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.
On November 22, 2024, Commissioner Jeff Nelson released DWC’s biennial report
to the 89th Legislature providing an update on the Texas workers’ compensation
system. The biennial report includes two legislative recommendations.
One of the Commissioner’s recommendations is, essentially, a housekeeping
matter removing outdated statutory language from the Labor Code which refers to
the old Approved Doctors List (ADL).
Prior to House Bill (HB) 7, passed by the 79th Legislature in 2005 and signed
by the Governor on June 1 of that year, doctors treating injured employees in
the workers’ compensation system were required to meet specific requirements
and were registered on the Division-maintained ADL. HB 7 amended the Labor Code
to eliminate the ADL effective September 1, 2007; however, some sections of the
Labor Code still refer to the ADL. According to feedback received through
health care provider outreach, these outdated statutory references to the ADL
have resulted in confusion for some system participants who assume the old ADL
registration and training are still required. Removal of the outdated statutory
language is calculated to decrease such confusion for health care professionals
who provide health care in the workers’ compensation system.
The other recommendation, which is of greater interest to us, is the
Commissioner’s suggestion that Labor Code §410.005 be amended to allow
contested case hearings to be conducted by videoconference, if all parties
agree. According to the Division’s report, this change will enhance flexibility
and efficiency of CCHs by streamlining the administrative process, reducing
travel-related burdens, and promoting access to justice while maintaining the
integrity of the hearing process. The Division additionally anticipates the
amendment will result in improvement of access to legal representation for
injured employees living in remote areas or out of state, shortening of
timelines to resolve disputes, and improvement in injured employees’ access to
medical treatment, allowing them to return to work more quickly.
Readers may recall that CCHs were held by videoconference or telephone during
the COVID-19 breakout from March 2020, through July 2021. Based upon our
experience with videoconference and telephonic CCHs during that period, we
think CCHs conducted in that manner are less than ideal. It is not unusual that
parties or witnesses may not have access to the Zoom application or a computer.
When these parties or witnesses appear by telephone the judge is not able to
adequately observe the witnesses’ demeanor and judge the credibility of their
testimony. There may also be technical problems caused by poor cell phone
reception or speaker phones which cut in and out resulting in participants
talking over each other and being unable to hear everything that is said.
The Biennial Report goes on to outline key trends in the current workers’
compensation system to help DWC and stakeholders identify improvements to
maintain a fair and balanced workers’ compensation process. Some important key
trends identified are an 81% decrease in workers’ compensation insurance rates
since 2003; a reduction in health care costs of $338 million since 2012; and an
86% reduction in the total number of opioid prescriptions from 2009 to
2022.
You may access and review the entire report concerning the current state of the
Texas workers’ compensation system here.
Copyright 2024, Stone Loughlin & Swanson, LLP
The Division on November 14, 2024, announced it had adopted amendments to 28
Texas Administrative Code (TAC) Chapter 127, Designated Doctor Procedures and
Requirements and 28 TAC Chapter 131, Benefits - Lifetime Income Benefits. The
amendments implement HB 2468, 88th Legislature, Regular Session (2023) which
amended Texas Labor Code §408.0041 concerning Designated Doctor examinations,
and enacted Labor Code §408.1615 concerning Lifetime Income Benefits for
Certain First Responders.
You may access information concerning the amended 28 TAC §127.1 and new TAC
§127.25 here and 28 TAC §§131.1 - 131.4 and
28 TAC §§131.10 – 131.14 here.
The Division also updated the following related DWC forms:
Revised: DWC Form-032, Request for Designated Doctor Examination.
New: DWC Form-038, Application for Lifetime Income Benefits.
New: DWC Form-039, First Responder’s Annual Certification for Lifetime Income
Benefits.
Revised: DWC PLN-04, Notice of Eligibility for Lifetime Income Benefits.
Revised: DWC PLN-07, Notice of Change of Indemnity Benefit Type.
You may access the revised and new DWC Forms here.
Copyright 2024, Stone Loughlin & Swanson, LLP
Each year the Division compiles data on work-related injuries and illnesses in
Texas for the U.S. Department of Labor, Bureau of Labor Statistics. The report
released last month for 2023 reveals that Texas had a 1.8 injury and illness
rate per 100 equivalent full-time workers. This is the lowest rate for Texas in
the past 10 years and is well below the national incident rate of 2.4.
You may access the full report here.
Copyright 2024, Stone Loughlin & Swanson, LLP
The Division has announced scheduling of its next CompCourses webinar on
December 11, 2024 at 1:00 p.m. The subject is compliance in the Texas workers’
compensation system. Participants will learn the differences between a dispute
and complaint, the administrative violation process, and the lifecycle of a
fraud case. The course is free, is approved for 1 hour of TDI general education
credit, and just might keep some of us from getting into trouble!
Interested parties may register to take advantage of this valuable resource here.
Copyright 2024, Stone Loughlin & Swanson, LLP
DWC will host a quarterly stakeholder meeting for insurance carriers and health
care providers via Zoom on Thursday, December 12, 2024 from 1:30 to 3:00 p.m.
The meeting will provide an update on routine information and data topics and
will highlight current issues relevant to each industry.
You may access the meeting agenda and Zoom information here.
Copyright 2024, Stone Loughlin & Swanson, LLP
All Division Offices will be closed for the Christmas Holidays on December 25,
2024, and December 26, 2024.
The Division will be closed for the New Year Holiday in the afternoon on
December 31, 2024, and all day on January 1, 2025, New Year’s Day.
Copyright 2024, Stone Loughlin & Swanson, LLP
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