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.
The Division has extended the comment period for the rule proposing modification of the cap on
attorneys’ fees and withdrawal of representation, as well as the proposed modifications to forms
relating to attorneys’ fees, attorney representation, and attorney withdrawal from representation.
If you’d like to comment on the rule proposals or proposed form revisions, please submit your
written comments by 5:00 p.m. Central time on October 4, 2016. Written comments may be
emailed (Rulecomments@tdi.texas.gov) or physically mailed to: Texas Department of Insurance,
Division of Workers’ Compensation, Maria Jimenez, Workers’ Compensation Counsel MS - 4D,
7551 Metro Center Drive, Suite 100, Austin, Texas 78744-1645.
The Division has also issued a notice that comments that were submitted via email between 8/01/16
and 9/19/16 may not have been received, and is encouraging you to resubmit your comment if it was
submitted via email during that time-frame.
The Division has determined that any interest or discount provided for in the Act shall be at the rate
of 4.11 percent. The method for computing the interest rate is based on the treasury constant
maturity rate for one-year treasury bills issued by the United States Government, as published by
the Federal Reserve Board, detailed in Texas Labor Code §401.023. This new interest rate is
effective beginning 10/01/16, through 12/31/16. The rate in effect for the previous period (7/01/16
through 9/30/16) was 4.03 percent.
The Division has set the state average weekly wage (AWW), maximum weekly benefit, and
minimum weekly benefit rate for 10/01/16 through 9/30/17 dates of injury. The state AWW has
been set at $912.69. The maximum weekly benefit rate is set at $913, and the minimum weekly
benefit rate is set at $137.
The maximum and minimum weekly benefit rates for dates of injury from 10/01/15 through 9/30/15
were $895 and $134, respectively.
A table showing maximum and minimum weekly benefit amounts for all dates of injury after
1/01/91 is available on the Texas Department of Insurance website at
www.tdi.texas.gov/wc/employee/maxminbens.html.
The Division is evaluating whether it is necessary to request social security numbers on certain
forms, and is accepting public comments on these proposed revisions. The Division’s website
includes a full list of forms that have been identified as warranting either: (1) removal of the social
security number field entirely (e.g. DWC-2, DWC-25, DWC-31, DWC-33, DWC-35, DWC-45M,
DWC-46, DWC-48, DWC-49, DWC-51, DWC-54, DWC-55, DWC-56), or (2) requesting only the
last four digits of the social security number (e.g., DWC-6, DWC-24, DWC-32, DWC-45A, DWC-
47, and DWC-52). The revisions would apply to both the English and Spanish versions of the forms.
If you’d like to comment on the proposed revisions to the forms, the Division has asked that you
submit your written comments by 5:00 p.m. Central time on October 4, 2016. Written comments
may be emailed (Rulecomments@tdi.texas.gov) or physically mailed to: Texas Department of
Insurance, Division of Workers’ Compensation, Maria Jimenez, Workers’ Compensation Counsel
MS - 4D, 7551 Metro Center Drive, Suite 100, Austin, Texas 78744-1645.
This month the Oklahoma Supreme Court struck down the controversial “opt out” provision of its
workers’ compensation law. The provision had allowed employers to “opt out” of Oklahoma’s
workers compensation system and write their own plans, establishing terms for what injuries would
be covered, how workers would be compensated, which doctors workers could see, and providing
for a dispute resolution process.
In a 7-to-2 ruling, the Court held that the provision is an unconstitutional “special law” conferring
employers the ability to provide inequitable treatment for their injured employees, stating that the
provision “creates impermissible, unequal, disparate treatment” for those workers, and a violation
of the Oklahoma Constitution.
At this time, Texas is the only state that allows employers not to carry workers’ compensation.
We bid farewell to Judge Phillip Brown, who retired as Hearing Officer with the Division of
Workers’ Compensation late last month. Judge Brown was a Hearing Officer in the Fort Worth
Field Office.
Judge Kara Squier, formerly at the Waco Field Office, has been transferred to Fort Worth to take
over some of its docket. The Division has hired attorney Amber Morgan as the new Waco Hearing
Officer following Judge Kara Squier’s transfer. Ms. Morgan formerly worked at Helton &
Associates in Waco as an advocate for injured workers. She is a graduate of Baylor Law School,
where she received her J.D. in 1999.
The Division has issued an updated list of health care providers restricted in the workers’
compensation system. The list includes enforcement actions against health care providers that
involve practice restrictions, doctors removed or suspended from the Designated Doctors List
(DDL), and health care providers removed from or denied access to the former Approved Doctors
List (ADL). Gary Pritchett, DC has been suspended from the DDL from 9/23/16 through 9/23/19.
Jerome Carter, MD was removed from the ADL indefinitely as of 9/20/16. Ray Altamirano, MD
was removed from the ADL through 7/19/18.
A full list of health care providers restricted in the workers’ compensation system can be found at
http://www.tdi.texas.gov/wc/hcprovider/status.html.
This event is by invitation only and is sure to be an important and fun event for system stakeholders.
If you would like an invitation and a chance to bid on some amazing silent auction items, contact
us here at the firm. There are trips to Napa, Cabo San Lucas, Marfa (star parties and gallery tours),
and Colorado, and other one-of-a kind items such as flight in a vintage T-34 “Mentor” Air Force
trainer. Visit www.kidschanceoftexas.org for more information. We are proud to announce that we
already have two scholarship recipients, Christi Campbell and Meghan Hill, who will be at the event
to receive their awards!
NEBRASKA NEWS
NEBRASKA SUPREME COURT
In Interiano-Lopez v. Tyson Fresh Meats, 294 Neb. 586 (2016), the Nebraska Supreme Court determined counterclaims are not permissible in workers’ compensation cases. In the case, claimant voluntarily dismissed his Petition, but the Court allowed the case to continue as the employer filed a counterclaim. On appeal, the Court held that because counterclaims “are not part of the pleading scheme, there is no procedure enabling a plaintiff to admit or deny the substantial averments of a counterclaim, and no procedure by which a plaintiff can state his or her contention with reference to any additional matters in dispute as disclosed by the counterclaim.” Further, allowing the suit to proceed on an employer’s counterclaim violates the claimant’s right to voluntary dismiss an action without prejudice before the final submission of the case to the court under Neb. Rev. Stat. § 48-177.
Practice Tip: Interestingly, while not judicially efficient, the Court did imply that the employer has the option of filing a Petition to determine the rights of the parties in lieu of filing a counterclaim. So, if a case is not proceeding or claimant intends to move for dismissal without prejudice under Neb. Rev. Stat. § 48-177, the employer should consider filing a Petition.
For more information regarding Nebraska news and updates please contact Jennifer Caswell orDanielle Jones in our Omaha, Nebraska office at 402.505.4630 or Jennifer.Caswell@Ritsema-Lyon.com and Danielle.Jones@Ritsema-Lyon.com.
Fall 2016 West Virginia Case Report and Workers’ Compensation Market Commentary
Supreme Court Report
The West Virginia Supreme Court of Appeals Court continues a trend of reporting decisions reflecting the privatization of the insurance market where multiple carriers have to determine compensability of preexisting injuries to current compensable claims, allocate charges from a claim among multiple employers, and calculate impairment from preexisting injuries.
One of the first cases argued before the West Virginia Supreme Court of Appeals in its September 2016 Term wasPioneer Pipe v. Swain, et al., No. 15-0397 (September 19, 2016), in which the Court adopted the OIC’s interpretation it is not mandated to allocate and divide charges for occupational hearing loss claims. The Court’s ruling confirms the OIC’s position allocation in hearing loss claims is a discretionary obligation in West Virginia which is in line with practice in a majority of states. The Court complained W. Va. Code 23-4-6b(g) is a “confusing, poorly-drafted anachronism, a vestibular flicker of the old workers’ compensation system” before privatization. The Court also noted its repeated recognition workers’ compensation law is a “miasma” that is a “sui generis, jurisdictional hodge-podge that stands alone from all other areas of the law, causing decisions rendered in the workers’ compensation arena to be almost wholly unusable in any other area of the law, and vice-versa.” Clearly four justices held their collective noses while making a decision where Pioneer Pipe is responsible for the entirety of a thirty-three year history of noise exposure for an employee with a mere forty hours of exposure at Pioneer Pipe. In her dissenting opinion, Justice Davis found the OIC’s policy injured Pioneer Pipe by denying its right to due process to make an individual determination of allocation on the merits, by preventing Pioneer Pipe from having other employer’s share in the “costs” of a hearing loss claim, and by prohibiting Pioneer from showing it should not be part of the case at all because the claimant worked only forty hours and not the sixty days as required by the statute.
In the January Term of Court, two cases address compensability of preexisting injuries and the proper methodology for calculating preexisting impairment.
In syllabus point 3 of Gill v. City of Charleston, 783 S.E.2d 857, 858 (W. Va. 2016), the Court held:
“A noncompensable preexisting injury may not be added as a compensable component of a claim for workers' compensation medical benefits merely because it may have been aggravated by a compensable injury. To the extent that the aggravation of a noncompensable preexisting injury results in a discreet new injury, that new injury may be found compensable.”
In SWVA, Inc. v. Birch, 787 S.E.2d 664, 665 (W. Va. 2016), the Court held the proper methodology for determining preexisting impairment is to “deduct the impairment attributed to the preexisting injury from the final whole person impairment rating as determined under West Virginia Code of State Rules § 85-20.” This decision reflects continued reliance on the AMA Guides to the Evaluation of Permanent Impairment, 4th Edition, and the impairment tables in Rule 20 of the Code of State Rules.
Market Commentary
Declining premium volume is a challenge for carriers as the West Virginia economy struggles with residual loss of business connected to the distressed coal mining and oil & gas industries and the continued economic recession. The workers’ compensation insurance market is sound. As reported by the National Council on Compensation Insurance (NCCI) at its 2016 State Advisory Forum, loss cost decreases continue in West Virginia for the 12th year in a row. NCCI reported lost-time frequency continued to decline in 2016, but was higher compared with other states in the region. In a press release issued July 29, 2016, Governor Earl Ray Tomblin announced West Virginia employers will see a projected $36 million reduction in workers’ compensation premiums this year, and have seen a savings of more than $352 million since the privatization of workers’ compensation insurance in 2006. NCCI recently filed a proposed reduction of 14.7% in workers’ compensation loss cost rates with the Offices of the Insurance Commissioner. The loss cost rate is effective November 1, 2016. This is the 12th consecutive reduction since privatization and accounts for a cumulative decrease of 69.1% from pre-reform levels. A proposed 14.4% rate decrease for the assigned risk market also was filed by NCCI. Litigation trends also reflect the enduring impact of privatization with the September 8, 2016 report to the Industrial Council by the Office of Judges showing continuing decline in protests acknowledged by the OOJ: 2268 through August 31 compared to 3709 for 2015.
If you have questions or need more information, please call or e-mail Dill Battle at 304.340.3823 or hdbattle@spilmanlaw.com
H. Dill Battle III, Esq.
Spilman Thomas & Battle, PLLC
300 Kanawha Boulevard, E.
Charleston, West Virginia 25301
304.340.3823 - office
hdbattle@spilmanlaw.com