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 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.
The Division announced that it is reviewing rules relating to compensation procedures for employers and claimants, and on carriers’ required notices and payments (Texas Administrative Code Chapters 120, 122, and 124). After hearing public comment, the Division will decide if the rules should be repealed, readopted, or readopted with amendments. Public comments will be accepted through March 3 and can be e-mailed torulecomments@tdi.texas.gov.
- Copyright 2020, Erin Shanley, Stone Loughlin & Swanson, LLP
Our own James Loughlin has received the distinction of being elected a Fellow of the College of Workers’ Compensation Lawyers, class of 2020. The college honors attorneys in the field of workers’ compensation who have been practicing 20 years or longer. Only individuals who possess the highest professional qualifications and ethical standards, character, integrity, professional expertise and leadership are considered for the distinction.
The Annual Induction Dinner will be held at the Westin New Orleans Canal Place in New Orleans, LA on March 28, 2020 following the Workers’ Compensation Midwinter Meeting and the College of Worker’s Compensation Lawyers (CWCL) Symposium. Congratulations, James!
- Copyright 2020, Erin Shanley, Stone Loughlin & Swanson, LLP
In a decision marked as “significant,” the Appeals Panel reversed a CCH determination of non-compensability of specific diagnoses, and rendered a decision that the disputed diagnoses were compensable on the basis that the claimant’s impairment rating (IR) including those conditions had become final so that the conditions included in the IR were made compensable by waiver.
At CCH, the Administrative Law Judge (ALJ) found that the Claimant’s first certification of MMI/IR had become final and that his compensable injury did not include a right hip labral tear and hamstring tear. The Appeals Panel reversed the ALJ’s decision that the right hip labral tear and hamstring tear were not compensable, finding these conditions part of the compensable injury. In doing so, the Appeals Panel noted that “Dr. B” (a doctor selected by the treating doctor to certify MMI/IR) indicated in his report that the conditions he considered and rated were a right hip contusion/sprain and labral tear, lumbar strain, right hamstring tear, and right shoulder strain. The Appeals Panel noted that Dr. B’s 6% IR, which had become final pursuant to Texas Labor Code Section 408.123 and Division Rule 130.12, included a rating for the diagnoses of right hip labral tear and right hamstring tear. Therefore, the Appeals Panel held that the compensable injury extends to a right hip labral tear and right hamstring tear. In addition, the Appeals Panel noted that the designated doctor provided a detailed causation analysis regarding the right hip labral tear and right hamstring tear.
The Appeals Panel went on to clarify that the rationale for its holding does not act to exclude diagnoses that were not included in that impairment rating certification: “Our holding should not be construed as limiting claimants from expanding on what is included in the compensable injury. We acknowledge that injuries can evolve over time and that claimants may claim that additional injuries or conditions are compensable even after an IR becomes final.” (Citing APD 040150-s, decided March 8, 2004.)
In other words, if a first certification of MMI and impairment that includes a disputed medical condition is not timely disputed and becomes final, the disputed condition may be deemed to be compensable. On the other hand, a Claimant is not prohibited from expanding his injury by adding additional diagnoses that were not included in a final assessment of MMI/IR. Appeals Panel Decision 191874-s, decided December 5, 2019.
In a decision filed just six days later, the Appeals Panel declined to extend a similar extent of injury “waiver” theory in a case in which the issue of finality of the Claimant’s impairment rating had not been an issue certified for adjudication in the underlying CCH.
In Appeals Panel Decision No. 191919, decided December 11, 2019, the Appeals Panel reversed a decision from an ALJ that the Claimant’s compensable injury extends to include C5-6 and C6-7 central left side disc herniation. The ALJ made several findings of fact, among them that that the Claimant’s 15% impairment rating (IR) assigned by “Dr. C” was an IR for the conditions of herniated disc status post anterior cervical discectomy and fusion at C5-6 and C6-7, and that there was no dispute of the MMI date or 15% IR before the expiration of the first quarter SIBs period. In doing so, it appeared that the ALJ had determined that the 15% IR (and therefore, the disputed conditions that were included in the 15% IR) had become final pursuant to Division Rule 130.102(h), which provides that if there is no pending dispute regarding the date of MMI or the IR prior to the expiration of the first quarter of supplemental income benefits (SIBs), the date of MMI and the IR are final and binding.
The Appeals Panel observed that although the ALJ did not expressly add the issue in her decision and order, her extent of injury determination was premised on a determination that the 15% IR had become final pursuant to Rule 130.102(h) and that this certification considered and rated herniated disc status post anterior cervical discectomy and fusion at C5-6 and C6-7. However, in this case there had been no finality issue before the ALJ to decide. The BRC Report did not list an issue of finality pursuant to Rule 130.102(h), and neither party at the CCH requested the addition of an issue regarding Rule 130.102(h) finality. The Appeals Panel further noted that the MMI/IR certification at issue was not in evidence, there were no SIBs applications in evidence, no testimony or documentary evidence regarding whether or not a dispute of the claimant’s MMI and IR occurred prior to the expiration of the first quarter of SIBs, and no stipulation or testimony regarding the date of MMI or the IR based on the claimant’s compensable injury, or as to the dates of the SIBs quarters applicable to the claimant. In fact, neither party had even argued that the 15% IR certification had become final.
On this basis, the Appeals Panel stuck the ALJ’s Findings of Fact related to finality, reversed the ALJ’s determination on extent of injury, and remanded the extent-of-injury issue to the ALJ with instructions to determine whether the evidence supports that the compensable injury extends to include the disputed conditions.
There was no indication as to whether the Appeals Panel in Decision Number 191919 would have found the disputed conditions compensable had the issue of finality of the claimant’s IR been certified for adjudication. However, the decision issued just six days earlier in Decision Number 191874-s is an indication that it very well would have.
Appeals Panel Decisions 191874-s and 191919 make way for additional avenues for Claimant attorneys to circumvent the medical causation standard set out by the Texas Supreme Court in Transcontinental Insurance Company v. Crump, 330 S. W. 3d 211(Tex. 2010); that is, that the work injury must be a “producing cause” of the injury or death, which is defined as “a substantial factor in bringing about an injury or death, and without which the injury or death would not have occurred.” By allowing for adjudication of extent of injury via a determination of finality of an impairment rating that includes the condition or diagnosis, the Appeals Panel has paved the way for a new era of extent of injury “waiver.”
We certainly have not seen the last of this, and urge our clients to closely scrutinize the diagnoses that are included in a Claimant’s IR. If the certified impairment rating includes any disputed (or questionable) conditions, best practice will be to dispute the certification to avoid the condition becoming compensable via MMI/IR finality under Rules 130.12 or 130.102(h), or some other avenue.
- Copyright 2020, Erin Shanley, Stone Loughlin & Swanson, LLP
At least every other year, the Texas Department of Insurance, Division of Workers’ Compensation is required to evaluate the performance of healthcare providers in the workers’ compensation system. Healthcare providers were evaluated on three criteria: (1) DWC Form-069, Report of Medical Evaluation; (2) Completeness of the DWC Form-073, Work Status Report; and (3) Documentation supporting why the injured worker is prevented from returning to work as reported on the DWC Form-073. The majority of healthcare providers were identified as a “high tier performer.” If you are curious about how well any specific provider performed, you can review the Division resultshere.