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.
The Texas Board of Chiropractic Examiners took Dr. VanderWerff to a contested case hearing after a complaint was filed with the Board accusing him of providing excessive and unnecessary treatments to a patient. The Board issued an order in the case determining that he had violated the Chiropractic Act by engaging in grossly unprofessional conduct and assessed a fine against him. He couldn’t appeal the Board’s order directly because he missed his deadline to do so. He filed suit for declaratory and injunctive relieve against the Board instead. The Board then filed a plea to dismiss his suit for lack of jurisdiction. The trial court granted the plea and dismissed the lawsuit. The Austin Court of Appeals affirmed the trial court, stating that the Board was acting within its statutory authority in issuing its order, and that the lawsuit appeared to be an attempt to create a way to get around his failure to timely file a direct appeal of the agency’s order. The bottom line is that the Board’s order and its finding of grossly unprofessional conduct against Dr. VanderWerff is final. Dr. Eric A. VanderWerff, D.C. v. Texas Board of Chiropractic Examiners,WL 7466814 (Tex. App.–Austin)
DWC is reminding all employers without statutory workers’ compensation coverage that there are reporting requirements that apply to them. They must report every year that they elect to opt out of the regulatory system. They also must report work-related fatalities, occupational diseases and on-the-job injuries.
West Star Transportation, Inc. faces a $5.3 million dollar liability judgment. The company did not carry workers’ compensation insurance at the time of the near-fatal fall suffered by one of its workers. This was a case in which the worker sued the company for negligence– a suit which would have been barred by the exclusive remedy provisions of the Labor Code had there been comp coverage. The 7th District Court of Appeals affirmed the judgment both as to the finding of negligence and as to the amount of the verdict. The appeals court found that the company created an unusually precarious work environment and an unreasonable risk of harm to its employees. The Amarillo Court of Appeals issued its opinion in the case last Friday.West Star Transportation, Inc. v. Charles Robison, et al, No. O7-13-00109-CV (7th Dist.).
If you haven’t been able to get through using the numbers you are used to, it is because the field office phone system has been revamped. You can get an updated directory of field office personnel numbers by emailing Hugo Salazar athugo.salazar@tdi.texas.gov. Or contact us and we can send you a copy current as of December 16, 2014.
Surprise. DWC may be on the enforcement war path in regard to BRC exchanges required by Rule 141.4 (b). There has been a rule in effect since 1991 governing when parties to a dispute must exchange pertinent claim information with one another. The rule was tightened up in 2010 but to date has not been strictly enforced. We recently became aware that BROs are being asked to inform DWC of instances when the rule was not followed. Monitoring letters are now being issued. As carrier attorneys are aware, and most likely plaintiff attorneys as well, it can be logistically difficult (and sometimes impossible) to comply with the rule which requires all “pertinent” information in a party’s possession to be sent to DWC and the other parties to a dispute no later than 14 days before a BRC, or not later than 5 days before an expedited BRC. And, as we all know, time flies.
The rule does not expressly provide for punitive consequence to the parties for failure to timely exchange, but it does give the BRO the power to schedule a second BRC if she determines that pertinent necessary information necessary to resolve the dispute was not submitted or exchanged. But beware – a violation of any provision of the Labor Code or DWC rules can be the basis for a monetary penalty or other sanction.
There is a second part to the rule – Rule 141.4(c)(d). This part requires that whenever a party requests a BRC, it must send the opposing party all pertinent informationbefore filing a BRC request with the DWC. The responding party then has an obligation to send all pertinent information in its possession to the other party within 10 working days after receiving the BRC request.
DWCreleased itsbiennial reportto the84th LegislatureinDecember. Accordingto thereport, injury rates,insurance rates,and premiumsand claimscosts aredown andemployerparticipation, return-to-work outcomes,access tocare, andmedicaldispute resolutionare betterthan ever.DWC didnote that there isroom forimprovementin reducingthe numberof designated doctor disputes, injuredemployee educationand outreachand reducingthe numberof work-related fatalities. DWC included two legislative recommendations in thereport: 1)increase themaximumreimbursement for burial benefits; and 2) establish a pilot safety reimbursement programfor small employers.
TDI alsopublishedan Analysis ofthe Impact ofthe 2005Legislative Reformson theTexas Workers’CompensationSystem inDecember– this wasthe “network” legislation. Thatreport also favorablyreports thestate ofworkers’ compensationin Texas.Highlights from the reportinclude:
1) workers’compensation insurancehas beenprofitable eachyear from2005-2013 (asmeasured by theindustry’s combinedratios andreturn onnet worth);2) thenumberof employersparticipating in networksand employeesbeing treatedby network providershas increased (approximately42% of new claims are network claims); 3) injured employeesatisfactionwithcare andhealth-related outcomes increased since 2005 (according to recent injured employee surveys); 4)total medical costsforprofessionalservices decreasedfrom itspeak in 2002until2007,buttherewasan increasing trend beginning in 2008, which seems to haveleveled off since 2011; and 5) overall wholeclaim denials,medical disputesand thenumberof claimswith disputesare atthe lowestlevel since 2008.
Accordingto arecent TDIreport resultingfrom aOpen RecordsRequest bythe Insurance Council of Texas, insurancecarriers prevailedthe majority ofthe timein bothprospective and retrospective medical necessityIndependent ReviewOrganizationreviews. Thereport coversthe years2009-2013. These numbers are not surprising since the adoption of the Official DisabilityGuidelines (effective 5/1/07),but itis goodto knowthattheIRO reviewsystem appears tobe producing consistent outcomes applying evidence-based guidelines fromthe ODG.
BeginningJune 1,2015, Carriersare requiredto usethe revisedDWCForm PLN-11 to disputea workers’ compensation claimand provide the factual basis of the dispute.
TheDivision’s statedreason forthe revision isto help theagency andinjured employeesclarify whether acarrier isdisputing extentof injury, disabilityand/or eligibilityto receivedeath benefits. In itsmemorandumannouncing the finalized form,theDivision alsowarned against usingthe PLN-11 for issues outside the
scope of the PLN-11.
Carriers haveuntil June1, 2015to begin usingthe newform,but there isno harm in practicing to doso nowin order toget used to using it. The finalizedform isavailable nowon theDWCwebsite at http://www.tdi.texas.gov/forms/form20numeric.html.
December ushered in a DWC effort to providemuch needed education to workers’ compensation treatingdoctors. Theeducation is aimedat teaching treatingdoctors theappropriate wayto address and report oncausation ofa claimedcompensableinjuryin hopesthat thereport willaid indispute resolution.
Wewelcomebetter reportsfrom treatingdoctors. Butthe training materialsfocus onthe formof the report over the substance of the opinion and the underlying science a doctor should use to formulate his or her opinion. The use of templates andmagic words should not replace a well- reasonedopinion thataddresses causationin thecontextof theclinical recordand evidence-based medicine relevantto thespecifics ofa given case.Weare awareof atleast onecase where ahearing officer under the guise of an LOC mid-hearing sent the trainingmaterials to a designated doctor where thedesignated doctorhad notprovided acausation opinion that met evidentiary standards. The expectation was that the doctor would then issue an “amended” report.
Ofnote isthe factthat thereis norequirementthat atreating doctorreview allthe medicalrecords and list what hehas reviewed. Thatis notthe casefor peerreview doctors,RMEdoctorsand designated doctors who are held to amuch more stringent standard.