State News

The Division intends to amend Texas Administrative Code §132.17 (Rule 132.17) concerning Denial, Dispute, and Payment of Death Benefits. The proposed amendments incorporate updates for plain language and “agency style” and clarify a Carrier’s deadlines to file disputes over eligibility for death benefits. The proposed rule is available here. 

Comments concerning the proposed rule may be emailed to the Division at RuleComments@tdi.texas.gov. 

Copyright 2022, Stone Loughlin & Swanson, LLP

In a disciplinary order dated May 23, 2022 the Division ordered William R. Francis, Jr., M.D. to pay an administrative penalty of $12,000.00 and attend an Ethics and Boundaries Assessment Services course and workshop. The Division found that Dr. Francis authorized and submitted CMS-1500 billing forms for 6,487 manual  muscle tests (MMT) and functional capacity evaluations (FCE) in which he listed himself as the rendering provider. The Division found, however, that Dr. Francis was neither in the room where the examinations were performed nor did he supervise the technicians performing such examinations.
 

Copyright 2022, Stone Loughlin & Swanson, LLP

Readers of the Compendium may recall the April 2021 newsletter reporting that, according to Commissioner’s Bulletin #B-0012-21, the Division would relocate its Austin headquarters in the summer of 2022 to the Capitol Complex at 1601 Congress Avenue in Austin. 

On May 2, however, the Division announced that the Austin Field Office would hold hearings on a temporary basis in the Hobby Building at 333 Guadalupe starting on July 18, 2022. 

Two days later, on May 4, DWC rescinded its plans to move temporarily to the Hobby Building and announced that it will continue to hold hearings at the current Metro location through the summer. The move to 1601 Congress Avenue will be announced when the moving date is finalized. 

Copyright 2022, Stone Loughlin & Swanson, LLP 

A joint project sponsored by the Law-Related Education Department of the State Bar of Texas, the U.S. District Courts of Texas, and Law Focused Education, Inc. is seeking attorneys to serve as virtual guest speakers to school classrooms across the state on Constitution Day, September 26, 2022 (observed). The Zoom program will last approximately one hour, requires minimal preparation work, and affords attorneys the opportunity to earn pro bono hours while educating and engaging Texas high school students. 

For more information concerning this professional opportunity, attorneys may register here.

You may also contact kim_schaefer@txnd.uscourts.gov or keend@friscoisd.org with questions.

Copyright 2022, Stone Loughlin & Swanson, LLP

DWC adopted the Texas claim Electronic Data Interchange release 3.1.4 on March 9, 2022 and, as a result, DWC’s designated data collection agent, Verisk, will begin billing insurance carriers for one-time set-up costs and claim data collection activities for the first year of EDI 3.1.4. Carriers will be billed half of their one-time costs immediately after registration. 

All insurance carriers or carrier groups must register their billing contact information with Verisk by June 13, 2022. To register, go to https://txdwcedi.info/ and select “Billing Registration” from the menu.

Questions concerning registration may be submitted by email to: txdwcbillingquestions@verisk.com 

Copyright 2022, Stone Loughlin & Swanson, LLP

As reported in last month’s Compendium, the deadline for First Responders to request reconsideration, pursuant to Senate Bill 22, of their COVID claims denied between March 13, 2020 and June 14, 2021, is June 14, 2022. A sample Request to Reprocess a denied COVID claim may be found on the Division’s first responder website here.

Copyright 2022, Stone Loughlin & Swanson, LLP

The Division is accepting public comments on three new proposed forms:

DWC Form-003, Employer’s Wage Statement: The proposed new DWC-003 includes substantially the same information contained in the old form, however, the new form appears much clearer and less complicated for employers to complete.

DWC Form-003ME, Employee’s Multiple Employment Wage Statement: This form provides the injured employee a way to provide wage information for other employers to the Carrier for calculation of the average weekly wage and issue income benefits when the injury affects ability to work.

DWC Form-003SD, Employer’s Wage Statement for School Districts, allows employers a way to report wage information to the Carrier to calculate average weekly wage and issue income benefits for school district employees.    

DWC will consider all substantive comments before adopting the proposed new forms which may be viewed here. 

Written comments should be submitted on the forms by 5:00 p.m. on June 21, 2022 to: RuleComments@tdi.texas.gov. 

Copyright 2022, Stone Loughlin & Swanson, LLP

The Division has adopted new DWC Form-033, Request to Reduce Income Benefits Due to Contribution, as of May 18, 2022. The adoption of the form is necessary to allow insurance carriers to reduce the amount of income benefits paid to an injured employee due to a past work-related injury to the same body part or parts. 

Carriers are to use the adopted form on and after June 13, 2022. A copy of the new DWC Form-33 is available here.

Copyright 2022, Stone Loughlin & Swanson, LLP

As regular readers of The Compendium well know, 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. 

Please help us to give the kids a chance by becoming a participant or sponsor and joining us at Topgolf Austin on June 28 from 5:30 – 8:30 p.m. for a workers’ comp networking and FUN-draising good time! For more information and to register to join us in knocking the stuffing out of those little dimply balls, click here.

Copyright 2022, Stone Loughlin & Swanson, LLP

NJ Workers’ Comp Legislative Update

The New Jersey Assembly recently introduced legislation, A2886, which would provide employment protections for paid first responders diagnosed with work-related post-traumatic stress disorder.  The bill states as follows: An employer shall not discharge, harass, or otherwise discriminate or retaliate or threaten to discharge, harass, or otherwise discriminate or retaliate against an employee with respect to the compensation, terms, conditions, duties, or privileges of employment on the basis that the employee took or requested any leave related to a qualifying diagnosis of post-traumatic stress disorder.  Following a period of leave related to a qualifying diagnosis of post-traumatic stress disorder, an employer shall reinstate an employee whose fitness to return to work has been documented by a licensed physician or licensed mental health professional to the position and duties held by the employee prior to the leave.

The bill makes clear that the PTSD condition must arise from work by stating as follows:

b.   A diagnosis of post-traumatic stress disorder is qualified under subsection a. of this section if:

(1)        the diagnosis is made by a licensed physician or licensed mental health professional; and

(2)        as determined by the licensed physician or licensed mental health professional, the post-traumatic stress disorder arose:

(a)        as a direct result of the employee experiencing or witnessing a traumatic event during and within the scope of the performance of regular or assigned duties of the employee; or

(b)        due to vicarious trauma experienced by the employee as a direct result of the performance of regular or assigned duties of the employee.

A2886 would apply only to paid first responders, which of course includes law enforcement officers, firefighters, emergency and paramedic personnel, but also extends to 9-1-1 dispatchers, who may only “witness” trauma by telephone. 

The first question is why did the Legislature focus solely on medical leaves for PTSD?  What about medical leaves for spinal surgery, which are equally common, if not more common? Legislation by diagnosis can become an endless trend.  Moreover, federal law under the Family and Medical Leave Act already provides job protection for covered leaves.

This bill calls to mind A2617 which was signed into law on September 24, 2021.  That bill provided: “Following a work-related injury, an employer shall provide a hiring preference to an employee who has reached maximum medical improvement (MMI) and is unable to return to the position at which the employee was previously employed for any existing, unfilled position offered by the employer for which the employee can perform the essential functions of the position.”

The problem with A2886 and A2617 is that neither bill is needed since New Jersey law already forbids such discrimination.  New Jersey already has powerful anti-discrimination laws, namely the New Jersey Law Against Discrimination and N.J.S.A. 34:15:39.1. Both of these laws protect employees from discrimination. Section 39.1 is contained within the New Jersey Workers’ Compensation Act and protects employees who file workers’ compensation claims from wrongful discharge or discrimination related to the making of a workers’ compensation claim. 

The question that legislators must answer is what holes have they suddenly found that need to be filled in the expansive New Jersey Law Against Discrimination?   

For more information on the progress of this proposed legislation, contact the undersigned at jcottell@capehart.com.

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Jennifer A Cottell, Esq., is a Shareholder in Capehart Scatchard's Workers’ Compensation Group.  Ms. Cottell concentrates her practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation matters.  If you have any questions or would like more information, please contact Ms. Cottell at 856.914.2087 or by e‑mail at jcottell@capehart.com.