State News : Texas

The Division adopted amendments to rule 132.7, regarding duration of death benefits for eligible
spouses, and rule 132.13, regarding burial benefits, to conform the rules to 2015 legislative changes.
The changes allow spouses of first responders to remarry and continue to receive death benefits.
The changes do not apply to non-first responder spouses so they should not remarry if they want to
continue to receive death benefits. The changes also increase the maximum burial benefit from
$6,000 to $10,000 for injuries occurring on or after September 1, 2015.

The revised DWC Form-042 Claim for Workers’ Compensation Death Benefits restructures the
form to increase readability, highlight additional required documentation, and revise the title to
Claim for Workers’ Compensation Death Benefits.
The all-new DWC Form-154 Workers’ Compensation Complaint form provides a simple,
standardized form for filing workers’ compensation complaints. The Division notes that a person
does not have to use the form and a complaint may also be submitted through its website, email, fax,
written correspondence, or even in person.
The form defines a complaint as a “written allegation that a system participant has violated Title 5,
Subtitle A, of the Texas Labor Code or Texas Department of Insurance, Division of Workers’
Compensation (TDI-DWC) rules.”

On March 15, 2016, the Centers for Disease Control and Prevention published its guidelines for
prescribing opioids for chronic pain to address the country’s prescription drug abuse epidemic.
Among the recommendations are that opioids should not be first-line therapy for chronic pain. The
recommendations states, “Nonpharmacologic therapy and nonopioid pharmacologic therapy are
preferred for chronic pain. Clinicians should consider opioid therapy only if expected benefits for
both pain and function are anticipated to outweigh risks to the patient.”
The recommendations also recommend a low starting dosage: “When opioids are started, clinicians
should prescribe the lowest effective dosage. Clinicians should use caution when prescribing opioids
at any dosage, should carefully reassess evidence of individual benefits and risks when considering
increasing dosage to =50 morphine milligram equivalents (MME)/day, and should avoid increasing
dosage to =90 MME/day or carefully justify a decision to titrate dosage to =90 MME/day.”
In a related development, the FDA has announced plans to add a boxed warning - its most serious
type - to all immediate-release opioid painkillers. The label will specify that the drugs should only
be used when other medications alternative therapies cannot control patients’ pain.

In an interview with NPR, United States Department of Labor Secretary Thomas Perez called laws
in Texas and Oklahoma that allow employers to opt out of providing traditional workers’
compensation insurance a “pathway to poverty” for people who get injured on the job.
Mr. Perez said the Labor Department is commissioning a report about the opt-out trend and cutbacks
in workers' comp benefits “to document the precise nature of this problem across the country.” It’s
also been reported that the Labor Department is currently investigating a large provider of opt-out
plans in Texas to determine “whether the company's plans or models contain provisions that
interfere with or prevent the exercise of ERISA rights by covered employees.”
On March 18th, Stanford law professor Alison Morantz released her study of the impact of nonsubscription
on 15 large companies that provided their Texas employees with a workers’
compensation alternative. She found that the costs per worker fell by about 44 percent.
Ms. Morantz did not examine whether workers were better off with the alternative plans or whether
the savings came at their expense. However, she concluded her “findings suggest an urgent need
for policymakers to examine the economic and distributional effects of converting workers’
compensation from a cornerstone of the social welfare state into an optional program that exists
alongside privately-provided forms of occupational injury insurance.”
Last month, we reported that the Oklahoma Workers’ Compensation Commission declared
unconstitutional the recently enacted state law allowing employers to opt-out of the state-regulated
workers’ compensation system, i.e., become non-subscribers, as they are referred to in Texas.

Governor Greg Abbott has reappointed Ryan Brannan as Commissioner of Workers’ Compensation
for a term to expire February 1, 2017. Mr. Brannan was originally appointed by Governor Rick Perry
in 2014.

This month a Houston court of appeals rejected the Division’s definition of the term “imbecility”
for purposes of determining entitlement to Lifetime Income Benefits.
The case involved Francisco Chamul, a brick mason who fell from a scaffold onto a concrete slab
ten feet below, suffering multiple skull fractures and consequential brain injury. According to a
designated doctor he now functions at the level of an 11 or 12 year-old and will require a caretaker
for the rest of his life. He applied for LIBs.
Under Labor Code §408.161, LIBs are payable for an injury to the brain resulting in incurable
“insanity or imbecility.” However, the statute does not define the term “imbecile.”
A Division hearing officer found that Chamul was not entitled to LIBs. The hearing officer cited
prior decisions of the Appeals Panel which rely on a definition of the term “imbecile” in the 1991
edition of Webster’s Ninth New Collegiate Dictionary. That dictionary defines “imbecile” as a
“mentally deficient person, especially a feebleminded person having a mental age of three to seven
years and requiring supervision in the performance of routine daily tasks or caring for himself.” The
hearing officer determined that Chamul had not been shown to exhibit the mental age range in
question (a mental age of three to seven years).
The court of appeals reversed and remanded to the Division for further proceedings. It noted that
the Legislature added imbecility as a criterion for LIBs in 1917 and that dictionaries written at that
time included more generalized definitions of the term “imbecile” and did not limit the term to the
mental age range of three to seven years. According to the court, the 1991 dictionary on which the
Division relied is “not an appropriate source to discern the meaning of a term incorporated into a
statute more than 70 years earlier.”
Chamul v. Amerisure Mutual Ins. Co.

The Division has amended Rule 129.3, regarding Amount of Temporary Income Benefits, to
increase the hourly wage that determines whether a worker is paid TIBs at the rate of 70% or 75%
of the Average Weekly Wage for the first 26 weeks of benefits. The rule implements the amendment
to Labor Code section 408.103 which became effective September 1, 2015 and which raised the
threshold from $8.50/hour to $10.00/hour for claims with a date of injury of September 1, 2015 or
later.

This month a California judge sentenced Dr. Hsiu-Ying “Lisa” Tseng to 30 years to life in prison
for the murders of three of her patients who fatally overdosed. Tseng is among a small but growing
number of doctors charged with murder for prescribing painkillers that killed patients. She is
reported to be the first doctor in the United States to be convicted of murder by over-prescribing
drugs.

Oklahoma’s system of allowing businesses to opt out of the state workers’ compensation program
(the “Oklahoma Opt-Out”) is unconstitutional, the Oklahoma Workers’ Compensation Commission
said on February 26.
Under the Oklahoma statute, an employer may opt out of the workers’ compensation system but
retain exclusive remedy protections if they provide workers with an alternate benefits plan. Some
have said the system allows Oklahoma employers to “have their cake and eat it too.”
According to the Commission, the opt-out provision established a dual system in which injured
workers are

In Appeals Panel Decision No. 152184, decided December 29, 2015, t he Appeals Panel reversed
the hearing officer’s determination that the employer tendered a valid bona fide offer of employment
(BFOE) to the claimant, and rendered a new decision that the employer did not tender a BFOE to
the claimant. The hearing officer had found that the employer had issued two offers of employment,
both of which had complied with Rule 129.6.
The two offers, dated approximately one week apart, stated, “The position will entail the following
physical and time requirements” and then listed various work restrictions as noted on the DWC-73,
such as “No standing for more than 1 hour per day,” “No [kneeling]/squatting more than 1 hour per
day,” “No pushing/pulling more than 2 hours per day,” “Must wear splint/cast at work,” and “No
driving or operating heavy equipment.” The claimant appealed the hearing officer’s determination
that these were valid BFOEs, arguing that both offers of employment fail to comply with Rule
129.6(c)(4) because they merely list the restrictions given by the claimant’s treating doctor rather
than state the actual physical and time requirements that the position will entail.The Appeals Panel agreed, noting that Rule 129.6 sets out the requirements for a BFOE and
provides, in part, that “an employer’s offer of modified duty shall be made to the employee in
writing and in the form and manner prescribed by the [Division],” that “a copy of the [DWC-73] on
which the offer is being based shall be included with the offer as well as . . . a description of the
physical and time requirements that the position will entail.”
The Appeals Panel noted that it has previously held that the language in Rule 129.6 is clear and
unambiguous, and that the rule “contains no exception for failing to strictly comply with its
requirements.” In this case, neither offer of employment listed the physical and time requirements
the offered position would entail, nor did they state the specific job position that was being offered.
Instead, both offers of employment only listed restrictions of what the job would not entail, which
does not meet the requirement listed in Rule 129.6(c)(4). Accordingly, the employer did not tender
a BFOE to the claimant.
This decision is a reminder to carriers and employers to ensure their BFOEs to claimants include a
full description of the requirement of the offered position. It is not a bad idea to clarify that the
employee will not be required to perform duties that he/she is specifically prohibited from
performing as noted on the DWC-73; however, the job offer must also include the physical
requirements, time requirements, and state the specific job position that is being offered in order to
meet the requirements of a valid BFOE under Rule 129.6. Appeals Panel Decision No. 152184,
decided December 29, 2015.