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.
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
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
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 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
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
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
If you have been around Texas comp for a while, you will remember some
interesting treatments prescribed by Texas doctors under the umbrella of things
that might relieve the effects of a work injury. For example, the
Theramed Bed, various iterations of electrical muscle stimulators (aka
transcutaneous electrical nerve stimulators), Vax-D (a spinal decompression
table), exercise bikes, recliners, mattresses, special shoes, hot tubs, and
placebo treatments galore. For those with an eye toward the lesson that
the past predicts the future, an entertaining read is Quackery: A Brief History of the Worst Ways to Cure
Everything. Some of the treatments (as we see nowadays),
seemed like good ideas at the time but were later determined either to be weird
and useless or weird and harmful. The common theme, however, is generally
profit, with the treatments often benefiting the doctor more than the patient.
Copyright 2023, Stone Loughlin & Swanson, LLP
Helpful reminder – July 31st is the last day-old versions of the following forms will be accepted by DWC: DWC Form-022; DWC Form-031; DWC Form-051; DWC Form-057. More riveting information regarding the new forms (always check for revisions) can be found on the DWC website. It isn’t clear what the consequence for using the old forms will be. However, beware.
Copyright 2023, Stone Loughlin & Swanson, LLP
EDI is thankfully something most of us never have to think about. But if you are into compliance issues (as in, avoiding TDI/DWC penalties) you want to know the Implementation Schedule for Claims Electronic Data Interchange Release 3.1.4. There are lots of DWC forms that have to be sent by way of EDI to DWC that give DWC a way to monitor insurance carrier performance and the delivery of benefits. We put this in the newsletter so that you can’t say we didn’t warn you. For more info, check out the implementation guide here.
Copyright 2023, Stone Loughlin & Swanson, LLP
We couldn’t help but state the obvious. Stay cool, and plan on supporting Kids’ Chance of Texas by coming to the Annual Kids’ Chance Golf Tournament in DFW. We can’t guarantee cool weather on October 23rd, but we can guarantee that it will feel good to support our Kids! Register NOW here. All levels of players are welcome!
Copyright 2023, Stone Loughlin & Swanson, LLP
That may soon be the question. Ever since reporting back in February 2022
that changes to TDI’s Plain Language Notice forms were on the horizon, eager
system participants have been dying to know when they will be able to use the
new versions. The wait is almost over! The new PLNs become
effective on the not-at-all-random date of July 26, 2023.
The new PLN-2B (Notice of First Payment of Income Benefits on an Acquired
Claim) distinguishes itself from the rechristened PLN-2A (Notice of First
Temporary Income Benefit Payment) by apprising its recipient that his/her claim
administrator has changed and will be sending its first payment. Astute
readers will notice that 2A is limited to Temporary Income Benefits, while 2B
pertains to the first Income Benefit of any type paid by the new administrator
and omits any reference to the injured workers’ average weekly wage. Form
2B should only be used to report the first payment on an acquired claim.
Not to be outdone, the PLN-10 (Reinstatement of Indemnity Benefits) shall
henceforth be known as PLN-10A, while the sleek new PLN-10B alerts injured
workers or beneficiaries to expect a lump sum payment of workers’ compensation
benefits, with the type, amount, and reason for the benefit explained
therein. System participants will be seeing a lot of the PLN-10B, as it
is to be used whenever lump sum payments are issued pursuant to a DWC-24
agreement, a Decision and Order, an interlocutory order, an Appeals Panel Decision,
an advance/acceleration/commutation of benefits, or when past due benefits are
paid with interest.
The time-honored PLN-11 Notice of Disputed Issues and Refusal to Pay Benefits
comes with a new admonition in its instructions. If disability is in dispute,
the Carrier must file the requisite Electronic Data Interchange (EDI)
transaction before the notice of refusal to pay benefits will be considered
complete.
Other changes to the revised forms, including the PLN-8, PLN-10A, PLN-11, and
PLN-14 are more subtle, mostly involving the insertion of the word “Insurance”
before “Carrier” throughout each. This serves as a helpful reminder that
it is Insurance Carriers
who should be using these forms, not any of the following groups:
Copyright 2023, Stone Loughlin & Swanson, LLP