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.
Earlier this month, we
at SLS experienced a first in appellate jurisprudence when our own Robert
Greenlaw was tasked with responding to an appeal in which the claimant
requested the Division Appeals Panel reverse a CCH Decision in his favor on issues
of extent of injury, MMI, impairment rating and disability. Yes, you read
that correctly – despite the fact that the Carrier had accepted all conditions
previously in dispute, and the fact that the designated doctor and post-DD RME
doctor agreed (as did the Carrier) that the claimant reached MMI on the
statutory date, rather than an earlier clinical date – the claimant insisted on
a CCH. Not surprisingly – at least to the Carrier – the ALJ found that
all of the claimed conditions were compensable, pushed the MMI date out to the
latest dated allowable by law, assigned the impairment rating agreed upon by
both the designated doctor and the RME doctor, and awarded almost 10 months of
disability.
Incredibly, for reasons known only to the Claimant, he asked the Appeals Panel
to reverse that decision. As Mr. Greenlaw pointed out in his response to
this novel appeal, the claimant expended extraordinary efforts throughout the
life of his claim in complaints about his adjusters, doctors, ombudsmen and, of
course, the Carrier’s attorney. While the Carrier did not appeal the
D&O, Rob found himself agreeing with the claimant on appeal and joining in
his request that the Appeals Panel reverse the CCH D&O in his favor on all
of the issues.
Copyright 2022, Stone Loughlin & Swanson, LLP
As we come to the end
of July, Texas continues to bake even more than most summers with no relief in
sight. This means more workers’ compensation claims from heat-related
injuries such as heat stroke. To help prevent heat-related illnesses, the
Division provides a great deal of useful information on its website including
fact sheets and videos. Here are just a few examples:
https://www.tdi.texas.gov/tips/safety/heathazards.html
https://www.tdi.texas.gov/pubs/videoresource/fsheatinjur.pdf
The pandemic-induced work from home trend has yielded some surprising
advantages. However, one of the most unexpected may be that you never
have to leave your house for your job and risk a work-related sunburn.
For those of us lucky enough to be working in air-conditioned offices or
spare bedrooms this summer, let’s take a moment to say thanks for everyone
toiling outside in the blazing inferno.
Copyright 2022, Stone Loughlin & Swanson, LLP
The Division entered
into a consent order with American Zurich Insurance Company fining it
$72,000.00 for multiple violations including failure to pay accrued income
benefits based on a designated doctor report, failure to timely pay impairment
income benefits, failure to timely act on a medical bill, failure to timely
initiate payment of accrued temporary income benefits, failure to timely pay
initial TIBs, failure to timely or accurately report EDI data to DWC, failure
to pay subsequent quarters of supplemental income benefits, failure to timely
pay attorney fees ordered by DWC, failure to timely comply with a final
contested case hearing decision and order, and failure to timely notify of
decision for preauthorization. Consent Order No. 2022-7361, July 6, 2022.
The Division entered into a consent order with South Texas Health System fining
it $6,500.00 for improperly pursuing a private claim against an injured
employee. Consent Order No. 2022-7363, July 7, 2022. The
Workers’ Compensation Act prohibits health care providers from billing injured
employees for treatment of their work injuries. While some hospitals may
not be aware of this prohibition, others are so concerned about violating it
that they bill the workers’ compensation carrier for all treatment rendered to
an injured employee regardless of whether the treatment had anything to do with
the work injury. This practice, done out of an abundance of caution,
often creates unnecessary subclaimant disputes.
Copyright 2022, Stone Loughlin & Swanson, LLP
Temporary worker
Demetrius Grant was hired by staffing company Arrow Personnel and assigned to
work at client company Wind Turbine and Energy Cables (WTEC) where he was
injured. He sued Arrow, WTEC, and other entities for negligence.
The Fort Worth Court of Appeals held that Grant’s suit against WTEC is
barred by the exclusive remedy defense because: 1) WTEC was Grant’s employer at
the time of the injury based on a right-of- control analysis, and 2) WTEC was
covered by a workers’ compensation policy. Arrow was not a subscriber to
workers’ compensation and therefore, not entitled to assert the exclusive
remedy defense. The court nonetheless held that Grant could not sue Arrow
for negligence because Arrow was not his employer under the right-of-control
test with respect to the work at issue and therefore, owed him no duty.
Although not expressly stated by the court, the takeaway here is that
Grant’s remedy for his injury is workers’ compensation benefits under WTEC’s
policy.
Grant v. Wind Turbine and
Energy Cables Corp., et al., No.
02-21-00036-CV, 2022 WL 2840142 (Tex. App.—Ft. Worth July 21, 2022, no pet.)
(mem. op.).
Copyright 2022, Stone Loughlin & Swanson, LLP
Pro se workers’
compensation claimant Alvy Childress filed suit for judicial review of a
Division decision denying his claim for benefits. Childress named as defendants
his employer, the carrier, and the Division. The Division filed a plea to the
jurisdiction which the trial court granted, and Childress appealed. The Third
Court of Appeals affirmed the trial court’s order granting the Division’s plea
to the jurisdiction. Childress complained on appeal about the hearing he
received at the Division including the fact that it was held by telephone due
to the pandemic and that he was allegedly prevented from presenting evidence or
reviewing or verifying evidence presented at the hearing.
The court of appeals’ decision doesn’t announce any new law but does affirm
some long-held principles. First, pro se litigants are held to the same
standards as represented parties, even at the appellate level. “We
construe appellant’s brief liberally, attempting to discern and comprehend his
appellate issues as best we can, but we must hold him to the same standards as
appellants represented by counsel.” As courts have explained before, if
this were not the case, unrepresented parties would have an unfair
advantage. Second, the Division is not a proper party to a suit for
judicial review. The court cites numerous cases for the proposition that the
Texas Workers’ Compensation Act does not waive the state’s sovereign immunity
and provide a claimant with the right to sue the Division in a judicial review
action.
Childress v. Travelers
Indemn. Co., et al., No.
03-21-00579-CV, 2022 WL 2542005 (Tex. App.—Austin July 8, 2022, no pet.) (mem.
op.).
Copyright 2022, Stone Loughlin & Swanson, LLP
We can officially report
that Robin Holm (known to system participants as Robin Lowenkron) is the new
Administrative Law Judge in the Houston West Field Office. She replaces
Eric Robertson who left the Division to enter private practice. Ms. Holm
née Lowenkron worked for Smith & Carr for more than a decade and was a very
well-respected attorney among the Division judges. We welcome Judge Holm
to the bench!
Copyright 2022, Stone Loughlin & Swanson, LLP
The Division announced
its health care provider PBO assessment methodology on July 26th. The memo states that one of the assessment
measures will be whether the provider explained how the work injury prevents
the injured employee from working in any capacity.
This is a perennial problem where the provider checks the “complete inability
to work” box but doesn’t explain how the injury prevents the injured employee
from returning to work:
Division Rule 129.5 requires the doctor to explain how the claimant’s injury
prevents them from working in order for the report to be considered complete.
Carriers are not required to reimburse doctors for incomplete work status
reports. In addition, the failure to provide a complete report may also
constitute an administrative violation.
Requiring providers to explain why the claimant can’t return to work in any
capacity may cause providers to consider more closely whether the claimant
could be working with restrictions. Doing so may facilitate early return to
work which benefits the injured employee and the employer.
Copyright 2022, Stone Loughlin & Swanson, LLP
The average hourly
rate for lawyers in Texas varies by practice type from $130 per hour for
juvenile law to $415 per hour for mediation/arbitration, according to a report
from Clio, a legal billing software company: https://www.clio.com/resources/legal-trends/compare-lawyer-rates/tx/
Comparing the hourly rates for workers’ compensation with other practice types,
workers’ compensation attorney fees are the least expensive of any practice
area other than juvenile law which usually involves court appointments for
juvenile criminal court proceedings.
From 1991 to 2015, workers’ compensation attorney fees were capped at $150 per
hour. In 2015, the Division raised the cap to $200 per hour where it
remains today. However, many claimant and carrier attorneys charge less than the
cap putting the average rate at around $175 per hour.
Comparing this rate to the rate for other practice areas makes workers’
compensation look like a real bargain. Examples of the hourly rate for
other practice types include administrative law at $317, bankruptcy law at
$360, civil litigation $297, employment/labor law at $314, family law at $279,
and real estate at $293. The hourly rate for workers’ compensation is
even on par with the hourly rate charged by some plumbers and auto mechanics, as
demand for those services has increased.
The hourly rate for workers’ compensation law looks even better when
considering the level of expertise of the workers’ compensation bar as a whole.
Many of its practitioners are board-certified in workers’ compensation and have
been in practice for twenty or more years. Also good news is that the average
legal costs per claim have decreased since the elimination of in-person benefit
review conferences. Attorneys no longer have to travel to attend BRCs now that
they are all conducted by telephone or videoconference. This pandemic-induced
change was made permanent effective December 9, 2021.
However, one downside of the low rates for workers’ compensation is that they
seem to be attracting fewer new attorneys to the practice of workers’
compensation law. The workers’ compensation bar is graying and as
experienced workers’ compensation attorneys retire, they’re not necessarily
being replaced. There will also continue to be economic pressure on
workers’ compensation attorneys to raise their rates (subject to the cap) due
to the significant inflation our country is currently experiencing.
Copyright 2022, Stone Loughlin & Swanson, LLP
Sandra Bullock once
played a character known as “Accident Amy” on the George Lopez Show. “Accident Amy” was so-named
by her co-workers because she was accident prone and always getting hurt at
work. You can see “Accident Amy” in action here: https://www.youtube.com/watch?v=e89asOS0rIU.
We recently came across our very own “Accident Amy” when DWC’s response to our
request for a record check revealed our claimant had a total of 12 workers’
compensation claims. This prompted the following suggestion about how she
ought to dress at work:
Copyright 2022, Stone Loughlin & Swanson, LLP
Color us skeptical, but new research suggests that chiropractic care may,
indeed, lead to lower costs in some
types of workers’ compensation claims.
The Workers’ Compensation Research Institute (WCRI) announced last month the
release of its new study titled Chiropractic
Care for Workers with Low Back Pain, which considered data from 28
states, including Texas. The results may be surprising to some. Among the
study’s key findings were that claims with care provided exclusively by
chiropractors were associated with lower costs and shorter duration of
temporary disability than a set of claims with similar characteristics where
care was exclusively provided by non-chiropractic providers.
More cocktail party trivia:
According to its website, the WCRI is an independent, not-for-profit research
organization based in Cambridge, Massachusetts. Organized in 1983, the
Institute does not take positions on the issues it researches; rather, it
provides information obtained through studies and data collection efforts which
conform to recognized scientific methods. Objectivity is further insured
through rigorous, unbiased peer review procedures.
Copyright 2022, Stone Loughlin & Swanson, LLP