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.
Claimant attorneys’ attempts to negate a carrier’s subrogation interest are to
be expected but their methods of bilking carriers out of the amounts they are
due can get as convoluted and Machiavellian as this year’s election. The Tyler
Court of Appeals recently reaffirmed the importance of ensuring that carriers
receive “first money reimbursement” in Old Republic Ins. Co. v. Debra Morris, et al.
The plaintiffs in that case had attempted an end-run around the first money
rule by settling with most of the third-party defendants pre-trial, and
subsequently obtaining a verdict apportioning most of the responsibility to the
employer. The plaintiffs argued that the “employer responsibility offset”
(ERO)* should apply to all the funds received, including the pre-trial
settlements, which in this case wiped out the carrier’s lien of more than $3
million. In a tremendous win for Old Republic, the appellate court held that
the reduction of the carrier’s subrogation interest is limited to the amount
that the employer’s fault actually costs the claimant after applying sections
33.012(b) and 33.013(a) of the Texas Civil Practice and Remedies Code.** In
this particular case, that meant that the carrier’s subrogation lien was
reduced by only $33,967.20.
*Texas Labor Code section 417.001 provides that a carrier’s subrogation
interest is reduced by the amount by which the court reduces the judgment based
on the percentage of responsibility for the injury that the jury/judge
attributes to the employer. This is known as the “Employer Responsibility
Offset” (ERO).
**Section 33.012(b) of the Texas Civil Practices and Remedies Code requires the
court to reduce the amount of the claimant’s damages by a percentage equal to
the claimant’s percentage of responsibility for the claimant’s injuries.
Section 33.013(a) limits the claimant’s damages recovery from a particular
defendant to the “percentage of the damages found by the trier of fact equal to
that defendant’s percentage of responsibility” for the claimant’s injuries.
Copyright 2024, Stone Loughlin & Swanson, LLP
DWC released the 2024 insurance carrier PBO results and 1/3 passed the test
with flying colors! The DWC evaluated 130 carriers and placed them into a high,
average, or poor regulatory tier based on the following categories:
High tier performers
are generally exempted from DWC Compliance & Investigations Audits, while
average performers are included if selection criteria are met, and poor
performers are included regardless of whether selection criteria are met. A
carrier’s PBO tier rating is also one of the factors that DWC is required to
consider when imposing sanctions on any carrier that commits an administrative
violation.
Insurance Carrier Tier
Assessments Overall Results
|
Assessment Year |
Insurance Carriers |
High Tier Performers |
Average Tier Performers |
Poor Tier Performers |
|
2024 |
130 |
44 |
82 |
4 |
Congratulations to all
you High Tier Performers out there!
Copyright 2024, Stone Loughlin & Swanson, LLP
A total of three
Appeals Panel decisions have been published since the beginning of September.
System participants can breathe a sigh of relief, knowing that even when your
judge zones out during the hearing, the Appeals Panel has your back:
In Appeal No. 241147, the Panel remanded the case because the ALJ recounted a
mechanism of injury in his/her decision that was nowhere in evidence. The ALJ
wrote that the claimant slipped and fell backwards five feet and had pliers in
his back pocket. Instead, the claimant testified that he felt a sharp pain in
his left shoulder while sanding an airplane.
Similarly, in Appeal No. 241172, the Panel reversed a 0% IR and rendered a
decision that the IR was 5% because there was no certification in evidence from
any doctor certifying the claimant with a 0% IR.
And in other news, the Appeals Panel continued to demonstrate its usefulness by
reforming a finding of fact in Appeal No. 241035 to correct the parties’
stipulation to an anomaly of the tooth position of fully erupted teeth to
numbers 9, 23, and 24 and not tooth 10 or 25.
Copyright 2024, Stone Loughlin & Swanson, LLP
State agencies are required to review rules every four years and either
readopt, readopt with amendments, or repeal the rule. So this month, DWC went
out on a limb and readopted all sections in Chapters 126 (General Provisions
Applicable to All Benefits), 127 (Designated Doctor Procedures and
Requirements), and 128 (Benefits – Calculation of Average Weekly Wage). Well
done, guys and gals.
DWC is accepting public comments on a proposed rule amending Rule 120.2 to
update its Austin address and OIEC’s and DWC’s website addresses. If you’re
looking to shake things up a little bit, you can let the DWC know you take
issue with their changes of “shall” in the rule to “must” or “will.”
The DWC also renamed Rule 147.10 “Commutation of Impairment Income Benefits.”
In case you were diverted by all the election shenanigans, this was necessary
because in April 2024, the DWC inadvertently named this section Rule 147.11
(the horrors).
DWC also made DWC Forms 001 (Employer’s First Report of Injury or Illness), 002
(Employer’s Report for Reimbursement of Voluntary Payment), and 006
(Supplemental Report of Injury) more attractive… and removed references to
outdated violation language that the Legislature removed from the law… in 2005.
Copyright 2024, Stone Loughlin & Swanson, LLP
DWC is looking for input on the proposed Medical Quality Review Audit Plan for
the year 2025. The plan is to conduct one audit to evaluate the quality of
designated doctor (DD) reports and the necessity of additional testing or
referrals ordered by DDs to resolve the issue in question.
Meanwhile, the 2024 Annual Audit Plan was to evaluate the feasibility
and impact of adopting a more current version of the AMA Guides to the Evaluation of
Permanent Impairment. The 4th edition was published in 1993 and since
then, the 5th and the 6th editions have been published, with updates to the 6th
edition published yearly since 2021. There are two months to go in 2024 so we
will await the results of this study with bated breath. (Okay, okay, to be
fair, the DWC did acknowledge in its 2025 announcement that this study
was dependent on revisions to the musculoskeletal chapters, which were just
finalized on September 12, 2024 and effective December 1, 2024.)
Regardless:
Copyright 2024, Stone Loughlin & Swanson, LLP
Last week SLS attended
the National Workers’ Compensation Defense Network (NWCDN) meeting in Denver as
the Texas member. The group is comprised of one vetted law firm member
from each state. We were invited to be the Texas member 17 years ago and
continue to work with the group in support of Texas employers and insurance
carriers who insure them. Jane Stone gave a short presentation about
these disputes to the employers and decision-makers present at the meeting.
There are over 3,000 air ambulance fee disputes currently pending in the Texas
workers’ compensation system. The average amount in dispute in each case
is over $50,000 for a total at stake of at least one hundred fifty million
dollars plus interest. These disputes have gathering at the Division of
Workers’ Compensation since 2012 while the parties continue to litigate the
threshold issue of whether the federal Airline Deregulation Act of 1978
preempts the Texas Workers’ Compensation Act’s reimbursement standards for
medical care.
The ADA prohibits states from regulating the price, route or service of an “air
carrier.” The air ambulance companies argue that the ADA preempts Texas’
workers’ compensation laws that govern the amount of reimbursement owed to
health care providers and therefore, they are entitled to their full billed
charges for transporting injured workers. The air ambulance companies’ billed
charges are significantly more than the amount paid by the insurance carriers
which in most cases is 125% of the Medicare rate.
The air ambulance companies’ billed charges are generally 600% to 1,200% of the
Medicare rate. For the sake of comparison, the Division’s fee guideline
payment adjustment factors range from 125% of the Medicare rate for the Medical
Fee Guideline to 235% of the Medicare rate for the Ambulatory Surgical Center
Fee Guideline. In 2015, an ALJ at the State Office of Administrative
Hearings issued a decision finding that 149% of the Medicare rate was fair and
reasonable reimbursement for the air ambulance services at issue but on appeal
that amount was determined to be too high.
The Division of Workers’ Compensation has abated all of the pending individual
fee disputes while the preemption issue is litigated. However, the Division
recently issued decisions in the Air Evac fee disputes. The Division awarded
$0.00 additional reimbursement on the grounds that it cannot determine the
proper payment amount because of the federal injunction Air Evac obtained that
enjoins the Division from applying its “fair and reasonable” reimbursement
standards against Air Evac.
This preemption issue has been litigated in other states but none more than
Texas. The litigation in Texas over the preemption question has been going on
for over ten years. The issue has been litigated to the Texas Supreme Court and
Fifth Circuit Court of Appeals which reached different conclusions. The
Fifth Circuit held there is preemption while the Texas Supreme Court held there
is not.
Case law holds that Texas courts are not bound by the Fifth Circuit but
only higher Texas courts and the U.S. Supreme Court. Therefore, the ALJ
overseeing the air ambulance disputes currently pending at the State
Office of Administrative Hearings recently issued a ruling that he would follow
the Texas Supreme Court’s decision and apply Texas’ “fair and reasonable”
reimbursement standards for workers’ compensation to determine the amount of
reimbursement to which the air ambulance providers are entitled.
The ALJ has now set two groups of cases for hearings on the merits in April and
May 2025. The air ambulance providers are expected to appeal the ALJ’s
final decision when issued so the air ambulance litigation in Texas is far from
over.
Copyright 2024, Stone Loughlin & Swanson, LLP
Everyone remembers the
anxiety waiting for a report card brings. Insurance carriers and
employers are no different, and the news is good for those that take advantage
of the benefits provided by networks. According to TDI’s Division of Workers’
Compensation, what we at SLS have seen regarding the effectiveness of networks
certified under Chapter 1305 of the Texas Insurance Code is confirmed by the
numbers. Networks tend to be more cost efficient than non-network claims. The
cost differences appear to be driven in part by lower hospital utilization and
lower prices per service. Despite lower costs, network claims as a whole have
higher satisfaction levels with health care, faster return-to-work and better
functional outcomes. Network claims tend to receive initial non-emergency
medical care faster than non-network claims, which studies have shown may
assist in controlling health care costs and reducing missed time from work.
Injured workers’ early return to physical function and productivity is
the goal of the workers’ compensation system– and it is working!
Copyright 2024, Stone Loughlin & Swanson, LLP
Well, not really.
However the DWC has set weekly benefit rates for fiscal year 2025. For
dates of injury beginning October 1, 2024 through September 30, 2025, the state
average weekly wage is $1,218.62. Keep in mind that the rate applied to any
particular claim is set as of the date of injury.
Copyright 2024, Stone Loughlin & Swanson, LLP
DWC is putting on its
annual Texas Workers’ Comp Conference October 22nd and 23rd in Austin and
registration is still open. It is the “go to” event in the Fall every year for
anyone involved in the workers’ compensation process. A featured speakers is Mark
Pew who is well respected as one of the developers of the excellent Workers’
Comp College educational platform, for which SLS is the Texas contributor.
Check it out here.
Copyright 2024, Stone Loughlin & Swanson, LLP
We couldn’t resist this cartoon! The Fall is also the time carriers are asking SLS for Zoom training meetings, which made this especially relevant to those of us who teach!
Copyright 2024, Stone Loughlin & Swanson, LLP