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.
The number of designated doctors in the workers’ compensation system continues
to decline while the number of physicians in Texas hits record numbers.
For the state’s fiscal year ended August 31, 2021, the Texas Medical Board
issued a record 5,304 physician licenses. There are currently 94,544 physicians
licensed in Texas.
However, all those doctors are not lining up to take the designated doctor
certification exam. The number of designated doctors continues to shrink.
In January 2020, there were a total of 384 designated doctors. By January
2021, the number had dropped to 318. As of August 2021, we're down to a
total of 272 designated doctors. Source.
Seventy-five of those designated doctors are physicians while the other 197 are
chiropractors. In other words, over two and a half times more chiropractors are
designated doctors than physicians.
It appears that many physicians have made an economic decision that the costs
of being a designated doctor are not worth the benefits while chiropractors are
more incentivized by the current rates. If we want more and better designated
doctors, we may need to pay them more. It’s likely to be less expensive than
the costs associated with bad designated doctor reports.
On February 26 the Texas Supreme Court heard oral argument to determine whether the parents and sister of Fabian Escobedo, a truck driver who died from a rollover accident on the job, may sue the Employer. The Employer argued that recovery of benefits under the Texas Workers’ Compensation Act is the exclusive remedy for Mr. Escobedo and that the parents and sister could not bring a wrongful death action under the gross negligence exception in the Act because that exception authorizes actions only by a surviving spouse or heirs of the body of the deceased. The parents and sister pointed out that the supreme court has previously held that the Act does not bar a deceased’s cause of action forintentional injuries which survive to the estate under the Texas Survival Statute. Accordingly, at issue is whether Mr. Escobedo suffered personal injury prior to deathdue to the Employer’s intentional acts or omissions.
To support their claim, the parents and sister pointed to evidence in the record that (1) oil fields in West Texas and South Texas were booming and the Employer could not keep up with the demand for drivers, (2) drivers were required to work unsafe amounts of overtime, (3) the Employer required drivers to work illegal amounts of time, (4) the Employer required drivers to falsify their driver logs to cover up the illegal hours, and (5) a terminal manager warned a supervisor that a driver would be killed because of the unreasonable driving hours and the supervisor said “we will cross that bridge when we come to it.”
The supreme court has previously held that the intentional failure to furnish a safe workplace does not rise to the level of intentional injury, except when the employer believes his conduct issubstantially certain to cause injury. Thus, in the present case, the task for the supreme court is to decide whether the evidence could support a finding that the trucking company believed its conduct was substantially certain to cause injury to Mr. Escobedo. If so, the parents and sister will be allowed to sue.
The Corpus Christi court of appeals concluded that the evidence in this case could support such a finding. The supreme court’s decision is expected later this year. MO-VAC Service Co. v. Primitivo Escobedo, et al.
The Division of Workers’ Compensation has initiated a review of the “utility and sufficiency” of the standard form interrogatories for contested case hearings. The form interrogatories are sets of questions, prescribed by DWC, that parties may serve in discovery prior to a CCH. There are two sets of form interrogatories, which are Claimant’s Interrogatories to Carrier andCarrier’s Interrogatories to Claimant. They each contain 11 standard questions prescribed by DWC and allow the party to draft 5 additional questions.
The current interrogatories were adopted in 1991 and they are now widely viewed as inadequate. The DWC is requesting comments and suggestions from stakeholders regarding revisions, and it will hold a stakeholder meeting to discuss possible changes on March 31, 2020 at the DWC Metro building in Austin.
The Division of Workers’ Compensation Appeals Panel has reversed an Administrative Law Judge’s finding that the worker was intoxicated when injured. The basis for the reversal is that the ALJ improperly concluded that a positive hair sample drug test created a presumption of intoxication.
The worker was injured when he fell from a scaffold. A hair sample collected from him three days after the accident tested positive for cocaine. The ALJ concluded that the positive test result created a rebuttable presumption under Labor Code section 401.013(c) that the worker was intoxicated and did not have the normal use of his mental or physical faculties at the time of his injury. The Appeals Panel disagreed. It noted that section 401.013(c) does not say that any drug test creates a presumption of intoxication. Instead, that section refers only to a blood test or urinalysis. Accordingly, the Appeals Panel held that testing of a hair sample three days after the accident may be sufficient to raise the question of intoxication but it does not create a presumption of intoxication under section 401.013(c). APD 192062, decided January 21, 2020.
- Copyright 2020,David Swanson, Stone Loughlin & Swanson, LLP
The February 21, 2020 edition of the Houston Chronicle featured the plight of Stephanie Albers, a 54-year-old flight attendant who suffered a neck injury on the job. The headline was gripping:
In crippling pain from on-the-job injury, Houston flight attendant finds getting help ‘impossible’
The accompanying story was a scathing indictment of the Texas workers’ compensation system and, more particularly, workers’ compensation insurance companies. The problem? It's grossly misleading.
Albers was injured when air turbulence threw her into the air and back to the floor, reportedly damaging nerves in her neck. She recounts an exhausting, two-year struggle to obtain necessary treatment which, she says, has been routinely and improperly denied by her comp carrier. According to her husband, Dwight Albers:
She’s in pain every single day, and they’re dragging their feet, doing this dog and pony show, all this administrative stuff . . . In the meantime, she’s not getting any better.
According to the Chronicle, Albers’ experience is all too common:
In Texas . . . injured employees who file claims through the [workers’ compensation] system enter an endless maze of denials and appeals that blocks their treatment, recovery, and return to work. For many, the process is so exhausting that they rue ever filing a workers’ compensation claim.
The Chronicle neglects to mention that preauthorization is not required for most pain medication or treatment and, therefore, the insurance company could not “block” treatment even if it wanted to do so. TheChronicle does not explain that, even where medication or treatment requires preauthorization, the decision to approve or deny it is fast-tracked and must be made within three days, nor does it mention that the preauthorization decision must be based on evidence-based treatment guidelines adopted by the TDI-DWC, not the whim of the carrier. TheChronicle does not explain that if the carrier denies preauthorization the worker is entitled to review by an independent review organization. TheChronicle does not acknowledge that insurance companies have a disincentive to block a worker’s recovery and return to work because to do so would increase their exposure for income benefits. And theChronicle cites no evidence whatsoever for its assertion that “for many, the process is so exhausting that they rue ever filing a workers’ compensation claim.”
It gets worse. According to theChronicle, an injured worker who has a dispute with her insurance carrier may as well just give up because changes in the law “have left a workers’ compensation system that makes . . . fighting against insurance companies effectively impossible.” Although the Chronicle acknowledges that the TDI-DWC provides a dispute resolution system to resolve benefits disputes, it dismisses that system as being rigged in favor of carriers:
But experts say the dispute resolution process is hopelessly stacked against workers, leaving them with only one real option: Don’t get hurt at work.
The Chronicle does not identify the so-called “experts” on whom it relied for that indictment of the dispute resolution system, nor does it cite to any statistics or other evidence to support it. TheChronicle also does not mention that injured workers are routinely represented by legal counsel at Benefit Review Conferences and Contested Case Hearings, and it neglects to note that ombudsmen from the Office of Injured Employee Counsel are available to assist injured workers at no charge in those proceedings.
We don’t have a subscription to theHouston Chronicle, but if we did we would cancel it.
On January 28, a Houston-based security guard company was convicted of fraud and ordered by a Travis County District Court judge to pay over $50K in restitution. Between May 28, 2005 and April 1, 2013, HHDP Security made misrepresentations about the payroll and operations of its business and a related company, Houston Harris Division Patrol, Inc. Workers’ compensation insurance premiums are based, in part, on a company’s payroll and the type of work the company performs, so an employer who misrepresents its payroll and operations may receive a lower premium, thus gaining an unfair and unwarranted advantage over its competitors.
The Division of Workers’ Compensation’s prosecution unit obtained the indictment. The Division urges individuals suspecting workers’ compensation fraud to report it by calling 1-844-FRAUD99 (1-844-372-8399).
- Copyright 2020,Erin Shanley, Stone Loughlin & Swanson, LLP
On January 21, the Texas Department of Insurance announced three staff changes within the DWC.
Kara Mace will serve as Deputy Commissioner of Legal Services. The newly-created Legal Services program will handle rule development, open records, litigation, contracts, subpoenas, and other legal issues for the agency. Kara formerly served as deputy counsel for TDI’s Office of Public Insurance Counsel, and spent several years with TDI's Policy Development Counsel. She has also served as both senior counsel for External Litigation and senior counsel for Enforcement for the New York City Department of Homeless Services.
Nicholas “Nick” Canaday, formerly general counsel for the DWC since March 2016, will now act as “Special Counsel,” focusing on litigation impacting the workers’ compensation system. According to the DWC, he will also serve as a liaison to the Office of the Attorney General and provide counsel to executive management and staff on legal issues. It’s unclear how Mace and Canaday will divide their legal duties within the department, but some have suggested Mace will manage the department, with Canaday focusing on litigation.
The DWC also added a new prosecutor with the Fraud Unit: Jessica “Jess” Bergeman. Ms. Bergeman is a former prosecutor in Chicago, and joins Donna Crosby in the comp fraud division within the District Attorney’s Office. Bergeman was most recently director of the Client-Attorney Assistance Program in the Attorney Compliance Division at the State Bar of Texas.
Under 2017 legislation, the DA’s office is eligible for funding for up to four comp fraud prosecutors, but has not had more than one prior to the addition of Bergeman. We are hopeful this means the DA will undertake more workers’ comp fraud cases.
- Copyright 2020,Erin Shanley, Stone Loughlin & Swanson, LLP
On December 19, 2019 the Division developed the new PLN-14 (“Notice of Continuing Investigation (PLN-14)”). The form was developed pursuant to Division rule 124.2 and Senate Bill 2551, which involve process changes for claims involving first responders (i.e., peace officers, paramedics, firefighters, or emergency medical attendants and technicians) who may qualify for a presumption of compensability of certain illnesses. In the case of a first responder, the following diseases are presumed to be work-related under state law if certain conditions are met: smallpox, tuberculosis or other respiratory illnesses, certain cancers associated with firefighting, as well as heart attack or stroke.
In the case of a first responder, Rule 124.2 provides that a Carrier must make one of three alternative actions no later than the 15th day from the notice of injury: pay the claim, deny it, or issue a Notice of Continuing Investigation. Subsection (s) requires the Carrier to utilize the form developed by the Division (in this case, the PLN-14) to provide notice that the first responder’s condition may be subject to a presumption of compensability.
The form is intended to act as a template for Carriers to use when communicating with a first responder whose claim may be subject to a presumption. According to the form’s instructions, the notice is to be used by the Carrier to notify a Claimant or death benefits beneficiary and the Division that the Carrier still needs to investigate whether the claim qualifies for a “statutory presumption,” and whether the insurance carrier is going to pay income or medical benefits on the claim. The form was developed because some of that information may be needed from the injured employee or beneficiary to determine if the statutory presumption applies.
The new PLN-14 form is posted in the “forms” section of the Division’s website.
On January 16, the Division announced that it adopted the Fiscal Year 2020 Research Agenda of the Workers’ Compensation Research and Evaluation Group (REG). Texas Labor Code §405.0026 requires REG to annually prepare a research agenda for the commissioner of workers’ compensation to review, approve, and publish in the Texas Register. The REG is to conduct professional studies and research “related to the operational effectiveness of the workers’ compensation system”, and to publish that agenda annually.
The FY 2020 Research Agenda was adopted on January 15, and includes: (1) completion and publication of a 2020 Workers’ Compensation Health Care Network Report Card, (2) an update of the 2018 “Setting the Standard” biennial report on the impact of the 2005 legislative reforms to the Texas workers’ compensation system, which will report on the affordability and availability of workers’ comp insurance for employers and the impact of certified workers’ compensation health care networks on medical costs, quality of care issues, return-to work outcomes, and medical dispute resolution, and (3) an update on the 2018 biennial study to estimate employer participation in the Texas workers’ comp system.