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.
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
While limited workers’ compensation legislation was passed in the 2017 session, there were a few new items advanced out of the recent 86th Legislature. Prominent among this year’s new laws is SB 2551, which addressed workers’ compensation liability, payment and benefits relating to firefighter and emergency medical technicians suffering from cancer as a result of their job duties for claims filed on or after 6/10/19.
The DWC recently accepted comments on an informal working draft of rules designed to implemental SB 2551. The changes involve the amended process for claim notification, the carrier’s obligation to investigate when it receives notice of an injury for which a presumption may apply, and the assessment of administrative penalties and factors to be considered in determining sanctions for those violations.
Of particular note in this draft is the provision that, under certain circumstances, an insurance carrier is not required to comply with the 15-day deadline to initiate benefits payments or provide notice of refusal, and the steps a carrier must take to qualify for that exemption in those cases.
For more information see:https://www.tdi.texas.gov/wc/rules/documents/dr124sb2551m.pdf.
Copyright 2019,Stone Loughlin & Swanson, LLP
The State of Oklahoma filed suit against pharmaceutical manufacturers alleging their marketing, promotion and sales of opioid drugs in Oklahoma led to an opioid epidemic that constituted a violation of the state’s public nuisance law. On 8/26/19, an Oklahoma district judge ordered Johnson & Johnson to pay $572 million dollars to abate the public nuisance. In his 42 page judgment after a 33 day trial involving 42 witnesses and 874 exhibits, the judge laid out the history of the opioid crisis in Oklahoma and the rest of the country, and his conclusions that the defendants engaged in false and misleading marketing of their drugs in violation of Oklahoma’s public nuisance law.
Attorneys on both sides of the issue have been watching the Oklahoma case as several other states have sued drug manufacturers for their role in the nationwide crisis. The State of Texas, Bexar County, Harris County, the City of Houston, and McLennan County (to name a few) have all filed suit against Purdue Pharma and Johnson & Johnson, the defendants in the Oklahoma lawsuit.
A federal trial is scheduled to begin this fall in Ohio involving almost 2,000 cases brought by cities, counties, communities and tribal lands claiming the drug companies caused the epidemic. On the heels of the Oklahoma judgment, according to a Washington Post article published 08/27/19, Purdue Pharma, one of the common defendants in all of the pending opioid litigation, has offered to settle the federal suit for around $12 billion, including $3 billion in personal funds from the family who owns the company. The family would relinquish control of the company and declare bankruptcy as part of the deal. According to the article, the plaintiffs are considering the deal seriously in light of the fact that Purdue is likely headed to bankruptcy soon, regardless of the outcome of settlement negotiations.
Shortly after the Oklahoma judgment was entered, Johnson & Johnson attorneys announced their plan to appeal the judgment. It promises to be a long and drawn out process, but Round One of this test case goes to the plaintiffs.
- Copyright 2019, Stone Loughlin & Swanson, LLP
Another chapter in the never-ending stop-loss saga came to a close on June 24, 2019 when the State Office of Administrative Hearings (SOAH) finally issued its long-awaited decision in the stop-loss cases.
The stop-loss cases involve the “stop-loss exception” to the Division’s former Inpatient Hospital Fee Guideline which was in effect from August 1, 1997 through March 1, 2008. This rule stated that the hospital is entitled to reimbursement of 75% of its charges if the services provided by the hospital are both “unusually extensive” and “unusually costly.” The issue in these cases is how to interpret and apply the terms “unusually extensive” and “unusually costly” services.
To give you an idea how long it’s taken SOAH to issue a decision, the hearing in the Vista stop-loss cases ended February 24, 2016 and the briefing finished October 7, 2016 when the parties filed their proposed findings of fact and conclusions of law. Most of the non-Vista stop-loss cases were tried in 2014. The record has been kept open in those cases while the Vista cases were tried.
SOAH’s Decision and Order consists of two parts. The first part contains the legal conclusions common to all of the cases. The second part consists of attachments listing all of the stop-loss cases with the case-specific decision for each case.
SOAH’s decision addressed a total of 532 stop-loss cases. The stop-loss exception was held to apply in only 14 cases; it was determined that no additional reimbursement was owed to the provider in 461 cases; and, it was determined that, under the per diem methodology, additional reimbursement was owed to the provider in 57 cases.
To view a copy of the Decision and Order, click here.
Copyright 2019, James M. Loughlin, Stone Loughlin & Swanson, LLP
This month the Texas Division of Workers’ Compensation readopted in full the old law rules found at Chapters 41-69 of Title 28, Part 2 of the Texas Administrative Code.
For those who may not know, old law claims are claims with dates of injury prior to January 1, 1991. This means that the most recent old law claims are over 28 years old. The old law statutes and rules are continued in effect for these claims.
The readoption of the Division’s old law rules was done pursuant to Texas Government Code §2001.039, which requires a state agency to review each of its rules every four years and to readopt, readopt with amendment, or repeal the rule.
Public comments submitted during the review proposed amending the medical fee guidelines for old law claims. The Division noted that any suggested amendments may be considered in future rulemaking.
Amendments to the medical fee guidelines were proposed for old law claims because, according to prior statements by the Division, the only fee guideline applicable to old law claims is the1996 Medical Fee Guideline, which contains set reimbursement rates for services that are now over 23 years old.
Therefore, none of the Division’s current fee guidelines apply to old law claims. However, it is not uncommon for carriers to reimburse providers in old law claims using the current fee guidelines.
Copyright 2019,James M. Loughlin, Stone Loughlin & Swanson, LLP