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.


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.


Texas

STONE LOUGHLIN & SWANSON, LLP

  512-343-1385

Hearings Happenings

 
We have recently learned that Benefit Review Officers Laila Johnson, assigned to the Fort Worth Field Office, and Olivia Turner, in Tyler, are retiring. We are sorry to see these knowledgeable and effective BROs leave the Division.
 
It is our understanding that Ms. Johnson will spend time living the country life out west and we suspect Ms. Turner might be spending more time enjoying the breeze on her Harley-Davidson.
 
We extend them our best wishes in whatever new adventures they choose to pursue.


Copyright 2024, Stone Loughlin & Swanson, LLP 

Well, I Have Good Days and I Have Bad Days . . . You Just Caught Me On a Good Day . . .  

 


 

Although not a workers’ compensation case, 36-year-old Irish lass, Kamila Grabska, has had her $820,000.00 injury claim dismissed after having a really good day with cameras present.

It seems Ms. Grabska sued RSA Insurance for damages after the vehicle in which she was a passenger was rear-ended while she was on her way to work. She recently told a High Court sitting in Limerick** that the accident left her often bedridden with constant debilitating cervical, thoracic, and lumbar pain. She also claimed she was unable to perform household chores or even to play with her young children.

She further swore in an affidavit that she was unable to work in any capacity and had past and future lost wages totaling more than $500,000.  

In an unfortunate twist of fate for Ms. Grabska, photos recently surfaced showing her participating in and winning a local Christmas tree throwing competition, apparently a very popular event in County Clare, Ireland. Furthermore, the competition took place just two days after she had reported to a doctor that she was unable even to lift a bag of groceries.

When asked in court why she did not inform her doctors of the Christmas tree throwing competition, she said she “forgot.”

Some of the other riveting testimony:

Counsel for RSA:         “Did it hurt you to throw the Christmas tree?”

Grabska:          “I had a pain, yeah.”

Counsel:          “You had a large smile on your face as you threw the tree.”

Grabska:          “I was smiling but that doesn’t mean I didn’t have a pain.”

Counsel:          “You were also smiling when you received your prize.”

Grabska:          “I can say I was trying to live a normal life.”

Following review of a photo showing Ms. Grabska’s award winning Christmas tree toss, described as a “very graphic picture,” as well as video footage of Ms. Grabska play-wrestling with a “large and strong” Dalmatian for an hour and a half, Judge Carmel Stewart stated:

“I am afraid I cannot but conclude the claims were entirely exaggerated. On that basis, I propose to dismiss the claim.”

A spokesperson from RSA Insurance indicated they were “very pleased with the outcome of the case and it sends out a clear message that we will robustly challenge any attempt to pursue claims that are not genuine.”

**         Another Limerick:

            There was a young woman from Clare
            Whose claim of bad pain proved unfair
            Her suit was undone
            By some Christmas-time fun
            When she tossed a large tree through the air


Copyright 2024, Stone Loughlin & Swanson, LLP 

DWC Also Seeking Comments on Proposed Rule Amending TAC Section 180.2


The Division is also accepting public comments on a proposed rule amending 28 TAC § 180.2 to ensure that no health care provider or agent can use the DWC’s complaint process to bypass the medical fee dispute resolution filing deadline in 28 TAC § 133.307(c).
 
The proposed rule was published in the March 22, 2024 issue of the Texas Register and is available at http://www.sos.state.tx.us/texreg/index.shtml. A copy of the proposed rule is also posted on the Division website at http://www.tdi.texas.gov/wc/rules/2024rules.html.
 
A public hearing on the proposed rules will be held at 11:00 a.m., Central time, on April 16, 2024.
 
Written comments on the proposed rule may be submitted to RuleComments@tdi.texas.gov.
 
The deadline to submit comments is 5 p.m., Central time, on April 22, 2024.


Copyright 2024, Stone Loughlin & Swanson, LLP 

DWC Seeks Comments on Proposed Rule Amending TAC Chapter 147


The Texas Department of Insurance, Division of Workers’ Compensation is accepting public comments on a proposed rule amending TAC Chapter 147 concerning dispute resolution through agreements and settlements.
 
The rulemaking will amend 28 TAC §§ 147.4, 147,5, 1247.7, 147.10 and 147.11. Sections 147.1, 147.2, 147.3, 147.6, 147.8, and 147.9 will be repealed and a new § 147.1 added.
 
The amendments are calculated to streamline the agreements and settlements process and eliminate unnecessary work for DWC staff.
 
The proposed new rule will be published in the April 5, 2024 issue of the Texas Register and available at http://www.sos.state.tx.us/texreg/index.shtml. A copy of the proposed rule is also posted on the Division website at http://www.tdi.texas.gov/wc/rules/2024rules.html.
 
Comments may be submitted to RuleComments@tdi.texas.gov.
 
The deadline to submit comments is May 6, 2024.

 

Copyright 2024, Stone Loughlin & Swanson, LLP  

Appeals Court Addresses Issues of First Impression Concerning Presumption in Favor of Firefighters under Tex. Gov’t Code § 607.055



 

In an opinion filed March 7, 2024, the 11th Court of Appeals (Eastland) reversed the trial court’s summary judgment that Michael Belew developed pancreatic cancer during his employment as a firefighter and emergency medical technician with the City of Stephenville. Mr. Belew passed away in 2014.
 
Following a contested case hearing, the hearing officer relied upon Appeals Panel Decision Nos. 150098-s and 151156 in determining that the statutory presumption created by Section 607.055 (as it existed prior to its amendment effective June 10, 2019) applied to the pancreatic cancer developed by Mr. Belew, thereby relieving Appellees of the burden to prove causation, i.e. that Mr. Belew’s cancer arose out of the course and scope of his employment as a firefighter. The Appeals Panel adopted the hearing officer’s decision without issuing a written decision.
 
The Eastland Court, however, determined that, in the decisions listed above, the Appeals Panel “simply misapplied the effect of the statutory presumption.”
 
Section 607.055 that is applicable to this case provides:
 

   (a)  A firefighter or emergency medical technician who suffers from cancer resulting in death or total or partial disability is presumed to have developed the cancer during the course and scope of employment as a firefighter or emergency medical technician if:


   (1)  the firefighter or emergency medical technician:
     (A) regularly responded on the scene to calls involving fires or firefighting; or
     (B) regularly responded to an event involving the documented release of radiation or a known or suspected carcinogen while the person was employed as a firefighter or emergency medical technician; and

   (2)  The cancer is known to be associated with fire fighting or exposure to heat, smoke, radiation, or a known or suspected carcinogen, as described by Subsection (b). 

   (b)  This section applies only to a type of cancer that may be caused by exposure to heat, smoke, radiation, or a known or suspected carcinogen as described by the International Agency for Research on Cancer (IARC).
 
The IARC conducts critical reviews and evaluations on the carcinogenicity of a wide range of human exposures and publishes the results of its evaluations in monographs. The 98th Monograph evaluated the occupational cancer hazards of painting, firefighting, and shift work. The authors of the monograph found limited evidence of the development of cancer as it relates to exposure as a firefighter; however, after considering a variety of studies, as well as large meta-analyses, the authors concluded that the only cancers statistically significant for cancer risks in firefighters were testicular, prostatic, and non-Hodgkin’s lymphoma. Pancreatic cancer is not a type of cancer that is connected to or may be caused by firefighting.
 
The Court agreed with the City that Mr. Belew’s pancreatic cancer does not meet the requirements of section 607.055 and therefore the presumption of causation does not apply. The court reversed the trial court’s judgment that Mr. Belew sustained a compensable injury and rendered judgment in favor of the City.


Copyright 2024, Stone Loughlin & Swanson, LLP

"Money" (Pink Floyd)

 
Here are the top-billing workers’ compensation attorneys for 2023 according to the DWC along with the average number of hours worked per day assuming they billed at the DWC’s maximum rate of $200 per hour and worked every single day of the year, weekends and holidays included: 
 
Carrier AttorneyApproved FeesHours Per Day
Dean Pappas$923,472.5012.65
Jeremy Lunn$640,487.008.77
Mark Midkiff$523,012.207.16
   
Claimant AttorneyApproved FeesHours Per Day
Adam Henderson$1,029,800.0014.10
Bill Abbott$923,175.0012.64
Fyodor Clay$817,950.0011.20
 
On the claimant attorney side, Adam Henderson moves up from number two to number one this year overtaking Bill Abbott who was number one in 2022. Mr. Henderson was indicted for billing fraud by a Travis County grand jury in 2021. You can read the indictment here. Mr. Henderson’s criminal case remains pending with a pre-trial hearing scheduled for March 20, 2024. 
 
To view the amount of approved attorney’s fees for each of the top 100 Claimant and Carrier workers’ compensation attorneys for 2023, click the following link: Top 100 2023.


Copyright 2024, Stone Loughlin & Swanson, LLP 

It’s a beautiful Monday and with Spring just around the corner, we can’t help but be happy. After all, “Here Comes the Sun” (The Beatles) and we are looking forward to “Spring Vacation” (The Beach Boys)! There’s nothing like the power of music to help enhance the mood and make everything better!
 

"I Want You Back" (The Jackson 5)

 

 
We’ve frequently sounded the alarm over the years about the serious decline in the numbers of qualified doctors providing services in the workers’ comp system. Low reimbursement rates are one reason for the mass exodus from the system. After all, DWC has not adjusted reimbursement rates for workers’ compensation providers since January 2008. (Per a nifty online inflation calculator, $100 in 2008 has the same purchasing power in 2024 as $139.73.) 

Noting that this decline has been “particularly pronounced” among certified designated doctors and “especially” among licensed medical doctors and doctors of osteopathy, new rules were finally adopted this past month to more fairly compensate doctors performing MMI/IR and other DD exams. In sum, the rules were amended to: 
  • adjust fees by applying the Medicare Economic Index (MEI) percentage adjustment factor, with an annual adjustment on January 1st;
  • eliminate unnecessary billing modifiers and replace the diagnosis-related estimate (DRE) and range of motion (ROM) billing methods with a single method of billing;
  • create a $100 missed appointment fee and a $300 specialist fee;
  • pay DDs and RMEs for all issues addressed within one exam without reduction;
  • require an “assignment number” to assist a carrier with identifying a bill as originating from a designated doctor or a DD’s referral;
  • clarify that the 95-day period for submission of a DD’s bill begins on the date of service for additional testing or referral evaluation.
The new rules will take effect on June 1, 2024.

“Like a Surgeon” (“Weird Al” Yankovic)

 
Under the category of notable enforcement actions, Richard Levy, MD (Dallas) was recently cited for performing unreasonable or medically unnecessary procedures, failing to document adequate explanations for deviating from the ODG, and submitting substantially similar reports amongst three different injured employees.  

Dr. Levy was ordered to pay an administrative penalty of $3,000; to attend and successfully complete a medical record keeping seminar and six hours of continuing medical education on the topic of shoulder arthroscopy or orthopedic shoulder surgery; and to purchase and maintain a current subscription to the ODG.

Also notable, James William Butler, MD (Houston) received a public reprimand for repeatedly failing to submit a DD report timely and was ordered to pay a penalty of $500. 

“So Long, Farewell” (Rodgers & Hammerstein)



 
Our kind friend, Benefit Review Officer Catherine Ripley, is retiring from the Division in a few short weeks. We wish her well!

“Let’s Get Together” (Hayley Mills)



DWC is offering quarterly webinars through Zoom to help system participants keep up with the latest information and trends. Sign up here for invitations to register each quarter.

Webinar recordings will be available at any time on the CompCourses webpage here.