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.
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
If you have questions
about the Division’s new EDI data collection agent and the billing registration
process, you’re not alone. Insurance carriers have so many questions that the
Division is hosting a Zoom call to address them. The call comes in the wake of
the Division’s announcement that it is changing the process by which insurance
carriers must report claim data through electronic data interchange
(EDI).
Currently, carriers are required to report EDI claim data using an antiquated
standard – to be precise, International Association of Industrial
Accident Boards and Commissions (IAIABC) Release 1.0. But beginning July 26,
2023, the Division will be requiring carriers to use the current standard,
IAIABC Release 3.1.4. This and other requirements are set out in new Division
rules 124.100 - 124.108.
As part of the conversion, the Division designated a private contractor,
Verisk, as its data collection agent for claim EDI release 3.1 data. Verisk
will bill insurance carriers, other than governmental entities, for the cost of
data collection. Accordingly, insurance carriers were required to register
their billing contact information with Verisk by June 13, 2022.
Also, as part of the conversion, each insurance carrier will be required to
designate one person as its claim EDI compliance coordinator and provide that
person’s contact information to the Division. Carriers can report this
information to the Division on new Form EDI-03.
Bonus cocktail party trivia:
According to its website, the IAIABC was founded in 1914 and is an association
of workers’ compensation jurisdictional agencies from around the world, as well
as private organizations involved in the delivery of workers’ compensation
benefits and services. It works to identify best practices, develop and
implement standards, and provide education and information sharing.
Copyright 2022, Stone Loughlin & Swanson, LLP
Speaking of appeals,
we continue to await the decision of the appeals court in our legal challenge
to the Division’s Supplemental Income Benefits rule.
Readers may recall that our firm, on behalf of an interested insurance carrier,
filed suit challenging the validity of the SIBs rule on the basis that it
impermissibly allows claimants to collect SIBs even if they do not document
their work search with job applications as required by the Texas Workers’
Compensation Act. Travis County district judge Maya Guerra Gamble agreed with
the carrier that the rule is invalid, and she enjoined the Division from
applying it. But the Division appealed to the Third Court of Appeals and,
because the Division is part of a state agency, the judgment is stayed during
the appeal.
The parties filed legal briefs in the court of appeals, and on August 30, 2021
the court announced that it did not need to hear oral argument and the
case was “ready for disposition on the briefs.” That was 10 months ago. By
comparison, in the recent case of Dobbs
v. Jackson Women’s Health Organization, in which the Supreme Court
of the United States ruled that the Constitution does not guarantee the right
to an abortion, the court issued its decision 8 months and 11 days after
briefing was complete. And one could
conclude that the issues in that case are more complicated than the issues in
our SIBs case.
By the way, SLS partner Jane Stone will be discussing the SIBs case at the
upcoming Texas Bar CLE Advanced Workers’ Compensation seminar in August, by
which time the court might have issued a decision.
Copyright 2022, Stone Loughlin & Swanson, LLP
The Texas Department
of Insurance, Division of Workers’ Compensation has posted job openings for
three Appeals Panel judges. This, apparently, is in response to three recent
departures – we’ve learned that Rafael Quintanilla, Gary Kilgore, and Tom Knapp
have retired. We’re envious, and we wish them well.
Speaking of envy, the Division’s job posting describes some sweet fringe benefits. They
include the following:
• Telecommuting
• 96 hours of accrued vacation a year
• 96 hours of accrued sick leave a year
• 20+ holidays every year
Copyright 2022, Stone Loughlin & Swanson, LLP
Don't do this:
Or this:
Copyright 2022, Stone Loughlin & Swanson, LLP