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.

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.




Subtracting Insult from Injury

The Texas Workers’ Compensation Act sets forth specifically prescribed categories for grievously injured employees who qualify for Lifetime Income Benefits (LIBs), most of which are straightforward: those who suffer permanent loss of use in both eyes, both feet, or both hands, or a combination of one hand and one foot; spinal injuries resulting in paralysis of both arms, both legs, or one leg and one arm; and significant third-degree burn victims. 

However, one classification has fostered equal parts ambiguity and scorn among system participants for decades: head trauma injuries resulting in “incurable insanity or imbecility.”  The phrasing of this portion of the statute, found in Texas Labor Code Section 408.161(a)(6), is not only inherently vague (as neither “insanity” nor “imbecility” is defined anywhere in the Act), but also antiquated, relying on medical terminology established during the reign of Queen Victoria.  

At long last, the Legislature is poised to rid us of the much-maligned clause.  House Bill 2468 replaces the unfortunate “incurable insanity or imbecility” with “permanent major neurocognitive disorder.” But while the revision may be exponentially more tactful, is it any clearer?  

“Permanent major neurocognitive disorder” is not yet defined in the statute, other than to say it necessitates “occasional supervision in the routine daily tasks of self-care” and renders an employee “permanently unemployable.” What constitutes “occasional supervision” or permanent unemployability remains to be seen.  If left unaddressed in the corresponding rules the DWC has been charged with drafting, it is foreseeable that these phrases could generate as much uncertainty as those they replace.

If signed by Governor Abbott, House Bill 2468 goes into effect September 1, 2023.

Copyright 2023, Stone Loughlin & Swanson, LLP  

Burn Notice

House Bill 2468 also amends Section 408.161(a)(7) which pertains to serious burn injuries.  Previously, an injured worker would be entitled to LIBs if he/she sustained third degree burns to the majority of either both hands, or one hand and the face.  Now, third degree burns to both hands, to one hand and one foot, or to the face and either one hand or one foot can establish LIBs entitlement. 

House Bill 2468 further expands LIBs entitlement to certain first responders in the newly promulgated Section 408.1615.  Peace officers, EMTs, and firefighters (or those acting as EMTs or firefighters on a volunteer basis) who are rendered “permanently unemployable” following a “serious bodily injury” beyond those specifically enumerated in Section 408.161 may be entitled to LIBs.  

Qualifying claimants would be compelled to recertify their total unemployment to Carriers annually.    Carriers may audit the worker’s employment status periodically, but not more than once in any five-year window, unless the Carrier can show that the injured first responder’s assertion of non-employment is false.  Under such circumstances, the Carrier would be compelled to request a designated doctor to evaluate the claimant’s employability.  LIBs may be suspended if the annual certification is not accomplished, or if the first responder is employed in any capacity.  Suspension of LIBs is also codified under the new Section 408.0041(k-1).  


Copyright 2023, Stone Loughlin & Swanson, LLP 

The Dallas Court of Appeals Declines a Three-Way (Split)


In Hartford Accident & Indem. Co. v. Francois, decided May 23, 2023, the Dallas Court of Appeals spells out how to allocate a third-party settlement between the workers’ compensation carrier, injured employee, and injured employee’s attorney.  These calculations are a source of continuing confusion for some despite the plain language of the statute and the case law applying it.

The Dallas Court of Appeals’ decision also dispels the notion that the law requires the parties to split a settlement three ways:  one-third to the carrier, one-third to the claimant, and one-third to the claimant’s attorney.  This idea refuses to die despite the fact that there is no support for it in the law. As a result, some carriers still give up much more than they should.           

Janery Francois sustained a work injury for which Hartford paid her $356,669.73 in workers’ compensation benefits. Francois sued the third-party property owner of the building where she was injured and recovered $150,000. Hartford argued that under the Texas Workers’ Compensation Act’s subrogation statute, it was entitled to $95,206.03 of Francois’s $150,000 recovery.  

However, Judge Martin Hoffman, a former personal injury attorney, agreed with the interpretation of the statute offered by Francois’s attorney and found that Hartford was only entitled to $57,088.04 and that Francois and her attorney were entitled to $92,911.96.  Of this amount, $4,793.97 was for expenses and the remaining $88,117.99 was for attorney’s fees for Francois’s attorney. Judge Hoffman also awarded Francois’s attorney an additional $10,000 in fees under the Uniform Declaratory Judgment Act (UDJA) which allows the trial court to award fees that are equitable and just.

The Dallas Court of Appeals reversed Judge Hoffman’s decision and rendered judgment that Hartford was entitled to $95,206.03 of the third-party settlement. The court of appeals also found that Judge Hoffman abused his discretion by awarding Francois’s attorney an additional $10,000 in attorney’s fees under the UDJA because the award violates the Workers’ Compensation Act and is not equitable or just.

Francois’s attorney argued at trial that the award is equitable and just because Hartford refused to agree to a three-way split of the settlement which would have provided $50,000 to Hartford, $50,000 to Francois, and $50,000 to Francois’s attorney.  This approach would have resulted in Hartford recovering $45,206.03 less than it was entitled.  The Dallas Court of Appeals rejected this argument:

According to Francois’s counsel, the carrier, employee, and employee’s counsel “always” agree to split a settlement three ways, and he has entered into those agreements “dozens of times.”  But Francois cites no authority to support an argument that Hartford was under any obligation to reduce its lien and accept a three-way split.    

The Dallas Court of Appeals held that Hartford has a statutory right to recover its entire lien amount and it should not be penalized for asserting its rights. The court found that Judge Hoffman abused his discretion by awarding additional attorney’s fees to Francois’s attorney when “Hartford was well within its right to seek the full amount of reimbursement permitted under Chapter 417.”

Hartford Accident & Indemnity Co. v. Francois, No. 05-21-00981-CV (Tex. App—Dallas, May 23, 2023).

Copyright 2023, Stone Loughlin & Swanson, LLP

32 Switcheroo 

As we reported last month, the DWC-32 form for requesting a designated doctor exam has been revised, most noticeably in its capacity to alert the examining doctor of the conditions for which he or she should be examining the injured worker. Parties must begin using the new version of the form very soon, on June 5, 2023.  

Copyright 2023, Stone Loughlin & Swanson, LLP

Abrased and Contused: Great Texas Work Injuries in Cinema

It never hurts to remember triumph over misfortune as a reminder that a work injury - even a serious one - is rarely reason to despair. Maybe you never thought about work injuries like that before, but if not, do you remember this movie? Hard as it may be to believe, it has been thirty years since the release of Dazed and Confused. That’s almost twice the span of time between its premiere in 1993 and the film’s setting: Texas, May 28, 1976.  Since it’s late May in the Lone Star state, it seems like the perfect time to revisit Richard Linklater’s coming-of-age classic, shot in and around the director’s adopted home of Austin. (Disclaimer: Events depicted therein are for viewing enjoyment only, not for emulating.)

The ensemble comedy has gained a fanatical following far exceeding its paltry box office grosses upon initial release, and some of today’s most recognizable faces got their big breaks from the movie, including Academy Award winners Ben Affleck, Renee Zellweger, and University of Texas alum Matthew McConaughey.  It turned the Texas capital into a viable alternative to Hollywood for independent-minded filmmakers: Linklater co-founded the Austin Film Society.  It also spawned arguably the biggest movie catchphrase in recent memory, albeit decades after the fact.

Melissa Maerz’s excellent book Alright, Alright, Alright: An Oral History of Richard Linklater’s Dazed and Confused (HarperCollins, 2020), is packed with insight and anecdotes about the making of the film.  Among those: the revelation that the movie’s two de facto protagonists, freshman Mitch Kramer and senior Randall “Pink” Floyd, were avatars for the writer/director at those ages, with his older, wiser self mentoring his baby-faced doppelganger throughout the film.  “Pink is me,” Linklater admits to Maerz. “And so is Mitch.”  (Eagle-eyed viewers will notice that the characters are even dressed identically in gray t-shirts, blue pants, and long brown hair when they first cross paths.)

When seeking the performers who would not only carry the film but embody its creator, Linklater did not have to look far for his Mitch; Austin native Wiley Wiggins happened to be outside a local coffee shop when the casting director, looking for non-professional actors, offered him a chance to audition.   

Finding the right person to play Pink, though, depended on an initially horrific twist of fate in the form of a Texas work injury.  

Jason London, who eventually won the role, never intended to become an actor either. In Alright, Alright, Alright, he recalls being fifteen and working construction for his father in DeSoto, Texas, until his left foot got caught in the lift mechanism on a forklift, amputating two toes.  As he tells Maerz: “My whole life at that point was all about sports, and the only way I was gonna get to go to college was through scholarships in sports or the military.  All of [a] sudden, that path was gone. I thought it was the worst thing that could’ve ever happened to me. But then I decided to take drama. I guess it was destiny. I had to think about life beyond sports, just like Pink.”  

London’s unfortunate Texas work injury inadvertently set him on an alternate career trajectory, fortuitously intersecting with Richard Linklater in Austin five years later and providing one of the most beloved Texas-based movies its co-lead.  The anecdote is one of triumph over misfortune and a reminder that a work injury—even a serious one—is rarely reason to despair.  As we reminded you at the beginning, if you never thought of triumph over misfortune before…  


Copyright 2023, Stone Loughlin & Swanson, LLP 

Spring has Sprung and Everything Old is New Again 

DWC Adopts Changes to DD Rules - Again

The Division, faced with a rapidly dwindling list of available designated doctors (current numbers show 60 MDs, 9 DOs and 169 DCs for a total of 238 designated doctors), has again changed things up in efforts to make more doctors available to field the number of requests they receive each year.  

The new rules change the qualification criteria to require less for certain kinds of examinations and add to the list of board-certified doctors qualified to evaluate traumatic brain injuries with the justification that those doctors are to send out for testing anyway and they can then incorporate that testing into their reports. These qualification changes are effective 6/5/23.

This is not the first rule change impacting the designated doctor suite of rules, and it likely won’t be the last, but here are the high points:

•  For DD examinations involving traumatic brain injuries, the Division added doctors who are or have been board certified in orthopaedic surgery, occupational medicine, dermatology, plastic surgery, surgery, anesthesiology with a subspeciality in pain medicine, emergency medicine, thoracic and cardiac surgery and family medicine.

•  For DD examinations involving injuries with multiple fractures, a single spinal fracture or rib fractures where there is no vascular injury, chiropractors are now qualified, in addition to MDs and DOs.

•  DD examinations involving spinal cord injuries including spinal fractures with documented neurological injury or vascular injury, more than one spinal fracture or cauda equina syndrome are assigned to board certified doctors in neurosurgery, neurology, PM&R or orthopedic surgery.*

•  DD examinations involving multiple fractures accompanied by vascular injury are assigned to board certified doctors in emergency medicine, orthopedic surgery, plastic surgery, PM&R or occupational medicine.*

•  Multiple certifications will no longer be ordered unless the Division orders them as the result of a Presiding Officer Directive. 

*These examinations are handled by the same specialties, but carve out the more complex fracture injuries for board certification while allowing chiropractors to evaluate multiple fractures, single spine fractures and rib fractures that don’t involve vascular injury.  

•  Doctors who passed DWC certification on or after 5/13/13 don’t have to test again for certifications that expire on or after 4/30/23.**

•  Doctors still have to take required training and reapply every 2 years.

•  The certification and re-certification rules have been streamlined.

•  None of the rule changes address billing and reimbursement for designated doctor examinations. (Specifically, there is no mention of increasing the reimbursement rate for designated doctor examinations.  In 2022, the Division posted and took comment on Rules 133 and 134 and the relevant sections relating to billing and reimbursement for designated doctor examinations. The second informal posting of those rules provided increased reimbursement for examinations and even provided a $150.00 missed appointment fee.  The comment deadline for those rules was 12/16/22.  There is no word yet on the status of this rule project).

**The rule allows the Division to require a doctor to take the test again on a case-by-case basis as part of a performance review.

Copyright 2023, Stone Loughlin & Swanson, LLP  

New Rule – New Forms

No rule change would be complete without changes to the corresponding forms and no form gets more facelifts than our beloved DWC-32. Here are some fun facts about the changes:

•  She’s lost some weight – down to four pages now – really 3-1/2 since the 4th page is just signatures.

•  Just the facts ma’am.  The form has been streamlined to request very basic identifying information of the parties, their representative and doctors.  Gone are the questions regarding authorized agents and bill review agents.   

•  The accepted compensable injury is a thing of the past. Box 37 is gone – caput – no one cares.  Regardless of whether the designated doctor is asked to address extent of injury.  Fear not, dear reader - the designated doctor will determine the compensable injury during the examination.  

•  Interestingly, there is a “yes” or “no” box” where you can tell someone that a DWC-24, CCH Decision or final court order determining the compensable conditions exists; however, there is no corresponding place to elaborate on that determination. 

The New DWC-32 must be used starting 6/5/23 and can be found on the Division’s website at:

There are also new forms for the doctors to apply for certification and new DWC-68 forms for doctors to record extent of injury findings “more precisely.”


Copyright 2023, Stone Loughlin & Swanson, LLP 

Sunrise, Sunset – Well, Maybe Just Sunrise…

In an unexpected move earlier this month, the Senate unanimously passed an amended bill that would delay by four more years the scheduled sunset review for TDI, DWC, OPIC and OIEC. This will push sunset review of the Division of Workers’ Compensation and the Office of Injured Employee Counsel to 2029, rather than 2025 as originally scheduled. SB1659, which was introduced by Senator Charles Schwertner of Georgetown - current chairman of the Texas Sunset Advisory Commission - will now go to the House of Representatives for further deliberations. At this time, we have no idea what is behind the legislation to postpone review of these agencies, but the legislation seeks to modify the review process for more than 40 Texas agencies.  

Copyright 2023, Stone Loughlin & Swanson, LLP

Interesting Cases in Texas Workers’ Comp Law 

Coming and Going Rule – A Question of Fact

The El Paso Court of Appeals recently reversed a district court’s summary judgment decision involving a coming and going case. Duane Cook was employed by an oilfield fishing and rental tools company in far West Texas. The company issued him a truck, which included tools, that he was to take to and from their yard and other job sites as part of his job.  He was allowed to drive the truck to and from home and the employer’s shop, but could not use it for personal errands.  He was the sole mechanic employee and was responsible for checking all of the company equipment before the crews took it to the worksites from the shop.  

The night before the accident in question, his supervisor told Cook to drive to the employer’s yard the next morning to inspect some equipment that was to leave the yard early in the morning to arrive on site at a designated delivery time.  Early that next morning, Cook began driving from his home to the yard and was involved in a MVA only one or two blocks from his house.   The Division held Cook sustained a compensable injury and had disability.  The Appeals Panel reversed and rendered a decision against Cook and found he was not acting in the course and scope of his employment.  Cook filed suit in district court and Texas Mutual filed a motion for summary judgment, which the trial court granted.  The El Paso Court of Appeals analyzed Texas workers’ compensation course and scope law and the coming-and-going rule with its exceptions and ultimately held that there was a genuine fact issue as to whether Cook’s trip originated in the course and scope of his employment or was in the furtherance of the affairs of his employer’s business and remanded the case to the trial court.  Cook v. Texas Mutual Insurance Company, 2023 WL 2919332, ___ S.W. 3d ___ (Tex. App. – El Paso, April 12, 2023).


Venue for a Cowboy?


In most Texas workers’ compensation cases, the question of venue is pretty straightforward. In the case of Dallas Cowboys offensive lineman, Alcus Reshod Fortenberry, however, it was less so. Texas Labor Code §410.252(b) requires suits to be brought in the county where the employee “resided at the time of the injury.”   In this case, Mr. Fortenberry was injured while attending training camp in California on 8/2/15.  He signed a 3-year contract in May of that year to play for the Cowboys.  He stayed in a hotel in Dallas County while attending team practices that summer beginning in May.  He sprained his knee in June and had to sit out practice for 2 weeks, but continued to attend and participate in other activities during that time.  Later that month, he traveled to Louisiana to rehab his knee, but stayed in touch with the team regarding his progress and returned to Dallas for a conditioning test with his teammates in July before training camp began.  On 8/2/15, he injured his knee and was added to the injured reserve list with an estimated recovery time of 9 to 12 months.  His contract was ultimately terminated in May of 2016.  He filed for workers’ compensation benefits and the Carrier denied them. The parties stipulated to venue in the Dallas Field Office at the DWC level.  Unhappy with his impairment rating, Fortenberry filed suit in district court in Dallas, and the Carrier sought transfer to Travis County.  Fortenberry alleged his residence at the time of the injury was the Marriott Residence Inn in Dallas. The trial court denied the Carrier’s motion and the trial went forward in Dallas. The jury returned a verdict for Fortenberry and the Carrier appealed. The Court of Appeals held Texas Labor Code § 410.252(b) did not apply and rejected his other venue arguments and reversed the trial court’s judgment. The Texas Supreme Court held the venue provision of Labor Code § 410.252(b) was mandatory and Fortenberry more than presented enough evidence that he “resided” in Dallas County at the time of his injury.  The Court further held that the fact that he was staying in a hotel for a prolonged period of time did not preclude him from qualifying as a “resident” and found it probative that the parties stipulated to venue at the Division level.  Fortenberry v. Great Divide Insurance Company, 2023 WL 2719475 (Tex., March 3, 2023).

Copyright 2023, Stone Loughlin & Swanson, LLP

More Changes at DWC

SLS bids farewell to Administrative Law Judge Rabiat Ngbwa who presided over Contested Case Hearings in the Austin Field Office.  No word yet on who will replace Judge Ngbwa, but we wish her well in her future endeavors.


Copyright 2023, Stone Loughlin & Swanson, LLP