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.
No less inventive than the pleadings in the prior entry is the basis for a lawsuit filed by a group of injured workers against the Division, claiming that a designated doctor’s ability to assign maximum medical improvement prior to the date of the certifying examination amounts to an unconstitutional “taking” of property under the Fifth Amendment. The grounds for suitseems to be that an insurance carrier’s ability to recoup or convert overpaid Temporary Income Benefits (TIBs) deprives them of a vested property right to said benefits.
“Seems” is the operative word here, as per the Court of Appeals’ memorandum opinion: “Appellants’ pleadings are so vague as to be difficult to assess and their briefing is at times insufficient under the rules.” The Court elaborates: “Appellants . . . have not identified which statutory provision they seek to challenge, presented clear argument about how the statute was unconstitutional, or provided citations to the record or to relevant authority.”
The Court of Appeals explained that for a takings claim to have validity, the injured workers must establish a vested, constitutionally protected property interest. That requires more than mere expectancy of a benefit, it demands a “legitimate claim of entitlement.” An injured worker has “a mere expectancy” in receiving TIBs, per the Court, and not a vested right to such benefits. The injured workers in this case provided no authority to support their assertion to the contrary other than to argue, in essence, that because the insurance company paid their benefits, they must be entitled to them.
Holt v. Texas Department of Insurance—Division of Workers’ Compensation, No. 03-17-00758-CV, 2018 WL 6695725 (Tex. App.—Austin Dec. 20, 2018, affirmed) (mem. op.).
- Copyright 2018, Stone Loughlin & Swanson, LLP.
Of the twenty-one original defendants indicted in the Forest Park bribery and kickback scheme in 2016, ten remain scheduled to appear in federal court in Dallas. Among them is Royce Bicklein, noted claimants’ attorney and the chairman of the State Bar of Texas' Workers’ Compensation Section. Bicklein is accused of receiving kickbacks in the amount of $100,000 for referring clients to Forest Park Medical Center, and if court filings are any indication, Mr. Bicklein appears poised to offer a novel defense strategy: his clients authorized him to break the law.
Bicklein maintains that his clients were asked to sign a consent form, which apprised them of the possibility that their attorney might stand to gain financially from referrals made to certain medical professionals on their behalf. Mr. Bicklein’s defense seems to suggest that he committed no crimes because his clients knew of his financial relationship with Forest Park and consented to it.
Aside from the fact that subpoenas have thus far produced no such signed consent forms, prosecutors argue that client consent does not obviate penalties for commission of a crime, and the existence of such a form may actually demonstrate that Bicklein and his law firm knew that they were in violation of Texas and federal anti-kickback statutes; the consent form was apparently generated on the advice of Mr. Bicklein’s own law partner.
Mr. Bicklein’s trial is set to start February 19, 2019, in federal district court in Dallas.
- Copyright 2018,Stone Loughlin & Swanson, LLP.
The Texas Department of Insurance, Division of Workers’ Compensation, adopted a new rule, 28 TAC §140.9, which took effect on January 7, 2019, requiring that parties seeking to reset, reschedule, or continue any proceeding include with their requests a signed statement that reasonable efforts were made to confer with the opposing party about the subject of the request. Parties must indicate whether the motion is opposed and provide dates and times they areboth available for a rescheduled proceeding. Those dates and times must also be coordinated with the DWC docketing staff, thus ensuring that none of this will ever happen. The Division has modified the DWC Form-045 pursuant to the rule change.
In addition, 28 TAC §141.2 has been amended to clarify that a “first request” to reschedule a benefit review conference, which does not require a demonstration of good cause, pertains to the first such request made in adispute, not the first request made by a particular party. In other words, any subsequent request to reschedule a BRC by either party will require a showing of good cause.
Finally, 28 TAC §142.11 has been amended to legitimize the Division’s long-standing practice of issuing a “10-day letter” to a party who fails to attend a scheduled contested case hearing. The absent party is afforded ten days to respond and request that the hearing be reset. With the addition of this new rule, Administrative Law Judges are empowered to determine whether good cause has been established for the failure to attend and, if not, issue a decision based on the evidence previously admitted.
- Copyright 2018,Stone Loughlin & Swanson, LLP.
Several of the Division’s Administrative Law Judges are relocating to new offices, while others are either leaving for good or returning for more.
Just last October, Judge Geri-Lyn Thomas left the DWC to preside over cases at the State Office of Administrative Hearings. However, after a brief sojourn, Judge Thomas has returned to her post at the Division’s Dallas Field Office. We are certainly glad to have her back.
Judge Katie Kidd will be transferring from the Dallas Field Office to the Division’s Central Office in Austin, where she will assume a new position in quality control and oversight.
As one judge arrives in Austin, another departs. Last May, Dee Marlo Chico, formerly one of the DWC’s traveling judges, accepted a position on the Appeals Panel, but has decided to move on. Judge Chico is leaving the DWC imminently for her new post at the Railroad Commission.
No word yet on who might replace Judge Chico on the Appeals Panel, but one possibility might be Judge Travis Dupree. Judge Dupree has been the Division’s sole ALJ in Midland since 2015, but is also relocating to the Central Office in Austin as the Division’s new designated traveling ALJ, a position most recently held by . . . Judge Dee Marlo Chico!
Finally, the Midland judgeship is the province of Robert Clarkson, a University of Houston alum who graduated from the University of Pittsburgh Law School in 2000. Judge Clarkson previously practiced insurance defense litigation in Irving, Texas. We are happy to welcome him.
- Copyright 2018,Stone Loughlin & Swanson, LLP.
Extreme overcharging for medical services is the basis for a class action lawsuit filed against CIGNA Health and Life Insurance in the U.S. District Court for the District of Connecticut. The class is comprised of patients who allege CIGNA and a home-care service provider, CareCentrix, were unjustly enriched through the fraudulent inflation of copayments and coinsurance paid by their patients. One particularly egregious example of overcharging cited in the lawsuit involved a blood test billed to a patient at the rate of $2,000, under the pretense that it cost the insurance company $17,000. The actual cost: $471.
- Copyright 2018,Stone Loughlin & Swanson, LLP.
News from the Office of Injured Employee Counsel: OIEC’s public counsel, Jessica Barta, has recommended a change in filing deadlines for ombudsman-assisted claimants seeking judicial review of their work comp decisions.
In their Biennial Report to the Legislature, OIEC suggests that the current 45-day deadline by which a petition for judicial review must be filed is simply too short to afford an unrepresented injured worker time to locate an attorney and submit the necessary paperwork. Because Texas law prohibits claimant attorneys from collecting fees for such litigation, and because ombudsmen are not permitted to assist injured workers in judicial reviews, OIEC asserts that the deadline should be extended to 90 days to give unrepresented claimants time to hire representation and marshal their evidence.
OIEC has also proposed a method by which doctors may be compensated for supplying medical causation letters to claimants, an essential component of meeting their burden of proof on most extent of injury disputes.
- Copyright 2018,Stone Loughlin & Swanson, LLP.
Alpha Mar, a Houston-based company, is guilty of committing workers’ compensation premium fraud and has been ordered by a Travis County District Court to pay $250,000.00 in restitution to Texas Mutual Insurance Company. Alpha Mar entered a plea of guilty to defrauding its workers’ compensation carrier by concealing payroll and falsifying the number of employees in an attempt to secure lower workers’ compensation premiums, which are calculated, in part, on an employer’s payroll. The scam succeeded for four years. The Division’s fraud unit in the Travis County District Attorney’s Office prosecuted the case.
On January 18, 2019, the Iowa Supreme Court, in Evenson v. Winnebago Industries, Inc., No. 17-1419 (Jan. 18, 2019), issued a finding that the Court was without subject matter jurisdiction to hear an appeal due to the claimant’s late filing of the notice of appeal with the district court.
This appeal concerned a dispute over workers’ compensation penalty benefits. The Court noted the following timeline of relevant events:
On behalf of Winnebago Industries, Peddicord attorneys, Steve Durick, Joe Barron and Kathryn Johnson, filed a motion to dismiss the appeal on the grounds that Appellant failed to timely file his notice of appeal with the district court.
The Iowa Rules of Appellate Procedure provide in relevant part that “[a] notice of appeal must be filed within 30 days after the filing of the final order or judgment.” Iowa R. App. P. 6.101(1)(b). The rules provide that the filing deadline for a notice of appeal is tolled by timely service. Id. r. 6.101(4). The rule states, “The time for filing a notice of appeal is tolled when the notice is served, provided the notice is filed with the district court clerk within a reasonable time.” The Court defined a “reasonable time” as “such time as is necessary, under the circumstances, for a reasonably prudent and diligent man to do conveniently what the contract or duty requires . . . for the rights, and possibly the loss if any to the other party affected.” The Court also noted that the Iowa Rules of Electronic Procedure do not affect court deadlines contained in the Appellate Rules.
The Supreme Court agreed with Appellees, that a 144-day delay between service and filing of the notice of appeal was unreasonable. The Court dismissed the appeal, holding that Appellant failed to file a timely notice of appeal, which left the Court without subject matter jurisdiction to hear the appeal.
The New Jersey Appellate Division decided an important case on January 17, 2019 entitled The Plastic Surgery Center, PA. v. Malouf Chevrolet-Cadillac, Inc,. The case centered on how long a medical provider has to file a claim petition in the Division, namely whether providers have two years, like claimants, or six years. The case has been reported.
The Court first noted that suits on contracts in New Jersey have a six-year statute of limitations under N.J.S.A. 2A:14-1. When the New Jersey Legislature amended the New Jersey statute in 2012 granting exclusive jurisdiction over disputed medical charges to the Division of Workers’ Compensation, the Legislature never addressed which statute of limitations would apply.
New Jersey Manufacturers argued in this case that it should be two years because that is how long a claimant has under the statute, namely two years from the date of injury, or if compensation has been provided by the employer, then two years from the last payment of compensation. Counsel for the Plastic Surgery Center argued that it should have six years like any other contract claim.
The Court gave several reasons for its conclusion that medical providers should have six years to file in the Division. It began by noting that the Legislature could have expressed but did not express its intent to apply the two-year time bar to medical providers when it gave the Division exclusive jurisdiction over medical provider claims. The Court also noted that the Legislature did not expand the two-year statute of limitations provision to specifically reference medical providers as falling with that rule. Instead, the rule only mentions claimants.
Most importantly, the Court said that the rationale for two years does not fit N.J.S.A. 34:15-51, which is the statute of limitations provision in New Jersey. “…We are most persuaded that the Legislature intended to leave unaltered the time within which medical-provider claims must be commenced because the Act’s two-year-bar simply doesn’t fit.” It said that such a rule would sometimes mean that the statute would run on the rights of the medical provider to file before the medical service is even provided because the medical provider might not render its service until after two years from the date of accident.
New Jersey Manufacturers argued that the Court should consider the alternative language of the statute, which provides “two years from the last payment of compensation.” The Court said that language applies to claimants who receive compensation. It does not fit the concept of a medical provider who renders a service to a claimant. “By arguing that the time-bar operates differently for medical-provider claims – that the action accrues on the date of service instead of the employee’s accident – the respondents must concede that medical providers are different types of claimants than employees.” The Court said that adopting this approach would “rewrite” the statute, something the Court said it does not have a right to do.
The issue is of great importance because one of every five claim petitions in New Jersey is a Medical Provider Claim, and that percentage is rising rapidly. It is hard to say whether this ruling will increase the number of filings by true New Jersey medical providers because this practitioner does not believe that there were many New Jersey medical providers sitting on the sideline waiting for a ruling on the statute of limitations. Many practitioners always thought that the six-year statute of limitations on contracts applied to medical providers.
But this decision will give great greater impetus to a noticeable trend: out-of-state medical providers are moving satellite offices to New Jersey and choosing to do medical procedures in New Jersey even though many of the workers they are treating were injured in and worked in New York and Pennsylvania. In many cases the injured New York and Pennsylvania workers also live out of state. The only connection with New Jersey is the fact that the procedure was scheduled in New Jersey for higher reimbursements. This trend is directly traceable to the fact that New Jersey has no fee schedule and reimbursements are therefore much higher here. The next issue that the Appellate Division needs to address is jurisdiction where the only contact with our state is the location of the treatment.
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John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers’ Compensation Group. Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com.
Alabama Representative James Haynes ( R ) has recently introduced two bills related to cancer coverage for firefighters. Both of these bills were introduced on January 10, 2019 and are set to be read for the first time on March 5, 2019.
The first bill, HB2, will establish a rebuttable presumption of causation when a firefighter if diagnosed with cancer. Specifically, cancer for firefighters will be considered an occupational disease when it manifest itself in a paid firefighter during a period in which the firefighter was in service provided the firefighter demonstrates he or she was exposed, while employed by the Employer to a known carcinogen that is reasonably linked to disabling cancer. The cancer is presumed to arise out of the employment unless the Employer proves by preponderance of the evidence that the cancer was not caused by some other means. The bill does exclude firefighters who smoke or use other tobacco products. If the firefighter smoked or used other tobacco products then they lose the presumption and have to prove by preponderance of the evidence that the cancer was caused by the job. In addition, for the presumption to apply, the firefighter must demonstrate that they passed a physical upon entry into service with the Employer with no evidence of cancer and that, referenced above, they were exposed to a carcinogen.
The second bill, also introduced by Rep. Haynes, is HB18. This bill applies to retired firefighters who suffer from occupational exposure cancer which is diagnosed within 10 years for retirement. This bill would find that if the retired firefighter is diagnosed with occupational disease cancer within 10 years of retirement, they would be entitled to reimbursement of out of pocket expenses not covered by their health insurance or Medicare. These expenses would be owed by the Employer where the firefighter retired from. The bill states that no reimbursement would be owed for experimental treatment or travel out of treatment network unless the treatment was requested by the doctor and approved by their insurance. The bill specifically states that reimbursement would not be required if the cancer was caused by some other means than the occupation.
As stated above, both of these bills are set to be read for the first time on March 5, 2019. HB2 is scheduled to be referred to the House of Health Committee and HB18 is set to be referred to the House of Representatives Committee on Ways and Means General Fund.
We will continue to monitor these bills and update as they progress.
The article was written by Joshua G. Holden, Esq. a Member of Fish, Nelson & Holden, LLC, a law firm dedicated to representing employers, self-insured employers and insurance carriers in workers’ compensation and related liability matters. Mr. Holden is AV rated by Martindale-Hubbell, which is the highest rating an attorney can receive. Holden and his firm are members of The National Workers’ Compensation Defense Network (NWCDN). The NWCDN is a national and Canadian network of reputable law firms organized to provide employers and insurers access to the highest quality representation in workers’ compensation and related employer liability fields.