State News : Texas

NWCDN is a network of law firms dedicated to protecting employers in workers’ compensation claims.


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.


Texas

STONE LOUGHLIN & SWANSON, LLP

  512-343-1385

Moving Up & Stepping Down, Pt. 1


We are pleased to announce that Kara Squier, Administrative Law Judge in Fort Worth, has been promoted to Team Lead for the Division’s northern field offices, including those in Dallas, Fort Worth, and Denton.  Judge Squier has been with the Division since 2013 and is widely regarded as one of the DWC’s best. We congratulate her on the promotion!
  
Simultaneously, we are saddened to bid farewell to Appeals Panel Judge Rafael Quintanilla, who is retiring at the end of March 2022. The Division has not announced a replacement and posted the job opening on its website on March 24. We certainly wish Judge Quintanilla well.  
 

You Can't Judge a CCH Set Notice By Its Cover


Observant system participants may have noticed a conspicuous omission from Contested Case Hearing set notices lately: the name of the Administrative Law Judge assigned to the case.  The Division recently halted the practice of announcing the appointed judge on the notification of hearing dates, times, and locations.  

The decision would seem to have something to do with the increasingly common practice of shifting docket assignments among Division judges to distribute cases more evenly in the interim between the BRC and the CCH.  

However, there is concern among system advocates that the change may result in pre-hearing motions sitting in limbo until a final determination on the presiding judge has been made, a selection that is often not finalized until the Friday before a CCH.

DDs: Distressing Developments


TDI posted an open invitation on its website on March 4, 2022, for system participants to share their thoughts on proposed changes to Chapter 127 and section 180.23 of 28 of Texas Administrative Code, the portions pertaining to the designated doctor program.  Comments will be accepted until 5:00 p.m. on April 4, 2022, and can be emailed to RuleComments@tdi.texas.gov, or mailed to Legal Services, MC-LS, Texas Department of Insurance, Division of Workers’ Compensation, P. O. Box 12050, Austin, TX 78711.

Some of the planned revisions are rather disconcerting. The DWC068 Designated Doctor Examination Data Report, which provides a simple summary of a designated doctor’s findings on extent of injury and disability, will no longer be mandated. A designated doctor will also be absolved of the need to undergo re-certification every two years if he or she passed the certification test after May 13, 2013.

DDs will also no longer be required to complete multiple impairment rating certifications taking into account each reasonable outcome for the extent of injury, per the suggested alterations to Rule 127.10(d).  Only when directed to do so by the Division may a designated doctor provide multiple certifications.  A sharp uptick in the number of bifurcated hearings and Presiding Officer Directives (PODs) should therefore be expected, as extent of injury issues seem destined to require adjudication first, followed by MMI/IR hearings later.

Curiously, a proposed change to Rule 127.1(b)(3) would obviate the need to list all accepted or administratively-determined conditions from the DWC032 Request for Designated Doctor Examination, virtually guaranteeing an increase in case management on the part of the presiding officer.  

But here’s the one that will really have you scratching your head: changes to Rule 127.130 would permit examination for traumatic brain injuries to be performed by doctors with specialties in orthopedic surgery, thoracic and cardiac surgery, plastic surgery, anesthesiology, family medicine, and dermatology.  You read that right: dermatologists would be permitted to examine claimants for traumatic brain injuries.  

So, the next time you actually do scratch your head, remember to ask your dermatologist if you have suffered a TBI.
 

The Dope Show


Premiering in 2021, Hulu’s eight-part limited series, Dopesick, chronicles the simultaneous rise of OxyContin and the opioid crisis, and the eventual downfall of Purdue Pharma and the Sackler family.  Based on the book of the same name by Beth Macy, the series is an unflinching look at a medication marketed as a salvation for chronic pain sufferers but which became the ruination of so many.  The title refers to the pain an addict feels while going through withdrawal from the drug.

The story begins with a work injury in a Virginia coal mine.  Fearing collapse, the miners inside panic.  In the confusion, one collides with another (Kaitlyn Dever), knocking her into a mine cart and resulting in immediate excruciating thoracic back pain.  She is eventually given OxyContin by her primary care physician, played by Michael Keaton. Though Keaton’s physician registers his skepticism about OxyContin’s claims to result in addiction in less than 1% of users despite its designation as a Class 2 Narcotic, he prescribes OxyContin as a last resort, and is gratified to see that the effects are favorable…for a while.  

The series details the deceptive practices Purdue Pharma deployed to convince medical professionals and the public at large of OxyContin’s safety, including a unique and wholly inaccurate label from the FDA, approved by an official who would later become a Purdue employee, and seminars touting OxyContin’s patented 12-hour time release of oxycodone, the ostensible basis for the assertion that the drug is non-habit-forming.  The time delay is professed to result in fewer spikes and valleys in the delivery of the pain relief, thus reducing the likelihood of dependency and abuse.  

But as the effectiveness of OxyContin wanes over time, the dosage levels and frequency increase proportionately, a consequence not only endorsed by Purdue Pharma but explicitly used to boost profits.  To combat the contention that OxyContin’s 12-hour release does not work as advertised, Purdue simply invents a spurious new medical diagnosis to account for its failure, “breakthrough pain.” Promotional junkets for doctors and threats of lawsuits against pharmacists who resist carrying OxyContin ensure Purdue’s market dominance, and to counter accusations of the drug’s highly addictive qualities, another phony medical diagnosis is devised, “pseudo-addiction,” for which the recommended treatment is, astonishingly, an escalation in the patient’s dosage.

As dosage availability of OxyContin continually increases, from the original 10 mg tablet to the eventual 160 mg pill, so too do crime rates, overdoses, and deaths. Asked about the patients for whom he prescribed OxyContin via grand jury testimony against Purdue Pharma in the series’ opening moments, Keaton’s despondent physician delivers the most chilling line of dialogue you’ll hear all year: “I can’t believe how many of them are dead now.” 

Pain Killers


Dr. Battle’s legal infractions pale in comparison to those of the Sackler family, owners of Purdue Pharma, the maker and distributor of the highly addictive opioid pain medication OxyContin. In March 2022, a U.S. bankruptcy judge approved a settlement in which Purdue and the Sacklers would pay $6 billion to states, individuals, and opioid abatement programs.  

Following thousands of lawsuits alleging that the Sackler family misled the public about the addictive nature of OxyContin and thereby directly exacerbated the opioid crisis, Purdue filed for bankruptcy in 2019. In 2007 and 2020, Purdue pled guilty to misbranding and fraud charges related to the marketing of OxyContin, respectively, though the Sackler family steadfastly denies wrongdoing.   

The settlement protects the Sacklers from present and future lawsuits regarding OxyContin, but it does not prohibit future criminal lawsuits.

The day after the settlement’s approval, members of the Sackler family were required to attend a Zoom hearing in which family members of OxyContin victims recounted the tragic effects the highly addictive pain medication have had on their lives, including fatal overdoses.  Before the hearing, the Sacklers conveyed in a statement that they “sincerely regret that OxyContin, a prescription medicine that continues to help people suffering from chronic pain, unexpectedly became part of an opioid crisis…”  

Carriers Still Flying High After Latest Air Ambulance Decision

 
On February 3, 2022, the Texas Third Court of Appeals in Austin issued the most recent decision in the PHI Air Medical Case. The Texas Supreme Court remanded the case to the Third Court of Appeals so that the Third Court could decide the issues that it did not reach the first time it decided the case.  

The primary issue on remand to the Third Court of Appeals was whether the Airline Deregulation Act (ADA) preempts the Workers’ Compensation Act’s prohibition against balance-billing injured workers. The court of appeals held that PHI did not meet its burden to show, on the record before the court, that the balance-billing prohibition has a “significant effect” on its prices. Therefore, the court held, "[T]he ADA does not preempt Section 413.042 of the Act or any of the challenged provisions of the Act, when properly considered together.”

Accordingly, the court of appeals affirmed the portion of the trial court’s judgment which determined that the ADA does not preempt the Act’s balance-billing prohibition or reimbursement provisions. However, the court of appeals concluded that the trial court erred in granting the carriers’ plea to the jurisdiction and dismissing PHI’s suit for judicial review of SOAH’s decision. Therefore, the court of appeals reversed the trial court’s order granting the plea and ordered the case remanded to the trial court for further proceedings.

The case won’t go back to the trial court yet though if PHI files a motion for rehearing with the court of appeals or a petition for review with the Texas Supreme Court challenging the court of appeals’ decision on the preemption issue.  

PHI’s deadline to file a motion for rehearing or a petition for review with the Texas Supreme Court is March 21, 2022.

To read the decision, click here.

Well, It’s Still Better Than Peacock


TDI recently added a series of free online safety videos to its website. With more than 700 titles, there is no shortage of content, so the next time you can’t find anything good on Netflix, why not educate yourself on proper workplace safety?  A few of our favorites are “Moving Sows: Be Safe and Smart,” “Grain Engulfment,” “Dealing with Hostile and Potentially Dangerous Library User Behaviors,” and “Stepladder Safety,” as presented by the American Ladder Institute. (Note: The American Ladder Institute is real, and they mean business.)

Videos can be viewed here
 

The Dream Police


The claimant, a former police detective, was demoted to night patrol duty.  According to her testimony, she experienced such stress over the transfer and the resultant inability to maintain contact with the victims in her cases any longer that she fell off her bed and passed out. She sought benefits under the diagnoses of PTSD, depression, and anxiety.  

The Appeals Panel, in Decision No. 211953 (decided January 21, 2022) clarified that while a compensable claim of PTSD can be found from one or more events occurring in the course and scope of employment, rather than from a single traumatizing event as had been the standard prior to September 1, 2019, those events must still be traceable to a definite time, place and cause, and may not be because of a “legitimate personnel action, including a transfer, promotion, demotion, or termination,” per Section 408.006(b) of the Texas Workers’ Compensation Act.  

The AP affirmed the decision of the Administrative Law Judge that the origin for the claimed injury was a demotion—a legitimate personnel action—and thus not a properly compensable claim.

“All in all, I’d rather in be in Philadelphia.”


The National Workers’ Compensation Defense Network is holding its regional conference in Philadelphia on April 27th and 28th.  Our very own James Loughlin will be attending for SLS, and the speaker line-up is impressive. Those interested in participating can register at the NWCDN website. The conference is free for clients of SLS.  

Also, save the date for the NWCDN national conference August 3rd – 5th in Nashville! Updates will be on the NWCDN website and, of course, in our future newsletters.
 

One Circuitous Flightpath: The Turbulent Trajectory of Air Ambulance Litigation


As we enter the second decade of the air ambulance litigation, what better time to pause and ruminate on where we've been? Below is a visual representation of our journey so far.

We’ve gone all the way from the Division of Workers’ Compensation to the United States Supreme Court, which declined PHI Air Medical's request to review the case, and are currently back at the Third Court of Appeals in Austin which issued a second decision on February 3, 2022.

We can’t say when the PHI Air Medical Case will finally be over, but we remain confident that the ultimate result will be that carriers will not be compelled to pay air ambulance providers their full-billed charges and providers will not be permitted to recover the balance from injured workers.