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.
There has been a 97% decrease in the number of comp claims where the injured worker was receiving high levels of N-drug opioids between 2009 and 2015... the closed formulary went into effect in 2011. As a further bonus, the average return-to-work rate for both network and non-network claims increased after the closed formulary went into effect. Texas is becoming a standard bearer across the nation on this issue, and when we attended the National Workers’ Compensation Defense Conference last month in Chicago, we were frequently approached by national insurers and risk managers wanting more information about Texas’ success. We, of course, are not surprised that Texas leads the nation in, well, everything good! And some of you may remember when Jane Stone from the firm and Suzanne Novak, M.D. Ph.D. first raised the alarm when presenting at ICT and the State Bar about the opioid crisis in Texas comp. The lesson? It pays to bring things to light, even if it takes time for regulations to be implemented to address the problem. https://www.tdi.texas.gov/wc/regulation/roc/formulary2019.html.
As a side note, William Rabb reports that medical disputes in Texas comp have “dropped like a rock.” Very true, and good news for the system because the reason for the drop in disputes is effective, targeted regulation.
- Copyright 2019, Jane Lipscomb Stone, Stone Loughlin & Swanson, LLP
“Andrew Michael Garrett, D.C. is hereby forever removed from the Texas workers’ compensation system’s designated doctor list [which] removal shall be permanent, of indefinite duration and without a right of reconsideration at any point in the future. . . .“ So, what did he do? He performed 11 exams and never filed a report from the exams. To top it off he refused to perform subsequent DD exams when appointed to do so. The icing on the cake was his failure to respond to a Letter of Clarification. And then there was the cherry on top of the icing on top of the cake – he is forever banned from providing treatment within the Texas workers’ compensation system and was ordered to pay a $2,500 fine.
- Copyright 2019,Jane Lipscomb Stone, Stone Loughlin & Swanson, LLP
La petite mort is more than a mere expression in France; it turns out it may actually constitute a compensable work injury.
According to aNew York Post article of September 10, 2019, an engineer working for a Paris railroad construction company was on a business trip in February 2013 when he suffered a fatal heart attack in his hotel. His death was determined to be an“accident du travail”—a work accident—thus allowing the deceased man’s family to claim benefits from the state and the employer. Benefits were deemed payable in the amount of 80% of the decedent’s salary until his would-be retirement age, after which his beneficiaries would be entitled to a portion of his pension.
The employer fought the determination, citing the non-work-relatedness of the married man’s activities at the time of his death, which occurred during a spontaneous round of adulterous intercourse with a local woman he had just met.
However, an appeals court decided that the victim was under continuous coverage during his business trip, thus entitling him to benefits sustained via a work-related injury. The Court equated the sexual encounter to any other “act of normal life like taking a shower or eating a meal.” Such romantics, the French.
(Editor’s note: alternate titles for this entry included “Really Dangerous Liaisons” and “French Kiss of Death”.)
Copyright 2019,Stone Loughlin & Swanson, LLP
The Division is once again bypassing public discourse in its latest effort at ad hoc rule-making. During the DWC’s August Workers’ Compensation seminar in Austin, Benefit Review Officers were instructed that an insurance carrier representative in a Benefit Review Conference must do more than merely state the conditions thus far accepted by their clients, he or she will be required to sign a Form DWC024 agreement to that effect. In other words, a party’s assurance that a given set of conditions is not in dispute will no longer suffice; a formal and legally-binding agreement must be entered into instead.
This new policy has yet to be circulated in writing to system participants for comment or questions, so much of what is known of it has been obtained anecdotally. According to those we have spoken with, the Benefit Review Officer will ask the parties to sign a DWC024 accepting as compensable any conditions listed as such in a PLN-11 or DWC032 completed by the Carrier. If the Carrier representative will not agree, he or she may be subject to a violation referral, and the heretofore undisputed conditions would then become part of an extent of injury issue.
The goal of having the parties enter into such an agreement is ostensibly to minimize the number of previously accepted conditions that suddenly become disputed ones. The Division has been silent as to why this policy does not create the very problem it was intended to solve.
The purported authority for this rule change is Section 415.002(a), which states that “[a]n insurance carrier or its representative commits an administrative violation if that person: (9) attends a dispute resolution proceeding within the division without complete authority or fails to exercise authority to effectuate agreement or settlement.” Thus far presiding officers have not been swayed by protestations that PLN-11’s and DWC032’s are not legally-binding documents, that stipulated conditions can simply be memorialized in a Benefit Review Officer’s Report, or that accepted injuries may change as the medical evidence develops.
In the meantime, Carrier representatives are faced with a difficult choice: either sign an agreement that is perhaps not in their clients’ best interests, or subject themselves to potential violation referrals if they refuse.
Copyright 2019, Stone Loughlin & Swanson, LLP
Two medical practitioners have run afoul of the Division’s Medical Quality Review Panel in recent months, both for having made unnecessary referrals.
On September 3, 2019, Wilson A. Cochrane, a Physician Assistant, was the subject of an audit pertaining to nine cases in which he ordered lumbar MRI’s. The Panel determined that in 100% of those cases, the ordered MRI was not reasonable or necessary, as at least one month of conservative therapy had not yet been administered. Mr. Cochrane’s failure to apply the Official Disability Guidelines appropriately resulted in an administrative violation and a fine of $3,000.00.
In August 2019, Al Jameson, D.C., was scrutinized for his tendency to refer work comp claimants out for further testing in his capacity as a designated doctor. In ten audited cases, he was found to have made unnecessary referrals 100% of the time. It was determined that Dr. Jameson had not adequately explained in any of his designated doctor reports why the referrals for additional testing were necessary to resolve the questions posed to him. The Panel concluded that he had committed a violation each time he made unnecessary referrals to other healthcare providers for additional treatment or testing, and for failing to explain as much in his DD reports. Dr. Jameson was removed from the Designated Doctor List for two years.
Copyright 2019, Stone Loughlin & Swanson, LLP
Recently enacted by the 86th Legislature, House Bill 29 permits some qualified physical therapists to treat patients without a referral from a doctor. A therapist with a doctoral degree in physical therapy, or one who has been licensed for at least one year and has completed a minimum of thirty hours of specific continuing education, will be allowed to treat a patient for up to ten consecutive business days without a referral. Those with a doctoral degree and a completed residency or fellowship may treat for up to fifteen consecutive business days.
However, HB 29 does not apply to treatment rendered for a work comp injury. A physical therapist does not meet the definition of a treating doctor under Section 401.011 of the Texas Workers’ Compensation Act, and Section 408.021(c) specifies that a work comp claimant’s health care must be approved by the injured worker’s treating doctor.
Copyright 2019,Stone Loughlin & Swanson, LLP
In September 2019, the Legislature amended Section 504.019(b) and added Section 504.019(c) in House Bill 2143. For injuries occurringbefore September 1, 2019, the former provisions remain applicable, but for any injury claimedon or after September 1, 2019, the new law will apply.
Until recently, Section 504.019(b) of the Texas Labor Code stated that, “Post-traumatic stress disorder suffered by a first responder is a compensable injury…only if it is based on a diagnosis that: 1) the disorder is caused by an eventoccurring in the course and scope of the first responder’s employment; and, 2) the preponderance of the evidence indicates that the event was asubstantial contributing factor of the disorder.”
In other words, section (b)(1) required a first responder’s claim for PTSD to have derived from asingular incident, not multiple occurrences. That meant that for a first responder’s PTSD to be compensable, it must have developed suddenly, not gradually or cumulatively, such as might be found in a repetitive mental trauma injury. Likewise, section (b)(2)’s requirement that the work event be a “substantial contributing factor” leading to the emergence of PTSD raised the burden of proof placed upon a first responder seeking to establish compensability of the condition.
As of September 1, 2019, however, Section 504.019(b) now states: “Post-traumatic stress disorder suffered by a first responder is a compensable injury…only if it is based on a diagnosis that: 1) the disorder is caused byone or more events occurring in the course and scope of the first responder’s employment; and, 2) the preponderance of the evidence indicates that the event or events werea producing cause of the disorder.
HB 2143 also added a new provision to establish the date of injury for such a claim, echoing the language of Section 408.007 pertaining to occupational diseases. Section 504.019 (c) states:
“For purposes of this subtitle, the date of injury for post-traumatic stress disorder suffered by a first responder is the date on which the first responder firstknew or should have known that the disorder may be related to the first responder’s employment.”
Taken together, the amendments to subsection (b) and the addition of subsection (c) drastically improve a first responder’s ability to claim PTSD as a compensable diagnosis successfully. No longer must such a claim be predicated on a lone traumatic event with a precise date of origin. Now, a claim for PTSD may be based on the cumulative impact that traumatic work events have on a first responder’s mental health, and the date of injury is whenever the injured worker had reason to believe that such a diagnosis might have been caused by his/her work duties.
- Copyright 2019, Stone Loughlin & Swanson, LLP
A review of consent orders issued by the Commissioner of Workers’ Compensation since early 2019 indicates the DWC is monitoring and removing designated doctors who fail to perform under the requirements of the rules. A Medical Quality Review Panel (“MQRP”) audit was done to evaluate the medical necessity and appropriateness of additional testing or referral by designated doctors. At the conclusion of the audit, the DWC determined that, not only did the doctors unnecessarily make referrals to other providers or order unnecessary testing, they also engaged in other activities that either violated the rules or were considered substandard by the DWC. Specifically, the consent orders identify the following reasons for sanctioning the designated doctors:
The following designated doctors have either been removed from the DWC designated doctor list for a period of time ranging from 2 to 4 years or have been ordered to pay administrative penalties and complete DWC workshops and other additional training:
AL Jameson, D.C. removed for 2 years
Sandra E. Silmon, D.C. fined and training orderedAt the recent State Bar of Texas Advanced Workers’ Compensation Seminar, attorney Matt Lewis, reviewed the DWC Appeals Panel decisions from August of 2018 to July of 2019. Lewis noted that the vast majority of the Appeals Panel Decisions focused on correcting clerical errors or misstatements of evidence and facts in Administrative Law Judge Decisions. The decisions were remanded or rendered by the Appeals Panel in situations where ALJs: failed to make a determination on complete periods of disability; provided inconsistent determinations within the D&O; failed to make findings of facts and conclusions of law on all issues litigated; misstated fact despite stipulations to those facts; failed to allow a Carrier to get an RME after the ALJ ordered a new DD examination; and, adopted MMI/IR certifications that failed to rate the entire compensable injury or rated conditions that were not compensable.
In the months of July and August of 2019, the Appeals Panel wrote four decisions.
To Rate a Hernia, There Must be a Palpable Defect. In APD 191070, the ALJ adopted the designated doctor’s certification of MMI/IR, which included 1% for bilateral inguinal hernia using Class 1 in Table 7 of the AMA Guides. However, the designated doctor’s narrative report explained that Claimant’s hernia repair was holding well and he had no palpable defect or protrusion. The Appeals Panel noted that each class listed in Table 7 of the AMA Guides requires a palpable defect in the supporting structures of the abdominal wall to justify rating under that table. The case was remanded for the ALJ to instruct the DD to rate the compensable injury in accordance with the AMA Guides.
Injury While Walking Across a Public Street is Likely Not Compensable under the Access Doctrine. In APD 190929, the Appeals Panel discussed, among other things, whether an injury was compensable under the access doctrine where the claimant was walking across a public street when he was struck by a truck. Under the “coming and going” rule, an injury that occurs while an employee is going to or coming from work is not compensable. However, there are several exceptions to this general rule including the “access doctrine.” Under the “access doctrine,” an injury is compensable if the employer has evidenced an intention that the access route or area that should be used by employees in going to or from work is so closely related to the employer’s premises as to be fairly treated as part of them.
The claimant in this case was injured when he was struck by a truck while crossing a public street on foot. The ALJ determined the injury was compensable, but failed to identify under which of the four alternate theories advanced the ALJ relied to determine the injury was compensable. The Appeals Panel remanded to the ALJ for further development of the case, but cautioned that the Supreme Court has held that “no case has extended the ‘access exception’ out into the public streets where other members of the public are subject to the same hazard.”
ALJ Cannot Add Issue if it is Not Raised at the BRC or Actually Litigated. In APD 190915, the Appeals Panel reversed and struck an ALJ’s determination that the Carrier did not specifically contest compensability based on the claimant’s failure to timely file a claim for compensation within one year. The issue was not certified out of the BRC and neither party asked to add the issue at the CCH. In fact, the issue was never mentioned at the CCH. The ALJ added the issue after the CCH without notifying the parties he was doing so. The Appeals Panel held that the issue of the carrier’s waiver was not actually litigated and it was an abuse of discretion to add the issue.
Rebutting the Compensability Presumption in Firefighter Cancer Case. In APD 191065, the ALJ determined that a self-insured rebutted the presumption that a firefighter developed pancreatic and liver cancer during the course and scope of his employment. The self-insured showed that a risk factor, accident, hazard or other cause not associated with the firefighter’s work caused his cancer, relying on a doctor’s report. In testimony at the CCH, the doctor opined that the cancer was related to family history. The Appeals Panel disagreed with the ALJ that the presumption of compensability was rebutted by the self-insured.
The self-insured’s rebuttal evidence included the firefighter’s own testimony that his father had kidney cancer. However, no specific evidence was offered linking the father’s kidney cancer to a neuroendocrine tumor, which is one of the conditions with which the firefighter had been diagnosed. Moreover, the self-insured’s doctor did not identify the cause of the firefighter’s cancer, but rather, the doctor simply voiced his contention that the cancer was related to family history citing an absence of the cancer among those identified in the firefighter literature.
The Appeals Panel reversed and rendered a decision that the self-insured did not rebut the presumption. Following this decision, it appears that to rebut the presumption, the Appeal Panel may require some evidence of genetic testing to determine if the firefighter possesses any of the genetic syndromes which have been identified to cause pancreatic neuroendocrine tumors.
Copyright 2019, Stone Loughlin & Swanson, LLP
SB 1742, effective 09/01/19, amended Texas Labor Code Section 408.0043 and requires peer review, utilization review and independent review of health care services to injured employees to be performed by doctors of “the same or a similar specialty” as the requesting physician. It will be up to the DWC to explain, hopefully by administrative rule, what “similar” actually means.
Prior to the amendment, the statute required peer review, utilization review, independent review, designated doctor, required medical examination and medical quality review panel doctors who reviewed workers’ compensation cases to hold “a professional certification in a health care specialty appropriate to the type of health care that the injured employee is receiving.” The amendment now requires a specialty “match” the requestor for certain kinds of review. It remains to be seen how “similar specialty” will be defined by the DWC.
Copyright 2019,Stone Loughlin & Swanson, LLP