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 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 After hearing public comment, the Division will decide if the rules should be repealed, readopted, or readopted with amendments.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.
System participants continue to pursue creative ways to exploit and defraud the workers’ compensation system in Texas. The efforts have not gone unnoticed – or unprosecuted – by the law enforcement authorities. Here’s a review of some recent convictions.
Husband of Truck Stop Employee Injured, Insured Fraudulently Claims He is an Employee
Texas Carrier Fraudulently Billed for FCEs
Frequent, unnecessarily-ordered functional capacity exams (FCEs) tend to draw the ire of carriers in the Texas system, with some system participants questioning whether the FCEs are actually taking place. In at least one recent case, the FCEs were found not to have occurred as billed.
EME International, owned by Christine Caldwell, recently plead guilty to a third degree felony for fraudulently billing Texas Mutual for FCEs taking two to four hours. In fact, the FCEs did not take two to four hours to perform. The Company was ordered to pay $30,000 in restitution. The case was also prosecuted by the DWC’s prosecution unit embedded in the Travis County DA’s office.
The DWC press release is available here.
Copyright 2019, Dan Price, Stone Loughlin & Swanson, LLP
Federal Comp System Also the Target of Fraudulent Billing in Texas
In a grander scheme in dollars if not in design, Rafael Enrique Rodriguez, the owner of San Antonio and Salt Lake City physical therapy clinics, was convicted in federal court and sentenced to up to six years in prison for fraudulently billing -- to the tune of $7.5 million – the Federal Employees Compensation Act, Office of Workers’ Compensation Program. Rodriguez billed the program for PT services provided by a licensed professional when, in fact, such services were provided by unlicensed professionals. Further, the name of the licensed therapist used by Rodriguez in connection with the scheme was used without permission of that therapist. Prior to the fraud being identified, Rodriguez and Company collected over $6 million in fraudulent billings.
The Department of Justice press release is availablehere.
- Copyright 2019, Dan Price, Stone Loughlin & Swanson, LLP
We recently faced an issue where a Claimant was scheduled to attend a post-DD RME exam to evaluate MMI/IR. The Claimant showed up but then refused to submit to the exam unless his wife was permitted to video record the exam on her phone. The post-DD RME doctor wisely refused this demand, and Claimant left without undergoing the RME. The Carrier then terminated based on failure to attend the RME. Both the RME doctor and the Carrier correctly handled the situation in accordance with long-standing policy of the Division of Workers’ Compensation.
The policy preventing claimants from bringing witnesses to RMEs or recording the exams was laid out by the Texas Workers’ Compensation Commission (now, the Division of Workers’ Compensation) way back in 1996. In APD 960367, an injured employee had presented himself for the post-DD RME with a cassette recorder and video camera. The RME doctor refused to examine the injured employee under these circumstances and sent him away. While the Hearing Officer did not address the issue of whether the claimant had the right to record the examination, the Appeals Panel did stating:
"The statute and rule provide a more direct, obvious and effective way to ensure the integrity of the examination by authorizing, at carrier’s expense, the presence of the claimant’s treating doctor at the examination."
The Appeals Panel went on to say that, while the treating doctor’s attendance may not necessarily be the only way to establish how a post-DD RME examination is conducted, it is “the only one a claimant is entitled to under the statute and rule.” (AP 960367).
The Appeals Panel also citedTWCC-Advisory 96-01, which directly addressed situations that had arisen where injured employees failed to submit to an RME examination because the doctor would not allow a witness other than the employee’s doctor to attend the examination or allow the examination to be video or audio taped.
The Division again cited the Act and Rule provisions that allow the employee to have the treating doctor present at the examination. The Division went on to advise that, if the claimant wants to have any other person in the examination room, the claimant must obtain prior authorization from the examining doctor:
"[V]ideo cameras or other recording equipment will not be allowed in the examination without prior authorization from the examining doctor."
Finally, the Advisory states that a doctor’s decision not to allow a witness other than the employee’s doctor to attend the examination or allow the examination to be recorded isnot good cause for failure to submit to the examination. (TWCC-Advisory 96-01 emphasis supplied). The Division went on to reiterate that, under Section 408.004(f), failure to submit to an RME examination without good cause may result in anadministrative penalty against the claimant.
In short, based on APD 960367 and Advisory 96-01, an injured worker may not record an RME and may not bring a witness to the exam (except the treating doctor). When scheduling RMEs, we recommend reminding your doctors of this now-decades old Division policy.
We are deeply saddened to inform you that our dear friend and colleague Bill Nemeth passed away on December 28, 2019. William “Bill” Nemeth, M.D. was truly a giant in workers’ compensation and occupational medicine. Bill served numerous roles in the field of workers’ compensation over the course of his remarkable career. During his tenure as Medical Advisor to the Division of Workers’ Compensation, Bill helped lead a much-needed transition to evidence-based medicine in workers’ compensation. Bill’s emphasis on evidence-based medicine and his contributions to the ODG Treatment Guidelines improved care for all injured workers in Texas. Bill recognized earlier than most the dangers of over-treatment with opioids. He treated his patients’ pain and addiction issues with an empathy that came from personal experience. Bill also had a gift for being able to explain the most difficult medical concepts in a way that everyone could understand. We all relied heavily on Bill’s vast knowledge and expertise but it is his wit, humor, and compassion that will be most dearly missed.
- Copyright 2019,James Loughlin, Stone Loughlin & Swanson, LLP
We are taking a chance that you will be interested in the latest court of appeals decision on the “coming and going” rule. The Amarillo Court of Appeals in Steen v. Texas Mutual Ins. Co. held at the end of last month that an employee who gave a prospective employee of the company a ride to his job interview at the company office was not in the course and scope of his employment because when he was killed en route his injury did not originate in the employer’s work, trade or profession because transporting the friend was not essential to his employment, that the employee was not expected to be at the office because there were no job openings, and that transporting people for interviews was not part of his job description. Further, the employee was not on a “special mission” at the behest of the employer. This sure seems to us to be a lot of words which really boil down to the employee not being furthering the affairs of the employer at the time of his injury. This type of case almost always involves a serious injury or death, and unusual fact patterns. Every case hinges not on the law, but on the particular actions of the employee vis a vis his job duties at the time of the incident.
Or rather perhaps the Texas Side Step. Chiropractor Robert Coolbaugh failed to refund money to an insurance company even after an ALJ with the State Office of Administrative Hearings ordered him to do so. To avoid complying, he found a lawyer to file a lawsuit in Travis County in the guise of a declaratory judgment action, arguing that this was a penalty order that was “void and unconstitutional.” The Austin Court of Appeals upheld the trial court’s ruling that it lacked jurisdiction to review the SOAH order because the order had become final over two years before the doctor filed suit. The Court noted in particular the fact that Coolbaugh tried to get around the finality of the SOAH order by disguising his complaint as a suit for declaratory relief.
- Copyright 2019, Jane Lipscomb Stone, Stone Loughlin & Swanson, LLP
Wiggling around the exclusive remedy defense is still pretty hard to do. The Corpus Christi Court of Appeals held early this month in Barrett v. Berry Contracting, LP that in the context of general contractor/subcontrator claims, if the claimant accepts workers’ compensation benefits where a general contractor purchased a policy of insurance that covered subcontractors, the claimant cannot escape and the comp bar applies. It is not clear whether the Court’s analysis would have been different if the claimant hadn’t “accepted” the benefits.
- Copyright 2019,Jane Lipscomb Stone, Stone Loughlin & Swanson, LLP