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.
DWC has proposed a
rule addressing a little-known problem. In some circumstances SIF can
issue Lifetime Income Benefit payments to an employee who meets the criteria.
Of course the employee must be alive to receive them. This new rule
proposal protects the Fund by providing a process to verify that a LIBs
recipient is still among the living before the payments are issued.
Public comments are being accepted to proposed Rule 131.5. (CITE)
Copyright 2024, Stone Loughlin & Swanson, LLP
Attorney Colby Liesman
is reported to be the newest ALJ to come on board at the agency. He got
his law degree at the Florida Coastal School of Law in 2017 and was licensed to
practice law in Texas in 2018. Prior to his employment at the agency, his
practice areas included business, criminal, family and probate law. His
wide range of expertise will serve him well in his new role dealing with
claimants, the administrative process, and the lawyers who practice the
interesting and complex field of workers’ compensation. Welcome, Judge Liesman!
Copyright 2024, Stone Loughlin & Swanson, LLP
TOY GROUP
How Exclusive is “Exclusive”
The stage is set for
the Supreme Court of Texas to weigh in on whether a plaintiff can bypass the
DWC adjudication process and, instead, have a trial court consider the merits
of a defendant’s exclusive remedy defense in a plaintiff’s personal injury lawsuit.
The courts are now officially split on the issue. In January of 2023, the
13th Court of Appeals decided UTRGV v Oteka, and decided Ms. Oteka
did not need to exhaust her administrative remedies with the DWC before filing
her personal injury suit and the trial court had jurisdiction to deny UTRGV’s
plea to the jurisdiction. No. 13-22-00063-CV, 2023-WL 413587 (Tex. App. –
Corpus Christi – Edinburg Jan. 26, 2023, pet. filed) (mem. op.)
Noting UTRGV had not had the merits of the exclusive remedies
defense considered by the trial court, instead moving for dismissal on the
grounds that the course and scope issue was the exclusive jurisdiction of the
Division, the Valley Court of Appeals concluded that “Oteka’s suit is not based
on the ultimate question of whether she is eligible for workers’ compensation
benefits. As we previously observed, it is ‘just the opposite, if
[Oteka’s] injury is compensable, this would likely bar [her]suit pursuant to
the exclusive-remedy defense.’”
Fast forward to August 20, 2024, when the 1st Court of Appeals in
Houston took the completely opposite position. The Houston Court spent
quite a bit of time unpacking the Texas Workers’ Compensation Act and the legal
precedent supporting their holding that failure to exhaust the administrative
remedies required by the Act deprived the trial court of subject matter
jurisdiction over the personal injury lawsuit filed by the plaintiff in In Re Prentis, a
mandamus action filed by the defendants in a personal injury suit filed by Desi
Sykes arising out of claimed work injury. (No. 01-23-00616-CV, 2024 WL
3862953(Tex. App. – Houston [1st. Dist] August 20, 2024).
The 1st Court of Appeals reasoned that the Act vested the Division
with the sole authority to determine whether an employee sustained a
compensable injury thereby entitling him to workers’ compensation benefits and
that same Act provides the mechanism for resolving disputes regarding those
claimed injuries.
Sykes’ thought that the fact that whether he was injured in the course and
scope of his employment was “hotly contested” conferred jurisdiction on the
trial court and allowed him to bypass the DWC administrative process. The
1st Court disagreed. The Court of Appeals held, to the
contrary, that the Legislature conferred exclusive jurisdiction on the DWC “to
consider in the first instance the question of compensability, including the
question of course and scope” and Sykes failed to exhaust his administrative
remedies, necessarily depriving the trial court of jurisdiction over the
matter. The 1st Court determined abatement, rather than
dismissal was the appropriate remedy, pending the exhaustion of Mr. Sykes’
administrative remedies. The 1st Court conditionally granted
the Petition for Mandamus feeling confident the trial court would vacate its
order denying the Plea to the Jurisdiction and issue and order abating the case
in accordance with its holding.
With the Courts of Appeal in a dogfight over this exclusive remedy issue, the
Supreme Court is primed to bring the issue to heel once and for all.
Administrative Violations Don’t Defeat Exclusive Remedies Defense
Meanwhile, over in
Cowtown, the Fort Worth Court of Appeals, upheld a trial court’s summary motion
judgment in Lane v. Odle,
2024 WL3897109 (August 22, 2024). Mr. Lane filed a third-party suit and
Odle, Inc., filed a summary judgment motion in district court alleging an
exclusive remedy defense, presenting all kinds of evidence of Mr. Lane’s
employment status. The trial court granted the summary judgment.
Lane’s arguments in support of his defense of the summary judgment included:
the failure of Odle to prove TDI had approved its workers’ compensation policy;
the failure of Odle to offer evidence that it was authorized to write workers’
compensation insurance in Texas; and, Odle’s failure to show it was a
registered subscriber with TDI. The Fort Worth Court held that in order
to prevail, Odle had to show that Mr. Lane was its employee at the time of the
injury and was covered by its workers’ compensation insurance policy.
The Court pointed to numerous pieces of uncontroverted evidence, including Mr.
Lane’s own petition in which he asserted he was an employee, in support of the
affirmative defense and defeat of the no-evidence grounds. The Court then
looked to the shifted burden and discussed the fact that rather than attaching
evidence raising a genuine issue of material fact, Lane complained that there
was no evidence the workers’ compensation insurance policy was approved by TDI
and that Odle’s parent company failed to register with DWC – facts that
amounted to administrative violations – not facts that would overcome Lane’s
evidentiary burden. The Fort Worth Court of Appeals cited other Texas
courts who have held an administrative violation does not affect an employer’s
ability to satisfy the employer element of the exclusive remedy defense.
WORKING GROUP
The Appeals Panel was
busy this month – and by busy, I mean they wrote three decisions, which lands
them squarely in the Working Dog Group.
In APD 240974,
they reversed and remanded an ALJ who made a material error in the statement of
the evidence when determining a claimant didn’t have disability. When
adding up the claimant’s earnings for the relevant disability periods, the ALJ
apparently got the math wrong and the Appeals Panel remanded the case to allow
the ALJ to dust off her trusty calculator and try again.
In APD 240839
and APD 240805,
the Appeals Panel reversed ALJs who got it right on extent of injury, but
subsequently adopted designated doctor certifications of MMI/IR that included
conditions that they themselves determined were not compensable. The
Appeals Panel pointed out that this is a no-no and overcomes the presumption
afforded said designated doctor. In 240839, happily there was another
certification that rated the compensable injury and the Appeals Panel was able
to render a decision on MMI/IR. In 240805,
however, there was no other certification that rated the compensable injury, as
defined by the Division after the CCH, and the Appeals Panel had no choice but
to remand for the ALJ to send the case back to a designated doctor to rate the
compensable injury only.
SPORTING GROUP
BE A SPORT!! REGISTER NOW! FOR THE 5TH
ANNUAL Kids’ Chance of Texas Golf Tournament – October 28, 2024 –
Shotgun start 1:00 p.m. – The Lakes at Castle Hills, Lewisville, Texas
HOUNDS
Licensing board hounding
you to get your hours in? Here’s a great opportunity to rack up some CE
credit and learn a few things while you are at it: NWCDN’s Annual
Conference in Denver September 26, 2024 – BONUS: It’s free to SLS clients 😊 – Check out the Agenda here.
TERRIERS
The Division is like a dog with a bone when it comes to sending out information and they just introduced a new way to do just that - the DWC Texas Comp Update. Check it out here.
HERDING GROUP
The Division is herding everyone
together on September 5, 2024 at 2:30 p.m. for a Hybrid Insurance
Carrier/Health Care Provider Quarterly Meeting. For more information about this
and future hybrid stakeholder meetings, including dates and times and Zoom
links, see here.
NON-SPORTING GROUP
A few participants found themselves in the doghouse with the Division recently which landed them in the non-sporting group.
One claimant’s attorney, was directly paid attorney fees by the Carrier by
virtue of winning a disputed SIBs quarter. He failed to timely pay back
said Carrier when ordered by the DWC following a CCH requested by the Carrier
to dispute the amount of those fees. The DWC felt 1,857 days was far too
long to pay back the owed fees, regardless of any mitigating circumstances,
fined him $10,000 and ordered him to attend 6 hours of ethics.
An RME doctor, who was ordered by the DWC to perform an extent of injury
examination, apparently threw in an MMI/IR certification as well and completed
a DWC-69 and report, which was entitled “Peer Review/Impairment Rating.”
The Division fined the doctor $500.00 for improperly certifying MMI/IR when not
being ordered to do so, and for certifying MMI/IR without an examination
(although there clearly was some kind of examination), and for assigning a
prospective MMI date.
A carrier is on a short leash with the DWC when it comes to lifetime and death
benefits. The Division, noting the harm in failing to timely pay LIBs and
death benefits to injured employees and their beneficiaries under particularly
stressful circumstances, fined the Carrier $19,000 for a variety of violations
related to the administration of death and LIBs benefits.
Finally, a Carrier who determined there were no beneficiaries in a death case
waited 84 days too long to send that money to the SIF. Turns out, that
dog won’t hunt – the Carrier was fined $32,000!
It’s a dog-eat-dog world in workers’ comp so keep your nose clean (and out of
your neighbor’s tail) and remember, every dog has his day.
BEST IN SHOW
From time to time, we
all hear some interesting - and let’s face it - entertaining stories in our
line of work. Our Best
In Show entry is designed to put a smile on your face as you
slough off the August heat and, hopefully, welcome some cooler fall days.
While reviewing a BRC report recently, our own Robert Greenlaw came across a
most peculiar injury for which he was unable to find a corresponding ICD-10
code – a lumbar disc bugle!
As Rob put it, “wouldn’t want to hear him play that…”
Copyright 2024, Stone Loughlin & Swanson, LLP
Course and scope of employment, specifically the question of whether an
employee was merely “coming and going” to/from work at the time of an injury,
is one of the trickier aspects of Texas workers’ compensation jurisprudence,
often hinging on minute details of the particular claim. Any guidance in this
arena is therefore highly coveted, and the Texas Court of Appeals in Amarillo
has just provided some much-needed clarity in Old Republic Insurance Company v. Evans, No.
07-23-00326-CV, 2024 WL 3249336.
The employee in the case was tragically killed in a motor vehicle accident on
his way to work in the early morning. He left home on his motorcycle, arrived
at work, and entered the building by scanning his security badge. However, he
realized that he left his company laptop at home and felt he could not proceed
in his work duties without it. Thus, he departed, returned home to claim the
laptop, and drove to work again, during which time he was involved in the fatal
collision.
The Administrative Law Judge at the Contested Case Hearing determined that the
decedent was not in the course and scope of his employment at the time of his
death, but the Appeals Panel reversed. A trial court jury concurred that the
decedent’s work day commenced when he arrived to work and that he needed his
computer to further the business affairs of the employer, hence he was still in
the course and scope of employment at the time of his death.
The Court of Appeals disagreed, reasoning that the decedent was under no
express direction from his employer to return home to recover the computer, and
thus he was not on a special mission that would otherwise have provided an
exception to the coming and going rule. The fatal injury was therefore deemed
non-compensable.
The complicated analysis required for “coming and going” cases is illustrated
here by the fact that the decision kept switching back and forth, from the ALJ,
to the Appeals Panel, to the trial court, to the court of appeals. See, like we
said, “tricky.”
Copyright 2024, Stone Loughlin & Swanson, LLP
Another month, another round of new hires and exits at the Division of Workers’
Compensation.
We recently reported on the departure of the Deputy Commissioner of Appeals,
who oversees the Division’s Appeals Panel. We are pleased to report that the
position has been filled by former Ft. Worth Administrative Law Judge Kara
Squier, who has been a Division employee for more than a decade. We
congratulate her on the promotion!
Pam Delgado, the Administrative Law Judge in Corpus Christi, retired on July
12. The Division has posted her position but has yet to fill it. No word yet on
what life post-DWC might have in store for Judge Delgado, but whatever it may
be, we thank her for her service and wish her the best.
As one vacancy opens, another closes. Kathryn Labowitz, recently of Bailey
& Galyen, is the newest Administrative Law Judge in Dallas. Ms. Labowitz
graduated from the University of Texas at Arlington with a BA in political
science before obtaining her JD from Baylor Law School in 2003. In the interim,
her practice took her into the fields of family law, personal injury, probates,
and toxic tort litigation. We are excited to see what her experience will bring
to the DWC.
Mariana Kuznetsov, formerly a Proceedings Resolution Officer, has been promoted
to Benefit Review Officer. She began presiding over BRCs in July. Our
congratulations to her!
Copyright 2024, Stone Loughlin & Swanson, LLP
On July 2, the DWC
announced a revised DWC Form-052 “Supplemental Income Benefits (SIBs)
Application,” which went into effect on June 20 and became immediately
available on the TDI website.
A great many changes on the new form are immediately noticeable. Gone is
the requirement from the old DWC Form-052 to supply the treating doctor’s name
and phone number, the name of the injured worker’s prior employer, and the
claimant’s county of residence. New items include the adjuster’s fax
number, the claimant’s email address, and a section to specify whether the
application is for the first quarter of SIBs or a subsequent one.
The work status chart has been streamlined, while the grid pertaining to wages
earned during the qualifying period allows for more information (pay period
dates and whether wages were earned weekly, biweekly, or monthly). Also new:
the adjuster may now check a box pertinent to the reason for a quarter’s denial
from a list provided, or include a written explanation otherwise.
Formerly, a written explanation was required.
The certification that accompanies a claimant’s signature has been modified to
attest that the applicant has either been searching for work or is completely
unable to work, but the warning that an administrative or criminal penalty can
follow from intentionally providing false information to obtain benefits has
been excised.
Most notably, the weekly work search log has been modified substantially. The
applicant is no longer asked to supply the method by which a work opportunity
was sought (in person, phone, fax, mail, email/web), nor is he/she asked to
indicate what was submitted to the potential employer (cover letter,
application, or resume). The form now asks only if a job was offered, not
whether it was accepted or if the employer was “not hiring.” The column
for recording the day of the work search now reads “Date you applied” rather
than merely “date,” aligning with the requirement that job applications must be
included with the submission of the DWC Form-052.
Copyright 2024, Stone Loughlin & Swanson, LLP
On July 15, the DWC revealed its proposed revision to Texas Administrative Code
§133.30, “Telemedicine, Telehealth, and Teledentistry Services.” The change
would permit treating doctors (not Designated Doctors or Required Medical
Examiners) to perform MMI evaluations remotely via telemedicine. The certifying
doctor would only be permitted to determine if MMI has been attained and, if
so, to provide a determination of no permanent impairment. The rule change
specifies that “The term (telemedicine services) does not include an
examination to assign an impairment rating” under Rule 130.1.
The new “telecertification” Rule references Rule 130.2, subsection (a)(2),
which currently allows a treating doctor to provide an MMI certification
without scheduling an examination, so long as the injured employer has been
released from treatment without the expectation of further treatment and is not
receiving Temporary Income Benefits.
Thoughts on the rule draft can be submitted to RuleComments@tdi.texas.gov
by 5:00 p.m. on August 12, 2024.
Copyright 2024, Stone Loughlin & Swanson, LLP
Frances Hall, the widow of San Antonio-based trucking mogul Bill Hall, Jr., was
sentenced to ten years deferred adjudication and ordered to pay $150,000.00 in
restitution for her role in a workers’ compensation fraud on July 10 by the
147th District Court in Austin pursuant to a plea agreement entered the
prior May. She is also ordered to undergo unspecified “treatment,” per
the probation department’s recommendation.
Mrs. Hall co-founded Bill Hall Jr. Trucking with her husband. The Division’s
fraud unit found that Mrs. Hall underreported payroll information and concealed
payroll reports to her workers’ compensation insurance carrier between 2006 and
2016, which allowed her to avoid paying approximately $9 million in work comp
premiums.
Mrs. Hall was convicted in September 2016 of felony murder in the death of her
husband, but received only a two-year prison sentence. She has since been
released.
Copyright 2024, Stone Loughlin & Swanson, LLP
“He who represents himself has a fool for a client.” That morsel of legal
wisdom, well-known among those in the profession, is generally attributed,
perhaps apocryphally, to Abraham Lincoln. Well, if the gentleman from
Springfield ever did say it, no one bothered to tell Phyllis Lee.
Ms. Lee, was a Grand Prairie ISD employee. Without legal counsel, she filed a
petition for judicial review of a Decision and Order and Appeals Panel
affirmance that her injury does not extend to or include “adjudgment disorder”
(whatever that is) along with “depressed mood, psychological factors adversely
affecting medical conditions, or major depression.” She further accused the
School District of “due process violations, fraud, and conspiracies” committed
against her.
The school district scored a victory at the trial court level, where Ms. Lee’s
suit was dismissed summarily for not having been filed within the thirty days
allotted under the Administrative Procedure Act (APA). But the Austin Court of
Appeals sided with the still-unrepresented Ms. Lee, reversing the decision and
remanding the case back to the trial court. The Court of Appeals confirmed that
Ms. Lee’s deadline to file her petition was forty-five days under Texas Labor
Code Section 410.252, which is the statute that applies to all Appeals Panel
decisions, and not thirty days per Section 2001.176 of the APA.
So, this time, anyway, it seems Lee got the better of Lincoln.
Copyright 2024, Stone Loughlin & Swanson, LLP