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

  Our Website

  512-343-1300

  512-343-1385

Lonely Hearts' Club


Blame it on supply chain issues, COVID or Zoom BRCs, but we recently ran into one of the saddest things we have seen lately.  The winner of the Lonely Hearts’ Award February 2022 is this lonely vending machine in the corridor of the Lubbock Field Office of the DWC.
 

A Time for Love and A Time for Audit


Carriers:  It’s that time again.  Every two years, the DWC audits insurance carriers through PBO.  The majority of the audit focuses on timely payment of TIBs and processing of initial medical bills. Other measures include timely processing of requests for reconsideration of medical bills and timely submission of EDI data for initial payments and medical bill processing. The relevant time frame for the audit: 1/1/22 through 6/30/22. You can get more information here. 

HCPs: The DWC announced its approval of the 2022 Medical Quality Review audit this month. This year, the audit will focus on the reasonableness of return-to-work decisions and recordkeeping and the use and effectiveness of spinal cord stimulators.

We gave you a sneak peak of the proposed Shoulder Surgery Plan-Based Audit in our November newsletter. On 1/13/22, the DWC announced that audit plan was approved. It will be interesting to see if the audit results in a curtailing of distal clavicle resections in routine shoulder surgery as those procedures can, without careful monitoring and/or litigation, result in significantly higher impairment ratings for shoulder injuries.
 

 


Who Doesn't LOVE Safety?


The Division recently announced its 2022 Safety Pro Seminars.  New safety professionals and coordinators can enjoy free online courses in Safety and Health Program Development and Recordkeeping beginning in February.  

More information is available here.

Exclusive Love


On 1/25/22, in Reyes v. Lubrizol Corp., the Texas 14th Court of Appeals upheld an exclusive remedy defense asserted by a property owner in a lawsuit filed by a welder who alleged he suffered injuries as a result of the negligence of two employees.  The court addressed “the nuanced but not uncommon situation where a non-employer secures - by written agreement - workers’ compensation employer’s status over the employees of others.”  The court held that it was proper for the trial court to grant summary judgment dismissing the complaint made by the welder asserting the exclusive remedy. This was a classic scenario where a general contractor entered into a written agreement to provide workers’ compensation insurance coverage to the subcontractor and its employee. That agreement made the general contractor the employer for purposes of workers’ compensation law and, by extension, covered the actions of the subcontractor’s employees under the exclusive remedy provision of the Workers’ Compensation Act. See the entire opinion here.
 

Do We Love This Change?


The Division recently solicited comments on proposed changes to EDI Rules. According to our good friend Steve Nichols of Sentinel Governmental Affairs, the biggest issue is the short window of time provided for testing of the submission of claims EDI data.  In comments to the rule, Steve proposed additional time for testing so that insurance companies, EDI trading partners and the DWC could ensure successful claims data reporting. Steve cautioned the DWC and stakeholders to avoid a repeat of the NPI EDI data element change that resulted in enforcement actions, that could have been eliminated with adequate testing.  We await the DWC rule changes and hope that adequate consideration is given to these concerns.
 

No Love for this Fraudster


Earlier this month, DWC announced the arrest and indictment of a Houston area businessman who ran a $1.1 million insurance fraud scheme over a period of seven years. Kunal “Sonny” Puri had been charged with hiding employees and their payroll information under different companies in order to lower workers’ compensation insurance premiums payable to Texas Mutual, Service Lloyds and Travelers. If convicted, Puri faces up to 99 years in prison.  
 

 

What’s Trending in Comp Right Now?

 
The hot new injury in workers’ compensation seems to be a head injury.  Here at SLS we’ve noticed what appears to be an increase in claims with alleged head injuries.  

We don’t mean the kind like Massive Head Wound Harry from Saturday Night Live.  We’re talking about the ones where there is little or no evidence of a blow to the head such as a cut, bruise, or bump and diagnostic testing, such as CT scans or MRIs, is negative. These are often seen in slip and fall claims and other relatively minor incidents.  

These claimants may be diagnosed with a concussion (aka mild TBI) and post-concussion syndrome which consists of a broad range of symptoms that may include headaches, dizziness, fatigue, anxiety, and depression. These claims often don’t follow a normal healing pattern where the symptoms get better over time. Instead, they get worse.  

The problem with concussion and post-concussion syndrome is that the symptoms are difficult to independently verify.  The symptoms don’t show up on testing.  Instead, they’re based on what the patient tells the doctor and can be influenced by psychosocial factors and secondary gain issues.  In other words, a mild head injury is easy to fake.  For those that can’t figure out how, there are even detailed instructions available online:


 
One medical journal summarized the problem as follows:
 
These criteria are particularly difficult to confirm at the least severe end of the mild TBI continuum, especially when relying on subjective, retrospective accounts. The postconcussive syndrome is a controversial concept because of varying criteria, inconsistent symptom clusters and the evidence that similar symptom profiles occur with other disorders, and even in a proportion of healthy individuals.

Handbook of Clinical Neurology, Volume 127, 2015, Pages 131-156.

The apparent increase in claims with alleged head injuries may be due to more awareness of TBI by claimants generally as well as some doctors who are eager to diagnose concussion and post-concussion syndrome because they provide treatment for those conditions.  Regardless of the cause, the increase seems to be borne out by recent DWC data.  

DWC hosted a designated doctor stakeholder meeting on October 27, 2021. One of the issues identified was the lack of board-certified DDs to examine injured employees with TBI.  According to DWC, there are only 13 qualified doctors available for about 1,000 exams of traumatic brain injuries which includes concussion and post-concussion syndrome.

At one time, carpal tunnel syndrome was all the rage in workers’ compensation until scientific studies showed it is not caused by typing or most other workplace activities.  Hopefully, the same will happen with concussion and post-concussion syndrome and the frequency with which these conditions are alleged will drop as awareness of the science increases.

Carriers struggle to sort out legitimate claims from questionable ones because it is important to ensure that appropriate care is provided.  It doesn’t benefit the claimant to treat non-existent conditions and treatment is likely to be ineffective in the context of malingering.

Copyright 2021, Stone Loughlin & Swanson, LLP

Texas to Get Its Own Basic Manual


As we all know, Texas is special.  That may be the reason that the National Council on Compensation Insurance (NCCI) has proposed a Texas-specific edition of its Basic Manual for Workers Compensation and Employers Liability Insurance (Basic Manual).



Texas currently uses NCCI’s national Basic Manual with Texas exceptions. According to NCCI’s website, its Basic Manual contains rules, classification descriptions, and rates/loss costs for each classification, and state-specific exceptions for writing workers compensation insurance.

The new Texas edition does not make any substantive changes to any rule or classification that would result in premium impact.

TDI is taking comments on the proposed new Texas edition through January 14, 2022.    
For those interested in perusing the manual’s 2,054 pages, you can do so here.
 

Covid by the Numbers 


DWC just released its most recent statistics on Covid-19 claims.  The data is presented in DWC’s Covid-19 fact sheet titled COVID-19 in the Texas Workers’ Compensation System, December 2021.  The data runs through November 7, 2021.  

Insurance carriers reported a total of 61,331 Covid-19 claims to DWC, including 371 fatalities, from January 1, 2020 through November 7, 2021.  Almost half of the claims (45%) were from first responders and correctional officers.

Insurance carriers accepted 50% of Covid-19 claims with a positive test.  There were 16,673 Covid-19 claims with a positive test denied by carriers, presumably on the grounds that the infection was not shown to be work-related.  Of these denied claims, only 134 disputes were filed with DWC challenging the carrier’s denial.

Most of the benefits paid on Covid-19 claims were for indemnity benefits rather than medical benefits.  For claims with medical or indemnity benefits payments, 15% were paid with both, 20% had only medical benefits, and 64% had only indemnity benefits. These numbers suggest that many claims were not severe enough to incur medical benefits payments.

However, we’re not out of the woods yet.  Jeff Zients, White House COVID coordinator, said in a press briefing on December 17, 2021, “For the unvaccinated, you’re looking at a winter of severe illness and death for yourselves, your families, and the hospitals you may soon overwhelm.”

DWC continues to gather data on the impact of Covid-19 injuries on the Texas workers’ compensation system.  In this regard, DWC has extended its data call for certain information related to COVID-19 injuries reported to selected insurance carriers until June 30, 2022.

DWC’s current Covid-19 fact sheet can be viewed here.

Death on the Job*


DWC announced the release of its 2020 annual report on fatal work injuries on December 16, 2021. Here are some of the key takeaways. There were a total of 469 fatal work injuries in Texas in 2020 which is a decrease of 139 fatalities, or 23%, from 2019. The incident rate of fatalities in Texas was 3.9 per 100,000 full-time employees compared to 3.4 nationwide.  The construction industry had the highest number of fatalities with 127 incidents and the occupation with the highest number of fatalities was driver/sales workers and truck drivers with 101 incidents. Here is a breakdown of the 2020 fatalities by event or exposure:   



Also noteworthy, 93% of the total fatalities were men and 47% were Hispanic employees.
  
You can view the complete report here.  

*Death on the Job is a 1991 documentary film about work-related fatalities.  The AFL-CIO also publishes an annual report by the same name.
 

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