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.
Readers may recall our
report in the March, 2022 installment of The Compendium
that Dr. Clinton Battle of Arlington Occupational and Medical Clinic had been
sentenced to 12 years in federal prison following his conviction for conspiracy
to distribute controlled substances and distribution of controlled substances.
Dr. Battle also pled guilty to conspiracy to commit mail fraud.
The U.S. Department of Justice advised in September, however, that Dr. Battle’s
scheduled release date has been changed to September 26, 2030. He is not
eligible for parole and will be 77 years old when released from prison.
Dr. Battle is also required to pay $376,368.00 in restitution and will be under
supervised release for three years after his imprisonment.
Copyright 2022, Stone Loughlin & Swanson, LLP
Chiropractors play a vital role in the Texas workers’ compensation system.
Therefore, we like to keep our readers apprised of the latest developments in
the field of chiropractic.
We don’t know much about TikTok; however, we understand this social media platform,
which enables subscribers to create and share short videos, is “blowing-up”
over a controversial new trend: chiropractic treatments for babies….babies as
young as 6 days old.
Proponents claim that the gentle “baby adjustments” are effective treatment for
a variety of baby ailments including colic, constipation, reflux,
musculoskeletal issues, and even the trauma experienced in childbirth.
Although manual treatments to address spinal conditions in adults were
reportedly used by Hippocrates around 400 B.C. and by Buddhist monks dating
back over 2,000 years, chiropractic as a “modern” profession began in 1895 when
Daniel David Palmer adjusted the spine of a deaf janitor which, Palmer claimed,
restored the janitor’s hearing. The primary issue, we understand, is
subluxation. Subluxations, or misalignments of the spinal vertebrae, are
thought by chiropractors to compromise and influence the function and health of
the nervous system in general and the various organ systems in the body.
Proponents argue that adjustments by a trained, qualified, and knowledgeable
practitioner to correct subluxation therefore promote proper nervous and organ
system function and health in general.
But for babies?
As you might expect, many physicians have expressed concern that spinal
manipulation of babies places them at greater risk for injury to their soft
developing bones and over-stretching of their looser joints. According to an
article in the Washington Post, one orthopedic surgeon at Children’s National
Hospital in Washington D.C., Dr. Sean Tabaie, commented that there is no way
one would achieve improvement in a newborn from manipulation. “The only thing
you might possibly cause is harm.”
On the other hand, a recent study of 58 colicky babies in Spain found that light
touch therapy resulted in a significant reduction of crying in those babies
receiving the treatment. The parents of the babies were aware of the treatment,
however, which can cause biased reporting of results.
And following a 2021 study in Denmark of 185 colicky babies, researchers
indicated data suggested that babies receiving chiropractic treatment “seemed”
to cry less; however, the findings were deemed not to be statistically
significant.
Call us old-fashioned, but we think we would opt for the extended 3:00 a.m. car
ride to soothe a colicky baby.
Copyright 2022, Stone Loughlin & Swanson, LLP
As we remind readers
on a regular basis, Stone, Loughlin & Swanson is a Founding Sponsor and
long-time supporter of Kids’ Chance of Texas, an organization whose mission is
to create and support scholarship programs to provide educational opportunities
for children in Texas who have had a parent catastrophically or fatally injured
while in the course and scope of his or her employment. As participants in the
Texas Workers’ Compensation system, we are particularly aware of the
devastating toll such an injury takes on a family and, especially, the
children.
Please help us continue to help the kids by becoming a participant or sponsor
and joining us for fun and camaraderie at The Cowboys Golf Club on October 28
for the Third Annual Kids’ Chance Texas Golf Tournament.
All proceeds will fund Kids’ Chance of Texas scholarships which has awarded
over $75,000 for the fall semester alone. Come help us reach our goal of
raising $150,000 while enjoying the delightfully maddening frustration that
only golfers can appreciate.
There is still time to help the kids this month! For more information and to
register as a player and/or sponsor, click here:
https://www.kidschanceoftexas.org/events/golf2022/
Copyright 2022, Stone Loughlin & Swanson, LLP
We are saddened to
announce that Gary Lynn Kilgore, long time Administrative Law Judge and Appeals
Panel Judge, with the Texas Workers’ Compensation Commission and the Texas
Department of Insurance-Division of Workers’ Compensation, passed away on September
23, 2022 at the age of 69.
Mr. Kilgore attended college at the University of Virginia and earned his Juris
Doctor in 1978 at the University of Texas School of Law. He served as managing
partner of Garcia & Kilgore, attorneys, for over 16 years before joining
the Texas Workers’ Compensation Commission where he served as an Appeals Panel
Judge for 12 years.
Thereafter, Gary heard cases as a Hearing Officer with the Division of Workers’
Compensation for 4 years before serving as Associate Director of Legal Services
with the Office of Injured Employee Counsel, in which capacity he served for
over 13 years.
Mr. Kilgore returned to the Appeals Panel in 2019 prior to his retirement this
year.
Those of us that knew Gary found him to be a wealth of knowledge regarding the
workers’ compensation law and institutional system in Texas. He was an
outstandingly gifted writer, a delightful conversationalist, and a student of
the law and American and world history. We will miss you, Gary….
Copyright 2022, Stone Loughlin & Swanson, LLP
August was chock full
of examples of this old adage! On the Division Disciplinary Order side of
things, orders were issued against Chadwick Lee, an attorney who received
payment directly from his client after being paid by the Carrier pursuant to an
attorney fee order. Apparently, Mr. Lee claimed he was underpaid by the
Carrier and informed his client he had to make up the difference. The
Division found Mr. Lee took fees in an amount in excess of the amount approved
by the Division and assessed a $5400.00 penalty. The Division also
assessed a $6,000 penalty against the Texas Pain Relief Group for failing to
comply with a Carrier refund request.
Meanwhile, down in San Antonio, the co-owner of Bill Hall Jr. Trucking Company,
turned herself in to authorities on outstanding warrants for workers’
compensation fraud. She is alleged to have defrauded Texas Mutual out of
over $9 million in insurance premiums by filing false payroll information and
concealing payroll reports. It is not Mrs. Hall’s first time in the
criminal spotlight though – in 2013, she was found guilty of killing her
husband when she chased him and his mistress on a rural stretch of Highway 1604
and hit him with her SUV - killing Hall and injuring his mistress. Ms.
Hall spent two years in the Lane Murray Unit of the Texas Department of Corrections
in Gatesville before being released to return to apparently less violent
criminal endeavors.
Last, but not certainly not least, last week, Austin barbeque aficionados were
shocked to hear that the owner and manager of a popular East Austin eatery, La
Barbecue, were indicted on workers’ compensation fraud charges. LeAnn
Mueller and her wife, Allison Clem, owned the restaurant in 2016 when an
employee was severely burned while using a piece of kitchen equipment. It
is alleged that four days later, they contacted an insurance company to obtain
workers’ compensation coverage and did not disclose the injury – in fact, they
asked that the policy be back-dated to three weeks before the accident
occurred. The application for the policy, signed by Mueller, attested
that there had been no previous losses. Travelers Casualty Insurance
Company has paid over $350,000 in medical and indemnity benefits to date.
The attorney for Mueller and Clem appears to be relying on an argument
that it is “perfectly legal to obtain a backdated policy in Texas” as a defense
to the fraud allegations. It will be interesting to see how this one
plays out.
Copyright 2022, Stone Loughlin & Swanson, LLP
Earlier this month, Governor Abbott appointed Jeff Nelson to the long-vacant post of Commissioner of Workers’ Compensation. Nelson previously served as Director of External Relations for the Division of Workers’ Compensation (a post he held since October of 2016). A graduate of the University of Texas, Commissioner Nelson has extensive experience with the Texas legislature including posts with Senator Tommy Williams, Governor Rick Perry and Congressman Kevin Brady. We look forward to working with Commissioner Nelson in the coming years.
Copyright 2022, Stone Loughlin & Swanson, LLP
Seven years ago, our
firm was honored to be part of launching the Texas chapter of Kids’ Chance, a
non-profit organization geared towards providing educational opportunities and
scholarships for the children of workers seriously or fatally injured on the job.
Kids’ Chance of Texas has gone from an organization struggling to find
recipients to a group of committed members who have supported nearly 50
students since 2015 that will have 31 scholarship students this year alone.
One of this year’s recipients is Mariam Falana, the 2022 Jim Hudak and
Sally Silvia Scholarship awardee, who will attend Rice University pursuing a
degree in neuroscience.
In her scholarship application, Mariam tells the story of being called to the
office from her gym class the day before her 13th birthday only to be told her
father had been killed in a motor vehicle accident while at work that day.
She reflected on the hardships thrust on her mother in her new role as
the sole breadwinner for the family and the ways her father’s death changed
Mariam’s perception of the small inconveniences that so many of us get wrapped
up in every day. She concluded by sharing that the memory of her father
served as constant motivation for her to live as he did “spreading laughter and
positivity as I challenge the conventions of today to innovate a better
tomorrow.” Mariam embodies the spirit of the young people Kids’ Chance of
Texas strives to serve each year.
One way Kids’ Chance of Texas has been able to expand its reach over the last
seven years is to take its show on the road. The Marketing Committee has
developed a Road Show strategy that involves mapping out all of the workers’
compensation industry conferences, meetings and activities for the year and
setting about staffing all of those events with volunteers and board
members. Those folks are equipped with a “kit” that includes banners,
displays and materials that have helped spread the word and reach as many
potential recipients as possible.
You too can be a part of Kids’ Chance of Texas! Please visit the website
at: www.kidschanceoftexas.org to donate, volunteer
or participate in an event.
SAVE THE DATE:
October 28, 2022 – Golf Tournament – Cowboys Golf Club, Grapevine Texas
Copyright 2022, Stone Loughlin & Swanson, LLP
For over 2 years now,
the Division has been collecting information from Carriers on COVID-19 claims.
The Research and Evaluation Group recently published their findings from
the collection of that data. A complete analysis of the information can
be found at:
https://www.tdi.texas.gov/wc/information/documents/covid19txwc0822.pdf.
Some of the key findings of the study were:
Copyright 2022, Stone Loughlin & Swanson, LLP
As the DWC continues
to see the number of designated doctors dwindling (there are now less than 300
on the list and only 65 of those are MDs), the agency has posted proposed
changes to various DWC rules dealing with the designated doctor program
including billing and reimbursement for designated doctor, RME and MMI/IR
examinations performed by treating and referral doctors. The first
informal proposal to the billing rules details changes to the methods for
billing – so no information is available regarding changes to the actual rates
charged for these examinations, which begs the question – will the
reimbursement rate increase enough to entice medical doctors to return to the
fold?
DWC will offer a virtual DD Billing and Reimbursement Rule Stakeholder Meeting
Thursday, September 8, 2022.
For more information: https://www.tdi.texas.gov/alert/event/2022/09/dwc0908.html.
At a recent conference, Division staff addressed an increasing problem in
finding qualified doctors to perform examinations for more complex injuries and
offered as a potential solution the plan to open up the qualification standards
to include all board certifications for those examinations requiring a
specialization and allowing the Division more discretion in appointing doctors
without specialization in those geographical regions where qualified doctors
are not currently on the list.
The Division focus certainly appears to be more on process and procedure rather
than addressing the more systemic problems of quality, quantity and oversight
of the remaining doctors on the list. For now, the Division appears to be
streamlining and reducing the amount of training, the frequency of testing and
the certification process in efforts to make being a designated doctor less
administratively burdensome for doctors.
Designated doctors and their administrators will, however, be required to use
the Division’s own TXCOMP system to accept and manage appointments AND file
their reports online beginning 9/19/22. The Division will be training
doctors in the use of the system. Apparently, RME doctors will also see pending
RME appointments in their TXCOMP profile and enter basic information to upload
their reports as well.
Copyright 2022, Stone Loughlin & Swanson, LLP
The question of
exclusive jurisdiction of the Texas Workers’ Compensation Act comes up often
and we get many questions about its application. The Austin Court of
Appeals recently took a look at a wrongful death case where a worker’s
potential beneficiaries did not file a claim for death benefits. The
beneficiaries took the position that he was not an employee. Texas Mutual
filed a BRC request. The Division held that the worker sustained a
compensable injury and his beneficiaries were entitled to death benefits.
However, his beneficiaries didn’t want death benefits. They wanted
to sue the worker’s employer in court without the limitations imposed by the
Act’s exclusive remedy provision. Therefore, the worker’s beneficiaries
argued that the Division did not have jurisdiction to determine they were
entitled to benefits because they didn’t file a workers’ compensation claim.
The Court of Appeals held that it didn’t matter whether the beneficiaries
filed a claim: “However,
we need not resolve that question to dispose of this case, as we conclude that
DWC had exclusive jurisdiction over the question of eligibility regardless of
whether there was, in fact, a pending claim or merely a potential claim.”
Long-standing case law holds that the Division, with its unique
expertise, has exclusive jurisdiction to resolve any question regarding
eligibility for workers' compensation benefits, including questions over
employment status. Sometimes plaintiffs seek to avoid the workers'
compensation system in hopes of a bigger payday in the courts. This case affirms that plaintiffs cannot
avoid the Division’s exclusive jurisdiction simply by electing not to file a
workers’ compensation claim. In Re Hellas Construction, Inc.
2022 WL 2975702 (July 28, 2022).
Copyright 2022, Stone Loughlin & Swanson, LLP