State News : Texas

Rule Review Time

The DWC will be reviewing multiple sections of the Texas Administrative Code (Chapters 102, 104, 109, 110, 112, 114, and 116) to determine whether the rules are still relevant and necessary. The DWC Legal Services team is requesting that system participants send written comments along with proposed alternative language to RuleComments@tdi.texas.gov by 5 p.m. CST on October 3, 2023. 
 

Copyright 2023, Stone Loughlin & Swanson, LLP

Seasonal Employees Simplified

Other proposed form changes include a complete (and long overdue) overhaul of the forms relating to adjusting income benefits for seasonal employees. The DWC intends to retire Form-054 (Notice to Employee: Intention to Request Division Permission to Adjust Benefits) and Form-056 (Seasonal Employee Wage Information from Texas Workforce Commission Records). The proposed new Form-055 will combine the Notice to Employee and Carrier’s Request to Adjust Average Weekly Wage. The DWC invites all who wish to submit comments on the proposed changes to email them to RuleComments@tdi.texas.gov by 5 pm CST on September 18th.

Copyright 2023, Stone Loughlin & Swanson, LLP 

Is Change Afoot for SIBs?

Will the Texas Department of Insurance, Division of Workers’ Compensation begin requiring applicants for Supplemental Income Benefits to provide material evidence of job applications they have submitted in their search for work? It sure looks that way. 

In a memo to stakeholders on August 17, General Counsel Kara Mace enclosed proposed changes to the DWC Form-052, Supplemental Income Benefits Application. The proposed revision includes an FAQ page with the following guidance for applicants who are looking for work on their own:
 

Show you were actively looking for a job by attaching job applications or other documents showing you were looking for a job.  

If the Division adopts the proposed version, and if it requires SIBs applicants to actually attach job applications to the Form-052, that would be a welcome change. Currently, Division ALJs typically do not require a SIBs applicant to submit material evidence of job applications they have submitted. Instead, the Division’s position is that an applicant’s assertion, on the Form-052, that he submitted applications is sufficient documentation of such applications.  

Of course, many stakeholders disagree with the Division’s position, and that position is one reason that Accident Fund Insurance Company of America, represented by this Firm, filed an action for declaratory relief in the Travis County district court challenging the validity and applicability of the Division’s SIBs rule. As we have reported previously, the district court held the rule invalid, the Division appealed, and the Austin court of appeals issued a decision on February 28, 2023. Texas Department of Insurance, Division of Workers’ Compensation v. Accident Fund Insurance Company of America, et al. A petition for review is currently pending in the Supreme Court of Texas. 

We will continue to monitor and report on the proposed changes to the Form-052. 

Copyright 2023, Stone Loughlin & Swanson, LLP 

Beat the Heat

Don’t miss this unique chance to golf at The Lakes at Castle Hills on October 23rd! Register today for a rewarding day of golf, while supporting an amazing cause.  Our first full golf team has already signed up! Thank you, Kyle Morris, for putting together a team and showing up again this year! Spots are limited and filling quickly. All proceeds benefit Kids’ Chance of Texas scholarship recipients and provide these students with the opportunity for a strong education and career, despite the most difficult circumstances. Register here. You can also find information at www.kidschanceoftexas.org, and for those of you with modern skills, there is a QR code.  See you on the course!

Copyright 2023, Stone Loughlin & Swanson, LLP 

NWCDN in the Windy City

SLS is the Texas selected member of the National Workers’ Compensation Defense Network (NWCDN). This year, the NWCDN conference is set in Chicago October 18th and 19th and we would love to send you an invitation if you are interested in attending.  The conference is free, and there are greatly reduced hotel rates at the Radisson Blu Aqua blocked if you book by September 19th.  Here is a link to the registration materials and the terrific agenda: Program Agenda.  Hope to see you there! 

Copyright 2023, Stone Loughlin & Swanson, LLP 

Victory Belongs to the Most Tenacious

Remember when we reported on the SOAH case where the ALJ questioned the DWC’s actions regarding claim investigation and its method of assessing penalties?  We learned that, but for a courageous Third Party Administrator (Abercrombie Simmons & Gillette) who footed the cost of the litigation for its customer, the City of Baytown, the issues the case presented would still be buried at the agency. They say you “can’t fight City Hall” but that saying only goes to those unwilling to do so.

Copyright 2023, Stone Loughlin & Swanson, LLP 

ALJ on the Move

Our friend and colleague, ALJ Carol Fougerat, will be hanging up her hat at the DWC on September 20th. We will miss her and wish her well on her upcoming adventures!

Copyright 2023, Stone Loughlin & Swanson, LLP 

21st Century Tech Advances on the Horizon

DWC is also conducting a survey to modernize their dispute resolution technology services. They’ve requested that system participants complete the survey at the following link by September 15, 2023. www.surveymonkey.com/r/VPC6NM6

Copyright 2023, Stone Loughlin & Swanson, LLP 

SOAH Rules Against DWC in Significant Enforcement Decision

A three-judge panel at the State Office of Administrative Hearings (SOAH) rejected numerous allegations made by DWC that the City of Baytown (a self-insured governmental entity) violated the law when it denied two first responder cancer claims.

DWC sought to fine Baytown $80,000 based on charges that it failed to adequately investigate and process claims by two firefighters diagnosed with cancer while working for Baytown.  However, in a 66-page decision the three judges found that Baytown committed no violations.

The decision bears a close read by system participants for the guidance it provides about what the law does and does not require when handling not only cancer claims but all claims.  Hopefully, DWC will consider the judges’ guidance in future cases.

Among the ALJs’ conclusions:

• The burden to prove the prima facie elements of the cancer presumption rests with the claimant seeking the benefit of the claimed presumption, and that the insurance carrier is not required to gather specific documents and evidence while investigating a claim.

• The reasonableness and thoroughness of Baytown’s investigations should be informed by the fact that they must be completed within 15 days before making an initial determination. And, in determining whether an investigation was reasonable, the scope of applicable information should be limited to what was available at the time, without the benefit of hindsight.

• The reasonableness and thoroughness of Baytown’s investigations should be informed by the uncertainty of the law at the time of the claims (i.e., the lack of precedent and DWC guidance regarding elements of the presumption such as what constitutes “regularly responded” to fires).

The ALJs also expressed concerns with DWC’s $80,000 penalty stating that “no evidence was presented to prove how Staff’s proposed penalty was calculated or allocated among the claims.” The ALJs stated that, as such, “imposition of an administrative penalty based on Staff’s proposed sanction may result in an arbitrary decision.”  DWC’s unwillingness to explain, in any meaningful fashion, how it arrives at its proposed fine amounts has been a source of ongoing criticism from system participants for many years.

Although DWC’s allegations focused on Baytown’s actions during the initial fifteen-day investigation period, Baytown’s denials seem to have been borne out by the fact that in the first claim, the employee and his family never challenged Baytown’s denials, and in the second claim, the employee signed an agreed judgment finding that his claim was not compensable.
  
First responders are often accorded special treatment in the workers’ compensation system and that was likely a factor in DWC’s decision to prosecute what seems like a questionable case based on the ALJs’ decision.  DWC’s enforcement action was also likely intended to serve as a “reminder” to carriers to be very cautious about denying first responder claims.

The ALJs’ decision highlights the lack of DWC guidance regarding elements of the law Baytown allegedly violated.  Advisories and bulletins are often a better tool for communicating agency policy to system participants than enforcement actions.  However, DWC has made little use of such tools in recent years.

Copyright 2023, Stone Loughlin & Swanson, LLP

Stimulating Topic

Every so often DWC gets around to looking into medical treatments which may or may not be effective.  That is to see if Texas injured workers can benefit or could be harmed, and to evaluate the economic benefits to certain physicians.  Case in point is DWC’s recently announced intent to audit the use of spinal cord stimulators to determine the appropriateness of a physician’s decision to install one into the body of an injured worker, and the effectiveness of the device once installed.  The review will be part of and conducted under the auspices of the DWC’s Medical Quality Review Process. We mention here that these devices require preauthorization under Rule 134.600 so that medical necessity is evaluated by qualified Utilization Review Agent (URA) physicians.  It is unclear whether the audit will scrutinize URAs, the information requesting doctors send to the URA to justify medical necessity, the treatment guidelines criteria for stimulators, or all of the above.  Apparently even our friends “down under” are taking a look at this issue: To hell and back: Devices meant to ease pain are causing trauma.
 

Copyright 2023, Stone Loughlin & Swanson, LLP