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On July 2, the DWC announced a revised DWC Form-052 “Supplemental Income Benefits (SIBs) Application,” which went into effect on June 20 and became immediately available on the TDI website.  

A great many changes on the new form are immediately noticeable.  Gone is the requirement from the old DWC Form-052 to supply the treating doctor’s name and phone number, the name of the injured worker’s prior employer, and the claimant’s county of residence. New items include the adjuster’s fax number, the claimant’s email address, and a section to specify whether the application is for the first quarter of SIBs or a subsequent one.  

The work status chart has been streamlined, while the grid pertaining to wages earned during the qualifying period allows for more information (pay period dates and whether wages were earned weekly, biweekly, or monthly). Also new: the adjuster may now check a box pertinent to the reason for a quarter’s denial from a list provided, or include a written explanation otherwise.  Formerly, a written explanation was required.  

The certification that accompanies a claimant’s signature has been modified to attest that the applicant has either been searching for work or is completely unable to work, but the warning that an administrative or criminal penalty can follow from intentionally providing false information to obtain benefits has been excised.  

Most notably, the weekly work search log has been modified substantially. The applicant is no longer asked to supply the method by which a work opportunity was sought (in person, phone, fax, mail, email/web), nor is he/she asked to indicate what was submitted to the potential employer (cover letter, application, or resume). The form now asks only if a job was offered, not whether it was accepted or if the employer was “not hiring.”  The column for recording the day of the work search now reads “Date you applied” rather than merely “date,” aligning with the requirement that job applications must be included with the submission of the DWC Form-052.  
 

Copyright 2024, Stone Loughlin & Swanson, LLP

Coming and Going, Part II

Another month, another round of new hires and exits at the Division of Workers’ Compensation.

We recently reported on the departure of the Deputy Commissioner of Appeals, who oversees the Division’s Appeals Panel. We are pleased to report that the position has been filled by former Ft. Worth Administrative Law Judge Kara Squier, who has been a Division employee for more than a decade. We congratulate her on the promotion!

Pam Delgado, the Administrative Law Judge in Corpus Christi, retired on July 12. The Division has posted her position but has yet to fill it. No word yet on what life post-DWC might have in store for Judge Delgado, but whatever it may be, we thank her for her service and wish her the best.

As one vacancy opens, another closes. Kathryn Labowitz, recently of Bailey & Galyen, is the newest Administrative Law Judge in Dallas. Ms. Labowitz graduated from the University of Texas at Arlington with a BA in political science before obtaining her JD from Baylor Law School in 2003. In the interim, her practice took her into the fields of family law, personal injury, probates, and toxic tort litigation. We are excited to see what her experience will bring to the DWC.  

Mariana Kuznetsov, formerly a Proceedings Resolution Officer, has been promoted to Benefit Review Officer. She began presiding over BRCs in July. Our congratulations to her!
 

Copyright 2024, Stone Loughlin & Swanson, LLP  

A Judgment Disorder

“He who represents himself has a fool for a client.” That morsel of legal wisdom, well-known among those in the profession, is generally attributed, perhaps apocryphally, to Abraham Lincoln. Well, if the gentleman from Springfield ever did say it, no one bothered to tell Phyllis Lee.  

Ms. Lee, was a Grand Prairie ISD employee. Without legal counsel, she filed a petition for judicial review of a Decision and Order and Appeals Panel affirmance that her injury does not extend to or include “adjudgment disorder” (whatever that is) along with “depressed mood, psychological factors adversely affecting medical conditions, or major depression.” She further accused the School District of “due process violations, fraud, and conspiracies” committed against her.  

The school district scored a victory at the trial court level, where Ms. Lee’s suit was dismissed summarily for not having been filed within the thirty days allotted under the Administrative Procedure Act (APA). But the Austin Court of Appeals sided with the still-unrepresented Ms. Lee, reversing the decision and remanding the case back to the trial court. The Court of Appeals confirmed that Ms. Lee’s deadline to file her petition was forty-five days under Texas Labor Code Section 410.252, which is the statute that applies to all Appeals Panel decisions, and not thirty days per Section 2001.176 of the APA.  

So, this time, anyway, it seems Lee got the better of Lincoln.  

Copyright 2024, Stone Loughlin & Swanson, LLP

One Big Trucking Fraud

Frances Hall, the widow of San Antonio-based trucking mogul Bill Hall, Jr., was sentenced to ten years deferred adjudication and ordered to pay $150,000.00 in restitution for her role in a workers’ compensation fraud on July 10 by the 147th District Court in Austin pursuant to a plea agreement entered the prior May.  She is also ordered to undergo unspecified “treatment,” per the probation department’s recommendation.  

Mrs. Hall co-founded Bill Hall Jr. Trucking with her husband. The Division’s fraud unit found that Mrs. Hall underreported payroll information and concealed payroll reports to her workers’ compensation insurance carrier between 2006 and 2016, which allowed her to avoid paying approximately $9 million in work comp premiums. 

Mrs. Hall was convicted in September 2016 of felony murder in the death of her husband, but received only a two-year prison sentence. She has since been released.

Copyright 2024, Stone Loughlin & Swanson, LLP

CGI (Computer-Generated Impairment)

On July 15, the DWC revealed its proposed revision to Texas Administrative Code §133.30, “Telemedicine, Telehealth, and Teledentistry Services.” The change would permit treating doctors (not Designated Doctors or Required Medical Examiners) to perform MMI evaluations remotely via telemedicine. The certifying doctor would only be permitted to determine if MMI has been attained and, if so, to provide a determination of no permanent impairment. The rule change specifies that “The term (telemedicine services) does not include an examination to assign an impairment rating” under Rule 130.1.  

The new “telecertification” Rule references Rule 130.2, subsection (a)(2), which currently allows a treating doctor to provide an MMI certification without scheduling an examination, so long as the injured employer has been released from treatment without the expectation of further treatment and is not receiving Temporary Income Benefits.  

Thoughts on the rule draft can be submitted to RuleComments@tdi.texas.gov by 5:00 p.m. on August 12, 2024.  

Copyright 2024, Stone Loughlin & Swanson, LLP

Temporary Total Disability (TTD) Benefits and Credit for Wages Paid
General Motors, LLC v. Giovanni Smith, 2024-CA-0367-WC (7/12/24 KY Court of Appeals, To Be Published, not final)
 

Smith was employed by GM for 13 years working on the assembly line. In February of 2021, he began having pain in his right hand and wrist which he reported in March. He was pulled off the line on August 10, 2021 due to his injury and moved to a different position until March 29, 2022, when he first went off work. He underwent carpal tunnel surgery on July 13, 2022 and was released to full duty, without restrictions, on September 12, 2022. He returned to a different position following surgery and testified that he did not believe he could return to his pre-injury position. Smith testified that his position from August 2021 through March of 2022 involved cleaning and make-work projects, or no work at all. Dr. Bloemer (PL IME) diagnosed an arthritic condition as well as CTS due to work, opining that Smith is incapable of returning to his pre-injury position. Dr. Nicoson (Def IME) found the CTS to be work-related but felt the arthritis was not. He assessed permanent restrictions that would not prevent a return to the pre-injury position. Both doctors agreed that Smith reached MMI on October 13, 2022.
 
The ALJ awarded TTD from August 1, 2021 to October 13, 2022, with no credit for wages paid and PPD benefits with a 3x multiplier. GM appealed, arguing that TTD should not begin until March 29, 2022 or, in the alternative, that they should receive a credit for wages paid during this time. The Court of Appeals affirmed the TTD award, finding that Smith was not at MMI and had not reached a level of improvement that would permit a return to employment. The Court also upheld the denial of the credit because GM failed to provide paystubs showing the net wages after taxes. GM also appealed the application of the 3x multiplier. The Court of Appeals upheld the award of the 3x multiplier, finding that the substantial evidence supported the award.

The Governor signed SB 206 affecting workers compensation. It is effective 1/1/25.

NOTICE. The notice deadline in section AS 23.30.100(a) has been shortened from 30 days to 15 for Employee to report the injury to Employer.

REEMPLOYMENT: While the Board has to notify people of their rights sooner, the time frames for Employer’s mandatory referral was extended from 90 days to 120 days. The tuition amount went up to $22,150 and can be adjusted every 5 years to account for inflation. The SCODDOTS are replaced with the OIN database published by the US Dept of Labor. This is more objective than having rehab specialists develop job descriptions in every claim. This is a good change—updated objective job descriptions including jobs that didn’t exist back in the day when SCODDOTs were created.

A major change is the adoption of a “stay at work” program as AS 23.30.043. It will be developed by the rehab specialist and provided to the employee, employee, program coordinator, and attending physician. The board has to adopt regulations to develop the standards and procedures a rehab specialist must use to develop the stay at work plan. It is apparent that the employer will need to be responsive and be involved in this process. Fortunately, there is an opt-out provision. An employer may elect not to participate or continue to participate in the stay at work plan at any time before completion of the plan. This section is vague, with the discretion left to the board to implement regulations and procedures.  This is a process that we should try to be involved in as employer representatives and provide perspective on how this will impact real life. 

In addition, a last minute addendum was tacked on that resulted in a major change is the presumption of compensability for PTSD for a number of professions mostly related to first responders. AS 23.30.118. The notice timeline, presumption standard and rebuttal standard are all altered by this bill.

 The PTSD has to be diagnosed by a psychologist or psychiatrist. The diagnosis must come within 3 years after the last day of employee’s employment. We are not sure where/why this timeline came from as it is different from 2-year latent injury, and it doesn’t seem to be tied to any particular event, just general employment as a reason in one of the identified positions is sufficient to trigger the presumption of compensability. It also eliminates the comparison with others in a similar role. A broad category that it may apply to is “employees who are certified under state law to perform emergency medical services.” It appears broad enough to potentially include home health care workers and medical providers.

 Relevant definitions are in AS 18.08.200:

(9) “emergency medical services system” means a system that provides for the arrangement of personnel, facilities, and equipment for the effective and coordinated delivery of health care services, including trauma care, under emergency conditions, occurring either as a result of the patient's condition or of natural disasters or similar situations, and that is administered by a statewide network that has the authority and resources to provide effective administration of the system;

(13) “provider of emergency medical services” means a person whose occupation or profession is, or has been, the delivery or administration of emergency medical services; a person who has a fiduciary position with, or has a fiduciary interest in, a health activity, facility or other health agency, or a legal or financial interest in the rendering of any component of emergency medical services.”

Once the presumption has attached, there is a secondary change in the legal standard for rebuttal. The phrase “may be rebutted by a preponderance of the evidence that the employee’s PTSD resulted from factors that were not work related” is problematic because it means that we cannot controvert based on “substantial evidence.” Preponderance of the evidence is a factual determination by a trier of fact. This means that once the presumption of compensability is triggered by a psychologist or psychiatrist as minimally as, “Jane Doe has been diagnosed with PTSD and is unable to work. She was a nurse within the last 3 years,” there is no ability to controvert and the claim must go to hearing to establish whether the preponderance of evidence demonstrates that the PTSD resulted from factors that are not work related. The presumption for compensability “may be rebutted by a preponderance of the evidence that the employee’s PTSD resulted from factors that were not work related.” This appears to create an entirely new standard when compared to AS 23.30.010(b) which is that the work stress must be the predominant cause of the work injury.

In a practical application it means that large groups of first responders could all be taken off work at once with no recourse for Employers until after a merits hearing (which can take 9 months or more). There are also likely butterfly effect ramifications and increased stress that will result from understaffing. Without the comparison and controversion abilities there is little opportunity for mitigation. This portion of the legislation really deserved public comment and more thought.

In a Petition filed January 23, 2023, claimant alleged that she developed Chronic Inflammatory Response Syndrome (“CIRS”) as a result of mold exposure at her workplace. Claimant suffered from a variety of treatment resistant symptoms and was diagnosed with CIRS by her functional medicine physician, Dr. Matta. His theory was that mold in claimant’s workplace was causing her chronic symptoms. Her employer, Athletico Physical Therapy, argued that CIRS is a broad diagnosis with many potential causes, and that it would be impossible to identify the origin of the symptoms and whether the diagnosis stemmed from the workplace or if its roots were elsewhere. 

In order to prove that her CIRS was an occupational illness, claimant needed to establish that the CIRS was a natural incident of her occupation at Athletico Physical Therapy, such that working there presented a risk that was distinct and greater than employment in general; however, evidence brought to light at hearing poked holes in the idea that her condition began at work.

Testimony by claimant’s treating physician and the employer’s medical expert, Dr. Gelman, revealed that her blood contained traces of twelve types of mold, only four of which were found at her job; the mold that was found at her job was common to indoor environments and only slightly above the normal range; her workplace and around her home displayed similar quantities of the same types of mold; and the mold that had the highest concentration in her blood was not present at her workplace. Additionally, claimant had a plethora of other medical conditions that could have contributed to a CIRS diagnosis, and her symptoms began while she was on vacation in Florida - not while she was at work. Lastly, Dr. Matta conceded under cross-examination that he could not identify which of the twelve types of molds found in claimant’s blood were the actual cause of symptoms, nor could he exclude any as the culprit.  Because of these reasons, the Board denied the Petition outright, stating that claimant had failed to show that the conditions in her workplace were a distinct hazard, worse than employment in general and capable of leading to a diagnosis of CIRS on their own.

 Should you have any questions regarding this decision, please contact Nick Bittner, or any other Attorney in our Workers’ Compensation Department.

Elena Doherty v. Athletico Physical Therapy, IAB No. 1532122 (May 29, 2024)

In a recent decision, the Florida First District Court of Appeal reaffirmed that the payment of fees and costs to a claimant’s attorney is not a benefit within the meaning of the workers’ compensation statutes which serves to toll the statute of limitations. American Airlines Group v. Lopez, 2024 WL 2306999 (Fla. 1st DCA May 22, 2024). As an initial matter, Section 440.19(1), Florida Statutes provides that all petitions for benefits are barred unless they are filed within two years of the date on which the injured employee knew or should have known that their injury arose out of work performed in the course and scope of their employment. Section 440.19(2) provides that payment of any indemnity benefit or the furnishing of medical treatment tolls the statute of limitations for one year from the date such benefits were provided. In other words, the applicable statute of limitations period in Florida is the later of two years from the date of the accident or one year from the date of the last indemnity payment or authorized treatment.

In the Lopez case, the claimant suffered a compensable accident on August 8, 2019, and filed two petitions for benefits on July 24, 2020. The Employer/Carrier/Servicing Agent provided both medical and indemnity benefits. The last medical bill was paid September 22, 2020, and the last indemnity payment was made November 13, 2020. The issue of entitlement to attorney’s fees and costs remained pending from the claimant’s July 24, 2020 petitions, though this was resolved via stipulation on April 28, 2021, and the stipulation was approved by the Judge of Compensation Claims on May 3, 2021. On December 1, 2021, more than two years after the subject accident and more than one year after the last medical or indemnity payment, the claimant filed another petition followed by a third petition on June 6, 2022.[1] The E/C/SA asserted a statute of limitations defense, which was rejected by the JCC on the grounds that the payment of attorney’s fees is considered a monetary benefit to the claimant, which tolled the statute of limitations for one year.   

On appeal, the First DCA held that the JCC erred in holding that payment of attorney’s fees and costs is a “benefit” which has the effect of tolling the statute of limitations. The court applied the statutory interpretation principle of expression unius est exclusion alterius – the expression of one thing is the exclusion of another – in holding that the statute clearly sets forth the two events which serve to toll the statute of limitations: payment of indemnity benefits or furnishing authorized medical treatment. By expressly including these two events in the statute, the court reasoned that the Florida legislature necessarily excluded all others. Accordingly, as payment of an attorney’s fee is not payment of indemnity benefits or furnishing medical treatment, the statute of limitations had run, and the claimant’s petitions were untimely and barred.

A misunderstanding of a key fact can doom an expert opinion.  That was the situation in V.S. v. Spectrum360, No. A-0710-23 (App. Div. June 24, 2024). The petitioner, a special education teacher, was working on July 26, 2021, when a student kicked her in her left breast.  Petitioner felt pain, tenderness, extreme redness and blood clotting in her left breast.

A medical examination on the date of the incident was consistent with a contusion to the left breast.  V.S. had undergone breast augmentation surgery in 2011.  Since then, petitioner admitted that she had gained a “significant amount of weight,” which augmented her breast size.  Petitioner’s board certified plastic surgeon, Dr. Boris Volshteyn, suspected that V.S. “sustained a fracture of the silicone implant on the left side.”  He sent her for an MRI on September 30, 2021.  Dr. Volshteyn said that the MRI “demonstrated significantly increased folding of the implant on the affected left side compared to the right side.”  He attributed the changes in her left breast to the work incident and recommended breast reconstruction surgery and removal and replacement of both breast implants to repair what he thought was a slow leak rupture of the left breast implant.

Petitioner filed a motion for medical treatment seeking breast reconstruction surgery. Respondent sent petitioner for a second opinion with Dr. Beverly Friedlander, a board certified plastic surgeon.  In a key distinction between the two plastic surgeons, Dr. Friedlander noted that petitioner did not have silicone implants, contrary to what Dr. Volshteyn had assumed.  Rather she had saline implants. She pointed out that if Dr. Volshteyn had been correct that petitioner had suffered a rupture or puncture of the left breast when kicked by the student, a deflation in the breast would have occurred rapidly with a saline implant.  When a saline implant is compromised, she said its contents will leak and reabsorb into the body quickly.  But that had not happened in this case.  Even petitioner agreed that there was no material difference in size after the accident between the left and right breasts. 

The experts also disagreed on the interpretation of the MRI results.  The MRI of the left breast showed evidence of folds in the left breast.   Dr. Volshteyn attributed this to the work incident, arguing that the MRI demonstrated “significantly increased folding of the implant on the affected left side compared to the right side.”  Dr. Friedlander read the same MRI but she did not notice in her examination any rippling in the left breast.  She added that ripples in breast implants are actually quite common.  She said that all breast implants ripple, and that if an implant is underfilled, the ripples are even more observable.  In her opinion, one implant was inflated more than the other implant, leading to surface irregularities. She concluded that the folds that showed on the MRI had nothing to do with the work injury.

The Judge of Compensation denied the petitioner’s motion, finding that Dr. Friedlander was more credible than petitioner’s expert.  The Appellate Division affirmed the dismissal.  It said, “The judge found Dr. Volshteyn erroneously believed V.S. had silicone – not saline – implants and that mistake regarding the composition of the implants undermined his overall opinion.” The Court felt that there was sufficient credible evidence for the Judge of Compensation to find Dr. Friedlander more credible in that petitioner’s left breast implant was intact and had not ruptured contrary to the opinion of Dr. Volshteyn.

As for petitioner’s complaint of more pain in her left breast after the accident, the Court noted that Dr. Friedlander had an explanation for this.  Petitioner had chronic pain related to a 2007 motor vehicle accident as well as lupus/rheumatoid arthritis.  Dr. Friedlander also said that petitioner had a history of discomfort in both breasts related to her significant weight gain since the time of her 2011 augmentation.