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.
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
The Texarkana Court of Appeals held this month that a claimant failed to exhaust her administrative remedies at the Division of Workers’ Compensation where the allegations in her lawsuit against the carrier were not first presented to and ruled upon by the Division.
The claimant filed suit against the carrier’s third-party administrator and her employer for fraud, fraudulent inducement, gross negligence, and violations of the Deceptive Trade Practices Act and Texas Insurance Code. The gist of her allegations is that she was denied full benefits as a result of misrepresentations and mishandling of the claims process by the carrier.
In a prior related proceeding, the Austin Court of Appeals had already determined that the Division has exclusive jurisdiction over the claims in her lawsuit. The claimant subsequently entered into a benefit dispute agreement agreeing: 1) that the carrier was relieved of liability because she did not file a claim within one year of her injury, and 2) her recovery was barred under the Texas Workers’ Compensation Act because she elected to pursue a remedy and recover under the laws of another jurisdiction.
Following the agreement, the claimant filed suit again, bringing the same claims but arguing that because of the agreement she had exhausted her administrative remedies and could now proceed with her lawsuit. The issue before the Texarkana Court was whether she had, in fact, exhausted her administrative remedies.
The Texarkana Court noted that the agreement addressed only issues of compensability. It did not address the extent of the injury, preauthorization, medical necessity, or administrative violations.
The Court held that the claimant’s complaints needed to be raised with the Division and a review of the agreement shows that they were not. According to the Court, nothing in the appellate record shows that the claimant either exhausted administrative remedies under Chapter 413 or provided the Division with notice of administrative violations.
The Court’s opinion includes a detailed discussion of the Division’s exclusive jurisdiction, including the Texas Supreme Court holding that the Texas Workers’ Compensation Act “provides the exclusive procedures and remedies for claims alleging that a workers’ compensation carrier has improperly investigated, handled, or settled a claim for workers’ claim for benefits.”
Steele v. Murphy & Beane, Inc., No. 06-19-00008-CV, 2019 WL 2998278 (Tex. App.—Texarkana, July 10, 2019).
Copyright 2019,James M. Loughlin, Stone Loughlin & Swanson, LLP
The Tyler Court of Appeals recently held that the Division has exclusive jurisdiction to determine whether administrative costs qualify as workers’ compensation benefits that the carrier is entitled to recover as part of its subrogation lien.
The Act provides that the net amount recovered by the claimant in a third-party action shall be used to reimburse the carrier for benefits that have been paid for the compensable injury. The Act defines benefits to include medical, income, death, or burial benefits based on a compensable injury.
According to the decision, the carrier allegedly paid a third-party administrator a flat-fee of $5,354,500.00 to assume liability for medical costs on a catastrophic claim. The TPA paid actual medical costs of $2,259,378.58. The carrier allegedly filed an affidavit in the claimant’s third-party action claiming a lien in the amount of $5,587,479.18. This amount allegedly included the $5,354,500.00 paid to the TPA as well as “hundreds of charges for bill and utilization review.”
The claimant’s survivors brought suit against the carrier alleging various fraud claims, all premised on the assertion that a carrier’s administrative costs are not recoverable as part of its subrogation lien. The carrier filed a plea to the jurisdiction which the trial court denied. The carrier then filed a petition for writ of mandamus which the Tyler Court of Appeals granted.
The Court held, “It is axiomatic that the DWC, tasked with regulating and administering the business of workers’ compensation and monitoring insurance carriers, attorneys, and other representatives for compliance with the Act, should be the decision maker with regard to whether benefits have been inflated and administrative costs have been wrongfully included in a subrogation claim.”
The Court explained that because the fraud claims arise out of the carrier’s allegedly improper investigation, handling, or settling of a claim for worker’s compensation benefits, the Division has exclusive jurisdiction over those claims and the claimant’s survivors were required to exhaust their administrative remedies with the Division.
Therefore, the Court held that the fraud claims, should be abated pending the Division’s resolution of whether the carrier is entitled to seek administrative costs as part of its subrogation claim, and if not, whether the carrier committed an administrative violation by allegedly doing so.
In re Old Republic Risk Mgmt., No. 12-19-00144-CV, 2019 WL 2462486 (Tex. App.—Tyler, June 12, 2019).
Copyright 2019,James M. Loughlin, Stone Loughlin & Swanson, LLP
We’ve heard reports that Brook Army Medical Center (BAMC) will not release medical records to a carrier unless the claimant signs a DD Form 2569, Third Party Collection Program/Medical Services Account/Other Health Insurance.
What is a DD Form 2569, you ask? It states in part, “ACKNOWLEDGMENT: I hereby agree to pay for any service not covered in whole or in part by my third-party insurer.” BAMC’s current policy is reportedly that it will not accept a standard HIPAA-compliant medical records release signed by the claimant.
Claimants are understandably reluctant to sign the DD Form 2569 agreeing to be personally liable for any unpaid charges. And without the form, BAMC will not provide its medical records to the carrier. As a result, carriers have been unable to obtain necessary medical records from BAMC.
Matt Zurek, DWC’s Deputy Commissioner for Health and Safety, was asked about this practice by BAMC at the July 8, 2019 stakeholder meeting. He said the DWC has not seen the issue before but that there’s no provision in section 413.0112 or the informal draft rules that allows the carrier to withhold payment if BAMC won’t provide its records.
Please let us know if you’ve encountered a similar issue trying to get records from BAMC.
Copyright 2019,James M. Loughlin, Stone Loughlin & Swanson, LLP
The Texas Division of Workers' Compensation has published an informal working draft of the rules necessary to implement newly-enacted section 413.0112 of the Act, referred to informally as the Brooke Army Medical Center (BAMC) Bill.
This new statute requires carriers to reimburse a federal military treatment facility (FMTF) the amount charged by the facility as determined under 32 C.F.R. Part 220.
The purpose of the statute is to prevent injured workers from being balance-billed by a FMTF for medical treatment when the carrier does not pay the FMTF’s billed charges.
Section 413.0112 also requires the commissioner to adopt rules necessary to implement this section, including rules establishing:
The informal draft rules do the following:
Rule 134.150
Rule 134.155
A stakeholder meeting was held on July 8, 2019 to discuss the informal draft rules. The Division is required to adopt the rules necessary to implement section 413.0112 no later than December 1, 2019.
- Copyright 2019,James M. Loughlin, Stone Loughlin & Swanson, LLP.
Most doctors who take the Designated Doctor test fail. At least, that is what data recently obtained from the Division via an open records request revealed. For instance, in 2018 the failure rate was 56% on the first attempt, 64% on the second, and 61% on the third.
The 2011 Legislature mandated more stringent testing requirements on designated doctors, with the goal of addressing the increasing discrepancy in the number of physicians versus chiropractors on the designated doctor list. However, that doesn’t appear to have happened. When broken out by provider type, data reveal that medical doctors (MDs) and doctors of osteopathy (DOs) have lower failure rates than chiropractors. The percentage of chiropractor DDs rose from 20% to 49% between 2010 and 2015. By contrast, the number of MDs and DOs dropped from 70% to 55% during the same timeframe. And overall, the number of DDs continues to drop—in April 2017 there were 586, compared to 475 in March 2019. Of those, just 133 are MDs. Chiropractors take a different test containing more questions on musculoskeletal injuries. (The Division maintains two lists of designated doctors—one for musculoskeletal conditions, and one for all other injuries; chiropractors fall into the first category, as they are only allowed to address musculoskeletal conditions.)
The data and discouraging pass rates leave some doctors to conclude that the test is impassable. Complaints run the gamut, including allegations that the test asks irrelevant questions, questions that have not been validated, and questions that have more than one correct answer. An article from WorkCompCentral earlier this month provided an example of one such question said to have been on the DD test: “Who determines compensability?” The choices, reportedly, were: (1) the Division, (2) the designated doctor, and (3) the insurance carrier. The “correct” answer was both (1) and (2). However, this isn’t entirely true, as the carrier could ultimately make the decision if it denies a claim and there has been no challenge to the denial. The question is also confusing, as DDs are told when assessing MMI/IR to rate the carrier-accepted injury, which is noted in Box 37 of the DWC-32 Request for Designated Doctor form provided to the DD in advance of the exam. If there is no dispute as to the compensability of any specific diagnoses, and the DD is not being asked to address extent of injury, then effectively the insurance carrier has determined which diagnoses are compensable.
Another case of good intentions gone bad? We’ll plead the Fifth.
Speaking of the Appeals Panel, if you ever happen upon a written AP decision, it might behoove you to march right down to the local convenience store and buy yourself a lottery ticket. An open records request regarding Appeals Panel decision outcomes in 2018 reveals that the overwhelming majority of CCH decisions become final by operation of law. This will not come as a surprise to most, but some might find the actual percentage astounding. In 2018, a total of 2,766 Requests for Review were submitted to the Appeals Panel. Of those, the Appeals Panel reviewed and affirmed 18, reversed and rendered 6, remanded 31, and partially remanded 36. (Thirty decisions were a mixture-- some issues being affirmed, some reversed and rendered.) Of the 2,766 total Requests for Review of CCH decisions submitted, a staggering 2,744, or 99.2%, became final by operation of law.
What does this mean? The odds the Appeals Panel will write a decision in a case are 4.2%. The odds the Appeals Panel will reverse and render or remand in a case are 3.5%.
These odds not quite as bad as the lottery, but even if one happens upon an actual written decision from the Appeals Panel, the outcome might not be as favorable. A lottery ticket at least provides one the momentary dream of owning his/her own private island.