State News : Texas

NWCDN is a network of law firms dedicated to protecting employers in workers’ compensation claims.


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.


Texas

STONE LOUGHLIN & SWANSON, LLP

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  512-343-1300

  512-343-1385

DWC Seeks Comments on Proposed Rule Amending TAC Chapter 147


The Texas Department of Insurance, Division of Workers’ Compensation is accepting public comments on a proposed rule amending TAC Chapter 147 concerning dispute resolution through agreements and settlements.
 
The rulemaking will amend 28 TAC §§ 147.4, 147,5, 1247.7, 147.10 and 147.11. Sections 147.1, 147.2, 147.3, 147.6, 147.8, and 147.9 will be repealed and a new § 147.1 added.
 
The amendments are calculated to streamline the agreements and settlements process and eliminate unnecessary work for DWC staff.
 
The proposed new rule will be published in the April 5, 2024 issue of the Texas Register and available at http://www.sos.state.tx.us/texreg/index.shtml. A copy of the proposed rule is also posted on the Division website at http://www.tdi.texas.gov/wc/rules/2024rules.html.
 
Comments may be submitted to RuleComments@tdi.texas.gov.
 
The deadline to submit comments is May 6, 2024.

 

Copyright 2024, Stone Loughlin & Swanson, LLP  

DWC Also Seeking Comments on Proposed Rule Amending TAC Section 180.2


The Division is also accepting public comments on a proposed rule amending 28 TAC § 180.2 to ensure that no health care provider or agent can use the DWC’s complaint process to bypass the medical fee dispute resolution filing deadline in 28 TAC § 133.307(c).
 
The proposed rule was published in the March 22, 2024 issue of the Texas Register and is available at http://www.sos.state.tx.us/texreg/index.shtml. A copy of the proposed rule is also posted on the Division website at http://www.tdi.texas.gov/wc/rules/2024rules.html.
 
A public hearing on the proposed rules will be held at 11:00 a.m., Central time, on April 16, 2024.
 
Written comments on the proposed rule may be submitted to RuleComments@tdi.texas.gov.
 
The deadline to submit comments is 5 p.m., Central time, on April 22, 2024.


Copyright 2024, Stone Loughlin & Swanson, LLP 

It’s a beautiful Monday and with Spring just around the corner, we can’t help but be happy. After all, “Here Comes the Sun” (The Beatles) and we are looking forward to “Spring Vacation” (The Beach Boys)! There’s nothing like the power of music to help enhance the mood and make everything better!
 

"I Want You Back" (The Jackson 5)

 

 
We’ve frequently sounded the alarm over the years about the serious decline in the numbers of qualified doctors providing services in the workers’ comp system. Low reimbursement rates are one reason for the mass exodus from the system. After all, DWC has not adjusted reimbursement rates for workers’ compensation providers since January 2008. (Per a nifty online inflation calculator, $100 in 2008 has the same purchasing power in 2024 as $139.73.) 

Noting that this decline has been “particularly pronounced” among certified designated doctors and “especially” among licensed medical doctors and doctors of osteopathy, new rules were finally adopted this past month to more fairly compensate doctors performing MMI/IR and other DD exams. In sum, the rules were amended to: 
  • adjust fees by applying the Medicare Economic Index (MEI) percentage adjustment factor, with an annual adjustment on January 1st;
  • eliminate unnecessary billing modifiers and replace the diagnosis-related estimate (DRE) and range of motion (ROM) billing methods with a single method of billing;
  • create a $100 missed appointment fee and a $300 specialist fee;
  • pay DDs and RMEs for all issues addressed within one exam without reduction;
  • require an “assignment number” to assist a carrier with identifying a bill as originating from a designated doctor or a DD’s referral;
  • clarify that the 95-day period for submission of a DD’s bill begins on the date of service for additional testing or referral evaluation.
The new rules will take effect on June 1, 2024.

"Money" (Pink Floyd)

 
Here are the top-billing workers’ compensation attorneys for 2023 according to the DWC along with the average number of hours worked per day assuming they billed at the DWC’s maximum rate of $200 per hour and worked every single day of the year, weekends and holidays included: 
 
Carrier AttorneyApproved FeesHours Per Day
Dean Pappas$923,472.5012.65
Jeremy Lunn$640,487.008.77
Mark Midkiff$523,012.207.16
   
Claimant AttorneyApproved FeesHours Per Day
Adam Henderson$1,029,800.0014.10
Bill Abbott$923,175.0012.64
Fyodor Clay$817,950.0011.20
 
On the claimant attorney side, Adam Henderson moves up from number two to number one this year overtaking Bill Abbott who was number one in 2022. Mr. Henderson was indicted for billing fraud by a Travis County grand jury in 2021. You can read the indictment here. Mr. Henderson’s criminal case remains pending with a pre-trial hearing scheduled for March 20, 2024. 
 
To view the amount of approved attorney’s fees for each of the top 100 Claimant and Carrier workers’ compensation attorneys for 2023, click the following link: Top 100 2023.


Copyright 2024, Stone Loughlin & Swanson, LLP 

“Hello Again” (Neil Diamond)

 
We sometimes question whether appeals from bad CCH decisions end up in File 13, as the few decisions that are rendered each month by the Appeals Panel often address trivial issues like a “stipulation…incorrectly identifies a cervical strain rather than cervical sprain” (APD 231661). So we get excited when the Panel issues a decision that actually addresses the merits of a case. This month, we present two examples of decisions that give us hope: 

The Appeals Panel reversed an ALJ who adopted a designated doctor’s 20% impairment rating, which was assessed for “requiring routine use of cane” when the records reflected the claimant did not require routine use of a cane. The Appeals Panel refused to adopt a certification by the post-DD required medical examiner because the doctor assigned impairment ratings based only on his observations of the claimant while in and outside the office due to the claimant’s refusal to complete paperwork or undergo an examination unless he was allowed to record the exam and have a witness other than his treating doctor. The Panel thus remanded the case to the ALJ with instructions to ask the DD why he assigned an IR that required routine use of a cane when the claimant was independent with ambulation activities without the need of an assistive device. (AP Decision No. 231830) Note: The Appeals Panel did not address what the Carrier’s remedy is when they are thwarted by a claimant from obtaining an opinion from an RME doctor, although they did reference Rule 126.6(j) in a footnote and state that this was not an issue in the instant case. Rule 126.6(j) merely provides a carrier the right to suspend TIBs if a claimant fails to attend an RME and fails to reschedule. 

The Appeals Panel reversed an ALJ who found that a carrier did not sufficiently raise a defense of horseplay on its PLN-1 and therefore, the carrier was deemed liable for an injury despite the fact that the claimant’s horseplay was a producing cause of the injury. The Panel noted that “magic words are not necessary to contest the compensability” of a claim and reversing the ALJ, said that the carrier had sufficiently described the reasons for the dispute when it wrote “Investigation reveals the injured worker was riding a co-workers [sic] motorcycle recklessly at the time of the injury and was not furthering the affairs of the employer at the time of this incident.” (AP Decision No. 231750)
 

 

"Tell Me What I Did Wrong" (James Brown)


The DWC is soliciting suggestions for new rules or revisions to DWC’s existing rules. If you have a proposal, you can complete the form on the TDI website here.

“Let’s Get Together” (Hayley Mills)



DWC is offering quarterly webinars through Zoom to help system participants keep up with the latest information and trends. Sign up here for invitations to register each quarter.

Webinar recordings will be available at any time on the CompCourses webpage here.
 

“So Long, Farewell” (Rodgers & Hammerstein)



 
Our kind friend, Benefit Review Officer Catherine Ripley, is retiring from the Division in a few short weeks. We wish her well!

“Like a Surgeon” (“Weird Al” Yankovic)

 
Under the category of notable enforcement actions, Richard Levy, MD (Dallas) was recently cited for performing unreasonable or medically unnecessary procedures, failing to document adequate explanations for deviating from the ODG, and submitting substantially similar reports amongst three different injured employees.  

Dr. Levy was ordered to pay an administrative penalty of $3,000; to attend and successfully complete a medical record keeping seminar and six hours of continuing medical education on the topic of shoulder arthroscopy or orthopedic shoulder surgery; and to purchase and maintain a current subscription to the ODG.

Also notable, James William Butler, MD (Houston) received a public reprimand for repeatedly failing to submit a DD report timely and was ordered to pay a penalty of $500. 

“Born on the Bayou” (Creedence Clearwater Revival)

 
For those of you who are clients of Stone Loughlin & Swanson, we would love to offer you the invitation to attend the upcoming NWCDN conference in New Orleans May 16th. Details will follow, but if you would like to be invited, please respond to Jane Stone and it will be done!
 

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