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.
There has been a flurry of activity within the Division of late as DWC staff
flutter off. Ana Thornton, the South-Eastern Regional Director overseeing
hearings in Houston, San Antonio, and the Valley, has departed for a position
with Traveler’s Insurance Company. Of course, we wish her nothing but the
best.
Jeff Carothers, formerly the Team Lead for the Southern Region and a San
Antonio Administrative Law Judge, accepted the Regional Director position left
vacant by Ms. Thornton and will therefore no longer preside over hearings.
Administrative Law Judge Hector Martinez of San Antonio will replace Mr.
Carothers as the Team Lead of the Southern Region. We heartily congratulate
them both!
Meanwhile, ALJ Franca Okonkwo transferred from the Houston West Field Office to
Houston East, and the Division has hired Victoria Mendoza as its newest
Administrative Law Judge in the West office. Judge Mendoza received her
J.D. from Texas Southern University and became licensed to practice in 2016.
Prior to joining the Division, we understand her area of expertise was
immigration law. We look forward to working with her.
Finally, Amparo Ilustre, a Benefit Review Officer in the Fort Worth area,
retired in January. No word yet on her replacement, but our best wishes to Ms.
Ilustre for a happy retirement!
Copyright 2024, Stone Loughlin & Swanson, LLP
Ruth Castilleja of Baytown got caught for fraud after reporting an injury while
working as a phlebotomist. Texas Mutual accepted her workers’
compensation claim and started her benefits for income replacement. That
is until they learned that she was working, again as a phlebotomist but at
another company. In the parlance of workers’ comp, this is called “double
dipping.” She said she was too hurt to work in order to get workers’
compensation income replacement benefits, but in reality she was not so hurt
that she couldn’t work. Her punishment? Three days in Travis County
Jail where she attended some classes on theft, and $7,100 to be paid in
restitution to Texas Mutual (presumably to be paid from her ill-gotten
gains).
Copyright 2024, Stone Loughlin & Swanson, LLP
Anecdotally, we are
seeing plaintiffs trying novel means of getting around the Labor Code’s
exclusive remedy provision which protects insured employers from suits claiming
negligence. A recent example is a negligence suit filed by an injured
worker where a claim of fraud was tacked on. Fraud is an intentional tort
that may not be covered by the employer’s liability part of the workers’
compensation policy. The lesson? Read the allegations in suits against
employers carefully in case there is a coverage issue lurking behind the
negligence claim.
Retaliatory discharge cases are still a favorite of plaintiff attorneys, and
are often a way to relief for a worker who can’t overcome the exclusive remedy.
A new case provides a good opportunity for a refresher in the law.
Mr. Frausto was an injured worker who was on light duty who failed to
show up for work or inform his employer that he wasn’t coming in. After
he was fired under a consistently applied company policy, he claimed (among
other things) that he was fired because he had filed a workers’ compensation
claim. The Corpus Christi Court of Appeals explained that a plaintiff
filing a retaliatory discharge claim relying on Texas Labor Code Sec. 451.001
must make a prima facie showing that his workers’ compensation claim was filed
in good faith and that there is a causal link between the filing of his claim
and his discharge. He can do this if he proves that he would not have
been fired but for his filing a workers’ compensation claim. The burden
of proof then shifts to the employer to show that it had a legitimate,
non-discriminatory reason for the discharge. If the employer succeeds in
proving this, then the burden shifts back to the worker to produce evidence of
a retaliatory motive. In this case, the employer had a uniformly enforced
absence control policy that overcame the claim that its motives were
pretextual. Frausto v.
RC Industries, LLC, (Tex. App. - Corpus Christi), January 11, 2024,
WL 117601.
Copyright 2024, Stone Loughlin & Swanson, LLP
The Texas Supreme Court has asked for full briefing from the parties on
Accident Fund’s Petition for Review of Accident Fund’s challenge to the
agency’s SIBs qualification rule, which we are hopeful signals that the Court
will hear the case on the merits of the rule challenge.
While we wait for the Court to decide the case, the saga continues at the
agency level. The moral of this story (if you choose to read it, below) is that
at least for now, in the real world it’s the Claimant’s claim of “believe me
when I say so” rather than objective proof of an actual job search that
satisfies the SIBs work search requirement.
Once upon a time we told you that the Division provided guidance through an FAQ
from its General Counsel that claimants who were applying for SIBs (without the
help of the Workforce Commission) were to show they were actively looking for a
job by attaching job applications or other documents showing they were looking
for a job. Later, we told you the tale of the Attorney General’s briefing
to the Highest Court in the Land (well, Texas anyway) that the Division, in
fact, does require those claimants to document their searches by job
applications and to submit copies of those applications (whether they apply
online or by hard-copy) with their SIBs application.
Unfortunately, real life has not lived up to the story we told. Our firm
recently defended a SIBs quarter in which the claimant’s DWC-52 spun a tale of
job searches for each week of the qualifying period, but she did not submit a
copy of one single job application with her DWC-52 nor did she bother
identifying information for any single employer she claimed to have contacted.
Instead, she simply wrote down the names of employers she allegedly contacted
on the DWC-52.
As recently as October of this year, the version of the story the Division told
the Supreme Court of Texas was that the Division requires every claimant (not
assisted by the Workforce Commission) who is seeking entitlement to SIBS to
provide copies of job applications with the DWC-52. Our firm made this argument
to the ALJ mere weeks ago, providing the very words from the AG for her
consideration, but the ALJ appears to have missed the Division’s memo on the
subject. The ALJ found the claimant was entitled to SIBs.
Copyright 2024, Stone Loughlin & Swanson, LLP
We are grateful to all of you who have supported the Firm all these years. The practice of workers’ compensation law has changed a lot over the years– as have we. Workers’ compensation system participants comprise a relatively small group. Untangling and deciphering agency regulation has made the jobs of insurance adjusters, ombudsmen, doctors, lawyers and claimants more difficult by the day. We try to keep up for you with developments as they occur. This issue of the Compendium continues that tradition. We learn from and welcome your favorable comments and your criticisms and thank you for the time you take to read about what we think it is important to know.
Copyright 2024, Stone Loughlin & Swanson, LLP
The opinion piece
below describes events that should make us all pause. The point is that
although it is admirable that cooler heads prevailed at the Division and they
withdrew their case, in regard to the actual costs to the doctor the relief is
too little, and far too late. The greater cost is to the system that can ill
afford to lose qualified doctors willing to travel across the state to provide
quality examinations and reports that benefit all system participants at every
stage of the dispute resolution process. Excellence is rarely rewarded.
One Girl’s Opinion – Editorial by Erika Copeland
As we begin the new year, we all tend to do some reflection and I am no
exception. I certainly had not intended to make the editorial a permanent
fixture when my number was up for newsletter contribution, but I felt compelled
to take at least one more stab at it when we at SLS received a bit of a
surprise “gift” in the form of the Division’s Motion to Dismiss a disciplinary
action before the State Office of Administrative Hearings against Dr. Steven
Doores.
First a little context. For those of you who know me only as lawyer at
SLS, my first exposure to Texas workers’ compensation was working for the
Division back when they called Administrative Law Judges “Hearing Officers.”
I did that job for almost 15 years in Abilene and San Angelo. As an
ALJ in hundreds of cases I regularly read peer review, RME and DD reports from
Dr. Doores. By 2011, I had moved to Austin and headed a team of people
charged with making sweeping changes to the designated doctor program as part
of a legislative mandate. As part of that process, we enlisted the help
of several subject matter experts– which is just a fancy way of saying
“doctors” – one of whom was Dr. Doores.
At that time, Dr. Doores was no stranger to the eagle eye of the Division,
having been called on the carpet (via letter of education) – along with
numerous other doctors performing MMI/IR certification examinations – following
a performance-based audit. Following that audit, rather than getting his
proverbial knickers in a twist, Dr. Doores went to great lengths to meet
personally with staff at the Office of the Medical Advisor (OMA) to find out
what exactly the Division wanted and expected with regard to MMI/IR
examinations at a time when the Division had farmed out all training and
testing to an outside vendor, not bothering to oversee the curriculum or
testing administered by the vendor. Determined to make sure he knew
exactly what the Division wanted, Dr. Doores had numerous discussions and
meetings with OMA staff to ensure he knew how to evaluate MMI and impairment
ratings in accordance with the Division’s expectations.
With that backdrop, it should come as no surprise that when the Division took
over development, implementation and oversight of designated doctor training
and testing, Dr. Doores was on the top of the list of providers tapped to
provide his expertise. To be clear, those experts were “compensated” by
the Division much like the Hearing Officers and lawyers were compensated – at a
much lower rate than anyone doing the same kind of work in the private sector.
As the Director of that program at the Division, I personally witnessed his
participation meetings in Austin to develop a completely new three-day training
program for designated doctors that had never been undertaken by the Division
before. I was also there when he attended meetings in Austin with a
private test development company that put us through the rigorous process of
writing, vetting and approving hundreds of test questions for those doctors
seeking to be certified by the Division. (Dr. Doores was responsible for
personally writing the lion’s share of the upper extremity and MMI questions
and there were hundreds needed for the question bank). I was there in the early
stages when we took our show on the road and provided the Division training to
doctors in Houston and Dallas for three days at a time. I was there when
Division executives decided we needed to include some supplemental training
that involved the Hearing Officers in other locations around the state to teach
extent of injury to a larger number of doctors who had never heard of that concept,
much less been tested on it or written a meaningful report addressing
it. I was also there for phone conferences and in-person meetings too
numerous to count with other Division staff, subject matter experts and
attorneys in which Dr. Doores spent hours for which he received no compensation
from the Division. I was NOT there for what could only have been hundreds
of hours Dr. Doores spent developing training materials and test questions,
traveling and meeting with various Division employees and system participants
and doctors for which he received no compensation at all.
What I can speak to personally is the fact that Dr. Doores was a dedicated
colleague and true believer in the necessity to make designated doctor training
and testing better for the doctors, the Division and the system as a whole. It
is with that context that you could have knocked me over with a feather when I
became aware that the Division launched a campaign to remove Dr. Doores from
participating in the system that he worked so hard to improve.
It started slowly – after I left the Division. Dr. Doores was not asked
to speak at as many training sessions and stopped being asked to provide test
questions for the new versions of the certification examination.
Eventually he was politely uninvited to participate in any of his prior
Division duties, including his role as an MQRP arbiter – but that was only the
beginning.
Soon, Dr. Doores found himself on the receiving end of numerous complaints and
investigations – with no notice or knowledge of the source of the complaints.
Each time, Dr. Doores was able to show he complied with applicable
rules.
The latest disciplinary action began as an incomprehensible laundry list of
wrongs Dr. Doores received through the Division’s Medical Quality Review
“process.” What started with a seemingly shotgun approach was eventually
whittled down to five
allegations stemming from one
examination that took place almost eight years ago.
At its core the Division’s position involved its disapproval of Dr. Doores’
opinion and conclusions in an addendum post-DD RME report (which had been
mislabeled a peer review due to a typographical error). For example,
although the document was clearly NOT a peer review the Division fashioned a
series of allegations against Dr. Doores for doing things he could not – under
the Act or Rules – do as a peer reviewer – even though a plain reading of his
report made it clear that it was not, in fact a peer review. At the
Contested Case Hearing, the Administrative Law Judge admitted Dr. Doores’
post-DD RME addendum, with an explanation by the attorney offering it that it
was mislabeled. Every participant in the workers’ compensation system – with
the exception, apparently, of the people involved in the Division’s MQRP process
– understood the nature and intent of that report. The right hand, in this
particular case, definitely had no idea what the left hand was doing.
This action was just the final step in a concerted effort to get Dr.
Doores out of the system by any means available and – unfortunately it has for
all intents and purposes been successful.
If you have been doing this work for a while you know there are very few
qualified doctors who provide quality examinations and reports as either a
designated doctor or post-DD or treatment RME provider in the Texas workers’
compensation system. Even fewer are willing to travel to under-served or
hard to get to counties. Dr. Doores was a provider who would travel to
almost any location and provide quality examinations, reports and testimony if
necessary. Due, in no small part, to the relentless harassment by those in
charge of the system he worked so hard to help improve, Dr. Doores has taken
the target off his back by declining to provide certifying examinations for MMI/IR.
For anyone who may take the position that Dr. Doores is a Carrier-paid
mouthpiece and the system is better off without him, I say: 1) you have an
agenda that needs further scrutiny; or 2) you are not aware that the number of
cases that actually end up disputed, much less in a contested case hearing, in
the Texas workers’ compensation system is actually quite small. The
reports penned by Dr. Doores you may have seen from our office likely support
the Carrier’s position. There are, I assure you, any number of reports
from Dr. Doores in which he found injuries compensable, conditions caused by a
work incident and impairment ratings well in excess of 0% - in fact, well in
excess of 15%. Those reports, do not end up in dispute – so you won’t see them in
hearings, AP Decisions or PLN-11s.
This latest barrage by the Division has taken an unforgiveable toll in this
girl’s opinion. Full disclosure, I consider Steven Doores a friend and am
deeply troubled by the financial and personal cost to the man who gave so much
of himself and his time to a project that also meant so much to me. Most
frustrating is that we may never know the real reason agency personnel were
willing to spend so much time and money on a case that from the start clearly
had no legal merit.
Copyright 2024, Stone Loughlin & Swanson, LLP
On January 23, 2023, The Supreme Court of North Carolina adopted the Rules for Mediated Settlement Conferences and Other Settlement Procedures in Superior Court Civil Actions, superseding the existing set of rules in its entirety, that went into effect on May 1, 2023. Rule 4, which governs attendance at Superior Court mediations, was amended.
Rule 4 was amended to state that if all parties and the mediator agree that the mediation will occur remotely, in-person, or a mixture of the two, then the mediation will be held using the agreed-upon attendance method. If the parties cannot reach an agreement regarding the attendance method of the mediation, the mediation will automatically occur in person. However, the mediation will not automatically occur in person if the mediator has stated in the Dispute Resolution Commission’s Mediator Information Directory that they will only conduct remote mediations.
If a party that is required to attend the mediation would like an attendance method that was not agreed upon by the parties and the mediator, then that party may file a motion with the Industrial Commission Dispute Resolution Coordinator asking that a different method of attendance be ordered.
Rule 104 of the Industrial Commission’s mediation rules (11 NCAC 23G .0104) concerns mediation attendance and paragraph (b) specifies that the attendance method for Industrial Commission mediations shall be the same as the attendance method set forth in Rule 4 of the Rules for Mediated Settlement Conferences and Other Settlement Procedures in Superior Court Civil Actions. Accordingly, the Rule 4 amendments directly affect the way the Industrial Commission determines mediation attendance methods. To help understand this concept, the Industrial Commission created a flowchart, which can be viewed on our website at: https://teaguecampbell.com/mediation-update-2024/.
Although some mediations are quite successful when held remotely, others seem to be more successful if the parties are physically present. Sometimes, when the mediation is held remotely, the participation of the parties can be less predictable. Further, in workers’ compensation cases, mediation is normally the only time defense counsel is able to see the injured worker, and it can be more difficult to judge credibility or to get an accurate impression of injury or level of disability if the parties are appearing remotely. This is especially true in denied cases where credibility and the extent of the injury may be in dispute. If you have any questions or would like to discuss the best method of attendance at your mediations, please reach out to a member of our Teague Campbell Workers’ Compensation team.
Our Legislative Session for 2024-2025 has kicked off and I am pleased to report that, at this time, there are no proposed changes that currently impact our WC system. In Georgia, our Advisory Council is generally the body that presents any proposed uniform changes to the Legislature but this year there are no changes being presented. Of course, each session presents the possibility for surprises, and we will keep you informed of those. For now, however, it appears that smooth sailing lies ahead from Georgia’s employers regarding Statutory changes.
The minimum compensation rate was increased as a result of legislation signed by Governor Hochul (S1161-A/A2034-A). The new law provides that the minimum compensation rate in workers’ compensation claims will increase according to the following schedule:
- 01/01/2024—$275
- 01/01/2025—$325
- 07/01/2026—increased to one-fifth of the state average weekly wage
Maximum Compensation Rate: Effective 7/1/23 the maximum weekly indemnity rate under WCL §15(6) increased to $1,145.43 based on annual indexing of the state average weekly wage.
Board Offices Remain Closed to the Public. Hearings in New York workers’ compensation matters continue on a virtual basis only, with all parties, attorneys and witnesses appearing via computer and mobile phone connections from their offices or homes employing the Board’s statewide Virtual Hearing System. The Board closed all of its offices and hearing sites to the public on 3/17/20 as a public safety measure in response to the COVID-19 pandemic. The Board recently advised that it plans to reopen hearing sites to the public again, but as of this writing it still has not provided a date when in-person hearings will resume.
Certain other changes to Board procedure instituted during the COVID-19 pandemic remain. For example, the requirement for original handwritten signatures on several Board forms was suspended as a result of the pandemic and remains in effect.
On January 2, 2024, the Pennsylvania Commonwealth Court issued what may be a decision that has significant effect upon workers’ compensation liability for insurers and self-insured employers, the pharmaceutical industry and may for injured workers as a consequence of the Decision. In Federated Insurance v. Summit Pharmacy, the Court set aside the Bureau of Workers’ Compensation’s regulatory adoption and use of Red Book values as setting the Average Wholesale Price (AWP) to resolve payment disputes for pharmaceuticals. It noted that doing so was inconsistent with the phrase AWP as utilized in Section 306(f.1)(3)(vi)(A) as has been interpreted by the Court. If an agency’s regulations are inconsistent with the legislative intent of the statutory provisions, the regulations are invalid. Thus, the Court invalidated utilizing Red Book values as to AWP when determining what amount needs to be paid under the Pennsylvania Workers’ Compensation Act and corresponding Medical Cost Containment Regulations when remitting payment for prescription medications. The Court ordered the Bureau to promptly identify a “Nationally recognized schedule” of AWP which is to be utilized as being the basis of payment for prescriptions.
This case had its genesis in a dispute over an alleged underpayment of approximately $72,500.00 for prescription medications. The prescription bills submitted from 04/15/21 – 09/08/22 totaled $74,011.81 and payment was made by the carrier using the AWP of the drugs are reported in the National Average Drug Acquisition Cost Index (NADAC), which totaled $1,511.93. The Bureau’s Fee Review Section issued determinations apply the costs per Red Book, based upon the cost containment regulations promulgated under the Act. See 34 Pa. Code §§127.1 – 127.755; see also Section 306(f.1)(3)(vi)(A) of the Act, 77 P.S. §531(3)(vi)(A), which limits reimbursement for drugs and professional pharmaceutical services to “one hundred ten per centum of the … [AWP] of the produce, calculated on a per unit basis, as of the date of dispensing.”
The Carrier argued that Red Book pricing was artificially inflated and did not accurately represent the actual AWP, which is what the Act required to determine pricing for pharmaceuticals. It was noted that Red Book is a privately published, electronic compendium of pharmaceutical and over-the-counter “AWPs” available online. The publisher of Red Book is IBM Watson, which has changed over the years. It the statement policy, even IBM Watson indicated that, in most cases, the manufacturer’s AWP does not reflect the actual AWP charged by the wholesaler. The values used in Red Book were what was reported by the manufacturer and IBM Watson did not independently analyze the data to ascertain the amounts paid by pharmacies to wholesalers. Accordingly, it was asserted that Red Book values were inconsistent with the Act and cost containment provisions. The Court looked to prior case law, Indem. Ins. Co. of N. Am. v. Bureau of Workers’ Comp. Fee Rev. Hearing Off. (Insight Pharm.) 245 A.3d 1158 (Pa. Cmwlth. 2021) to conclude that the plain meaning of AWP is a price which is an industry average and not one “charged by a single manufacturer,” and “is a number derived by averaging the wholesale prices of all manufacturers or wholesalers.”
While the Bureau adopted Red Book as AWP to be used in payment disputes, it was noted that an insurer may introduce evidence challenging the “accuracy” of the Red Book pricing. Here the carrier challenged the use of Red Book on the basis that its values can never reflect an accurate AWP. It was noted that NADAC pricing was based on the aggregated and averaged prices pharmacies typically pay for a drug at wholesale nationally. Whereas, Red Book pricing was chosen unilaterally by a drug’s manufacturer and was not a mathematical average. It was not based upon an prices in actual wholesale transactions. The prices under Red Book and NADAC differed considerably, especially for generic drugs. An example was the acquisition price of a bottle of Prozac, which was $9.00. The Red Book price for reimbursement was $2,000.00. Thus, at payment of 110% of AWP, the carrier’s payment could be $2,200 under Red Book or $9.90 under NADAC.
The Court agreed that the Bureau’s regulatory adoption of Red Book’s values as to AWP to resolve payment disputes was inconsistent with the phrase AWP as used in the Act and that an administrative agency’s regulations cannot conflict with the statutory intent. Thus, they held as a matter of law that Red Book’s values could not be used as to AWP because they are inconsistent with the Act. The Court however, did not indicate that NADAC is to be utilized. Instead, it remanded and directed the Bureau to “promptly identify and publish” in the Pennsylvania Bulletin a “National recognized schedule to determine the AWP of prescription drugs” to be used to resolve payment disputes.
Thus, we are now left with a situation in which there is uncertainty as to what amount is payable for any prescription submitted for reimbursement. It is uncertain as to when the Bureau may publish a new National recognized schedule. Does this excuse or toll the payments to now be issued for prescription medications for which bills are submitted. If payment is not made within 30 days of receipt of the bills, typically statutory interest is to start to accrue on the payment to be issued. Should carriers now start to pay under NADAC and then if a different schedule is implemented, pay any difference in the amount payable along with interest on the additional payment. The Bureau may well adopt NADAC. However, it is not bound to do so. It should be noted that with the drastic difference in the amount payable, pharmacies may elect to not fill some drugs for workers’ compensation claims. In the Decision, the expert for the pharmacy indicated that the cost to fill a prescription is $12.50 per prescription such that the pharmacy would be losing money any time they fill a script for a mediation that has an AWP that does not provide for payment above this amount. This could be problematic for injured workers if they are no longer able to secure certain mediations if pharmacies do not find it cost effective to provide. However, with how inflated Red Book values are, it is obvious that pharmacies have been significantly profiting to the detriment of insurers and self-insured employers for years relative to the cost of prescription medications. More likely than not there will be more comment and discussion about how to come up with a schedule that makes sense for all stakeholders.
The Medical Cost Containment Regulations were enacted back in 1994. They may no longer be adequate in a number of ways in terms of addressing issues that arise in the workers’ compensation and fee review forums. It may be time for the General Assembly of Pennsylvania to revisit the regulations, seek commentary from all stakeholders and to address any and all deficiencies that are arising either from the regulations not accurately reflecting the times as to payment for medical treatment and pharmaceuticals as well as addressing cases that have been rendered over time that appear inconsistent with the Act and regulations that have led to even further confusion over implementation and interpretation of the Act and Regulations. This case is most likely going to have a significant financial impact upon carriers in Pennsylvania as well as pharmacies and injured workers’ may also feel the fallout. However, other than simply forms the basis for determining the cost of prescription mediations moving forward, perhaps, it will provide the impetus for even more broad and sweeping changes regarding the payment of medical treatment under the Pennsylvania Workers’ Compensation Act.