State News : Texas

NWCDN is a network of law firms dedicated to protecting employers in workers’ compensation claims.


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.


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Texas

STONE LOUGHLIN & SWANSON, LLP

  512-343-1385

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

We are pleased to announce the addition of a new member to the firm.  John Zuercher (pronounced “Zer-ker”) will join Stone Loughlin & Swanson as an associate attorney effective May 1.  John, a native of Kansas, is a 2013 graduate of Kansas State and a 2016 graduate of Texas Tech Law School. While in law school, John participated in two study abroad programs, one in Lithuania and the other in Australia, but we are glad John decided to make Austin his home. It will be a while before he is up and running, but John is eager to serve our clients’ needs. Join us in welcoming him! E-mail John at jzuercher@slsaustin.com

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.

The general rule in the Texas system is that if a hearing officer determines a Claimant is not at MMI as of a specific date, then the Claimant cannot, as a matter of law, later be placed at MMI on or prior to that date.See Decision Nos. 131674, 140982, and 131655. However, in Decision No. 162510, filed on February 10, 2017, the Appeals Panel held that such certification must still be timely disputed invalid for purposes of determining whether the certification became final.

In this decision, the Appeals Panel acknowledged that in a prior, final decision and order dated January 16, 2016, a hearing officer had determined that Claimant did not reach MMI on November 18, 2015. Claimant was subsequently sent to a designated doctor who certified on April 1, 2016, that Claimant reached MMI on May 22, 2015 – a dateprior to the date the hearing officer determined Claimant had not reached MMI. The April 1, 2016 certification was the first certification of MMI after the prior first certification was overturned by the DWC.

Claimant failed to timely dispute within 90 days the April 1, 2016 certification, which was now, the first valid certification of MMI.The Appeals Panel rejected Claimant’s argument that the April 1, 2016 could not be adopted as a matter of law.

“The fact that the certified date of MMI of May 22, 2015, is prior to the previous decision holding the claimant had not reached MMI as of November 18, 2015, has no bearing upon whether or not the certification became final.”

The parties must always dispute the first certification of MMI/IR if the certification is, as a matter of law, not adoptable. –Dan Price, SLS, LLP.

The Third Court of Appeals in Austin recently upheld the criminal conviction of Howard Douglas, formerly a licensed medical doctor in Texas. Douglas owned and operated North Texas Medical Evaluators (NTME), which served as a scheduling company for designated doctors. The conviction was based on Texas Mutual’s complaint alleging Douglas and NTME referred claimants for FCEs when the claimants were not referred by the designated doctors themselves, and then billed the maximum amount of units (16) possible for an FCE under the workers’ comp fee guidelines when, in fact, the billable FCE time was limited to 30-40 minutes (2-3 units). The Third Court of Appeals affirmed the conviction and Douglas’ sentence to five years in prison.Douglas v. State, Case No. 03-14-00605-CR, in the Third Court of Appeals of Texas, Austin (Apr. 14, 2017). –Dan Price, SLS, LLP.

We are sad to report that the Hon. David Mattax, Commissioner of Insurance, State of Texas, passed away on April 13, 2017, following an extended illness. Commissioner Mattax was 60.  Gov. Greg Abbott released the following statement in tribute to the Commissioner:

“Today Cecilia and I mourn the loss of a friend, colleague, and distinguished public servant. Commissioner David Mattax truly dedicated his life and career to the State of Texas. A brilliant lawyer whose loyalty to Texas never wavered, David was a doting son and brother who took great pride in mentoring young lawyers who would become the leaders of tomorrow.

David’s brilliance, wit, and wisdom will be dearly missed by all who knew him. Cecilia and I extend our deepest sympathies and prayers to the Mattax family.”


SLS likewise extends its condolences to Commissioner Mattax’s family, friends, and colleagues.

Last July, we informed you that Commissioner Brannan had authorized for contested case hearings to be held in the Metro Center Building (commonly referred to as Austin Central) in addition to the Austin Field Office. The expansion was originally to have been a temporary solution intended to accommodate a surge in the number of workers’ compensation claims filed in Austin area and alleviate congestion on the Field Office docket. 

Now, it appears that not only will hearings be held in Austin Central on a permanent basis, the Field Office itself may become a thing of the past.  The DWC is rumored to be planning a complete closure of the Field Office in September 2017, at which point all Austin workers’ comp cases will be heard in the Central Office, presumably by two of the three traveling judges who are based there. 

Plans are under way to renovate the Metro Center Building to accommodate not only two new hearing rooms, but also offices for Benefit Review Officers and ombudsmen, who will also be relocated.