State News : Texas

Never, never, never miss a deadline to appeal! Second thoughts will get you nowhere.  

In a recent SIBs case appealed by a Plaintiff workers’ compensation claimant to the Beaumont Court of Appeals, the trial court awarded the Plaintiff SIBs by way of a summary judgment. The Order was signed on April 20, 2016, and neither the workers’ compensation insurance carrier nor the claimant filed a notice of appeal within the deadline to do so. However, within 30 days of the April 20, 2016 order, the Plaintiff filed a motion asking the trial court to “clarify” the order to expressly state the money amount that he was owed in prejudgment interest. Then, in late June, the claimant asked the trial court to increase the amount of the SIBs award, and to increase the amount of the attorney’s fees that were awarded in the April 20th Order. After a hearing held the following October, the court signed an second order on October 12, 2016 granting the claimant’s new requests. While the carrier failed to appeal the April Order, it did appeal the October Order.  

The Beaumont Court of Appeals issued an opinion that the April 20, 2016 Order had become final, explaining that the trial court’s jurisdiction ended 105 days after the April order was signed. Because the October Order was signed more than 105 days after the earlier April Order was signed, the trial court’s jurisdiction had expired. The result? The October Order in favor of the claimant for more money and fees was void. The Plaintiff lost out on the higher award because it was too late to fix the wording of the initial order.Texas Alliance of Energy Producers v. John Bennett, Case No. 09–16–00437–CV, 2018 WL 2246540, (Tex. App.- Beaumont May 17, 2018).

Why is it that in 2012 84% of Designated Doctors were medical or osteopathic doctors, and only 16% chiropractors, but by 2017 the number of medical and osteopathic doctors serving dropped to 34%? The statistics can’t be denied, and the Division is working on solutions that would result in more medical and osteopathic doctors being willing to participate in the designated doctor process.  

Proposed fixes include distinguishing between musculoskeletal and non-musculoskeletal structures of the torso, changes to the rescheduling process, adjusting the computerized selection process to increase the number of exams in a city in a day to accommodate doctors willing to travel to do exams, and creating two lists of doctors – one containing names of medical and osteopathic doctors and chiropractors and the other a list only of medical doctors and osteopathic doctors qualified to do more specialized exams. The proposed rule changes do not, however, address the extensive regulatory and compliance burdens complained about by many doctors who have elected to forego certification to perform designated doctor exams.

-  Copyright 2018,Jane Lipscomb Stone, Stone Loughlin & Swanson, LLP

The law has been settled for years that a waiver of subrogation endorsement contained in many insurance policies effects a waiver of a workers’ compensation carrier’s right to get reimbursement from 3rd party settlement funds for workers’ compensation benefits paid to an injured worker. But in a recent decision, the Texas Supreme Court shot down a workers’ compensation insurance carrier’s argument that a waiver of subrogation applies only to direct recovery against the liable 3rd party, and not to an indirect recovery from the settlement proceeds paid by that party to the injured worker. The Court explained that when the carrier, by way of the endorsement, signed away its right to recover benefits it paid to the employee in exchange for receiving a higher premium to cover the  assumption of the risk, it cannot also try to recover indirectly the same proceeds it agreed not to pursue directly. Put in other words, the Court admonished that “[the Carrier] sought the same money through the back door that it could not get through the front.”  Wausau Underwriters Ins. Co. v. James Wedel and Michelle Wedel, Texas Supreme Court No. 17-0462, Opinion Delivered June 8, 2018.

-  Copyright 2018, Jane Lipscomb Stone, Stone Loughlin & Swanson, LLP

As a reminder to us that disability and entitlement to TIBs can be different questions when a bona fide offer of employment (BFOE) is at issue, the Appeals Panel recently gave guidance and a caution to those of us who care about such things. In a May 29, 2018 decision the AP upheld the ALJ’s determination to throw out a BFOE simply because the DWC-73 attached to the offer was not signed by the doctor. But, the AP then also upheld the ALJ’s determination that the claimant did not have disability. This holding is a reminder that when both BFOE and disability are raised as issues, even if it is determined that there has not been a valid BFOE, the ALJ is still free to find that the claimant did not have disability.Appeals Panel Decision No. 180817, decided May 29, 2018.

-  Copyright 2018,Jane Lipscomb Stone, Stone Loughlin & Swanson, LLP

Cassie Brown, an experienced insurance regulator from the Texas Department of Insurance, is the new Commissioner of Workers’ Compensation.  We look forward to her fresh, informed view of the staffing and structure the Division of Workers’ Compensation to the benefit of all system participants. Commissioner Brown has already confirmed that the attorney fee issue is on her radar and has recommended that all attorneys should take a close look at their hours and fees, and confirm that they are accurate.

Goodbye and well wishes to Bonnie Lopez a well-respected Benefit Review Officer who announced her retirement effective June 28th.  Ms. Lopez has been with Division even longer than our firm has been in business.  She started with the Industrial Accident Board in 1985, leaving that post in 1992. She returned to work at the Division as a BRO in 2005.

Michele Wong Krause, a Dallas based a workers’ compensation attorney, is now a member of  the Board of Governors of the American Bar Association.  Among her other qualifications she served on the ABA Commission on Hispanic Legal Rights and Responsibilities from 2014 to 2017.  She is also an active member of the Workers’ Compensation Law Section of the State Bar of Texas.

-  Copyright 2018, Jane Lipscomb Stone, Stone Loughlin & Swanson, LLP

Attorney Leslie Casaubon has been accused of defrauding injured workers (and the Division of Workers’ Compensation) in regard to attorney fee affidavits she submitted for approval to the Division. She is accused of submitting time under Texas State Bar numbers of other attorneys for work those attorneys did not perform on behalf of her firm. Ms. Casaubon was indicted on three counts. Count I, Securing Execution of a Document by Deception, is a 1st degree felony. The other two counts are 2nd degree felonies but arise out of the same deceptive billing practices. Send an email to jstone@slsaustin.com if you would like to have a copy  of the indictment to learn the particulars of her scheme that has been going on for quite some time. It is a puzzle as to why the Division, who by statute is charged with the duty to regulate attorney fees, did not pick up on the scheme earlier.  

Labor Code 408.221, and Division Rules 152.1-152.3 provide the details of what a claimant’s attorney must certify to the Division when applying for fees. To be paid the 25% of a claimant’s income benefits, the attorney can only submit for payment fees for time the attorney actually worked. It goes without saying that an attorney cannot work more hours than there are in a day, or in a year. It seems as though the Division could easily flag billings where the hours claimed by an attorney under his or her State Bar number exceed a threshold of credibility. For example (based on a recent open records request for 2017 approved fees reported by WorkCompCentral), if an attorney submits fees which are approved for $1,700,000 in a year, that would amount to billing $200/hr. for 8,500 hours worked in that year, which would be around 163 hours per week, which would be close to 24 hours of work every day. Hard working attorneys can sometimes work up to 2,500 hours a year if they work 48 hours every week – and can actually justify billing a client for all of those hours – but anything more than that surely exceeds a threshold of credibility.

The irony is that the “new law” reform of 1989 was driven in part by the perception (or reality) that claimant attorneys were prematurely settling old law claims for medical and indemnity benefits in order to get a quick payout of their attorney fees. Obviously, if a claimant attorney could settle out a case (including medical benefits) for $100,000, 25% of that would be $25,000. There was no tedious administrative  process of having the fees approved the agency by affidavit as there is now under new law. But, the settlements often left the client with no access to medical care even though there may have been latent effects from their work injury.

The “new law” was enacted in 1989, and was promptly challenged on the basis that it violated the Texas Constitution in many respects. In 1995, the Texas Supreme Court eventually determined that the “new law” provisions did not violate the Texas Constitution and issued a lengthy opinion stating its reasoning. Of interest here is that claimant attorneys challenged the “new law” provision that capped the hourly rate for fees at $150 and limited the amount they could be paid to 25% of a claimant’s income benefits. Interestingly, under the “old law” a claimant attorney could not receive fees in excess of 25% of his client’s recovery, but there was also no cap on hourly rates. The “old law” settlements were often insufficient for the claimant to cover his future medical costs. The decision was a blow to claimant attorneys. See Texas Workers’ Compensation Commission v. Garcia, 893 S.W.2d 504 (Tex. 1995).

To quote Winston Churchill,  “Now this is not the end. It is not even the beginning of the end. But it is, perhaps, the end of the beginning.”

-  Copyright 2018,Jane Lipscomb Stone, Stone Loughlin & Swanson, LLP

One of the most serendipitous work injuries in history befell a teenager in a Birmingham, England sheet metal factory circa 1965.  The youth, a welder by trade, was asked to fill in for an absent co-worker whose job was to cut pieces of flattened metal under a guillotine-like blade.  It was the boy’s last day of work, and during his lunch break he contemplated not bothering to finish out his final shift, but his mother convinced him to honor his commitment to his employer, so he returned. 

That afternoon, disaster struck. Lacking the proper training to operate the machine, the 17 year old sustained a grisly work injury, as the industrial blade sliced through the tips of his middle and ring fingers on his right hand.  Emergency medical attention was unsuccessful in reattaching the appendages, and the youth grew despondent—not merely due to the permanent disfigurement to his hand, but because of what it meant for his great passion in life: playing the guitar. 

The boy, it turns out, was left-handed, and therefore used his right hand to press down on the strings along the fretboard.  His work injury had presumably deprived him of the ability to play the guitar ever again. 

However, when the youngster’s foreman visited him in the hospital, he brought with him a record by renowned Belgian jazz guitarist Django Reinhardt, who, following a severe burn injury, had also lost the use of two fingers on his fretting hand.  Inspired by Reinhardt’s rise to international fame after teaching himself to fret his guitar with just two fingers, the boy grew determined that his work injury would not rob him of his nascent musical talent, either.

Necessity, they say, is the mother of invention.  Finding it too painful to press down on the strings with the bony ends of his fingers, and demonstrating an ingenuity far beyond his years, the young Brit engineered fake fingertips for himself by melting down a plastic soap bottle and covering them with bits of a leather jacket.  The homemade prosthetics relieved the pain, but compressing the tight guitar strings still proved too difficult due to loss of sensation. 

In a flash of genius, he decided to try down-tuning the strings, lessening the tension to make them easier to press and bend.  It worked.  Suddenly the boy could play his beloved guitar again.  However, down-tuning had an unavoidable consequence: it lowered the pitch of each string, giving the guitar a deeper, darker timbre, especially when amplified.  The newly-discovered tones intrigued the guitarist, but it was all wrong for his band, a folk-rock outfit named Earth. 

Fortunately his bandmates shared their guitarist’s fondness for his aggressive new sound.  Rather than eject him from the group, they forged an entirely new musical identity around the more foreboding tones emanating from the young man’s self-forged fingertips.   Shrewdly, they agreed that ‘Earth’ no longer suited the Wagner-esque rock music they were now writing.  Serendipity struck again when a Boris Karloff film playing in a movie theater across the street from their rehearsal space delivered the band a fitting new name.  The film was calledBlack Sabbath. 

Now 70 years old, Tony Iommi, the boy who thought he would never play guitar again, has sold over 70 million records worldwide since 1968, was inducted into the Rock & Roll Hall of Fame in 2006, and is widely credited for (pardon the pun) single-handedly inventing the subgenre of rock music known as heavy metal. 

Just think what he might have accomplished with a lumbar sprain.

Copyright 2018,Robert Greenlaw, Stone Loughlin & Swanson, LLP

In an effort to educate injured employees on the complexities of Texas workers’ compensation, the Division has produced seven brief instructional videos, viewable athttp://www.tdi.texas.gov/wc/employee/guide.html. The surprisingly not-terrible videos guide potential claimants through the labyrinthine Texas Work Comp system, providing instructions for how to file a claim, explaining differences in types of income benefits, and mapping out the stages of the dispute resolution process. 

In announcing the creation of the videos, then-Commissioner Brannan hoped that the videos would assist injured workers in better understanding the workers’ comp system, acknowledging that, “People are busy these days and are much more likely to watch a video to learn about something new.”  But there is value in the videos for even the most seasoned Texas Work Comp veteran: eagle-eyed system participants may spot San Antonio Benefit Review Officer Samuel Peralez as “Injured Worker at BRC.”  Spoiler alert: he’s only pretending to be injured.

Copyright 2018, Stone Loughlin & Swanson, LLP

Last month we reported on the Appeals Panel’s puzzling decision to distinguish “headaches” from “ongoing headaches” as separate conditions.  This month, a pair of Appeals Panel Decisions suggests an emerging trend that may itself become an ongoing headache for Carriers.

Appeals Panel Decision No. 180603, decided April 19, 2018, reversed the Administrative Law Judge by determining that headaches were indeed a part of the claimant’s injury, which already included a traumatic brain injury.  The case was remanded for an amended MMI/IR certification by the designated doctor with the newly compensable condition, even though a rating for headaches is (presumably) subsumed in a rating for a traumatic brain injury. 

Similarly, Appeals Panel Decision No. 180602, decided April 30, 2018, remanded the case for a new certification from the DD to incorporate the AP’s finding of headaches as part of the compensable injury.  Their reasoning: the claimant complained of head pain in “numerous medical records,” which is perhaps unsurprising given that the accepted injury was a scalp laceration that required repair with staples. 

And only on May 16, 2018, did the Appeals Panel issue Decision No. 180702.  Once again, the Administrative Law Judge excluded headaches from the compensable injury, only to suffer a reversal at the hands of the AP.  This time, “periodic headaches” resulted from a concussion.  As before, the judge was instructed to obtain a new certification from the designated doctor that includes a rating for “periodic headaches.”

With four of their most recent decisions focused on the addition of headaches to compensable injuries, each requiring case management and a new certification from the designated doctor, it would seem the Appeals Panel has a bit of a bee in its bonnet about this topic lately. (The Appeals Panel is respectfully cautioned that bonneted bees are also a known cause of headaches.)

Copyright 2018, Stone Loughlin & Swanson, LLP

Jammers Groundscapes, a landscaping company operating out of Pflugerville, Texas, just north of Austin, entered a plea of guilty in defrauding its workers’ compensation carrier by omitting the payroll from a non-covered ancillary business.  The omission was Jammers’ attempt to secure lower workers’ compensation premiums, which are calculated, in part, on an employer’s payroll.  The scam succeeded for six years until the carrier’s internal investigation uncovered it.  A Travis County District Court ordered Jammers to reimburse its carrier to the tune of $400,000.00. 

Copyright 2018, Stone Loughlin & Swanson, LLP