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 October 20, 2022, the Texas Comptroller’s office ruled in a Private Letter that Designated Doctor exam charges are now taxable. We worry that this sales-and-use tax will drive the remaining Designated Doctors and independent doctors who perform Required Medical Exams and peer reviews further out of the system. The decision is specific to Designated Doctors, but the rationale may apply across the board for doctors who provide services other than medical treatment for system participants. Of note, sales tax has to be collected “up front”, even before the doctor is paid his fee for the services, and even if they never get paid (or are paid late) on their bill. No doubt the DWC will have some head-scratching to do to figure out the EDI ramifications of this development, since the decision specifically states that these services are not medical treatment. Might this mean that there is no EDI reporting requirement? We shall see once the dust clears. We note that large exam scheduling companies can best handle this new administrative burden. The word is that DWC took the position with the Comptroller that these services should not be subject to sales-and-use tax. So much for the concept of comity.
Copyright 2022, Stone Loughlin & Swanson, LLP
Crime doesn’t pay
forever. On October 11, 2022, Ms. Khyati Undavia, owner of Memorial Compounding
Pharmacy, was sentenced to 27 months in prison by U.S. District Judge Andrew
Hanen. Ms. Undavia was indicted on July 9, 2021 for conspiracy to defraud
federal government programs by billing for compounded drugs that were not
medically necessary and that she paid doctors an illegal kickback to prescribe.
She pled guilty on October 12, 2021. The judgment against Ms. Undavia
orders her to pay restitution of six million dollars to Tricare and six million
dollars to the U.S. Department of Labor, Office of Workers’ Compensation
Programs (DOL-OWCP).
Memorial Compounding Pharmacy was also active in the Texas workers’
compensation system. The Division issued numerous medical fee dispute
decisions ordering carriers to pay Memorial for its expensive compounded
topical creams on the grounds that Memorial didn’t have to get
preauthorization. Nonetheless, at least three different SOAH administrative law
judges have reached the opposite conclusion that Memorial was required to
obtain preauthorization for its compounded creams and therefore, it should not
be paid. Upon her release, Ms. Undavia will be excluded from
participating as a provider in Medicare, Medicaid, and all Federal health care
programs. However, the judgment does not prevent her from participating in the
Texas workers’ compensation system. We may see her again one day.
To view the judgment, click here.
Copyright 2022, Stone Loughlin & Swanson, LLP
Amber Morgan is moving up to the DWC’s Appeals Panel from her position as an Administrative Law Judge. She also has the distinction of having the position of president of the Texas State Bar Worker’s Compensation section. Also on the move is Nick Morgan, who will make the transition from private practice representing injured workers to be the resident administrative law judge in the Waco field office. We look forward to these changes and wish them both the best!
Copyright 2022, Stone Loughlin & Swanson, LLP
DWC’s Subsequent Injury Fund (a separate account at the State Treasury) was recently audited by an actuary. The SIF is funded solely by death benefit payments from insurance carriers where a compensable death occurs but there is no eligible beneficiary, or the claim for benefits is untimely. We don’t understand all the numbers, but the bottom line appears to be that insurance carriers are safe from being assessed to make up for any negative balance at the SIF for the foreseeable future. A link to the report can be found here.
Copyright 2022, Stone Loughlin & Swanson, LLP
No, not that Meta.
Meta-analysis of medical data. We were surprised to read an article
summarizing that many common orthopedic procedures don’t have a lot of evidence
supporting their efficacy. The article reviewed the 8 most common
surgical procedures and compared the outcome to non-surgical treatment of the
underlying conditions. In only two cases did the study show that surgical
treatment was the more effective – carpal tunnel release, and total knee
replacement. The study showed no difference in outcome for partial
meniscectomy, rotatory cuff repair, subacromial decompression, anterior
cruciate ligament reconstruction, lumbar spine decompression, and lumbar
fusion. One wonders if before recommending these surgeries to injured
workers their doctors make this information available to them. We wish someone
would do a study specific to Texas workers’ compensation medical treatment, and
better yet, to individual surgeons who are frequent actors in the Texas system.
A link to the article is here.
Copyright 2022, Stone Loughlin & Swanson, LLP
As of this month, the DWC has yet another revised Employer’s Wage Statement on its website. We appreciate that there is no “fine print” and the form is much easier to read and to understand and the instructions attached to are much clearer than those that came with the prior form. This is a good time to remind our readers that it is the employer’s responsibility to complete this form and file it with the insurance carrier, the claimant, and the claimant’s representative within the earliest of the date the employer is notified that the employee is entitled to income benefits, or the the date the employee’s death is a result of a compensable injury; and within seven days of getting a request from DWC for a copy of the form. The employer can be fined for failure to provide a DWC 3, but the consequence to the carrier of the employer’s failure to comply is sometimes only realized when the carrier makes a claim to the Subsequent Injury Fund for reimbursement. If DWC can’t verify the correct Average Weekly Wage by reviewing an accurately completed DWC 3, reimbursement is likely to be denied. You can find the new form here.
Copyright 2022, Stone Loughlin & Swanson, LLP
We have learned that,
effective September 1, 2022, ombudsmen are now required to place a call to a
Claimant who fails to timely call or Zoom into a benefit review conference.
While we have yet to see a formal memo or bulletin confirming this new policy,
we think it a good one which may avoid needless delay in the dispute resolution
process resulting from an unrepresented Claimant’s forgetfulness or inability
to negotiate the Zoom platform. Rather than simply resetting the proceeding to
a later date, we think a call from the ombudsman to the non-appearing Claimant
may salvage the BRC setting and result in productive mediation of the parties’
disputes.
Copyright 2022, Stone Loughlin & Swanson, LLP
The Division has announced the State AWW and maximum/minimum weekly benefits
for the period from October 1, 2022 through September 30, 2023 as follows:
State Average Weekly Wage:
$1,111.55
Maximum Temporary Income Benefits: $1,112.00
Minimum Temporary Income Benefits: $
167.00
Maximum Impairment Income Benefits: $ 778.00
Minimum Impairment Income Benefits: $
167.00
Maximum Supplemental Income Benefits: $ 778.00
Maximum Lifetime Income Benefits:
$1,112.00
Minimum Lifetime Income Benefits:
$ 167.00
Maximum Death Benefits:
$1,112.00
Copyright 2022, Stone Loughlin & Swanson, LLP
The Division is accepting public comments on amendments to Rule 102.11(b)(1).
The proposed rule was published in the September 23, 2022 issue of the Texas Register and on the TDI
website. Comments may be submitted through 5:00 p.m. on October 24, 2022.
Insofar as the amended rule simply corrects and updates the address of the
Division website providing specific data requirements, data set transactions,
data mapping, data edits and fees per record to the correct current domain, we
expect few comments will be received.
The proposed changes direct the public to www.tdi.texas.gov/wc.
A copy of the proposed rule may be accessed here:
http://www.tdi.texas.gov/wc/rules/2022rules.html
Copyright 2022, Stone Loughlin & Swanson, LLP
We reported back in April, 2021 that the Division would be relocating its
Austin headquarters to the new Capitol Complex at 1601 Congress Avenue in the
summer of 2022.
In May of this year, however, we reported that plans had changed and
operations, including hearings, would continue at the current Metro Center
Drive location through the summer of 2022. The move date to the new location
would be announced when finalized.
Although we have seen no formal announcement, we now understand that the Austin
Field Office will move to the new Barbara Jordan State Office Building at 1601
Congress Avenue on October 10. Director of Media Relations for the Division,
Kate Sidora, advises that there are still a few items to work out but nothing
that will change the move-in date. We are not yet certain where system
participants with business in the field office will be required to park but
will update readers in the near future.
Copyright 2022, Stone Loughlin & Swanson, LLP