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.
In 2016, the average cost of a compounded drug prescription in workers’ compensation claims in Texas rose to a whopping $829. That’s the conclusion of the Texas Department of Insurance, Workers’ Compensation Research and Evaluation Group. The group announced this finding and others last month in its publication Baseline Evaluation of the Utilization and Cost Patterns of Compounded Drugs.
Among the group’s many other findings are the following:
The group’s publication is available on the TDI-DWC website.--David L. Swanson, Stone Loughlin & Swanson, LLP
Do you have a ping-pong table at your office? If not, maybe you should lobby for one. That’s the implication from an article in the June 24th edition ofThe Wall Street Journal which describes the extraordinary steps that insurance companies are taking to recruit, and retain, employees these days.
For example, according to theJournal, Acuity Insurance has furnished its offices with ping-pong tables, a 45-foot climbing wall, and a 27,000 square-foot fitness center, and it organizes twice-monthly happy hours to boot. And at school-recruiting events last autumn, Acuity reportedly served mounds of freshly cooked bacon, whose aroma drifted around the grounds. Also according to theJournal, some insurers are taking a page from Silicon Valley’s hip offices. For example, Allstate Corp. has a “happiness guru” in a building where it locates many data scientists.
The reason for these over-the-top enticements? It turns out that Americans under 30 (millennials) generally aren’t excited about the idea of working for an insurance company (gasp!). And that’s a problem because insurers reportedly must hire 500,000 newcomers over the next several years as a wave of retirement hits.--David L. Swanson, Stone Loughlin & Swanson, LLP
Jessica Barta was reappointed by Governor Greg Abbott as Public Counsel for The Office of Injured Employee Counsel (OIEC) for a term to expire in February 2019. In that role, Barta has also accepted a position on the Board of Kids’ Chance of Texas, along with Jane Stone from the Firm, who has been on the Board since its inception.
Kids’ Chance is a non-profit organization that creates and supports scholarship programs for children who have had a parent involved in a workplace accident that was fatal or left them severely injured. Look for new upcoming Kids’ Chance events in Texas in the near future. In the meantime, don’t forget that Kids’ Chance is also looking for eligible scholarship recipients. Please visit Kids’ Chance of Texas’s website (www.kidschanceoftexas.org) for more details. --Erin Shanley, Stone Loughlin & Swanson, LLP
Senate Bill 1895 (Sen. Larry Taylor) was passed by the Texas Legislature and signed into law by Governor Abbot on May 26, 2017. The bill amends the Texas Labor Code to require the commissioner of workers’ compensation in assessing an administrative penalty under the Texas Workers’ Compensation Act, to consider, in addition to other existing factors: (1) whether the administrative violation has a negative impact on the delivery of benefits to an injured employee, and (2) the history of compliance with electronic data interchange requirements. The bill also requires the commissioner to adopt rules that require the Division, in the assessment of an administrative penalty against a person, to communicate to the person information about the penalty, including the relevant statute or rule violated, the conduct that gave rise to the violation, and the factors considered in determining the penalty.
The amended statute is effective on September 1, 2017. --Erin Shanley, Stone Loughlin & Swanson, LLP
We occasionally field questions about “EFA.” This is a product that is being heavily marketed to Carriers, so we thought we’d address the procedure inThe Compendium.
EFA (Electrodiagnostic Functional Assessment) is basically a surface (not needle) EMG done pre-employment and post-injury. The stated goal of EFA is to age injuries and provide a potential defense to injury or aggravation claims.
One vendor who aggressively markets this service claims that its technology is noted in ODG (the Division’s official treatment guideline)– the implication being that the ODG in some way endorses it. However, EFA is not recommended by the ODG. In fact, the ODG states, “surface electromyography, the primary technology used by this device, is not recommended for the diagnosis of neuromuscular disorders.” Therefore, any claims made based on test results from the device could be very easily discredited. Now you know.
As a substitute for “EFA”, the carrier or insured would be better-served by investing time and resources into clarifying a claimant’s diagnoses early on in a claim, before the horse is out of the barn and galloping away. For example, in a motor vehicle accident, the adjuster should obtain crash photos, Texas Peace Officer’s crash reports, and ER notes, and conduct a full interview of the claimant immediately after the accident. This strategy for claims management is well-known, economical, and time-proven. --Erin Shanley, Stone Loughlin & Swanson, LLP
Gone are the days where a party can count on adding an issue to be adjudicated at a CCH at the last minute, without first raising the issue at the BRC or properly and timely requesting to add the issue after the BRC and before a CCH. At least, maybe. In a recent decision, the Appeals Panel found no abuse of discretion when the Hearing Officer found “no good cause” to add an extent of injury issue requested by the Claimant. The issue was not raised at the BRC, the parties did not consent to adding the issue, and the Hearing Officer thus did not find good cause to add the issue. Citing Downer v. Aquamarine Operations, Inc., 701 S.W.2d 238 (Tex. 1985) and Morrow v. H.E.B., Inc., 714 S.W.2d 297 (Tex. 1986), the Appeals Panel found no abuse of discretion on the part of the Hearing Officer in denying the request to add the issue.
Hopefully this will prevent the all-to-often scenario in which a Claimant attorney or ombudsman will move for a continuance at the very last minute (after the Carrier representative has fully prepared for and traveled to the CCH), citing an extent of injury issue that he neglected to either raise at the BRC or timely request to be added after receipt of the Benefit Review Officer’s report.
As always, whether a party will be allowed to raise an issue at the CCH (or request a continuance on the basis of raising a new issue) will remain a fact-specific, case-by-case matter. Nevertheless, the Appeals Panel has given Hearing Officers a decision that supports their not having to automatically grant a continuance at the eleventh hour. --Erin Shanley, Stone Loughlin & Swanson, LLP
A man has filed suit in Tarrant County district court, alleging that his former employer, a mortuary, discriminated against him because he filed a workers’ compensation claim. He claims he developed asthma after performing mortuary services on a man who had died from ingesting paint fumes in November 2016. He says he had not been provided with personal protective equipment and began to suffer chronic asthma after being exposed to the fumes.
The employee also alleges a trauma claim occurring the following month, after he had been assigned to handle the bodies of a mother and 3-month-old son who had been decapitated. (The decedents’ husband and father had been arrested in their deaths.) He is claiming a post-traumatic stress reaction from performing the services on the victims.
The former employee is seeking monetary relief of $100,000 to $1 million. The suit alleges loss of earnings and mental anguish because the mortuary did not pay for his medical expenses, and terminated the employee two days after they learned he had filed for workers’ compensation.
The mortuary has issued a prepared statement, stating that the claims are without merit, that the suit contains information that is “both misleading and inaccurate,” and that the former employee “is making claims that didn’t come up until after his termination.” --Erin Shanley, Stone Loughlin & Swanson, LLP
Eleven years ago, a film titled Idiocracy was released. In the movie, Luke Wilson plays an American of average intellect who wakes up 500 years into the future, only to discover that he is now, by far, the most intelligent person in the “dumbed down” society in which he finds himself.
Some might findIdiocracy an excellent metaphor for the Division’s current project to revamp the PLN (Plain Language Notice) forms. The Division is currently proposing revisions to plain language notices PLN-1 through PLN-12, and is proposing a new PLN-13 and PLN-14, intended to act as subsets of the PLN-3. One of the stated goals for the proposed changes to the forms is to provide an emphasis on use of plain language and communication via a “simple and easy to understand” manner. More specifically, the Division’s research apparently shows that the average claimant reads at a fifth-grade level, and that language on the current forms exceeds this reading level.
Yes, you read this correctly– the Division wants to make the forms comprehensible to someone whose vocabulary is roughly equivalent to an eleven-year-old child. As an example, below is the current language of the PLN-1, followed by its proposed revision:
Current:
We are denying your claim for workers’ compensation benefits. Workers’ compensation benefits, including medical benefits, are not being paid because _____.
Proposed:
We, [Name of carrier], looked at your workers’ compensation claim. Based on the facts we got about your claim, we are not going to pay income or medical benefits.&nbnbsp; The reason for this is_____.
The Division is proposing division of the the PLN-3 (Notification of MMI/First IIBs payment) into three different notices: the PLN-3, PLN-13, and PLN-14. Each proposed form is to be used to report a different payment scenario when a claimant reaches clinical or statutory MMI.
Additionally, while the PLNs are forms prescribed by the Division, the new forms indicate that insurance carriers must print the PLNs on their own letterhead.
At this time, there is no indication as to whether (or not) the Division has conducted any specific research or surveys to determine the reading level of injured employees in Texas. However, many have expressed concern that revising the PLNs to simplify the reading level to that of a fifth grader may offend the many injured employees (not to mention other system participants) who read at a higher grade level. Does “plain” language really equate to “dumbed-down” language, and if so, do the forms really warrant this drastic of a change?
We’ll leave you to decide for yourself. The draft plain language notices are available on the TDI-DWC website atwww.tdi.texas.gov/wc/rules/drafts.html. --Erin Shanley, Stone Loughlin & Swanson, LLP
The 85th Texas Legislature is in full-swing. Through 53 filed bills, the legislators have shown significant interest in tweaking the workers’ compensation system. The following is a summary of the most-relevant provisions.
Attempting to Bring Bad Faith Claims Back to Texas Comp. In Tex. Mutual Ins. Co. v. Ruttiger, the Texas Supreme Court held that claims for unfair settlement practices (bad faith claims) against workers’ comp carriers under Tex. Ins. Code §541.060 are precluded by the dispute resolution procedures and administrative remedies provided by the Workers’ Compensation Act. HB 499 would amend Tex. Ins. Code §541.060 to expressly grant workers’ comp insureds and beneficiaries a bad faith claim. –Dan Price, SLS, LLP.
No More Payment of Administrative Fine Prior to Judicial Review of TDI Violation? If DWC-TDI assesses an administrative fine for an administrative violation against a system participant, Tex. Lab. Code §415.035 requires the penalized party to pay the administrative fine (by escrow or bond) as a prerequisite to filing a petition for judicial review to challenge the finding of a violation. Failure to first pay the fine currently results in waiver of the penalized party’s legal rights to contest the violation. HB 1456 would eliminate the requirement that the fine be paid prior to challenging the alleged violation on judicial review. –Dan Price, SLS, LLP.
All Texas Contractors and Sub-Contractors May Be Required to Provide Workers’ Comp. Tex. Lab. Code § 406.096 currently applies to governmental entities and requires that contractors and sub-contractors who perform work for the entity provide workers’ comp coverage to their respective employees.HB 1477 would amend Section 406.096 to require all contractors and sub-contractors to carry workers’ comp insurance for their employees irrespective of whether the work is provided for a governmental entity. –Dan Price, SLS, LLP.
Proposed Annual Cost of Living Increases to Texas Death Benefits. HB 2054 would amend Tex. Lab. Code §408.181 (relating to Death Benefits) to provide annual adjustments to death benefits to account for inflation as calculated based on the consumer price index published by the U.S. Department of Labor and the cost of living adjustments used by the Social Security Administration. –Dan Price, SLS, LLP.
Perpetual Death Benefits to Texas Spouses Who Remarry? Yes, According to this Bill. Section 183(b) of the Texas Labor Code provides death benefits to an eligible spouse for life unless the spouse remarries. HB 2055 would amend this section to require payment of death benefits to the eligible spouse for life, “regardless of whether the spouse remarries.” –Dan Price, SLS, LLP.
Administrative Overreach? Bill Seeks to Provide Administrative Oversight to Texas Court’s Review of Division’s Decisions.In this separation of powers headscratcher, HB 2061 would expand the notice requirements contained in Section 410.253 of the Texas Labor Code to require service on the Division of petition for judicial review (the current version requires only notice that suit is filed) as well as any proposed agreed judgment. In addition, the statute would require disclosure to the Division of all terms of settlement and payment agreed to by the parties as part of the proposed agreed judgment. –Dan Price, SLS, LLP.
Texas Bill Requires Carriers to Pay for Injured Workers’ Causation Opinions.If the carrier disputes the extent of injury, HB 2226 would require the carrier to pay a treating doctor (or doctor on referral from the treating doctor) for the preparation or a causation report in support of the claimant’s position on extent of injury. Importantly, the bill allows the doctor to create and bill for such report even in the absence of a request to do so by the injured worker, his representative, or the insurance carrier. –Dan Price, SLS, LLP.
A Call for Less Experienced System Participants in Texas: Lowering the Bar for Ombudsmen.The current statutory requirements to serve as an ombudsman in the Office of Injured Employee Counsel include at least one year of experience in workers’ comp.See Tex. Lab. Code § 404.152(b)(4). HB 2060 would eliminate this requirement, meaning a person may become an ombudsman and, with no experience, assist an injured worker through the complexities of the Workers’ Comp Act. –Dan Price, SLS, LLP.
Compound Drugs Excluded from Texas’ Closed Formulary. HB 2830 would allow the Commissioner to exclude by rule from the closed formulary compounded pharmaceutical medications. –Dan Price, SLS, LLP.
All Work-Hardening/Conditioning Subject to Preauthorization in Texas, Unless Changed by Rule.Work-hardening and work-conditioning currently requires preauthorization only if the facility providing the work-hardening/conditioning is not a credentialed facility.See Tex. Lab. Code §413.014(2). HB 2058 would require preauthorization for all work-hardening/conditioning irrespective of whether the facility is credentialed or not. There is a catch, however. The bill would authorize the Commissioner to exempt by rule credentialed facilities from the preauthorization requirement. – Dan Price, SLS, LLP.