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.
The Division has revised several forms by removing or limiting Social Security numbers (SSNs). In an effort to better protect confidential information and streamline processes, the Division’s revisions resulted in either removing the SSN field completely, or requesting only the last four digits of the SSN. Updated forms are available on the Division’s website.
A federal court has reigned in Medicare’s overambitious reimbursement demands. Medicare sought reimbursement of entire medical bills where there were mixed diagnosis codes, some for the workers’ compensation injury and some which were unrelated. The court held that once non-work related diagnoses were identified, it became Medicare’s burden to show that the charges were related to the workers’ compensation injury. The case was decided under California law after the court held that Medicare Secondary Payer Act does not preempt state law. While the court’s holding is not binding in Texas, it relied on a decision that is. CIGA v. Burnwell, 2017 U.S. Dist. Ct. LEXIS 1681.
An attorney was denied coverage under their professional liability (PL) policy for failing to provide notice to the carrier. The attorney was sued after he failed to timely appeal a workers’ compensation claim (despite being instructed to appeal by the client), and he sought defense under the PL policy. The attorney had answered ‘no’ in the application and subsequent renewal applications for the PL policy as to whether he had knowledge of any circumstances that could result in a professional liability claim (ignoring the potential suit for his failure to timely appeal). The court found that his answers were material misrepresentations and declared the policy rescinded. Liberty Mut. Underwriters, Inc. v. Wolfe, 2017 WL 481468.
David Mattox has been appointed by Governor Abbott to continue serving as Commissioner of Insurance through February 1, 2019. He has been serving in that role since January 12, 2015. Before the Texas Department of Insurance, Mr. Mattox was with the Office of the Attorney General.
The 85th Texas Legislature is in session, and many of our representatives have an eye on issues affecting the world of workers’ compensation.
Commissioner Brannon has recommended that the Division’s Fraud Unit be granted authority similar to that of the TDI’s Fraud Unit. There are two broad proposals: (1) an assistant district attorney employed and funded by the Division that local district attorneys would be able to authorize to operate in their county; or (2) establishing a special prosecutor in Travis County. The Commissioner also seeks authority to investigate workers’ compensation fraud and to share the results with other agencies without the fraud investigation being subject to open records requests.
It is also recommended that the Legislature clarify a party’s duty to file any proposed judgment or settlement with the Division in judicial review actions. Specifically, the Commissioner seeks clarification that agreed judgments, voluntary dismissals, summary judgments, and judgments on the merits must all be filed with the Division for approval. The Division would also like a description of the terms of any settlement or agreement to be filed, including any anticipated payments and how the Division’s decision would be reversed, affirmed, or modified.
Not to be left out of the action, the Office of Injured Employee Counsel would like to eliminate the requirement that ombudsmen have at least 1 year of workers' compensation experience. They would also like the authority to request causation opinions from physicians for which the insurance carrier would be obligated to pay, and Senate Bill 1035 would amend section 408.0273 of the Labor Code to provide for the causation reports.
New back pain guidelines from the American Academy of Physicians counsel against prescribing pain medications. Chronic back pain should be treated with OTC medication and regular activity, not prescription pain meds. This is refreshing news for those of us on the front lines of the opioid epidemic. The study also confirmed what many of us already suspected . . . steroid injections provide little, if any, therapeutic help, and diagnostic MRIs are virtually useless to identify disc pathology caused by a work injury. The new guidelines have yet to be adopted.
Dallas-area surgeon Christopher Duntsch, a/k/a Dr. Death, was sentenced to life in prison for injury to an elderly individual, a first degree felony. The victim lost a third of her blood and the use of both legs. Dozens of surgery patients testified at the sentencing phase of his trial as to how he maimed them. Patients presented to Duntsch to address back problems and instead left his care disfigured or unable to move. Many patients are now left with chronic, debilitating pain. At least two patients died as a result of Duntsch’s actions. The lawyer representing Duntsch argued his client was merely incompetent, but in a chilling e-mail, Duntsch stated that he wanted to “become a cold blooded killer.”
Forest Park Medical Center was caught looking to put “more bodies on the table,” and they were willing to pay for those bodies. Payments were issued to doctors based on the number of surgeries that the doctor would steer to or perform at the medical center. Twenty-one individuals have been charged in the scheme, and 3 of those have already pled guilty. The medical center’s former owners allegedly paid approximately $40 million in payments and gifts in exchange for patient referrals. The scheme was allegedly hatched by two of the co-conspirators while they worked together at the now defunct Vista Hospital.
Dr. Gerald Foox, whose name many of you may recognize from workers’ comp claims, received approximately half a million dollars in the scheme. He is free on bail after attempting to flee to Panama. Dr. Foox was vacationing in Canada when he was indicted, and flew to Panama to avoid arrest. However, the good doctor was on a watch-list. He was deported to the US and was arrested by the FBI upon landing. After fleeing the indictment, guess how much did Dr. Foox had to put up for bail? $15,000,000!
SLS is proud to announce the unveiling of our new website! While the website is brand new, it can still be found atwww.slsaustin.com. We have been updating our look, and you may have noticed a new format to the newsletter and our new signature blocks. Our new website completes the transition to this new brand for SLS.
Senator Arthur Orr (R, Decatur) recently introduced SB-89, which would limit employers’ liability for permanent total disability benefits. Currently, an employer must pay permanent total disability benefits for as long as the employee remains permanently and totally disabled. SB-89 would amend § 25-5-57 (a)(4) a. of The Alabama Workers’ Compensation Act to provide that permanent total disability benefits would terminate upon the later of the employee’s 65th birthday, or 500 weeks after the date of injury. Additionally, SB-89 would amend § 25-5- 77(j) of The Alabama Workers’ Compensation Act to create a rebuttable presumption that medical treatment is not related to the work injury when the employee does not receive medical treatment related to the claimed injury for a period of two years. In addition, the employer’s obligation to provide treatment would conclusively end if the employee does not receive medical treatment related to the claimed injury for a period of four or more years. SB-89 was first read in the Senate Fiscal Responsibility & Economic Development Committee on February 7, 2017.
Senator Orr also introduced SB-196, which would amend Alabama Code § 13A-11-124 to (1) expand the type of activity related to workers’ compensation fraud that is subject to criminal penalties; (2) authorize an award of civil damages to employers and insurers damaged by fraudulent claims; (3) allow the Department of Labor to immediately terminate compensation payments upon a determination of fraud; and (4) provide for the repayment of fraudulently obtained workers’ compensation benefits (with interest). Under SB-196, it would be a class C felony to (1) knowingly make a false or misleading statement, representation, or submission concerning any fact that is material to a workers’ compensation claim; (2) coerce, solicit, encourage, or employ another to make a false or misleading statement concerning a fact material to a workers’ compensation claim or the payment of compensation or premiums; (3) present multiple claims for the same injury; (4) fabricate, alter, conceal, or destroy a document; or (5) attempt to obtain treatment or compensation for body parts that were not injured in the course and scope of the employment. SB-196 was first read in the Senate Fiscal Responsibility & Economic Development Committee on February16, 2017.
Continue to follow our blog for updates as these bills are debated in the legislature.
My Two Cents
The limitation on permanent total disability benefits makes a lot of sense, since employees are generally eligible for Social Security benefits in the mid-late sixties. If SB-89 becomes law, the costs of workers’ compensation insurance should decline, which could make Alabama more attractive to businesses looking to expand or relocate. Unfortunately, it will not likely pass because of the portion of SB-89 that seeks to cut off medical benefits after extended periods without treatment.
SB-196 would give Alabama one of the most aggressive anti-fraud laws in the country. If it becomes law, it could lower insurance costs by deterring fraud. However, like any criminal statute, how well it deters crime will depend primarily on how aggressively it is enforced.
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About the Author
This article was written by Charley M. Drummond, Esq. of Fish Nelson & Holden, LLC. Fish Nelson & Holden is a law firm located in Birmingham, Alabama dedicated to representing employers, self-insured employers, and insurance carriers in workers’ compensation cases and related liability matters. Drummond 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. If you have questions about this article or Alabama workers’ compensation issues in general, please feel free to contact the author at cdrummond@fishnelson.com or (205) 332-3414.