State News : Texas

NWCDN is a network of law firms dedicated to protecting employers in workers’ compensation claims.


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.


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Texas

STONE LOUGHLIN & SWANSON, LLP

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Thomas Howell HIGHT JR.
 
Thomas Hight, Jr., an Administrative Law Judge at the Dallas field office of the Texas Department of Insurance, Division of Workers’ Compensation, passed away on August 19, 2025.

He was widely regarded as one of the Division’s most knowledgeable ALJs. More important than that, he was a kind and gentle soul. He will be greatly missed.

Copyright 2025, Stone Loughlin & Swanson, LLP

Predicting the Future is Too Often a Swing-and-a-Miss - Connecting the Dots

  

This month DWC published a proposed rule amending Rule 130.102 concerning eligibility for Supplemental Income Benefits. But those of you hoping that DWC would put some teeth in the rule to require a SIBs applicant to prove that he made a genuine effort to find work will be sorely disappointed. It has about as many teeth as our snuff-dipping granny.

The impetus: The proposed revision appears to be in response to a decision from the Austin court of appeals in Texas Dep’t. of Ins., Div. Workers’ Comp. v. Accident Fund Ins. Co. of America, et al., in which Accident Fund, represented by SLS, challenged the validity and applicability of parts of the rule. In that case, the insurance carriers argued that SIBs applicants who claim to be looking for work on their own (without going through a vocational rehabilitation program or requesting the assistance of the Texas Workforce Commission), cannot qualify for SIBs merely by making “work search contacts” (which can be emails or telephone calls) but, instead, they must submit actual job applications to prospective employers. A Travis County district court ruled for the carriers and enjoined DWC from awarding SIBs to applicants who make only work search contacts, and the court of appeals affirmed that injunction. As a result, DWC saw the need to revise its rule.

The new rule is an improvement: The new rule proposed by DWC would require a SIBs applicant to document a work search with job applications submitted. And it would clarify that “job application” means “a physical or electronic form or other document that is submitted to an employer . . .” so that an applicant could not claim that he submitted a job application if he merely called a business by telephone and asked if they are hiring.

But it could be so much better: The proposed rule would not require a SIBs applicant to provide the insurance carrier with a copy of the job application he submitted so that the carrier can verify that he submitted a complete application. It would not require a SIBs applicant to cooperate with a prospective employer that asks to set up an interview. And it would not require a SIBs applicant to apply only for jobs that the applicant has a reasonable chance of being able to perform given his education, skills, and functional limitations.
 
Why it matters: The current SIBs rule does not work. Too many claimants abuse it as a hand out, not a hand up. If DWC adopts the new rule as proposed, little, if anything, is likely to change. Those claimants will continue to “go through the motions” to obtain SIBs rather than making a genuine effort to find work. They will continue to submit job applications that are not completely filled out, they will continue to ignore any invitations to interview, and they will continue to apply for jobs that they have no earthly chance of being able to perform with the sole purpose of satisfying the requirements of the rule. And DWC will contribute to their dependency on SIBs by ordering carriers to pay them, quarter after quarter after quarter.

There’s still hope: But there’s still time for DWC to come through. This is just a proposed rule. DWC is requesting oral and written comments at a public hearing on the rule on October 1, 2025, and it will continue to accept written comments until October 6, 2025. SLS will be submitting written comments and we urge other system participants to do the same. Together, let’s urge DWC to revise the rule so that it supports claimants who demonstrate that they are truly trying to find work -- but not those who don’t.

Copyright 2025, Stone Loughlin & Swanson, LLP 


Earthquakes: Facts about why the Earth moves | Live Science
 


The legal landscape in Texas is changing as Texas judges begin to apply the Supreme Court of Texas’ holding in University of Texas Rio Grande Valley v. Oteka, which the Court issued in June.

Flashback: In Oteka, the Court addressed the circumstances under which DWC has exclusive jurisdiction to determine whether a worker was in the course and scope of employment at the time of an injury. The case arose after Rita Oteka, a nursing professor at the university, voluntarily attended a commencement ceremony. Afterward, as she was walking to her car, a vehicle driven by a university police officer struck and injured her.

The university, which is self-insured for purposes of workers’ compensation, reported the injury to its claims administrator which denied the claim asserting, among other things, that Oteka was not in the course and scope of her employment. Oteka did not challenge that denial or file a workers’ compensation claim. Instead, she sued the police officer for negligence.

The university asserted the affirmative defense that recovery of workers’ compensation benefits was Oteka’s exclusive remedy because the injury was related to her work.  Oteka asserted that the injury was not work-related because she voluntarily attended the ceremony and had already left when she was injured.

The parties filed cross-motions for summary judgment on the exclusive remedy defense, but before the trial judge could rule on the motions the university’s claims administrator reversed course and sent a letter to Oteka explaining that her injury had been accepted as compensable and benefits would be paid. Then the university filed a plea to the jurisdiction, arguing that DWC had exclusive jurisdiction to determine whether Oteka was injured in the court and scope of her employment. The trial judge denied the plea to the jurisdiction and the court of appeals affirmed. The supreme court also affirmed and held that DWC does not have exclusive jurisdiction to determine whether an injury occurred in the course and scope of employment when (1) the issued was raised by the employer’s affirmative remedy defense and (2) the employee’s lawsuit does not hinge on entitlement to workers’ compensation benefits.

Where we are now: Now that Texas judges are applying the holding in Oteka, they are reaching some surprising outcomes. One such surprise is a procedural ruling in favor of the injured worker in B & T Dependable Services, LLC v. Santos.
That case arose when Edward Santos, a landscape worker for B & T, finished his work for the day and then jumped into the bed of B & T truck that was towing a trailer carrying B & T equipment.  During the ride, Santos fell out of the truck bed and was run over by the trailer.
 
B & T reported the injury to its workers’ compensation carrier, Texas Mutual Insurance Company, which began paying workers’ compensation income and medical benefits. Santos accepted those benefits, which totaled more than $663, 894. He even applied for eight separate quarters of Supplemental Income Benefits and represented in each application that B & T was his employer. Nevertheless, Sanchez sued B & T for negligence, asserting his district court pleadings that he was not B & T’s employee but was, instead, an independent contractor.

B & T and Texas Mutual filed a plea to the jurisdiction and a motion for summary judgment arguing, among other things, that the suit was barred by the exclusive remedy provision of the Texas Workers’ Compensation Act. The trial court denied the plea to the jurisdiction and the motion for summary judgment. The court of appeals affirmed, citing Oteka, and held that DWC did not have exclusive jurisdiction to determine whether Santos’ injury occurred in the course and scope of employment for B & T. It said “although Oteka is factually distinguishable, it is legally guiding . . . in this case, just like Oteka, Santos’ [district court] claims are not based on his entitlement to benefits.”
                           
Copyright 2025, Stone Loughlin & Swanson, LLP 

 

On July 24, 2025, the Texas Eleventh Court of Appeals in Eastland reversed a judgment awarding an old law claimant $750,000 in “bad faith” damages from his workers’ compensation insurance carrier plus attorney’s fees of $75,950.
 
Donald Bristow was permanently paralyzed in a motor vehicle accident in 1990.  Bristow’s claim is considered an “old law” claim because he was injured prior to January 1, 1991 when the new workers’ compensation law took effect.  Therefore, Bristow’s claim is governed by the law that was in effect prior to 1991.
 
In 1993, Bristow and his workers’ compensation insurance carrier, Sentry Insurance, entered into a compromise settlement agreement that included a provision that Sentry would pay Bristow $3,650 per month for Bristow’s ongoing home health care.
 
This case began in 2018 when Sentry Insurance filed a motion to terminate its obligation to pay Bristow for home health care services on the grounds that he no longer needed the services.  Bristow brought counter-claims against Sentry for bad faith claim handling and violations of the Texas Insurance Code. 
 
In 2022, a Nolan County jury awarded Bristow $250,000 in mental anguish damages and $500,000 in additional damages under the Texas Insurance Code.  Sentry appealed the trial court’s judgment partly on the basis that Bristow’s claims are barred by the Texas Supreme Court’s 2012 holding in Texas Mutual Insurance Company v. Ruttiger. 
 
In Ruttiger, the Texas Supreme Court held that the new workers’ compensation law “prescribes detailed, [DWC]-supervised, time-compressed processes for carriers to handle claims and for dispute resolution” and that it contains “multiple, sometimes redundant but sometimes additive, penalty and sanction provisions for enforcing compliance.”  Therefore, the new law “effectively eliminates the need for a judicially imposed cause of action.”
 
Bristow argued that Ruttiger is limited to new law claims and that a 2016 decision holding otherwise from the 14th Court of Appeals in Houston was wrongly decided.  That case was In Re Illinois Employers Ins. of Wausau (Wausau II).
 
However, the Eastland Court followed Ruttiger and Wausau II and held that Bristow’s statutory and bad faith claims are barred.  The Eastland Court explained that it is the date of the alleged misconduct, not the date of the injury that dictates the applicability of Ruttiger.  You can read the Eastland Court’s decision here.
 
Bristow can petition the Texas Supreme Court to review the Eastland Court’s decision but it may be less likely to hear the case due to its limited impact since it has been over 34 years since the last old law claim.


Copyright 2025, Stone Loughlin & Swanson, LLP 


The Texas Supreme Court in Ruttiger based its decision to eliminate the common law cause of action for “bad faith” claim handling in workers’ compensation partly on the detailed enforcement process provided to DWC in the new workers’ compensation law. 
 
DWC takes that responsibility seriously as we can see from a review of this month’s disciplinary orders.  DWC issued 17 disciplinary orders in July with all but one against an insurance carrier.  The largest fine against a carrier in July was $51,000 (Disciplinary Order 2025-9389). 
 
To determine the fine amount, DWC considers a number of aggravating factors.  For example, in Disciplinary Order 2025-9393 DWC found the following factors to be aggravating:
 
  1. The violations are serious, involving $ in late medical benefits, income benefits, travel reimbursement, and attorney fees. Further, Respondent did not comply with the interest payment obligation in File No. 36758 until it received notice of enforcement action. Also, Respondent’s failure to comply with six DWC orders is a priority investigation under Tex. Lab. Code § 402.0235;
  2. Respondent has a history of 195 administrative violations since , including 54 violations involving attorney fees, medical bill payment,• and travel reimbursement;
  3. A penalty is necessary to deter future violations considering Respondent has had 195 administrative violations since ;
  4. Respondent received an economic benefit from the prohibited acts to the detriment of multiple system participants; and Respondent is the 11th largest workers’ compensation insurance carrier in Texas and has a heightened awareness of the legal duty to comply with the Texas Workers’ Compensation Act and DWC rules.
 
For carriers that are slow learners, it can be costly.  Therefore, we recommend perusing DWC’s disciplinary orders as one of the best ways for system participants to learn what to do and what not to do.
 
The takeaway here is that we can all learn a lot from “Ruttiger”: https://youtu.be/1S2D431Gbks?si=Ft1jyZU9oCfLWCeU

Copyright 2025, Stone Loughlin & Swanson, LLP


On June 1, 2025, the revised Texas Administrative Code §133.30 (“Telemedicine, Telehealth, and Teledentistry Services”) went into effect.  As of that date, treating doctors—though not Designated Doctors or Required Medical Examiners—are permitted to perform MMI evaluations remotely via telemedicine.  The certifying doctor is only allowed to determine if MMI has been attained and, if so, to provide a determination of no permanent impairment. 
 
The rule specifies, “The term [telemedicine services] does not include an examination to assign an impairment rating” under Rule 130.1.  The injured worker must have been examined by the treating doctor for the same condition(s) at least once prior to the telemedicine exam, and he/she must agree to be certified in that manner. 
 
Injuries to be rated in this manner must qualify for no impairment, cannot require further treatment, and must be considered “minor” in accordance with Rule 130.2(a)(2).  That subsection allows a treating doctor to provide an MMI certification without scheduling an examination only if the injured employee is not receiving Temporary Income Benefits and has been released from treatment without the expectation of further treatment.

Copyright 2025, Stone Loughlin & Swanson, LLP

In a move sure to motivate injured employees to get up off the couch and go back to work, the 89th Legislature passed Texas House Bill 46 on June 20, 2025, set to take effect on September 1, 2025. The bill expands the conditions for which certain medical providers in the state can prescribe “low-level” tetrahydrocannabinols (THC) cannabis under the Texas Compassionate Use Program (TCUP).
  
Additionally, the level of permissible THC will increase, from the current limit of 1% THC by weight to up to 10 milligrams per dose, not to exceed 1 gram of THC per package.
 
Previously, medical marijuana under the Compassionate Use Program was limited to diagnoses rarely encountered in workers’ compensation claims, such as spasticity, Amyotrophic Lateral Sclerosis (ALS, or Lou Gehrig’s Disease), autism, terminal cancer, or incurable neurodegenerative diseases.  However, HB46 adds to that list some conditions that are often part of workers’ compensation claims: traumatic brain injuries and chronic pain.
 
Anyone familiar with current trends in Texas comp will recognize the seismic shift this expansion is sure to have on treatment and billing for work injuries.  “Traumatic brain injury” is an unfortunately vague term often used to diagnose mild and temporary cranial trauma without any lasting effects, such as a simple head contusion.  “Chronic pain,” meanwhile, is a favorite post-injury diagnosis used by some healthcare providers to prolong and inflate treatment—and the billing that goes along with it.  Circa September 2025, Insurance carriers can therefore expect to see more frequent billing for medical marijuana as part of injured workers’ treatment regimens for traumatic brain injuries and chronic pain.

In fact, already we have heard of one enterprising physician hoping to capitalize on the new legislation:
 

 

Copyright 2025, Stone Loughlin & Swanson, LLP

Last month we reported on House Bill 2488, which would permit Contested Case Hearings within the Division by Zoom conference or other forms of remote communication.  The bill passed the Senate in May 2025 and was signed into law by Governor Abbott on June 24.  Remote hearings can be held only at the agreement of the parties, or if there is a determination that good cause exists for the proceeding to be conducted that way.
 

Copyright 2025, Stone Loughlin & Swanson, LLP

The Division has hired a second Administrative Law Judge to handle its increasingly congested Austin docket. Jordan Woody earned her law degree from NYU in 2012 and became licensed in Texas a year later.  She specialized in employment law prior to joining the Division of Workers’ Compensation, working at Carter Arnett, LLC, and Thompson, Coe, Cousins & Irons, LLP.  We look forward to seeing her behind the bench.

However, we have not been looking forward to the departure of San Antonio ALJ John Bull, who left the Division on June 30.  Judge Bull joined the agency in July 2024 and quickly established himself as a thoughtful and astute adjudicator.  No word on what might be in store for Judge Bull, but he will be missed. 

Taking Judge Bull’s place in San Antonio will be the current Lubbock ALJ Sandra Schuck-Garrant.  That transfer is pending the hiring of a new Administrative Law Judge in that field office.
 

Copyright 2025, Stone Loughlin & Swanson, LLP

Our office recently received an email from a claimant attorney who may wish he had recalled it after hitting the ‘Send’ button.  Here is a what we found in the subject line of the email, redacted but otherwise verbatim:

“Subject: ChatGPT said: Here’s a clean, professional email you can send to [Adjuster] at [Insurance Carrier] with a CC to [Attorney], counsel for the carrier: Subject: Notice of Termination and Severance – [Claimant] (DWC #_______)”

We assume that the subject line was an unintentional display of candor on the attorney’s part, as it is the first such message we have received openly acknowledging that it was composed through the AI program ChatGPT rather than by the actual attorney. Well, one man’s e-communication faux-pas is another man’s newsletter fodder, so now we must ask: what is ChatGPT’s hourly billing rate these days?

The question is only quasi-facetious, though.  As the legal profession grapples with AI-generated communications at an increasing frequency, should clients pay lawyers for correspondence that was generated by an AI program rather than by the attorney him or herself?  If so, is such work being billed at the same rate as it would have been if the attorney had drafted it?  ChatGPT is, after all, intended as a time-saving program.  Does it violate the code of professional ethics to produce or charge a client for communications produced artificially?  And how does one respond to an artificially generated email anyway, and should we even feel compelled to? 

The future of AI is uncertain but developing at an exponentially rapid pace.  We may have to answer these questions far sooner than any of us expected.  In the meantime, accept our assurance that this clean, professional newsletter was drafted by a sentient, carbon-based entity.
 

Copyright 2025, Stone Loughlin & Swanson, LLP

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