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.
This month the 14th Court of Appeals in Houston agreed with
arguments by Stone Loughlin & Swanson, LLP and other firms that Harris
County District Court Judge Fredericka Phillips abused her discretion by (1)
refusing to abate a personal injury action pending judicial review of a TDI-DWC
decision on the worker’s employment status and (2) consolidating the two
actions.
In our law firm’s 20-year history we’ve seen some bizarre workers’ compensation
claims, but this one might just take the cake. It's through-the-looking-glass
procedural history began when, in September 2021, 16-year-old Romny Sanchez
joined his uncle, Leonel Yanez, on a job providing remediation services to
victims of Hurricane Ida in Louisiana. Both men were injured while riding as
passengers in a van driven by Joe Saavedra, who fell asleep and crashed into a
light pole. Saavedra was an employee of All Repair and Restoration, LLC, and
Sanchez and Yanez filed a personal injury suit against All Repair in Harris
County district court alleging everything but the kitchen sink -- asserting
claims for negligence, vicarious liability, fraud, civil conspiracy, gross
negligence, intentional infliction of emotional distress, and violations of the
Fair Labor Standards Act and the Texas Payday Act. All Repair asserted the
affirmative defense that Sanchez and Yanez were its employees and their
exclusive remedy is workers’ compensation benefits under All Repair’s policy
with National Casualty Company.
Sanchez and Yanez disputed that they were All Repair’s employees, so National,
represented by this firm, initiated dispute resolution proceedings at the
TDI-DWC to determine their employment status. Even though the facts were
largely the same for both men, the Division refused National’s request to hear
the cases together. Instead, it insisted on conducting two separate contested
case hearings by two different ALJs. And, as could be predicted, the ALJs
reached different conclusions. The ALJ presiding over Yanez’ case concluded
that he was All Repair’s employee, but the ALJ presiding over Sanchez’
case concluded that he was not All Repair’s employee. All Repair then
filed a petition for judicial review of the decision regarding Sanchez.
At Sanchez’ request, and over the objections of National and All Repair, Judge
Phillips consolidated the two actions and denied a motion to abate the personal
injury action pending resolution of the judicial review action. National and
All Repair then took the extraordinary step of filing a petition for writ of
mandamus with the court of appeals.
The court of appeals found that Judge Phillips abused her discretion on both
counts. It directed her to vacate her order of consolidation because, among
other things, “a vast portion of the evidence to be expected in the personal
injury suit is likely to be inadmissible in the judicial review suit due to the
limited nature of the proceeding.” It also directed her to abate the personal
injury suit pending the outcome of the petition for judicial review, citing its
prior decisions in In re Tyler
Asphalt & Gravel Co. and In re Luby’s Cafeterias, Inc. which
hold that abatement is required under such circumstances.
Copyright 2024, Stone
Loughlin & Swanson, LLP
In Appeal No. 240113, the TDI-DWC Appeals Panel has taken the unusual step of
reversing an ALJ’s decision and rendering a new one on the grounds that ALJ
abused his/her discretion by relieving a claimant from the effects of a
DWC-24.
In the DWC-24, the claimant and carrier agreed that the compensable injury
extends to include right wrist volar carpal ganglion cyst and they agreed to
adopt the date of MMI and the 2% impairment rating assigned by a designated
doctor. Later, however, the claimant argued at a contested case hearing that
she should be relieved from the effects of the agreement because she cannot
read English and the ombudsman assisting her did not fully explain the
agreement to her.
The ALJ found that no fraud or misrepresentation was involved in procuring the
agreement and the claimant was provided with sufficient time to review the
agreement before she signed it. However, the ALJ found that good cause existed
to relive the claimant from the effects of the agreement because the 2% IR
assigned by the designated doctor was a result of misapplication of the Guides to the Evaluation of Permanent
Impairment.
But the Appeals Panel concluded that the calculation of the claimant’s IR
required rounding, which requires medical judgement, so the evidence did not
support the ALJ’s determination that the 2% IR assigned by the designated
doctor was a result of misapplication of the Guides.
Accordingly, the Appeals Panel reversed the ALJ’s decision and rendered a new
decision that there is no good cause for relieving the claimant from the
effects of the agreement and it is final and binding.
Copyright 2024, Stone
Loughlin & Swanson, LLP
On April 23, 2024, TDI-DWC’s General Counsel, Kara Mace, issued
a memorandum to system participants regarding preventative treatment claims
handling. In it, Ms. Mace stated that the Division “would like to remind
insurance carriers of the rules associated with preventative treatment related
to a physical injury and workers’ compensation claims handling.”
The memo notes that preventative treatment “may include medications such as
rabies vaccines, tetanus shots, and post-exposure prophylaxis that are prescribed
by a health care provider.” It also states that “an insurance carrier must
follow treatment guidelines and pay for specified pharmaceutical services
sufficient for the first seven days following the date of injury, regardless of
issues of liability for or compensability of the injury,” citing Texas Labor
Code §413.011 and DWC rules 134.501 and 137.100.
Rule 134.501, titled Initial Pharmaceutical Coverage, provides in part that:
The insurance carrier . . . shall pay for specified
pharmaceutical services sufficient for the first seven days following the date
of injury, regardless of issues of liability for or compensability of the
injury that the carrier may have, if, prior to providing the pharmaceutical
services, the health care provider . . . obtains both a verification of
insurance coverage, and an oral or written confirmation that an injury has been
reported.
. . . Specified pharmaceutical services are prescription drugs and over-the-counter
medications prescribed by a doctor that cure or relieve the effects naturally
resulting from the compensable injury, promote recovery, or enhance the ability
of the employee to return to or retain employment.
Ms. Mace ends the memo by noting that “failure to properly
handle preventative treatment claims under these rules and other applicable
laws may result in the assessment of administrative penalties not to exceed
$25,000 per day per occurrence.”
Copyright 2024, Stone Loughlin & Swanson, LLP
We’ve learned that Angel Hendricks, a Proceedings Resolution Officer (PRO) in
the TDI-DWC Tyler field office, has been promoted to Benefit Review Officer
(BRO) and will replace Olivia Turner, who is embarking on a well-deserved
retirement.
Ms. Hendricks is to start in her new position on June 1, and we are delighted
to begin working with her in that capacity. Congratulations Ms. Hendricks!
Copyright 2024, Stone
Loughlin & Swanson, LLP
At SLS, we focus on news of workers’ compensation law in the great state of
Texas, but this news from California (of all places) is too good to pass up. A
big fish has gotten his just desserts.
Peyman Heidary, a chiropractor who reportedly referred to himself as “the
Godfather” and “Number One,” was sentenced this month to 54 years, 8 months in
state prison, and ordered to pay more than $23 million in fines, for his role
in overseeing a massive workers’ compensation fraud scheme in California.
Heidary reportedly owned and oversaw a network of sham medical clinics to
generate fraudulent billings to workers’ compensation insurance carriers. A
non-attorney, he also reportedly controlled the day-to-day operations of sham
law firms. His sham law firms would interview injured workers and direct them
to one of his sham clinics where they would be subjected to a barrage of
treatments, regardless of need, including massage, chiropractic manipulation,
acupuncture, and psychiatric evaluation. After the clinics wrung out the
maximum number of visits, they would discharge the patients regardless of their
medical status.
A jury convicted Heidary of 68 counts of insurance fraud, conspiracy, and money
laundering. During the sentencing hearing on April 12, 2024, Judge Charles
Koosed noted that Heidary possessed deep knowledge of the workers’ compensation
system, stating “[Heidary] took advantage of that knowledge based on
greed.”
Copyright 2024, Stone Loughlin & Swanson, LLP
Although not a
workers’ compensation case, 36-year-old Irish lass, Kamila Grabska, has had her
$820,000.00 injury claim dismissed after having a really good day with cameras
present.
It seems Ms. Grabska sued RSA Insurance for damages after the vehicle in which
she was a passenger was rear-ended while she was on her way to work. She
recently told a High Court sitting in Limerick** that the accident left her often
bedridden with constant debilitating cervical, thoracic, and lumbar pain. She
also claimed she was unable to perform household chores or even to play with
her young children.
She further swore in an affidavit that she was unable to work in any capacity
and had past and future lost wages totaling more than $500,000.
In an unfortunate twist of fate for Ms. Grabska, photos recently surfaced
showing her participating in and winning a local Christmas tree throwing
competition, apparently a very popular event in County Clare, Ireland.
Furthermore, the competition took place just two days after she had reported to
a doctor that she was unable even to lift a bag of groceries.
When asked in court why she did not inform her doctors of the Christmas tree
throwing competition, she said she “forgot.”
Some of the other riveting testimony:
Counsel for RSA:
“Did it hurt you to throw the
Christmas tree?”
Grabska: “I had a pain, yeah.”
Counsel: “You had a large smile on your face as
you threw the tree.”
Grabska: “I was smiling but that doesn’t mean I
didn’t have a pain.”
Counsel: “You were also smiling when you received
your prize.”
Grabska: “I can say I was trying to live a normal
life.”
Following review of a photo showing Ms. Grabska’s award winning Christmas tree
toss, described as a “very graphic picture,” as well as video footage of Ms.
Grabska play-wrestling with a “large and strong” Dalmatian for an hour and a
half, Judge Carmel Stewart stated:
“I am afraid I cannot but conclude the claims were entirely exaggerated. On
that basis, I propose to dismiss the claim.”
A spokesperson from RSA Insurance indicated they were “very pleased with the
outcome of the case and it sends out a clear message that we will robustly
challenge any attempt to pursue claims that are not genuine.”
**
Another Limerick:
There was a
young woman from Clare
Whose claim
of bad pain proved unfair
Her suit was
undone
By some
Christmas-time fun
When she
tossed a large tree through the air
Copyright 2024, Stone Loughlin & Swanson, LLP
We have recently learned that Benefit Review Officers Laila Johnson, assigned
to the Fort Worth Field Office, and Olivia Turner, in Tyler, are retiring. We
are sorry to see these knowledgeable and effective BROs leave the Division.
It is our understanding that Ms. Johnson will spend time living the country
life out west and we suspect Ms. Turner might be spending more time enjoying
the breeze on her Harley-Davidson.
We extend them our best wishes in whatever new adventures they choose to
pursue.
Copyright 2024, Stone Loughlin & Swanson, LLP
On February 14, 2024, the Commissioner signed a consent order concerning disciplinary action against Rhema Medical, a provider of durable medical equipment and hospital supplies. The Commissioner found that Rhema failed to timely comply with a refund request from an insurance carrier by either refunding the requested amount or submitting an appeal to the carrier within 45 days of receiving the refund request. Rhema further failed to timely comply with the Division’s order for production of documents. The Commissioner found that Rhema violated Tex. Lab. Code §§408.-271(b) and (c)415.003(5) and (6); and 28 Tex. Admin Code §133.260(c) by failing to comply with a refund request and Tex. Lab. Code §§415.0035(e); 415.003(5) and (6); 415.021(a); and 28 Tex. Admin Code §102.9 by failing to comply with a DWC order to produce documents. Rhema was assessed an administrative penalty of $5,500.00 to be paid within 30 days from the date of the order. Rhema Medical certainly appears to have lived up to its Better Business Bureau rating of F and customer reviews averaging 1.38 out of 5 stars.
On February 24, 2024,
the Commissioner signed a consent order concerning disciplinary action against
DJO LLC, a provider of medical devices and services. The Commissioner found
that DJO improperly billed an injured employee for health care services in violation
of Tex. Lab. Code §§413.042 and 415.003(6) and assessed an administrative
penalty of $500.00 to be paid within 30 days from the date of the order.
Copyright 2024, Stone Loughlin & Swanson, LLP
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
The Texas Department of Insurance, Division of Workers’ Compensation is
accepting public comments on a proposed rule amending TAC Chapter 147
concerning dispute resolution through agreements and settlements.
The rulemaking will amend 28 TAC §§ 147.4, 147,5, 1247.7, 147.10 and 147.11.
Sections 147.1, 147.2, 147.3, 147.6, 147.8, and 147.9 will be repealed and a
new § 147.1 added.
The amendments are calculated to streamline the agreements and settlements
process and eliminate unnecessary work for DWC staff.
The proposed new rule will be published in the April 5, 2024 issue of the Texas Register and available
at http://www.sos.state.tx.us/texreg/index.shtml.
A copy of the proposed rule is also posted on the Division website at http://www.tdi.texas.gov/wc/rules/2024rules.html.
Comments may be submitted to RuleComments@tdi.texas.gov.
The deadline to submit comments is May 6, 2024.
Copyright 2024, Stone Loughlin & Swanson, LLP