State News

District of Columbia Court of Appeals Finds Bus Driver’s Injury Compensable as An Exception to the Going and Coming Rule.

On May 26, 2022, the D.C. Court of Appeals decided the case of Latonya Lee v. District of Columbia Department of Employment Services, 275 A.3d 307. The Court had to decide whether Lee’s (Petitioner) injuries arose out of and in the course of employment. The Petitioner was a WMATA bus driver who was scheduled to work a split shift. The Petitioner finished her first shift and parked her bus at the end of her route, several blocks away from where she started. While the Petitioner was walking back to her vehicle, parked close to the starting point of her bus route, she fell and sustained injuries. The Petitioner then applied for disability benefits. The administrative law judge denied the Petitioner’s claim as compensable as the injuries did not arise out of and in the course of employment, and the Compensation Review Board (CRB) affirmed that decision. The Petitioner appealed to the D.C. Court of Appeals. The Court of Appeals reversed the CRB’s ruling as they erroneously relied on the going and coming rule. 

The Court of Appeals found as follows:

·         The Court of Appeals applied the potential-risk test and found that the Petitioner’s injuries arose out of and in the course of employment. The risk of falling would not have happened but for the fact that conditions and obligations of employment which placed claimant in a position to walk back to her vehicle.  

·         Similarly, the Court found that the risk of injury was reasonably foreseeable because walking back to her car was reasonable incidental to her employment as the conditions of her employment put her in a position where it would be reasonably expected for her to go back to her original point.

·         Although the general rule is that “going and coming” to and from work is not within the scope of employment, this case fell within the exception since the bus driver is paid for their travel time. Therefore, the hazards of the journey are the obligations of the employer.

District of Columbia Court of Appeals Agrees that D.C. Code § 32-1505(b) Is Ambiguous and Remands Back to the Compensation Review Board for Further Consideration.

On July 14, 2022, the D.C. Court of Appeals handed down their decision in Sidnice Hughes-Turner v. District of Columbia Department of Employment Services, 2022 WL 2721060. At issue was whether D.C. Code § 32-1505(b) limits a claimant from receiving more than an aggregate total of 500 weeks of temporary total benefits and “non-schedule” permanent-partial benefits. The Compensation Review Board (CRB) decided that D.C. Code § 32-1505(b) precluded Hughes-Turner (Claimant) from receiving more than an aggregate total of 500 weeks of temporary total benefits and “non-schedule” permanent-partial benefits. In coming to their decision, the CRB relied on the legislative history of the amendments that included § 32-1505(b), and how the section compared to similar benefit caps in Maryland and Virginia. The Claimant appealed the CRB decision to the D.C. Court of Appeals. The Court of Appeals vacated the CRB’s decision and remanded the claim back to the CRB for further consideration.

The Court of Appeals found as follows:  

·         The Court of Appeals agreed the statutory language of D.C. Code § 32-1505(b) was ambiguous as to whether the 500-week cap applies in the aggregate to temporary total benefits and permanent partial benefits, or separately to each type of benefit.

·         However, the Court disagreed with the CRB’s interpretation heavily relying on the legislative purpose to create an aggregate cap more in line with 500-week Maryland and Virginia caps, as it was found that Maryland and Virginia took different approaches to the aggravation issue at the time § 32-1505(b) was enacted.

·         Further, the Court decided that although the CRB’s interpretation of § 32-1505(b) was in line with the legislative intent, they failed to address other considerations, such as “the principle that the Workers’ Compensation Act should be interpreted liberally in light of its humanitarian purposes”.  

District of Columbia Council Resolution PR24-0783: Parity in Workers’ Compensation Recovery Emergency Declaration Resolution of 2022.

Historically, an injured worker could not receive any workers’ compensation benefits in D.C. if they had ever received benefits for the same accidental injury or death in another state. However, on June 6, 2022, legislation permitting an employee’s access to workers’ compensation benefits in D.C., even if the injured worker has applied for and received benefits in another state, was put forth on an emergency basis. The support for the legislation came from arguments that injured workers were unfairly prevented from accessing the full compensation and benefits since workers’ compensation laws in neighboring states (Maryland and Virginia) were less favorable to the injured workers than in D.C. Although, the legislation included that D.C. courts would be required to reduce damages based on the compensation the claimant already received in the neighboring state, as to not allow overcompensation and manipulation. The legislation was ratified by Mayor Muriel Bowser on June 7, 2022 and will expire on September 26, 2022. 

August was chock full of examples of this old adage!  On the Division Disciplinary Order side of things, orders were issued against Chadwick Lee, an attorney who received payment directly from his client after being paid by the Carrier pursuant to an attorney fee order.  Apparently, Mr. Lee claimed he was underpaid by the Carrier and informed his client he had to make up the difference.  The Division found Mr. Lee took fees in an amount in excess of the amount approved by the Division and assessed a $5400.00 penalty.    The Division also assessed a $6,000 penalty against the Texas Pain Relief Group for failing to comply with a Carrier refund request.  

Meanwhile, down in San Antonio, the co-owner of Bill Hall Jr. Trucking Company, turned herself in to authorities on outstanding warrants for workers’ compensation fraud.  She is alleged to have defrauded Texas Mutual out of over $9 million in insurance premiums by filing false payroll information and concealing payroll reports.  It is not Mrs. Hall’s first time in the criminal spotlight though – in 2013, she was found guilty of killing her husband when she chased him and his mistress on a rural stretch of Highway 1604 and hit him with her SUV - killing Hall and injuring his mistress.  Ms. Hall spent two years in the Lane Murray Unit of the Texas Department of Corrections in Gatesville before being released to return to apparently less violent criminal endeavors.

Last, but not certainly not least, last week, Austin barbeque aficionados were shocked to hear that the owner and manager of a popular East Austin eatery, La Barbecue, were indicted on workers’ compensation fraud charges.  LeAnn Mueller and her wife, Allison Clem, owned the restaurant in 2016 when an employee was severely burned while using a piece of kitchen equipment.  It is alleged that four days later, they contacted an insurance company to obtain workers’ compensation coverage and did not disclose the injury – in fact, they asked that the policy be back-dated to three weeks before the accident occurred.   The application for the policy, signed by Mueller, attested that there had been no previous losses.   Travelers Casualty Insurance Company has paid over $350,000 in medical and indemnity benefits to date.  The attorney for Mueller and Clem appears to be relying on an argument that it is “perfectly legal to obtain a backdated policy in Texas” as a defense to the fraud allegations.  It will be interesting to see how this one plays out.

Copyright 2022, Stone Loughlin & Swanson, LLP

Earlier this month, Governor Abbott appointed Jeff Nelson to the long-vacant post of Commissioner of Workers’ Compensation.  Nelson previously served as Director of External Relations for the Division of Workers’ Compensation (a post he held since October of 2016).  A graduate of the University of Texas, Commissioner Nelson has extensive experience with the Texas legislature including posts with Senator Tommy Williams, Governor Rick Perry and Congressman Kevin Brady.  We look forward to working with Commissioner Nelson in the coming years.

Copyright 2022, Stone Loughlin & Swanson, LLP

Seven years ago, our firm was honored to be part of launching the Texas chapter of Kids’ Chance, a non-profit organization geared towards providing educational opportunities and scholarships for the children of workers seriously or fatally injured on the job.  Kids’ Chance of Texas has gone from an organization struggling to find recipients to a group of committed members who have supported nearly 50 students since 2015 that will have 31 scholarship students this year alone.  One of this year’s recipients is Mariam Falana, the 2022 Jim Hudak and Sally Silvia Scholarship awardee, who will attend Rice University pursuing a degree in neuroscience.

In her scholarship application, Mariam tells the story of being called to the office from her gym class the day before her 13th birthday only to be told her father had been killed in a motor vehicle accident while at work that day.  She reflected on the hardships thrust on her mother in her new role as the sole breadwinner for the family and the ways her father’s death changed Mariam’s perception of the small inconveniences that so many of us get wrapped up in every day.  She concluded by sharing that the memory of her father served as constant motivation for her to live as he did “spreading laughter and positivity as I challenge the conventions of today to innovate a better tomorrow.”  Mariam embodies the spirit of the young people Kids’ Chance of Texas strives to serve each year.

One way Kids’ Chance of Texas has been able to expand its reach over the last seven years is to take its show on the road.  The Marketing Committee has developed a Road Show strategy that involves mapping out all of the workers’ compensation industry conferences, meetings and activities for the year and setting about staffing all of those events with volunteers and board members. Those folks are equipped with a “kit” that includes banners, displays and materials that have helped spread the word and reach as many potential recipients as possible.

You too can be a part of Kids’ Chance of Texas!  Please visit the website at: www.kidschanceoftexas.org to donate, volunteer or participate in an event.

SAVE THE DATE:  October 28, 2022 – Golf Tournament – Cowboys Golf Club, Grapevine Texas

Copyright 2022, Stone Loughlin & Swanson, LLP

For over 2 years now, the Division has been collecting information from Carriers on COVID-19 claims.  The Research and Evaluation Group recently published their findings from the collection of that data.  A complete analysis of the information can be found at: 

https://www.tdi.texas.gov/wc/information/documents/covid19txwc0822.pdf.

Some of the key findings of the study were: 

• As of 8/7/22, there were more than 90,000 COVID-19 claims and 459 fatalities and more than half of those involved first responders and correctional officers.  

• More than 2/3 of all claims involved injured employees who tested positive or were diagnosed with COVID-19. 

• Carriers denied less than half of the claims with positive tests.  

• Slightly more than 1/3 of all COVID-19 claims had medical or indemnity benefit payments associated with them, and most involved indemnity benefits rather than medical benefits.  

• About one out of four claims that received professional or hospital services received those services beyond one month post-injury.  

Copyright 2022, Stone Loughlin & Swanson, LLP

As the DWC continues to see the number of designated doctors dwindling (there are now less than 300 on the list and only 65 of those are MDs), the agency has posted proposed changes to various DWC rules dealing with the designated doctor program including billing and reimbursement for designated doctor, RME and MMI/IR examinations performed by treating and referral doctors.  The first informal proposal to the billing rules details changes to the methods for billing – so no information is available regarding changes to the actual rates charged for these examinations, which begs the question – will the reimbursement rate increase enough to entice medical doctors to return to the fold?  

DWC will offer a virtual DD Billing and Reimbursement Rule Stakeholder Meeting Thursday, September 8, 2022.  

For more information:  https://www.tdi.texas.gov/alert/event/2022/09/dwc0908.html.

At a recent conference, Division staff addressed an increasing problem in finding qualified doctors to perform examinations for more complex injuries and offered as a potential solution the plan to open up the qualification standards to include all board certifications for those examinations requiring a specialization and allowing the Division more discretion in appointing doctors without specialization in those geographical regions where qualified doctors are not currently on the list.  

The Division focus certainly appears to be more on process and procedure rather than addressing the more systemic problems of quality, quantity and oversight of the remaining doctors on the list.  For now, the Division appears to be streamlining and reducing the amount of training, the frequency of testing and the certification process in efforts to make being a designated doctor less administratively burdensome for doctors.

Designated doctors and their administrators will, however, be required to use the Division’s own TXCOMP system to accept and manage appointments AND file their reports online beginning 9/19/22.  The Division will be training doctors in the use of the system. Apparently, RME doctors will also see pending RME appointments in their TXCOMP profile and enter basic information to upload their reports as well.

Copyright 2022, Stone Loughlin & Swanson, LLP 

The question of exclusive jurisdiction of the Texas Workers’ Compensation Act comes up often and we get many questions about its application.  The Austin Court of Appeals recently took a look at a wrongful death case where a worker’s potential beneficiaries did not file a claim for death benefits.  The beneficiaries took the position that he was not an employee.  Texas Mutual filed a BRC request.  The Division held that the worker sustained a compensable injury and his beneficiaries were entitled to death benefits.  However, his beneficiaries didn’t want death benefits.  They wanted to sue the worker’s employer in court without the limitations imposed by the Act’s exclusive remedy provision.  Therefore, the worker’s beneficiaries argued that the Division did not have jurisdiction to determine they were entitled to benefits because they didn’t file a workers’ compensation claim.  The Court of Appeals held that it didn’t matter whether the beneficiaries filed a claim: “However, we need not resolve that question to dispose of this case, as we conclude that DWC had exclusive jurisdiction over the question of eligibility regardless of whether there was, in fact, a pending claim or merely a potential claim.”  Long-standing case law holds that the Division, with its unique expertise, has exclusive jurisdiction to resolve any question regarding eligibility for workers' compensation benefits, including questions over employment status.  Sometimes plaintiffs seek to avoid the workers' compensation system in hopes of a bigger payday in the courts.  This case affirms that plaintiffs cannot avoid the Division’s exclusive jurisdiction simply by electing not to file a workers’ compensation claim.   In Re Hellas Construction, Inc. 2022 WL 2975702 (July 28, 2022).
 

Copyright 2022, Stone Loughlin & Swanson, LLP

Earlier this month, we at SLS experienced a first in appellate jurisprudence when our own Robert Greenlaw was tasked with responding to an appeal in which the claimant requested the Division Appeals Panel reverse a CCH Decision in his favor on issues of extent of injury, MMI, impairment rating and disability.  Yes, you read that correctly – despite the fact that the Carrier had accepted all conditions previously in dispute, and the fact that the designated doctor and post-DD RME doctor agreed (as did the Carrier) that the claimant reached MMI on the statutory date, rather than an earlier clinical date – the claimant insisted on a CCH.  Not surprisingly – at least to the Carrier – the ALJ found that all of the claimed conditions were compensable, pushed the MMI date out to the latest dated allowable by law, assigned the impairment rating agreed upon by both the designated doctor and the RME doctor, and awarded almost 10 months of disability.  

Incredibly, for reasons known only to the Claimant, he asked the Appeals Panel to reverse that decision.  As Mr. Greenlaw pointed out in his response to this novel appeal, the claimant expended extraordinary efforts throughout the life of his claim in complaints about his adjusters, doctors, ombudsmen and, of course, the Carrier’s attorney.   While the Carrier did not appeal the D&O, Rob found himself agreeing with the claimant on appeal and joining in his request that the Appeals Panel reverse the CCH D&O in his favor on all of the issues. 
 

Copyright 2022, Stone Loughlin & Swanson, LLP

As we come to the end of July, Texas continues to bake even more than most summers with no relief in sight.  This means more workers’ compensation claims from heat-related injuries such as heat stroke.  To help prevent heat-related illnesses, the Division provides a great deal of useful information on its website including fact sheets and videos.  Here are just a few examples:     

https://www.tdi.texas.gov/tips/safety/heathazards.html 

https://www.tdi.texas.gov/pubs/videoresource/fsheatinjur.pdf

The pandemic-induced work from home trend has yielded some surprising advantages.  However, one of the most unexpected may be that you never have to leave your house for your job and risk a work-related sunburn.  For those of us lucky enough to be working in air-conditioned offices or spare bedrooms this summer, let’s take a moment to say thanks for everyone toiling outside in the blazing inferno.  

Copyright 2022, Stone Loughlin & Swanson, LLP

The Division entered into a consent order with American Zurich Insurance Company fining it $72,000.00 for multiple violations including failure to pay accrued income benefits based on a designated doctor report, failure to timely pay impairment income benefits, failure to timely act on a medical bill, failure to timely initiate payment of accrued temporary income benefits, failure to timely pay initial TIBs, failure to timely or accurately report EDI data to DWC, failure to pay subsequent quarters of supplemental income benefits, failure to timely pay attorney fees ordered by DWC, failure to timely comply with a final contested case hearing decision and order, and failure to timely notify of decision for preauthorization. Consent Order No. 2022-7361, July 6, 2022.

The Division entered into a consent order with South Texas Health System fining it $6,500.00 for improperly pursuing a private claim against an injured employee.  Consent Order No. 2022-7363, July 7, 2022. The Workers’ Compensation Act prohibits health care providers from billing injured employees for treatment of their work injuries.  While some hospitals may not be aware of this prohibition, others are so concerned about violating it that they bill the workers’ compensation carrier for all treatment rendered to an injured employee regardless of whether the treatment had anything to do with the work injury.  This practice, done out of an abundance of caution, often creates unnecessary subclaimant disputes.

Copyright 2022, Stone Loughlin & Swanson, LLP