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

WTH is an OARFI?

When we dusted off our rule book to look at the rules in the aforementioned chapters of the Administrative Code, we discovered all kinds of little treasures. For example, many acronyms that we use every day in the system, such as AWW, BRC, MMI, etc., are actually codified in DWC Rule 102.7. Others, such as BRO, DD, LOC, POD, etc. are not included. 

This past month saw some new acronyms enter the system, resulting in a new form and some new additions to DWC staff hierarchy.  

You might recall that the new DD request form (DWC032) implemented on 6/5/23 does not include a box for the Carrier to identify the accepted condition and thus, the DD determines the compensable injury during the exam. In the April edition of The Compendium, our own Erika Copeland predicted that the change to the DWC032 would create more problems with informal resolution. Kudos to Erika and her foresight, because the new OARFI (“Request for Information”) appears to be the first attempt at righting the ship. The OARFI lists multiple conditions and requests that the Carrier check whether it “Accepts” or “Disputes” the condition. It also asks the parties to identify any additional injuries that they believe should be considered when assessing MMI or the impairment rating. The parties are asked to send the information to a named “Benefit Review Officer” within three business days, and notice is given that the information is for “mediation purposes only.” The Carrier is told that the answers are not binding and that they can change their mind but inaccurate answers will likely cause additional exams and delays in the dispute resolution process. Likewise, to date there doesn’t appear to be any penalty associated with not returning the form.

The “Benefit Review Officer” named on the form is actually known as a “BRO-1” (which begs the question – is the BRO that presides over the BRC now known as “Big Bro”?). The BRO-1 has been charged with looking at issues before a BRC and requesting information of the parties so a Presiding Officer’s Directive (POD) can be sent to the DD.

Meanwhile, we have been informed that if you need to request the status of LOC requests or responses, DD reports, or RME reports, you need to contact the Proceeding Resolution Officer or “PRO.” If you are seeking information about scheduling, resets, requests for dates, motions, subpoenas, agreements, or interpreter requests, you need to contact the Docketer.

Unfortunately, we do not have the key to knowing who actually handles the docketing for each field office nor are we able to keep up with the frequent changes in PRO assignments. Our wish list for next month includes periodic information updates from the DWC regarding these changes. Until then, here is our (non)helpful chart of how this works on a daily basis.

Copyright 2023, Stone Loughlin & Swanson, LLP

Who Ya' Gonna Call?

Disclaimer: This is not an actual flow chart and is not intended to accurately represent real persons or events.

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 

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 

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 

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 

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 

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

You Just Had to Be There

DWC has for years hosted a conference for stakeholders.  This year the conference came around again on the August calendar in Austin. There was something a little different and refreshing this year– the tone and focus of one of the more memorable presentations.  The WorkCompCollege presenters went well beyond comp basics, calling for a paradigm shift in the way we view the role of workers’ compensation by suggesting the focus should shift from only compensating injured workers to focusing on helping them recover.  A new name could be the Workers’ Recovery System (this writer’s suggestion, not theirs). 
 
Their panel discussion addressed what a whole person recovery mind set can look like.  From rebranding to reflect the higher purpose of comp, to looking beyond the physical to consider psychosocial issues, to choosing words and attitudes carefully, the discussions included suggestions on best practices to enable this change in approach to take hold.  Perhaps if it does, less regulation would result and injured workers would be better served. Maybe the lawyers would be out of business. Definitely something to think about! If you want to know more about this new idea, contact Mark Pew at mpew@workcompcollege.com. Mark has a great work sheet he can send you called Establishing a Whole Person Recovery Mindset in Workers’ Compensation.

Copyright 2023, Stone Loughlin & Swanson, LLP