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In a move sure to motivate injured employees to get up off the
couch and go back to work, the 89th Legislature passed Texas House
Bill 46 on June 20, 2025, set to take effect on September 1, 2025. The bill
expands the conditions for which certain medical providers in the state can
prescribe “low-level” tetrahydrocannabinols (THC) cannabis under the Texas
Compassionate Use Program (TCUP).
Additionally, the level of permissible THC will increase, from the current
limit of 1% THC by weight to up to 10 milligrams per dose, not to exceed 1 gram
of THC per package.
Previously, medical marijuana under the Compassionate Use Program was limited
to diagnoses rarely encountered in workers’ compensation claims, such as
spasticity, Amyotrophic Lateral Sclerosis (ALS, or Lou Gehrig’s Disease),
autism, terminal cancer, or incurable neurodegenerative diseases.
However, HB46 adds to that list some conditions that are often part of workers’
compensation claims: traumatic brain injuries and chronic pain.
Anyone familiar with current trends in Texas comp will recognize the seismic
shift this expansion is sure to have on treatment and billing for work
injuries. “Traumatic brain injury” is an unfortunately vague term often
used to diagnose mild and temporary cranial trauma without any lasting effects,
such as a simple head contusion. “Chronic pain,” meanwhile, is a favorite
post-injury diagnosis used by some healthcare providers to prolong and inflate
treatment—and the billing that goes along with it. Circa September 2025,
Insurance carriers can therefore expect to see more frequent billing for
medical marijuana as part of injured workers’ treatment regimens for traumatic
brain injuries and chronic pain.
In fact, already we have heard of one enterprising physician hoping to
capitalize on the new legislation:
Copyright 2025, Stone Loughlin & Swanson, LLP
Last month we reported on House Bill 2488, which would permit
Contested Case Hearings within the Division by Zoom conference or other forms
of remote communication. The bill passed the Senate in May 2025 and was
signed into law by Governor Abbott on June 24. Remote hearings can be
held only at the agreement of the parties, or if there is a determination that
good cause exists for the proceeding to be conducted that way.
Copyright 2025, Stone Loughlin & Swanson, LLP
The Division has hired a second Administrative Law Judge to
handle its increasingly congested Austin docket. Jordan Woody earned her law
degree from NYU in 2012 and became licensed in Texas a year later. She
specialized in employment law prior to joining the Division of Workers’
Compensation, working at Carter Arnett, LLC, and Thompson, Coe, Cousins &
Irons, LLP. We look forward to seeing her behind the bench.
However, we have not been
looking forward to the departure of San Antonio ALJ John Bull, who left the
Division on June 30. Judge Bull joined the agency in July 2024 and
quickly established himself as a thoughtful and astute adjudicator. No
word on what might be in store for Judge Bull, but he will be missed.
Taking Judge Bull’s place in San Antonio will be the current Lubbock ALJ Sandra
Schuck-Garrant. That transfer is pending the hiring of a new
Administrative Law Judge in that field office.
Copyright 2025, Stone Loughlin & Swanson, LLP
Our office recently received an email from a claimant attorney
who may wish he had recalled it after hitting the ‘Send’ button. Here is
a what we found in the subject line of the email, redacted but otherwise
verbatim:
“Subject:
ChatGPT said: Here’s a clean, professional email you can send to [Adjuster] at
[Insurance Carrier] with a CC to [Attorney], counsel for the carrier: Subject:
Notice of Termination and Severance – [Claimant] (DWC #_______)”
We assume that the subject line was an unintentional display of candor on the
attorney’s part, as it is the first such message we have received openly
acknowledging that it was composed through the AI program ChatGPT rather than
by the actual attorney. Well, one man’s e-communication faux-pas is another
man’s newsletter fodder, so now we must ask: what is ChatGPT’s hourly billing
rate these days?
The question is only quasi-facetious, though. As the legal profession
grapples with AI-generated communications at an increasing frequency, should
clients pay lawyers for correspondence that was generated by an AI program
rather than by the attorney him or herself? If so, is such work being
billed at the same rate as it would have been if the attorney had drafted
it? ChatGPT is, after all, intended as a time-saving program. Does
it violate the code of professional ethics to produce or charge a client for
communications produced artificially? And how does one respond to an
artificially generated email anyway, and should we even feel compelled to?
The future of AI is uncertain but developing at an exponentially rapid
pace. We may have to answer these questions far sooner than any of us
expected. In the meantime, accept our assurance that this clean,
professional newsletter was drafted by a sentient, carbon-based entity.
Copyright 2025, Stone Loughlin & Swanson, LLP
The annual Texas Workers’ Compensation Conference will be held
on September 29 and 30 at the Embassy Suites in San Marcos. The two-day
compensapalooza will feature a wide array of topics, from “Data Analytics:
Measuring and Managing Workers’ Compensation Outcomes” to “Leveraging Injury
Data and Predictive Analytics to Manage Claims and Propel Organizational Health
and Stability.”
On the evening of September 29 attendees can Head over to the hotel’s Spring
Lake Ballroom for the fundraiser concert, from 7:45 to 9:15 p.m. Tickets to the
show are $35.00 and benefit Kids’ Chance, a non-profit group that provides
scholarships to children of those killed or severely injured in workplace
accidents. The featured “Head”liner is native Texan Sundance Head, winner
of NBC’s The Voice in
2016. Head’s signature tune may be “Darlin’ Don’t Go,” but you should
ignore that and go anyway. To register, visit www.tdi.texas.gov/wc/events/wcconference.html.
Sundance Head: Not someone I ever thought I would find myself writing about in
this newsletter.
Copyright 2025, Stone Loughlin & Swanson, LLP
Well, it’s officially summer, and you know what that means:
murder!
Not literally, of course, but perhaps literarily. If you’ll
soon be on vacation and need a good beach read, they don’t come any beachier
than the Florida-set detective novels of John D. MacDonald. MacDonald, best
known for 1957’s The
Executioners (the basis for the movie Cape Fear) is beloved by whodunnit afficionados
for his twisty narratives, shady characters, and dialogue so hard-boiled it
should be served with toast.
For the uninitiated, a great place to start is his debut novel, The Brass Cupcake (Random
House, 1950). The title refers to the gold badge our hero, Cliff
Bartellis, once wore on the police force, since reduced to a worthless trifle
after his code of honor collided with the department’s systemic
corruption.
Now Cliff works as an insurance adjuster with the perilous specialty:
recovering stolen jewels, then paying off half the value of the policy to
whoever coughs up the goods, with a nice little commission for himself.
Except this time, the thief left something behind: the bludgeoned body of a
nice little old lady.
It seems that a $300,000.00 payout buys a lot of murder, and corpses begin
accumulating like seaweed on the Florida coast. Meanwhile, Cliff’s old
buddies on the police force are none too pleased when their former brother in
blue notices that all their suspects keep winding up in the morgue. How
long before they suspect him?
And, hey, isn’t he dating the dead lady’s niece…
But Cliff has set a trap for the perpetrator. If he can keep his cool in
the oppressive Florida heat, he might just find the killer, snag himself a tidy
bonus, and get the girl (if she doesn’t get him first). Has he got the
smarts, instincts, and courage to expose the devious double-dealing?
Of course he does. After all, he’s an insurance adjuster.
Copyright 2025, Stone Loughlin & Swanson, LLP
Like a bad penny, the Texas Legislature returns to Austin, our home town, on
January 14, and legislators already are filing bills that would significantly
alter the workers’ compensation scheme.
At least one of those bills -- SB 423 -- could upend the dispute resolution
process as we know it. Other bills would make less drastic, but still
significant, changes.
Virtual hearings
SB 423 would require the Texas Department of Insurance, Division of Workers’
Compensation (DWC) to conduct contested case hearings by telephone or
videoconference whenever the parties “mutually agree” to proceed in that
manner. This would mark a significant departure from DWC’s current practice, in
which parties are required to appear in person for nearly all contested cases
hearings.
The bill was authored by Senator Sarah Eckhardt, a lawyer and Democrat
representing Travis County. It appears generally consistent with a legislative
recommendation from DWC. As we reported last month, DWC has issued its Biennial Report to the 89th
Legislature in which, among other things, it recommended that the
legislature amend the Labor Code “to allow contested case hearings . . . by
videoconference if all parties agree to that format.”
DWC Commissioner Jeff Nelson has said that one reason for DWC’s recommendation
was to help shape a bill that appeared inevitable anyway. “[T]hat bill in one
version or another has been filed the past three sessions by parties that
weren’t us,” Nelson told lawyers at the Texas Bar Advanced Workers’
Compensation Law Seminar in August, emphasizing that a legislative change
should require both parties to agree to a virtual hearing. “Some of those
allowed the claimant to have total say on if it was going to be virtual or not
. . . [w]e had to work like crazy last session to rein in a lot of those bills
and to keep [them] somewhat reasonable.”
But the introduced version of SB 423 does not appear to contain everything that
DWC would like to see in it. Specifically, it does not contain a provision for
DWC to override the will of the parties and conduct a hearing by
videoconference even when the parties desire to proceed in person. Nelson
told lawyers at the August seminar that DWC maintains a “zero tolerance list”
of injured workers “who are combative and threatening” and DWC would like
authority to conduct a hearing by videoconference when one of the parties is a
worker on the list.
Mandatory comp for construction workers
SB 338 and its companion, HB 875, as well as HB 480, would make workers’
compensation insurance coverage mandatory for workers in the construction
industry. They would amend Labor Code section 406.096 to provide that a
construction contractor or subcontractor “shall provide workers’ compensation
insurance coverage for each employee.”
Cost-of-living adjustments for death benefit payments
HB 1292 would amend Labor Code section 408.181 to provide that the amount of a
death benefit must be adjusted each year, as necessary, to reflect inflation.
The change would apply only to claims based on an injury occurring after the
effective date of the change and it would require insurance carriers to
re-compute the amount of a death benefit each year. The amount of the
adjustment would equal the percentage increase, if any, used by the United
States Social Security Administration to provide cost-of-living adjustment for
social security payments.
First responders - Presumption of compensability of infertility
SB 454 would create a presumption that a firefighter or emergency medical
technician suffering from infertility is presumed to have developed the
infertility during the course and scope of employment.
Designated Doctor exams and assignment of IR by telemedicine
HB 1066 would amend Labor Code section 408.0041, pertaining to Designated
Doctor examinations, to allow DWC to order a Designated Doctor to conduct an
examination by telemedicine if DWC determines that conducting the exam in that
manner “is necessary to ensure access to a timely examination by a qualified
doctor.” It would require a health care professional to be physically present
in the room with the employee to assist with the examination and administer any
necessary testing.
HB 1066 also would add new Labor Code section 408.1231 to allow a doctor to
certify maximum medical improvement and assign an impairment rating by
telemedicine for many injuries. It would require a health care professional to
be physically present in the room with the employee to assist with the
examination and administer any necessary testing unless the certifying doctor
determines that the employee (1) is not at MMI or (2) has no possibility of
impairment.
Copyright 2025, Stone
Loughlin & Swanson, LLP
The DWC has hired Paul
Armstrong as an administrative law judge for the Corpus Christi field office.
Judge Armstrong’s LinkedIn page shows that his prior judicial experience
includes, among other things, over 19 years as an Administrative Law Judge for
the Social Security Administration.
Welcome, Judge Armstrong!
Copyright 2025, Stone Loughlin & Swanson, LLP
Read More
In a development that we salute, last month DWC ordered Memorial Hermann Health
System - Southeast Hospital in Dallas to pay an administrative penalty due to
the hospital’s failure to refund a payment after an insurance carrier requested
it. Consent Order 2024-8987, dated 12/03/24, highlights a tool that insurance
carriers have but seldom use to its full effect.
Specifically, Labor Code section 408.0271 and DWC Rule 133.260 allow an
insurance carrier to request a refund of a payment to a health care provider
when the carrier determines the payment was (1) an overpayment or (2) payment
for an inappropriate service. Upon receipt of the request, the health care
provider must refund the payment or file an appeal with the carrier within 45
days. If the provider appeals the carrier’s determination and the carrier
denies the appeal, the provider must refund the payment within 45 days of
notice of the denied appeal. Importantly, even if the provider requests dispute
resolution from DWC, the provider still must refund the payment to the carrier
while it pursues that remedy.
We at SLS regularly file complaints with DWC against health care providers that
have failed to refund a payment on request by our carrier clients. Our
experience has been that DWC diligently investigates such complaints and, more
often than not, providers agree to refund the payments when they learn that DWC
has opened an investigation into their refusal to do so.
Copyright 2025, Stone
Loughlin & Swanson, LLP
In yet a second
development that we applaud, last month the DWC announced that it will be
conducting an audit of the quality of Designated Doctor reports.
The Medical Quality Review
Calendar Year 2025 Annual Audit Plan, dated December 16, 2024,
states that in calendar year 2025 the Medical Quality Review Panel will conduct
one audit to evaluate “the quality of designated doctor reports and the
necessity of additional testing or referrals ordered by designated doctors to
resolve the issue in question.”
We at SLS hope that notice of the audit will cause Designated Doctors to
elevate the quality of their reports, because we see a ton of bad ones.
Copyright 2025, Stone
Loughlin & Swanson, LLP