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.
If you are a regular reader of our newsletter, you know that there was a
challenge pending in the 13th Court of Appeals to the old Seabolt standard for
determining entitlement to Lifetime Income Benefits. The challenge boils
down to whether “total loss of use” of a body part as stated in the current
LIBs statute really means “total” and whether loss of use under the current
LIBs statute means loss of function as a member of the body, or loss of
function in regard to employability. At the Zoom trial held in this case, the
trial court judge determined that the old standard still applied and that the
worker could not work using his hand, despite the video evidence that showed
the worker using his hand while working for himself. Well, lo and behold, well
after the fact and during the course of the carrier’s appeal to the 13th Court
of Appeals, SLS received an anonymous letter in the mail. We will leave
you to wonder what the letter said, but it did mention in closing that SLS did
a good job at the trial, which was a nice compliment having nothing to do with
the merits of the case. Given that the trial was held by Zoom with limited
participants, we wonder how the writer of the letter knew so much!
In the meantime, the 13th Court of Appeals issued a Memorandum opinion on
October 12, 2023 dodging the legal issue it was asked to address, and holding
that “the doctrine of vertical stare decises” required the Court to follow the
precedent of the Texas Supreme Court as established law affirming the use of
the Seabolt
standard to new law cases. However, the precedents the Court cited were
not cases where any party directly challenged the Seabolt standard itself. The
cases merely applied that standard. No challenge was made in those cases
on the basis that under the current LIBs statute employability is not relevant
to the application of the statutory language of “total loss of use.” The LIBs
statute contains no qualifier indicating that employability is determinative of
entitlement. The Court of Appeals case is not yet final.
You can read the
decision here.
Copyright 2023, Stone Loughlin & Swanson, LLP
Another long-time friend of this firm, Jacquelyn Coleman, recently retired from
the Division after serving for 16 years as an ALJ and has started her own
mediation practice. While she normally conducts mediations by Zoom, she can
perform in-person mediations with advance notice.
You can learn more about Ms. Coleman and her mediation services on her website
at jdcmediation.com.
We wish you well in your new endeavor, Jacquelyn!
Copyright 2023, Stone Loughlin & Swanson, LLP
Travis County District Court Judge Madeleine Connor signed a judgment in favor
of the insurance carriers in the PHI Air Medical Case on August 8, 2023.
PHI Air Medical had until September 7, 2023 to appeal Judge Connor’s
decision to the court of appeals but did not do so, making her decision final.
Judge Connor found that PHI Air Medical did not timely file its petition
for judicial review challenging SOAH’s decision awarding payment of 149% of the
Medicare rate and agreed with the carriers that 149% of the Medicare rate exceeds
the Workers’ Compensation Act’s fair and reasonable reimbursement standards for
the 33 fee disputes at issue in the case.
The PHI case began at the State Office of Administrative Hearings (SOAH) in
2015 when Administrative Law Judge Craig Bennett consolidated the 33 fee
disputes involving eight carriers consisting of Texas Mutual Insurance Company,
Hartford Underwriters Insurance Company, TASB Risk Management Fund,
Transportation Insurance Company, Truck Insurance Exchange, Twin City Fire
Insurance Company, Valley Forge Insurance Company, and Zenith Insurance
Company.
The PHI case went all the way to the Texas Supreme Court which ruled in favor
of the carriers. PHI petitioned the U.S. Supreme Court for review but it
declined to hear the case. The case then went back to the court of
appeals for a second decision before heading back down to the trial court where
the carriers filed a motion for summary judgment. Because PHI did not
appeal Judge Connor’s order granting summary judgment for the carriers, the PHI
case will now be remanded to SOAH for further proceedings consistent with Judge
Connor’s final judgment.
The rest of the air ambulance disputes at SOAH and DWC have been abated while
the PHI case proceeded. However, Air Evac, another air ambulance
provider, recently filed a motion to lift the abatement of its cases at SOAH so
that it could brief how a 2018 injunction that it obtained applies to its cases
at SOAH. The injunction states that DWC is “enjoined from enforcing Texas
Labor Code § 413.011 and 28 Texas Administrative Code against Plaintiff Air
Evac EMS, Inc.” The parties filed a proposed briefing schedule on
September 15, 2023 which the ALJ has not yet ruled upon.
As of August 2023, there are 2,414 air ambulance disputes pending at DWC.
This figure does not include the air ambulance fee disputes pending at
SOAH. The average amount sought by the air ambulance provider in each
case at DWC is estimated to be at least $50,000, which is the difference
between what the air ambulance provider was paid by the carrier and its
unregulated billed charges. This makes the total amount sought by the air
ambulance providers in the disputes at DWC over one hundred and twenty million
dollars plus interest.
There are five air ambulance providers that comprise the vast majority of the
air ambulance disputes. These providers are Air Evac EMS, Inc., EagleMed, LLC,
Med-Trans Corp., Rocky Mountain Holdings, and PHI Air Medical, LLC. These
five providers are owned by two private equity firms and a publicly traded
company. Air Evac EMS, Inc., EagleMed, LLC, and Med-Trans Corp. are
subsidiaries of Air Medical Group Holdings (AMGH) which is owned by private
equity firm KKR. Rocky Mountain Holdings (a subsidiary of Air Methods) is
owned by private equity firm American Securities, LLC. And PHI Air Medical, LLC
is a subsidiary of publicly-traded Petroleum Helicopter International, Inc. (PHIL).
The air ambulance providers continue to argue that the federal Airline
Deregulation Act (ADA) preempts Texas workers’ compensation laws that regulate
reimbursement to air ambulance carriers and therefore, DWC must order the
carriers to pay their grossly inflated billed charges. However, the Texas
Supreme Court already squarely rejected this argument in the PHI case:
“First, if ADA preemption applies, neither state nor federal law provides for full reimbursement of air carrier bills—or for any reimbursement at all. Second, the effect of federal preemption cannot be that States must provide full reimbursement, as that outcome would violate the Tenth Amendment. For these reasons, the result of ADA preemption here would not be full reimbursement—it would be no reimbursement.”
If the air ambulance providers were able to force DWC to order payment of its
billed charges, it would result in a massive wealth transfer to private equity
investors and reward the takeover of the air ambulance industry by private equity.
See The Air-Ambulance Vultures A search for why my flight
cost $86,184 led to a hidden culprit: private equity.
Copyright 2023, Stone Loughlin & Swanson, LLP
We advised you last month that long-time Division Administrative Law Judge,
Carol Fougerat, decided to hang up her gavel (ALJs don’t wear robes) last month
and is now pursuing her next big adventure in life. Judge Fougerat was a most
excellent ALJ and will be missed.
This month, we can further announce that another favorite ALJ, Britt Clark, has
also left Hearings. Judge Clark, an astute judge with a wealth of knowledge,
has accepted a position with General Counsel. We wish him well in his new
position.
Copyright 2023, Stone Loughlin & Swanson, LLP
The Workers’ Compensation Research and Evaluation Group this month released its
report on pharmacy utilization and cost in the Texas workers’ compensation
system between 2009 and 2022. The aim was to capture data before and after the
introduction of the pharmacy closed formula and the results are interesting:
To access the entire report, click here. For a quick overview, see the snapshot on the TDI website.
Copyright 2023, Stone Loughlin & Swanson, LLP
The vast majority of
enforcement actions are against insurance carriers for failure to timely pay
income benefits and medical bills. While these violations are certainly
worthy of enforcement action, they don’t usually make for very exciting
reading. Enforcement actions against providers, on the other hand, often
have unique facts which make them much more entertaining. To demonstrate
this point, here is a summary of the most recent consent orders against
providers.
On September 6, 2023, the Commissioner signed a consent order concerning disciplinary action
against Dan Mai Ung, D.C. The Commissioner found that Dr. Ung, in treating an
injured employee for work-related cervical and lumbar strains and right knee
pain, had referred the injured worker for two unnecessary MRIs. Not only did
the doctor fail to provide a rationale or document findings supporting MRI
testing pursuant to the Official Disability Guidelines, but he also failed to
disclose that the clinic to which the injured worker was referred for the MRIs,
Americana Injury Clinic, was, in fact, owned by Dr. Ung. (Note: Unlike federal
health care programs, it is not against the law to self-refer in Texas workers’
compensation; it is just a violation if you self-refer and don’t disclose your
financial interest.).
The Commissioner concluded that Dr. Ung had provided treatment or services
which were improper, unreasonable, or unnecessary; that he violated treatment
guidelines; that he failed to explain the basis for his return-to-work
determinations; and that he failed to disclose his financial interest in
Americana Injury Clinic.
Dr. Ung was ordered to pay an administrative penalty of $7,000.00 and ordered
to attend 6 hours of continuing medical education including 2 hours each in
evidence-based spinal evaluation, evidence-based knee evaluation, and
ethics.
On September 14, 2023, the Commissioner signed a consent order concerning disciplinary action
against Ray R. Trey Fulp III, D.O. The Commissioner found that Dr. Fulp failed
to provide treatment in accordance with the Official Disability Guidelines and
performed improper, unreasonable, or medically unnecessary spinal surgery. Dr.
Fulp was ordered to pay an administrative penalty of $10,000.00 and required to
attend 6 hours of continuing medical education in the topic of spine diagnosis
or treatment. Dr. Fulp was further required to attend and successfully complete
the Center for Personalized Education for Professionals Medical Record Keeping
Seminar and PROBE Ethics and Boundaries Program.
On August 31, 2023, the Commissioner signed a consent order concerning disciplinary action
against Anthony Owusu, Jr., M.D. under two DWC Enforcement files. In the first,
the Commissioner found that Dr. Owusu had completed a designated doctor
examination of injured employee No. 1 on April 17, 2021, but had failed to
complete the report or receive approval for additional time to complete the
report within 15 working days of the examination date. Dr. Owusu filed his
request for an extension of time on June 2, 2021, 26 calendar days late.
In the second Enforcement File, the Commissioner found Dr. Owusu, as a
designated doctor, had reported performing a physical examination of injured
employee No. 2 but failed to document a focused medical examination of the
injured body part in the record. Dr. Owusu was further found to have failed to
reference or follow the required MD Guidelines in his return-to-work evaluation
or to justify deviating from the guidelines using evidence-based medicine.
Finally, Dr. Owusu’s work restrictions and conclusions were inconsistent with
the clinical findings of the treating doctor, however, he failed to acknowledge
or differentiate these findings in his rationale supporting his determination
that injured employee No. 2 was incapable of returning to work.
Dr. Owusu was ordered to pay an administrative penalty of $8,500.00 and
required to attend and complete 6 hours of continuing medical education.
The Commissioner further ordered that Dr. Owusu shall not reapply for
designated doctor certification or participate as a designated doctor in the
Texas workers’ compensation system, and that any future applications for
certification will be denied.
Finally, the Commissioner ordered that Dr. Owusu shall not practice or receive
any remuneration from the Texas workers’ compensation system as a consulting
doctor, Required Medical Examination doctor, or as a peer reviewer.
Copyright 2023, Stone Loughlin & Swanson, LLP
The Division has announced the State AWW and maximum/minimum weekly benefits
for the period from October 1, 2023 through September 30, 2024 and it should
come as no surprise that the effects of inflation continue to impact the SAWW
and weekly benefits.
For the period from October 1, 2023 through September 30, 2024, the new SAWW
and weekly benefits were increased approximately 5.6% as follows:
State Average Weekly
Wage:
From $1,111.55 to $1,173.81
Maximum Temporary Income Benefits: From
$1,112.00 to $1,174.00
Minimum Temporary Income Benefits: From
$167.00 to $176.00
Maximum Impairment Income Benefits: From $778.00 to
$822.00
Minimum Impairment Income Benefits: From
$167.00 to $176.00
Maximum Supplemental Income Benefits: From $778.00 to $822.00
Maximum Lifetime Income Benefits:
From $1,112.00 to $1,174.00
Minimum Lifetime Income Benefits:
From $167.00 to $176.00
Maximum Death Benefits:
From $1,112.00 to $1,174.00
To access the SAWW and maximum/minimum weekly benefits for Fiscal years 1991
through 2024, click here.
Copyright 2023, Stone Loughlin & Swanson, LLP
There is still time to help us help the kids by becoming a participant or
sponsor and joining us for fun and camaraderie at The Lakes at Castle Hills on
October 23 for the Fourth Annual Kids’ Chance Texas Golf Tournament!! All
proceeds will fund Kids’ Chance of Texas scholarships. Do not delay, spots are
limited and filling quickly.
As we remind readers on a regular basis, Stone, Loughlin & Swanson is a
Founding Sponsor and long-time supporter of Kids’ Chance of Texas, an
organization whose mission is to create and support scholarship programs to
provide educational opportunities for children in Texas who have had a parent
catastrophically or fatally injured while in the course and scope of his or her
employment. As participants in the Texas Workers’ Compensation system, we are
particularly aware of the devastating toll such an injury takes on a family
and, especially, the children.
For more information and to register as a player and/or sponsor, click here.
Copyright 2023, Stone Loughlin & Swanson, LLP
Disclaimer: This is not an
actual flow chart and is not intended to accurately represent real persons or
events.
Copyright 2023, Stone Loughlin & Swanson, LLP
When we dusted off our rule book to look at the rules in the aforementioned
chapters of the Administrative Code, we discovered all kinds of little
treasures. For example, many acronyms that we use every day in the system, such
as AWW, BRC, MMI, etc., are actually codified in DWC Rule 102.7. Others, such
as BRO, DD, LOC, POD, etc. are not included.
This past month saw some new acronyms enter the system, resulting in a new form
and some new additions to DWC staff hierarchy.
You might recall that the new DD request form (DWC032) implemented on 6/5/23
does not include a box for the Carrier to identify the accepted condition and
thus, the DD determines the compensable injury during the exam. In the April
edition of The Compendium,
our own Erika Copeland predicted that the change to the DWC032 would create
more problems with informal resolution. Kudos to Erika and her foresight,
because the new OARFI (“Request for Information”) appears to be the first
attempt at righting the ship. The OARFI lists multiple conditions and requests
that the Carrier check whether it “Accepts” or “Disputes” the condition. It
also asks the parties to identify any additional injuries that they believe
should be considered when assessing MMI or the impairment rating. The parties
are asked to send the information to a named “Benefit Review Officer” within
three business days, and notice is given that the information is for “mediation
purposes only.” The Carrier is told that the answers are not binding and that
they can change their mind but inaccurate answers will likely cause additional
exams and delays in the dispute resolution process. Likewise, to date there
doesn’t appear to be any penalty associated with not returning the form.
The “Benefit Review Officer” named on the form is actually known as a “BRO-1”
(which begs the question – is the BRO that presides over the BRC now known as
“Big Bro”?). The BRO-1 has been charged with looking at issues before a BRC and
requesting information of the parties so a Presiding Officer’s Directive (POD)
can be sent to the DD.
Meanwhile, we have been informed that if you need to request the status of LOC
requests or responses, DD reports, or RME reports, you need to contact the
Proceeding Resolution Officer or “PRO.” If you are seeking information about
scheduling, resets, requests for dates, motions, subpoenas, agreements, or
interpreter requests, you need to contact the Docketer.
Unfortunately, we do not have the key to knowing who actually handles the
docketing for each field office nor are we able to keep up with the frequent
changes in PRO assignments. Our wish list for next month includes periodic
information updates from the DWC regarding these changes. Until then, here is
our (non)helpful chart of how this works on a daily basis.
Copyright 2023, Stone Loughlin & Swanson, LLP