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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

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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.
 

"Tell Me What I Did Wrong" (James Brown)


The DWC is soliciting suggestions for new rules or revisions to DWC’s existing rules. If you have a proposal, you can complete the form on the TDI website here.

“Hello Again” (Neil Diamond)

 
We sometimes question whether appeals from bad CCH decisions end up in File 13, as the few decisions that are rendered each month by the Appeals Panel often address trivial issues like a “stipulation…incorrectly identifies a cervical strain rather than cervical sprain” (APD 231661). So we get excited when the Panel issues a decision that actually addresses the merits of a case. This month, we present two examples of decisions that give us hope: 

The Appeals Panel reversed an ALJ who adopted a designated doctor’s 20% impairment rating, which was assessed for “requiring routine use of cane” when the records reflected the claimant did not require routine use of a cane. The Appeals Panel refused to adopt a certification by the post-DD required medical examiner because the doctor assigned impairment ratings based only on his observations of the claimant while in and outside the office due to the claimant’s refusal to complete paperwork or undergo an examination unless he was allowed to record the exam and have a witness other than his treating doctor. The Panel thus remanded the case to the ALJ with instructions to ask the DD why he assigned an IR that required routine use of a cane when the claimant was independent with ambulation activities without the need of an assistive device. (AP Decision No. 231830) Note: The Appeals Panel did not address what the Carrier’s remedy is when they are thwarted by a claimant from obtaining an opinion from an RME doctor, although they did reference Rule 126.6(j) in a footnote and state that this was not an issue in the instant case. Rule 126.6(j) merely provides a carrier the right to suspend TIBs if a claimant fails to attend an RME and fails to reschedule. 

The Appeals Panel reversed an ALJ who found that a carrier did not sufficiently raise a defense of horseplay on its PLN-1 and therefore, the carrier was deemed liable for an injury despite the fact that the claimant’s horseplay was a producing cause of the injury. The Panel noted that “magic words are not necessary to contest the compensability” of a claim and reversing the ALJ, said that the carrier had sufficiently described the reasons for the dispute when it wrote “Investigation reveals the injured worker was riding a co-workers [sic] motorcycle recklessly at the time of the injury and was not furthering the affairs of the employer at the time of this incident.” (AP Decision No. 231750)
 

 

“Born on the Bayou” (Creedence Clearwater Revival)

 
For those of you who are clients of Stone Loughlin & Swanson, we would love to offer you the invitation to attend the upcoming NWCDN conference in New Orleans May 16th. Details will follow, but if you would like to be invited, please respond to Jane Stone and it will be done!
 

In Memorium – Dr. Bob Gant Has Passed Away

 

Dr. Gant was an integral member of the very small group of qualified doctors who were willing to provide objective and fair psychological evaluations and opinions for injured workers.  We were saddened to hear that he died on December 4th.  He was buried among three generations of Texas family at Cana Cemetery near Willis Point, Texas.  He was a friend to many in the comp system and gained our respect over the many years we worked with him on cases, and in reading the many reports he wrote on behalf of his patients.  His obituary describing his remarkable path through life is at https://www.hlfhs.com/obituary/Bobby-GantPhD


Copyright 2024, Stone Loughlin & Swanson, LLP  

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