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 Texas Department of Insurance, Division of Workers’ Compensation is
accepting public comments on a proposed rule amending TAC Chapter 147
concerning dispute resolution through agreements and settlements.
The rulemaking will amend 28 TAC §§ 147.4, 147,5, 1247.7, 147.10 and 147.11.
Sections 147.1, 147.2, 147.3, 147.6, 147.8, and 147.9 will be repealed and a
new § 147.1 added.
The amendments are calculated to streamline the agreements and settlements
process and eliminate unnecessary work for DWC staff.
The proposed new rule will be published in the April 5, 2024 issue of the Texas Register and available
at http://www.sos.state.tx.us/texreg/index.shtml.
A copy of the proposed rule is also posted on the Division website at http://www.tdi.texas.gov/wc/rules/2024rules.html.
Comments may be submitted to RuleComments@tdi.texas.gov.
The deadline to submit comments is May 6, 2024.
Copyright 2024, Stone Loughlin & Swanson, LLP
In an opinion filed
March 7, 2024, the 11th Court of Appeals (Eastland) reversed
the trial court’s summary judgment that Michael Belew developed pancreatic
cancer during his employment as a firefighter and emergency medical technician
with the City of Stephenville. Mr. Belew passed away in 2014.
Following a contested case hearing, the hearing officer relied upon Appeals
Panel Decision Nos. 150098-s and 151156 in determining that the statutory
presumption created by Section 607.055 (as it existed prior to its amendment
effective June 10, 2019) applied to the pancreatic cancer developed by Mr.
Belew, thereby relieving Appellees of the burden to prove causation, i.e. that
Mr. Belew’s cancer arose out of the course and scope of his employment as a
firefighter. The Appeals Panel adopted the hearing officer’s decision without
issuing a written decision.
The Eastland Court, however, determined that, in the decisions listed above,
the Appeals Panel “simply misapplied the effect of the statutory presumption.”
Section 607.055 that is applicable to this case provides:
(a) A firefighter or emergency medical technician who suffers from cancer resulting in death or total or partial disability is presumed to have developed the cancer during the course and scope of employment as a firefighter or emergency medical technician if:
(1) the firefighter or emergency medical technician:
(A) regularly responded on the scene to calls
involving fires or firefighting; or
(B) regularly responded to an event involving the
documented release of radiation or a known or suspected carcinogen while the
person was employed as a firefighter or emergency medical technician; and
(2) The cancer is known to be associated with fire fighting
or exposure to heat, smoke, radiation, or a known or suspected carcinogen, as
described by Subsection (b).
(b) This section applies only to a type of cancer that
may be caused by exposure to heat, smoke, radiation, or a known or suspected
carcinogen as described by the International Agency for Research on Cancer
(IARC).
The IARC conducts critical reviews and evaluations on the carcinogenicity of a
wide range of human exposures and publishes the results of its evaluations in
monographs. The 98th Monograph evaluated the occupational cancer
hazards of painting, firefighting, and shift work. The authors of the monograph
found limited evidence of the development of cancer as it relates to exposure
as a firefighter; however, after considering a variety of studies, as well as
large meta-analyses, the authors concluded that the only cancers statistically
significant for cancer risks in firefighters were testicular, prostatic, and
non-Hodgkin’s lymphoma. Pancreatic cancer is not a type of cancer that is
connected to or may be caused by firefighting.
The Court agreed with the City that Mr. Belew’s pancreatic cancer does not meet
the requirements of section 607.055 and therefore the presumption of causation
does not apply. The court reversed the trial court’s judgment that Mr. Belew
sustained a compensable injury and rendered judgment in favor of the City.
Copyright 2024, Stone Loughlin & Swanson, LLP
It remains a popular preference for plaintiffs and plaintiffs’ attorneys to attend mediation virtually despite the default rule at the Commission being in-person mediations. From the defense counsel perspective, virtual mediations can prove more difficult than in-person mediations for several reasons. First, it is easier to engage in small talk before mediation when the parties are in-person, and that advantage can make plaintiff more comfortable with the process. Additionally, it is easier to read opposing counsel’s and plaintiff’s body language when attending mediation in-person. Whether mediations are in-person or virtual, they are an important step in the litigation process. When virtual mediation is the only choice, these five steps can help you prepare effectively:
1. Over prepare.
We all know that preparation can be the difference between a successful mediation and an unsuccessful mediation. It is important to not only know the basic facts in a case, but also to create a story. Creating a story out of the facts means identifying the theme of the case, highlighting key facts and singling out the issues you are trying to resolve. If the defense is not familiar with the case facts and issues it inevitably upsets plaintiff and hampers the ability to resolve the case.
2. Remain flexible.
Even though you can prepare as much as possible for mediation and have a strategy laid out, mediation involves other parties’ feelings which can change your strategy and the ultimate outcome of the mediation. When this happens, being flexible will help you move the case forward, even if it does not resolve through mediation.
3. Be familiar with opposing counsel and the mediator.
Choosing the right mediator can be key to having a successful mediation, whether it is virtual or in-person. You want to agree to mediate with a mediator that is knowledgeable in your area of law, has experience, and has the negotiation style you are looking for. Being familiar with opposing counsel’s personality will help you select the right mediator, determine your mediation strategy, anticipate their responses and maintain composure during mediation. If you are not familiar with opposing counsel, try reaching out to your colleagues to determine their reputation and negotiation style in advance.
4. Make eye contact as much as possible.
Many times, a plaintiff will come into mediation nervous or defensive. This is likely because they are unfamiliar with the mediation process or because they believe that opposing counsel is out to “get them.” Maintaining eye contact with plaintiff will help you display empathy and will give plaintiff the feeling of being heard. If the mediation is virtual, always explain to plaintiff that you will be taking notes during the mediation, so they do not assume you are distracted during the process.
5. Apologize, if appropriate.
Not every case requires an apology. Obviously when you are dealing with a denied case where causation or credibility are at issue, an apology is not necessary. However, if you have an admitted case and plaintiff was seriously injured and cannot return to his or her pre-injury employment, an apology goes a long way to ease plaintiff’s tension and defensiveness. It also puts plaintiff in the right frame of mind to resolve his or her case. Often, the defense counsel’s apology is the first-time plaintiff has heard a representative of the employer acknowledge the severity of the injury and the lasting effects it may have on plaintiff.
While remaining focused on the objective facts of the case is imperative, defense counsel must keep in mind that subjective nuances, such as those outlined above, can make or break a successful outcome for mediation.
An employer’s right to direct medical treatment, long recognized as a staple of the Workers’ Compensation Act, is not total. The Court of Appeals’ January 2024 decision in Horsey v. Goodyear Tire & Rubber Co. is a reminder of that fact. Id. at 2024 N.C. App. LEXIS 61 * | 2024 WL 158256 The Plaintiff in Horsey injured his neck and shoulder while working as a tread booker. He treated with Dr. Brian Szura, who performed three surgeries on Plaintiff’s left and right shoulders. Plaintiff completed an FCE which indicated he could not return to work as a tread booker but could perform other jobs for Defendant-Employer that were within his permanent restrictions. Thereafter, Plaintiff returned to work in the “green tire” position, which was a new position. The written job description for the green tire position did not list any job demands outside of his permanent restrictions. Plaintiff alleged he was asked to do work outside of his restrictions and left the position. Plaintiff reported to the onsite medical clinic in the fall of 2018 reporting pain in both shoulders as a result of the new position. He returned to Dr. Szura in March of 2019, reporting pain, exhibiting limited range of motion, and Dr. Szura maintained the work restrictions and offered no additional orthopedic treatment.
Plaintiff, shortly thereafter and on his own initiative, sought treatment with Dr. Wilson regarding his complaints of shoulder pain, neck pain, and numbness in his hand. Dr. Wilson did not review Plaintiff’s prior medical records and relied only on Plaintiff’s description of his medical history, which was not fully accurate. Dr. Wilson opined Plaintiff’s ongoing complaints were related to the original workers’ compensation injury and recommended an MRI of the neck and right shoulder. He did not suggest any job restrictions. The parties entered into a Consent Order on February 3, 2020, whereby Defendants agreed to authorize the MRI evaluations and corticosteroid injection recommended by Dr. Wilson with the explicit caveat that such authorization was made without prejudice and did not constitute a formal selection of Dr. Wilson as the authorized treating physician. On March 31, 2020, Dr. Wilson provided restrictions of sedentary work only and no use of the right arm.
Plaintiff continued to work in the green tire position until the Defendant-Employer’s facility was closed down in late March 2020 as a result of the COVID-19 pandemic. When the facility reopened on May 26, 2020, Plaintiff presented the sedentary work restrictions assigned by Dr. Wilson. Defendant-Employer could not accommodate the restrictions, so Plaintiff remained out of work. Defendants subsequently filed a Form 61, Denial of Claim, denying the causal relationship of Plaintiff’s cervical and radicular complaints to the original work-related injury; Plaintiff’s claim of disability; Plaintiff’s request for medical compensation; and the causal relationship of Plaintiff’s right shoulder.
On August 13, 2020, Plaintiff returned to Dr. Szura and continued to complain of shoulder pain. Dr. Szura opined Plaintiff’s symptoms were consistent with myofascial pain, and he did not recommend additional surgical intervention. He also observed Plaintiff was experiencing limitations in both his right and left shoulder range of motion.
The parties litigated the issue of a change in treating physician, among other issues, with the Full Commission finding Plaintiff sustained an exacerbation of his work-related injury as a result of being instructed to perform tasks outside of his restrictions. The Full Commission further ordered that Plaintiff’s future medical care should be provided by a provider other than Dr. Szura or Dr. Wilson. It noted as well that Plaintiff had reasonably relied upon Dr. Wilson’s sedentary work restrictions. However, the Full Commission concluded that Plaintiff failed to establish that such restrictions continue to be medically necessary. Defendants appealed to the Court of Appeals and one of the issues was whether the Full Commission erred in determining Plaintiff was entitled to a change in treating physician.
The Court of Appeals, in finding that the Full Commission did not err in determining Plaintiff was entitled to a change in treating physicians, noted first that the employer’s right to direct medical treatment (including the right to select the treating physician) was not unlimited. The Court noted that subject to approval of the Industrial Commission, an employee, even in the absence of an emergency, had the right to choose their own physician. They then also had the burden of demonstrating that the change was reasonably necessary to effect a cure, provide relief, or lessen the period of disability. The Court added that the Industrial Commission had broad discretion in approving a request for change of treating physician. It also noted that adequate justification warranting a change of treating physician existed when an employee continued to experience pain that the approved treating physician was unable or unwilling to treat.
In Horsey, the Court found competent evidence of record existed to support the Full Commission’s ruling that Plaintiff was entitled to a change in treating physicians by pointing to Dr. Szura’s failure to adequately address Plaintiff’s ongoing pain and limited range of motion. The Court further highlighted that Dr. Wilson did not review any of Plaintiff’s prior medical records before recommending surgery and had relied instead solely on Plaintiff’s recitation of his medical history, which was inaccurate. As a result, the Full Commission did not err in determining Plaintiff was entitled to a change in treating physicians or in its decision to order Plaintiff’s care be transferred to a physician other than Dr. Szura or Dr. Wilson.
Practice pointer for Defendants: if you have a Plaintiff who is continuing to complain of ongoing pain and issues, and the treating physician you have selected does not offer additional solutions, then you may want to consider sending your Plaintiff to another physician or risk your Plaintiff obtaining his own physician who provides more restrictive restrictions. In this case, Defendants also ended up being liable for TTD for the period of time when Plaintiff had sedentary restrictions from Dr. Wilson that Defendant-Employer could not accommodate as the Full Commission found, and the Court of Appeals agreed (competent evidence existed standard), that Plaintiff had reasonably relied on Dr. Wilson’s sedentary work restrictions.
Should you have any questions or wish to discuss any related matters, please contact us at your convenience.
H. Douglas Jones, Esq. – djones@jsbattorneys.com, 859.594.4200
Margo Menefee, Esq. – mmenefee@jsbattorneys.com, 859.594.4200
| Carrier Attorney | Approved Fees | Hours Per Day |
| Dean Pappas | $923,472.50 | 12.65 |
| Jeremy Lunn | $640,487.00 | 8.77 |
| Mark Midkiff | $523,012.20 | 7.16 |
| Claimant Attorney | Approved Fees | Hours Per Day |
| Adam Henderson | $1,029,800.00 | 14.10 |
| Bill Abbott | $923,175.00 | 12.64 |
| Fyodor Clay | $817,950.00 | 11.20 |
Copyright 2024, Stone Loughlin & Swanson, LLP
