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.
A healthcare provider who performed Functional Capacity Evaluations (F.C.E.’s), examinations designed to gauge employees’ abilities to perform their pre-injury job functions, has been sentenced to three years’ deferred adjudication and ordered to pay $10,000.00 in restitution by a Travis County District Court. Marcus Ricoy of Rancho Viejo was found guilty of falsifying medical claims to an insurer for more time than the examinations required. The Division of Workers’ Compensation’s unit in the Travis County District Attorney’s Office prosecuted the case.
Copyright 2018, Stone Loughlin & Swanson, LLP
On 5/18/18, the Texas Department of Insurance, Division of Workers’ Compensation, informed system participants of its intent to amend the designated doctor rules. The DWC identified three problem areas: the DD assignment process, qualification standards, and certification requirements.
The Division acknowledges the dramatic decrease in the number of designated doctors in the system overall and, even more alarmingly, the steep decline in the number of M.D.’s and D.O.’s assigned to perform such examinations. Much of the blame for this phenomenon lies in in the automated system that assigns a designated doctor to a case, which relegates the most qualified doctors into rarely-needed specialization categories and excludes them from the far more common musculoskeletal examinations. The unintended result is that the best doctors receive the fewest appointments.
The DWC intends to rectify that problem by implementing two separate DD lists in each county. One list will consist of all available doctors and chiropractors qualified to perform the most common musculoskeletal examinations; the other will be limited to medical doctors qualified to perform the more complex examinations, including those requested to address conditions requiring board-certification.
The twin list system is intended to remedy the inequity of board-certified M.D.’s or D.O.’s being selected for one specialized examination, then dropping to the bottom of the list and missing out on four or five of the far more common musculoskeletal examinations thereafter. The new process is intended to raise the number of exams available to M.D.’s and D.O.’s each year, thereby incentivizing the most qualified physicians to become—and remain—designated doctors.
The DWC also seeks to elevate training, testing, and qualification standards by narrowing the timeframe between training and applying for certification/recertification in order to ensure that designated doctors are always apprised of the most current information. Limiting the number of times a prospective DD can take the qualification examination in a given time period has also been suggested to address problems with test security.
Finally, the DWC is contemplating adding obligatory reviews of a designated doctor’s work product to the recertification process. Factors that may be considered include complaint history, excessive requests for deferral from the DD list, a pattern of overturned or substandard reports, a demonstrated inability to apply the AMA Guides, the timeliness of submitted reports, maintaining patient record confidentiality, or participant’s willingness to identify potential disqualifying associations.
Visit http://www.tdi.texas.gov/wc/rules/proposedrules/documents/pr127dd0518.pdf to view the proposed rule changes.
Copyright 2018, Stone Loughlin & Swanson, LLP
On April 18, 2018, the Disciplinary Panel of the Texas Medical Board suspended the medical license of John Tai Dang, M.D., of Cleburne, Texas. The suspension will remain in effect until superseded by an Order of the Board.
Among the myriad violations of the Medical Practice Act, Dr. Dang was found to have prescribed dangerous drugs (Diazapam, Alprazolam, Opana, and Xartemis) after becoming aware of a patient’s history of substance abuse and her admission into a treatment facility. While treating that same patient, Dr. Dang borrowed money from her totaling $20,000.00 and used a Care Credit account in her name and without her knowledge to bill another $5,000.00 in fraudulent services. Worst of all, the doctor was found to have assaulted two patients during examinations.
The Disciplinary Panel determined that Dr. Dang failed to maintain adequate medical records, failed to adhere to guidelines for treatment of pain, became financially involved with a patient, and engaged in sexual contact with a patient, among other infractions. In suspending his licencse, the Board deemed Dr. Dang’s medical practice a “continuing threat to the public welfare.”
Copyright 2018, Stone Loughlin & Swanson, LLP
Supreme Court Appears to “Flip” on Coming and Going Rule in Vicarious Liability Case
On April 13, 2018, the Supreme Court reversed the judgment of the Court of Appeals inPainter v. Amerimex Drilling - a negligence case involving an MVA that occurred while a drilling company employee was driving his coworkers from a drill site to housing provided by the employer at the end of their shift. The Supreme Court held that the employer was not entitled to summary judgment on the injured employee’s vicarious-liability claim. The injured crew members and the families of the crew members killed in the accident filed suit against Amerimex, alleging vicarious liability for the driver’s negligence. The trial court granted summary judgment for Amerimex, and the Court of Appeals affirmed. The Supreme Court reversed, holding that Amerimex was not entitled to summary judgment on either no-evidence or traditional grounds on the crew members’ vicarious-liability claim.
In a dissenting opinion, Justices Green and Brown disagreed with the ruling, noting that, two years earlier, the Supreme Court found in favor of Sandridge Energy (the company that hired Amerimex to drill the well from which the crew members were being transported) in a suit arising out of the same accident. The dissenting opinion opined that the Supreme Court in the Sandridge Energy case found that the driver was not Sandridge’s employee, as a matter of law, “at least with respect to transporting the crew” and Sandridge was therefore entitled to summary judgment in the vicarious liability claim against Sandridge. The dissenting justices believed that the same legal rationale should hold true for the drilling company, Amerimex, because the driver was not (as a matter of law) the employee of the drilling company either.
The majority in the Amerimex litigation disagreed and found that there were fact questions to be resolved regarding the driver’s employment status at the time of the MVA.
Adding Assault to Injury
The claimant, a special education diagnostician, was assaulted by a parent of one of her students and sustained injury. During the time she was unable to work, she received assault leave pay from her employer in an amount equal to that of her pre-injury wage. The Appeals Panel, in Decision No. 180294 (decided March 29, 2018) determined that, because the claimant had performed no personal services for the employer in exchange for the assault leave pay she received, the pay was not properly considered wages under the Texas Workers' Compensation Act. Therefore, the Appeals Panel reversed the decision by the Administrative Law Judge that the claimant had no disability while receiving assault leave pay.
There’s a Reason It Wasn’t the Season
In APD No. 180270, decided March 28, 2018, the Appeals Panel concluded that the claimant, a professional football player, did not qualify as a seasonal employee, even though his salary was only paid in 17 installments during the actual football season. For the remainder of the year, the claimant was required by contract to further the business affairs of the employer by way of mandatory participation in charitable events, maintenance of his physical condition, production of memorabilia for auctions, cooperation with news media, and protecting the reputation of his team. The Appeals Panel determined that the claimant's employment does not demonstrate "a pattern of seasonal, cyclical employment," and therefore no adjustment to the claimant's average weekly wage applied.
Splitting Headaches
Appeals Panel decisions have been known to cause headaches, but this is ridiculous. The Administrative Law Judge decided that the claimed headaches were not part of a compensable injury based on a designated doctor's assessment that "the claimant's minor head contusion would not result in ongoing headaches, and this diagnosis should not be considered compensable." In APD No. 180458, decided March 29, 2018, the Appeals Panel drew a distinction, stating that "headaches" and "ongoing headaches" are two separate injurious conditions. Because the condition appears sans adjective in the issue, the Appeals Panel concluded that the designated doctor had not considered the proper diagnosis and reversed the ALJ's extent of injury determination.
—Stone Loughlin & Swanson, LLP
According to the US Department of Labor’s Inspector General, Dallas attorney Tshombe Anderson and his family stole patient information from over 200 federal workers and then used the information to fraudulently bill the federal workers’ compensation system over $30 million. Anderson enlisted his entire family in the scheme, including his 84-year-old mother. Several of those family members have entered guilty pleas and are awaiting sentencing. Anderson received a 10-year maximum sentence in federal court on April 19, 2018, and his law license has been suspended by the State Bar of Texas.
—Stone Loughlin & Swanson, LLP
Effective immediately, the DWC has announced a plan to hold designated doctors accountable for their work product. Performance factors that will be considered include evaluating the number of closed complaints with warning letters issued by DWC, closed complaints with a letter of education, the number of complaints referred for a medical quality review or referred directly to Enforcement, the number of instances wherein a DD agrees to a consent order or receives a default judgment from SOAH related to a violation of the Texas Workers’ Compensation Act or DWC rules, the number of letters of clarification approved by DWC, the number of MQRP reviews where the outcome is “referral to enforcement” or “refer subject to the appropriate medical licensing board,” the number of Presiding Officer Directives (PODs) issued for re-examination, and the number of reports not adopted at a contested case hearing.
http://www.tdi.texas.gov/wc/hcprovider/documents/ddperform0418.pdf
—Stone Loughlin & Swanson, LLP
Chief Administrative Law Judge (ALJ) Lesli G. Ginn has found herself in the crosshairs of SOAH staff, administrative law professors, and lawmakers alike, after requesting and receiving the resignation of ALJ Hunter Burkhalter “in lieu of termination.” ALJ Burkhalter issued a contested case ruling against the Texas Medical Board, who complained to the Chief ALJ, which resulted in the controversial termination. Ginn’s action has been widely criticized as violating the integrity of SOAH’s administrative hearing process, long perceived as “an independent forum” respected for its fair process and objectivity. Reaction has been strong, both inside and outside of the agency, and there have been calls for Ginn’s removal as Chief ALJ. Her term is set to expire at the end of April.
—Stone Loughlin & Swanson, LLP
The DWC is combining its annual educational and safety conferences this year, and is promising an interesting lineup of topics to include challenges in the gig economy, first responder claim handling, telemedicine, safety for the millennial generation, and disaster recovery. Speakers include folks from Uber and the National Safety Council. Two hours of ethics credits have been approved for adjusters. Conferences are in San Marcos (May 15-17) and Irving (June 27-29).
—Stone Loughlin & Swanson, LLP
The DWC has announced several rule changes and proposed rule changes in the past 30 days. Here is a rundown of what you need to know:
New Adopted Rules
Preauthorization Required for Compound Drugs
Rules 134.500, 134.530 and 134.540 have been amended to require preauthorization for compounded drugs in both network and non-network claims and to exclude from the closed formulary prescription drugs created through compounding.
https://www.tdi.texas.gov/wc/rules/adopted/documents/ao1340418.pdf
Fewer Reporting Requirements and Removal of Private Vocational Rehab Registry
HB2112 mandated changes to certain reporting and notification requirements. DWC made changes to those rules and repealed a couple of others. Employers may now submit a notice of termination of coverage to DWC by any means; and, certain building and construction contractors, contractors and subcontractors, and motor carriers and owner-operators are no longer required to file certain agreements with the DWC. The SIBs rules and definitions were also changed to remove the requirement for private providers of vocational rehabilitation services to register with the DWC. That registry has been removed and the DWC is no longer required to review and determine the unemployment/underemployment status of injured employees.
https://www.tdi.texas.gov/wc/rules/adopted/documents/ao136rpt0318.pdf.
Who Needs Personal Touch? Not Injured Workers
New Rule 133.30 permits health care providers to bill and be reimbursed for telemedicine or telehealth services, regardless of where the claimant is located at the time the services are provided. The new rule will be effective September 1, 2018.
https://www.tdi.texas.gov/wc/rules/adopted/documents/ao1340418m.pdf
New Proposed Rules
Hearing Officers Are Now Administrative Law Judges and Other Hearings Changes
The folks formerly referred to as DWC “Hearing Officers” will now formally be acknowledged as “Administrative Law Judges” (ALJs), not only in the hearing room but also in the proposed rules. New informal rules also proposed changes to the way parties practice in front of those ALJs. Those changes include a requirement that the parties include a certificate of conference on any motions presented to the DWC, and make changes to the ”no-show” procedures which would allow the ALJ to issue a decision on a finding of no good cause or failure to respond, rather than convening a second hearing. The DWC is also clarifying that the automatic reset of a BRC upon a request within 10 days of receiving notice is limited to the first scheduled session. The informal comment period had a relatively short window: April 9, 2018 through April 20, 2018, and is now closed.
https://www.tdi.texas.gov/wc/rules/documents/dralj0418m.pdf
PAs to OK 73s
Proposed Rule 129.5 will permit treating doctors to delegate authority to complete work status reports to a physician’s assistant.
https://www.tdi.texas.gov/wc/rules/documents/drdwc0730418m.pdf
TDI Tightens Up Rules to Regulate Sales of Comp-like Insurance Products
TDI has posted an informal draft that would amend rules regulating the sale of insurance products that could be misrepresented or misunderstood as substitutes for workers' compensation insurance.
http://www.tdi.texas.gov/rules/pc/documents/wcsubtext.pdf
—Stone Loughlin & Swanson, LLP
DWC Commissioner Ryan Brannan announced his resignation, effective May 1, 2018. Commissioner Brannan was appointed by Governor Rick Perry in August 2014 and was reappointed twice by Governor Abbott. We wish him well in all his future endeavors!