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.
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!
In Diaz v. American Zurich Ins. Co., No. 05-16-01530-CV, 2018 WL 1081452 (Tex. App.—Dallas Feb. 28, 2018), the Dallas Court of Appeals held that the first certification of MMI and IR became final as to the claimant because she did not timely request a BRC and she could not rely upon the BRC request filed by the carrier to stop the 90-day clock from running.
The designated doctor found that the claimant’s injury included stenosis and disc protrusions (the “Disputed Conditions”) and that the claimant was not at MMI for the Disputed Conditions. The carrier filed a BRC request to dispute the designated doctor’s determination of extent, MMI, and IR. The carrier also requested a post-DD RME. The RME doctor determined the compensable injury did not include the Disputed Conditions, and that the claimant was at MMI with a 0% IR for the carrier accepted injury.
The claimant never requested a BRC to dispute the first certification of MMI and IR by the RME doctor. The court found that the first certification became final under the 90 day rule. The court rejected the claimant’s argument that she was not required to file a separate BRC request on the same issues raised in the carrier’s request. The court held that Rule 141.1 requires a “disputing party” to file a request for a BRC “in the form and manner required,” and the rule does not provide that a “disputing party” may rely on a request for a BRC filed by another party.
The court also rejected the claimant’s argument that there was an exception to the ninety-day rule in the form of a clearly mistaken diagnosis because the RME doctor determined that her injury did not include the additional claimed conditions. The court held that the claimant was diagnosed with the disputed conditions prior to the RME exam and that the RME doctor had considered those conditions. Therefore, any error by the RME doctor in determining the compensable injury did not include the disputed conditions is not one of mistaken diagnosis.
In Halferty v. Flextronics America, LLC, No. 13–16–00379–CV, 2018 WL 897979 (Tex. App.—Corpus Christi Feb. 15, 2018), the Corpus Christi Court of Appeals held that Flextronics, as the general contractor, did not “provide” workers’ compensation insurance coverage to its subcontractors for purposes of section 406.123(a) of the Act merely by requiring a subcontractor to obtain workers’ compensation insurance coverage; and therefore, it was not entitled to claim the exclusive remedy defense in response to a suit filed against it by a subcontractor’s employee.
Flextronics contracted with Titan Datacom, Inc. to install data cabling at a Flextronics Facility. In the agreement, Titan agreed to provide workers’ compensation insurance coverage for the project. Titan contracted with another company, Outsource, to assist in the data cabling. Both Titan and Outsource had workers’ compensation coverage for their employees.
As bad luck will have it, an Outsource employee, Patrick Halferty, sustained a work injury when he was accidentally knocked off a ladder by a Flextronics employee.
Mr. Halferty obtained workers’ compensation benefits from Outsource’s insurance carrier. He also sued Flextronics for his injuries. Flextronics filed a summary judgment motion arguing that Mr. Halferty’s suit was barred by the Act’s exclusive remedy defense because, as the general contractor, it was Mr. Halferty’s employer pursuant to section 406.123(a) of the Act.
The court held that to be entitled to the exclusive remedy defense, section 406.123(a) required Flextronics to do something more than “simply passing the onus of obtaining coverage to the subcontractor.” The court suggested the “more than” might include providing for an alternate insurance plan in which Flextronics would provide coverage in the event that is subcontractors failed to obtain insurance. Or, the “more than” might include enforcement mechanisms built into its contract with subcontractors “—such as withholding payment, or deducting insurance premium costs—that would trigger in the event that the subcontractors failed to provide coverage to its employees.”
James Loughlin, Stone Loughlin & Swanson, LLP.
Effective April 1, 2018, insurance carriers must begin using the following revised plain language notices:
• PLN-3a (Notice of Maximum Medical Improvement and No Permanent Impairment)
• PLN-3b Notice of Maximum Medical Improvement and Permanent Impairment)
• PLN-3c (Notice of Maximum Medical Improvement and Estimated Permanent Impairment)
The Division also amended the PLN-3b to allow the carrier to indicate that it disagrees with the doctor’s impairment rating, the carrier’s reasonable IR assessment, and that the payment is based on the carrier’s reasonable assessment.
A new study released March 6, 2018, compared the effectiveness of opioids to over-the-counter medications and found that opioids were “not better at improving pain that interfered with activities such as walking, work and sleep over 12 months for patients chronic back pain or hip or knee osteoarthritis pain compared to non-opioid medications.” The study can be found here:https://jamanetwork.com/journals/jama/article-abstract/2673971?redirect=true. This latest study is sure to add more fuel to the debate about the use of opioids to treat injured workers and raise more questions about the continued prescribing patterns of some doctors.