclusive remedy defense, presenting all kinds of evidence of Mr. Lane’s
employment status. The trial court granted the summary judgment.
Lane’s arguments in support of his defense of the summary judgment included:
the failure of Odle to prove TDI had approved its workers’ compensation policy;
the failure of Odle to offer evidence that it was authorized to write workers’
compensation insurance in Texas; and, Odle’s failure to show it was a
registered subscriber with TDI. The Fort Worth Court held that in order
to prevail, Odle had to show that Mr. Lane was its employee at the time of the
injury and was covered by its workers’ compensation insurance policy.
The Court pointed to numerous pieces of uncontroverted evidence, including Mr.
Lane’s own petition in which he asserted he was an employee, in support of the
affirmative defense and defeat of the no-evidence grounds. The Court then
looked to the shifted burden and discussed the fact that rather than attaching
evidence raising a genuine issue of material fact, Lane complained that there
was no evidence the workers’ compensation insurance policy was approved by TDI
and that Odle’s parent company failed to register with DWC – facts that
amounted to administrative violations – not facts that would overcome Lane’s
evidentiary burden. The Fort Worth Court of Appeals cited other Texas
courts who have held an administrative violation does not affect an employer’s
ability to satisfy the employer element of the exclusive remedy defense.
WORKING GROUP
The Appeals Panel was
busy this month – and by busy, I mean they wrote three decisions, which lands
them squarely in the Working Dog Group.
In APD 240974,
they reversed and remanded an ALJ who made a material error in the statement of
the evidence when determining a claimant didn’t have disability. When
adding up the claimant’s earnings for the relevant disability periods, the ALJ
apparently got the math wrong and the Appeals Panel remanded the case to allow
the ALJ to dust off her trusty calculator and try again.
In APD 240839
and APD 240805,
the Appeals Panel reversed ALJs who got it right on extent of injury, but
subsequently adopted designated doctor certifications of MMI/IR that included
conditions that they themselves determined were not compensable. The
Appeals Panel pointed out that this is a no-no and overcomes the presumption
afforded said designated doctor. In 240839, happily there was another
certification that rated the compensable injury and the Appeals Panel was able
to render a decision on MMI/IR. In 240805,
however, there was no other certification that rated the compensable injury, as
defined by the Division after the CCH, and the Appeals Panel had no choice but
to remand for the ALJ to send the case back to a designated doctor to rate the
compensable injury only.
SPORTING GROUP
BE A SPORT!! REGISTER NOW! FOR THE 5TH
ANNUAL Kids’ Chance of Texas Golf Tournament – October 28, 2024 –
Shotgun start 1:00 p.m. – The Lakes at Castle Hills, Lewisville, Texas
HOUNDS
Licensing board hounding
you to get your hours in? Here’s a great opportunity to rack up some CE
credit and learn a few things while you are at it: NWCDN’s Annual
Conference in Denver September 26, 2024 – BONUS: It’s free to SLS clients 😊 – Check out the Agenda here.
TERRIERS
The Division is like a dog with a bone when it comes to sending out information and they just introduced a new way to do just that - the DWC Texas Comp Update. Check it out here.
HERDING GROUP
The Division is herding everyone
together on September 5, 2024 at 2:30 p.m. for a Hybrid Insurance
Carrier/Health Care Provider Quarterly Meeting. For more information about this
and future hybrid stakeholder meetings, including dates and times and Zoom
links, see here.
NON-SPORTING GROUP
A few participants found themselves in the doghouse with the Division recently which landed them in the non-sporting group.
One claimant’s attorney, was directly paid attorney fees by the Carrier by
virtue of winning a disputed SIBs quarter. He failed to timely pay back
said Carrier when ordered by the DWC following a CCH requested by the Carrier
to dispute the amount of those fees. The DWC felt 1,857 days was far too
long to pay back the owed fees, regardless of any mitigating circumstances,
fined him $10,000 and ordered him to attend 6 hours of ethics.
An RME doctor, who was ordered by the DWC to perform an extent of injury
examination, apparently threw in an MMI/IR certification as well and completed
a DWC-69 and report, which was entitled “Peer Review/Impairment Rating.”
The Division fined the doctor $500.00 for improperly certifying MMI/IR when not
being ordered to do so, and for certifying MMI/IR without an examination
(although there clearly was some kind of examination), and for assigning a
prospective MMI date.
A carrier is on a short leash with the DWC when it comes to lifetime and death
benefits. The Division, noting the harm in failing to timely pay LIBs and
death benefits to injured employees and their beneficiaries under particularly
stressful circumstances, fined the Carrier $19,000 for a variety of violations
related to the administration of death and LIBs benefits.
Finally, a Carrier who determined there were no beneficiaries in a death case
waited 84 days too long to send that money to the SIF. Turns out, that
dog won’t hunt – the Carrier was fined $32,000!
It’s a dog-eat-dog world in workers’ comp so keep your nose clean (and out of
your neighbor’s tail) and remember, every dog has his day.
BEST IN SHOW
From time to time, we
all hear some interesting - and let’s face it - entertaining stories in our
line of work. Our Best
In Show entry is designed to put a smile on your face as you
slough off the August heat and, hopefully, welcome some cooler fall days.
While reviewing a BRC report recently, our own Robert Greenlaw came across a
most peculiar injury for which he was unable to find a corresponding ICD-10
code – a lumbar disc bugle!
As Rob put it, “wouldn’t want to hear him play that…”
Copyright 2024, Stone Loughlin & Swanson, LLP