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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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
There has been a flurry of activity within the Division of late as DWC staff
flutter off. Ana Thornton, the South-Eastern Regional Director overseeing
hearings in Houston, San Antonio, and the Valley, has departed for a position
with Traveler’s Insurance Company. Of course, we wish her nothing but the
best.
Jeff Carothers, formerly the Team Lead for the Southern Region and a San
Antonio Administrative Law Judge, accepted the Regional Director position left
vacant by Ms. Thornton and will therefore no longer preside over hearings.
Administrative Law Judge Hector Martinez of San Antonio will replace Mr.
Carothers as the Team Lead of the Southern Region. We heartily congratulate
them both!
Meanwhile, ALJ Franca Okonkwo transferred from the Houston West Field Office to
Houston East, and the Division has hired Victoria Mendoza as its newest
Administrative Law Judge in the West office. Judge Mendoza received her
J.D. from Texas Southern University and became licensed to practice in 2016.
Prior to joining the Division, we understand her area of expertise was
immigration law. We look forward to working with her.
Finally, Amparo Ilustre, a Benefit Review Officer in the Fort Worth area,
retired in January. No word yet on her replacement, but our best wishes to Ms.
Ilustre for a happy retirement!
Copyright 2024, Stone Loughlin & Swanson, LLP
Ruth Castilleja of Baytown got caught for fraud after reporting an injury while
working as a phlebotomist. Texas Mutual accepted her workers’
compensation claim and started her benefits for income replacement. That
is until they learned that she was working, again as a phlebotomist but at
another company. In the parlance of workers’ comp, this is called “double
dipping.” She said she was too hurt to work in order to get workers’
compensation income replacement benefits, but in reality she was not so hurt
that she couldn’t work. Her punishment? Three days in Travis County
Jail where she attended some classes on theft, and $7,100 to be paid in
restitution to Texas Mutual (presumably to be paid from her ill-gotten
gains).
Copyright 2024, Stone Loughlin & Swanson, LLP
Anecdotally, we are
seeing plaintiffs trying novel means of getting around the Labor Code’s
exclusive remedy provision which protects insured employers from suits claiming
negligence. A recent example is a negligence suit filed by an injured
worker where a claim of fraud was tacked on. Fraud is an intentional tort
that may not be covered by the employer’s liability part of the workers’
compensation policy. The lesson? Read the allegations in suits against
employers carefully in case there is a coverage issue lurking behind the
negligence claim.
Retaliatory discharge cases are still a favorite of plaintiff attorneys, and
are often a way to relief for a worker who can’t overcome the exclusive remedy.
A new case provides a good opportunity for a refresher in the law.
Mr. Frausto was an injured worker who was on light duty who failed to
show up for work or inform his employer that he wasn’t coming in. After
he was fired under a consistently applied company policy, he claimed (among
other things) that he was fired because he had filed a workers’ compensation
claim. The Corpus Christi Court of Appeals explained that a plaintiff
filing a retaliatory discharge claim relying on Texas Labor Code Sec. 451.001
must make a prima facie showing that his workers’ compensation claim was filed
in good faith and that there is a causal link between the filing of his claim
and his discharge. He can do this if he proves that he would not have
been fired but for his filing a workers’ compensation claim. The burden
of proof then shifts to the employer to show that it had a legitimate,
non-discriminatory reason for the discharge. If the employer succeeds in
proving this, then the burden shifts back to the worker to produce evidence of
a retaliatory motive. In this case, the employer had a uniformly enforced
absence control policy that overcame the claim that its motives were
pretextual. Frausto v.
RC Industries, LLC, (Tex. App. - Corpus Christi), January 11, 2024,
WL 117601.
Copyright 2024, Stone Loughlin & Swanson, LLP
The Texas Supreme Court has asked for full briefing from the parties on
Accident Fund’s Petition for Review of Accident Fund’s challenge to the
agency’s SIBs qualification rule, which we are hopeful signals that the Court
will hear the case on the merits of the rule challenge.
While we wait for the Court to decide the case, the saga continues at the
agency level. The moral of this story (if you choose to read it, below) is that
at least for now, in the real world it’s the Claimant’s claim of “believe me
when I say so” rather than objective proof of an actual job search that
satisfies the SIBs work search requirement.
Once upon a time we told you that the Division provided guidance through an FAQ
from its General Counsel that claimants who were applying for SIBs (without the
help of the Workforce Commission) were to show they were actively looking for a
job by attaching job applications or other documents showing they were looking
for a job. Later, we told you the tale of the Attorney General’s briefing
to the Highest Court in the Land (well, Texas anyway) that the Division, in
fact, does require those claimants to document their searches by job
applications and to submit copies of those applications (whether they apply
online or by hard-copy) with their SIBs application.
Unfortunately, real life has not lived up to the story we told. Our firm
recently defended a SIBs quarter in which the claimant’s DWC-52 spun a tale of
job searches for each week of the qualifying period, but she did not submit a
copy of one single job application with her DWC-52 nor did she bother
identifying information for any single employer she claimed to have contacted.
Instead, she simply wrote down the names of employers she allegedly contacted
on the DWC-52.
As recently as October of this year, the version of the story the Division told
the Supreme Court of Texas was that the Division requires every claimant (not
assisted by the Workforce Commission) who is seeking entitlement to SIBS to
provide copies of job applications with the DWC-52. Our firm made this argument
to the ALJ mere weeks ago, providing the very words from the AG for her
consideration, but the ALJ appears to have missed the Division’s memo on the
subject. The ALJ found the claimant was entitled to SIBs.
Copyright 2024, Stone Loughlin & Swanson, LLP
We are grateful to all of you who have supported the Firm all these years. The practice of workers’ compensation law has changed a lot over the years– as have we. Workers’ compensation system participants comprise a relatively small group. Untangling and deciphering agency regulation has made the jobs of insurance adjusters, ombudsmen, doctors, lawyers and claimants more difficult by the day. We try to keep up for you with developments as they occur. This issue of the Compendium continues that tradition. We learn from and welcome your favorable comments and your criticisms and thank you for the time you take to read about what we think it is important to know.
Copyright 2024, Stone Loughlin & Swanson, LLP
The opinion piece
below describes events that should make us all pause. The point is that
although it is admirable that cooler heads prevailed at the Division and they
withdrew their case, in regard to the actual costs to the doctor the relief is
too little, and far too late. The greater cost is to the system that can ill
afford to lose qualified doctors willing to travel across the state to provide
quality examinations and reports that benefit all system participants at every
stage of the dispute resolution process. Excellence is rarely rewarded.
One Girl’s Opinion – Editorial by Erika Copeland
As we begin the new year, we all tend to do some reflection and I am no
exception. I certainly had not intended to make the editorial a permanent
fixture when my number was up for newsletter contribution, but I felt compelled
to take at least one more stab at it when we at SLS received a bit of a
surprise “gift” in the form of the Division’s Motion to Dismiss a disciplinary
action before the State Office of Administrative Hearings against Dr. Steven
Doores.
First a little context. For those of you who know me only as lawyer at
SLS, my first exposure to Texas workers’ compensation was working for the
Division back when they called Administrative Law Judges “Hearing Officers.”
I did that job for almost 15 years in Abilene and San Angelo. As an
ALJ in hundreds of cases I regularly read peer review, RME and DD reports from
Dr. Doores. By 2011, I had moved to Austin and headed a team of people
charged with making sweeping changes to the designated doctor program as part
of a legislative mandate. As part of that process, we enlisted the help
of several subject matter experts– which is just a fancy way of saying
“doctors” – one of whom was Dr. Doores.
At that time, Dr. Doores was no stranger to the eagle eye of the Division,
having been called on the carpet (via letter of education) – along with
numerous other doctors performing MMI/IR certification examinations – following
a performance-based audit. Following that audit, rather than getting his
proverbial knickers in a twist, Dr. Doores went to great lengths to meet
personally with staff at the Office of the Medical Advisor (OMA) to find out
what exactly the Division wanted and expected with regard to MMI/IR
examinations at a time when the Division had farmed out all training and
testing to an outside vendor, not bothering to oversee the curriculum or
testing administered by the vendor. Determined to make sure he knew
exactly what the Division wanted, Dr. Doores had numerous discussions and
meetings with OMA staff to ensure he knew how to evaluate MMI and impairment
ratings in accordance with the Division’s expectations.
With that backdrop, it should come as no surprise that when the Division took
over development, implementation and oversight of designated doctor training
and testing, Dr. Doores was on the top of the list of providers tapped to
provide his expertise. To be clear, those experts were “compensated” by
the Division much like the Hearing Officers and lawyers were compensated – at a
much lower rate than anyone doing the same kind of work in the private sector.
As the Director of that program at the Division, I personally witnessed his
participation meetings in Austin to develop a completely new three-day training
program for designated doctors that had never been undertaken by the Division
before. I was also there when he attended meetings in Austin with a
private test development company that put us through the rigorous process of
writing, vetting and approving hundreds of test questions for those doctors
seeking to be certified by the Division. (Dr. Doores was responsible for
personally writing the lion’s share of the upper extremity and MMI questions
and there were hundreds needed for the question bank). I was there in the early
stages when we took our show on the road and provided the Division training to
doctors in Houston and Dallas for three days at a time. I was there when
Division executives decided we needed to include some supplemental training
that involved the Hearing Officers in other locations around the state to teach
extent of injury to a larger number of doctors who had never heard of that concept,
much less been tested on it or written a meaningful report addressing
it. I was also there for phone conferences and in-person meetings too
numerous to count with other Division staff, subject matter experts and
attorneys in which Dr. Doores spent hours for which he received no compensation
from the Division. I was NOT there for what could only have been hundreds
of hours Dr. Doores spent developing training materials and test questions,
traveling and meeting with various Division employees and system participants
and doctors for which he received no compensation at all.
What I can speak to personally is the fact that Dr. Doores was a dedicated
colleague and true believer in the necessity to make designated doctor training
and testing better for the doctors, the Division and the system as a whole. It
is with that context that you could have knocked me over with a feather when I
became aware that the Division launched a campaign to remove Dr. Doores from
participating in the system that he worked so hard to improve.
It started slowly – after I left the Division. Dr. Doores was not asked
to speak at as many training sessions and stopped being asked to provide test
questions for the new versions of the certification examination.
Eventually he was politely uninvited to participate in any of his prior
Division duties, including his role as an MQRP arbiter – but that was only the
beginning.
Soon, Dr. Doores found himself on the receiving end of numerous complaints and
investigations – with no notice or knowledge of the source of the complaints.
Each time, Dr. Doores was able to show he complied with applicable
rules.
The latest disciplinary action began as an incomprehensible laundry list of
wrongs Dr. Doores received through the Division’s Medical Quality Review
“process.” What started with a seemingly shotgun approach was eventually
whittled down to five
allegations stemming from one
examination that took place almost eight years ago.
At its core the Division’s position involved its disapproval of Dr. Doores’
opinion and conclusions in an addendum post-DD RME report (which had been
mislabeled a peer review due to a typographical error). For example,
although the document was clearly NOT a peer review the Division fashioned a
series of allegations against Dr. Doores for doing things he could not – under
the Act or Rules – do as a peer reviewer – even though a plain reading of his
report made it clear that it was not, in fact a peer review. At the
Contested Case Hearing, the Administrative Law Judge admitted Dr. Doores’
post-DD RME addendum, with an explanation by the attorney offering it that it
was mislabeled. Every participant in the workers’ compensation system – with
the exception, apparently, of the people involved in the Division’s MQRP process
– understood the nature and intent of that report. The right hand, in this
particular case, definitely had no idea what the left hand was doing.
This action was just the final step in a concerted effort to get Dr.
Doores out of the system by any means available and – unfortunately it has for
all intents and purposes been successful.
If you have been doing this work for a while you know there are very few
qualified doctors who provide quality examinations and reports as either a
designated doctor or post-DD or treatment RME provider in the Texas workers’
compensation system. Even fewer are willing to travel to under-served or
hard to get to counties. Dr. Doores was a provider who would travel to
almost any location and provide quality examinations, reports and testimony if
necessary. Due, in no small part, to the relentless harassment by those in
charge of the system he worked so hard to help improve, Dr. Doores has taken
the target off his back by declining to provide certifying examinations for MMI/IR.
For anyone who may take the position that Dr. Doores is a Carrier-paid
mouthpiece and the system is better off without him, I say: 1) you have an
agenda that needs further scrutiny; or 2) you are not aware that the number of
cases that actually end up disputed, much less in a contested case hearing, in
the Texas workers’ compensation system is actually quite small. The
reports penned by Dr. Doores you may have seen from our office likely support
the Carrier’s position. There are, I assure you, any number of reports
from Dr. Doores in which he found injuries compensable, conditions caused by a
work incident and impairment ratings well in excess of 0% - in fact, well in
excess of 15%. Those reports, do not end up in dispute – so you won’t see them in
hearings, AP Decisions or PLN-11s.
This latest barrage by the Division has taken an unforgiveable toll in this
girl’s opinion. Full disclosure, I consider Steven Doores a friend and am
deeply troubled by the financial and personal cost to the man who gave so much
of himself and his time to a project that also meant so much to me. Most
frustrating is that we may never know the real reason agency personnel were
willing to spend so much time and money on a case that from the start clearly
had no legal merit.
Copyright 2024, Stone Loughlin & Swanson, LLP