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.
Another long-time friend of this firm, Jacquelyn Coleman, recently retired from
the Division after serving for 16 years as an ALJ and has started her own
mediation practice. While she normally conducts mediations by Zoom, she can
perform in-person mediations with advance notice.
You can learn more about Ms. Coleman and her mediation services on her website
at jdcmediation.com.
We wish you well in your new endeavor, Jacquelyn!
Copyright 2023, Stone Loughlin & Swanson, LLP
If you are a regular reader of our newsletter, you know that there was a
challenge pending in the 13th Court of Appeals to the old Seabolt standard for
determining entitlement to Lifetime Income Benefits. The challenge boils
down to whether “total loss of use” of a body part as stated in the current
LIBs statute really means “total” and whether loss of use under the current
LIBs statute means loss of function as a member of the body, or loss of
function in regard to employability. At the Zoom trial held in this case, the
trial court judge determined that the old standard still applied and that the
worker could not work using his hand, despite the video evidence that showed
the worker using his hand while working for himself. Well, lo and behold, well
after the fact and during the course of the carrier’s appeal to the 13th Court
of Appeals, SLS received an anonymous letter in the mail. We will leave
you to wonder what the letter said, but it did mention in closing that SLS did
a good job at the trial, which was a nice compliment having nothing to do with
the merits of the case. Given that the trial was held by Zoom with limited
participants, we wonder how the writer of the letter knew so much!
In the meantime, the 13th Court of Appeals issued a Memorandum opinion on
October 12, 2023 dodging the legal issue it was asked to address, and holding
that “the doctrine of vertical stare decises” required the Court to follow the
precedent of the Texas Supreme Court as established law affirming the use of
the Seabolt
standard to new law cases. However, the precedents the Court cited were
not cases where any party directly challenged the Seabolt standard itself. The
cases merely applied that standard. No challenge was made in those cases
on the basis that under the current LIBs statute employability is not relevant
to the application of the statutory language of “total loss of use.” The LIBs
statute contains no qualifier indicating that employability is determinative of
entitlement. The Court of Appeals case is not yet final.
You can read the
decision here.
Copyright 2023, Stone Loughlin & Swanson, LLP
Travis County District Court Judge Madeleine Connor signed a judgment in favor
of the insurance carriers in the PHI Air Medical Case on August 8, 2023.
PHI Air Medical had until September 7, 2023 to appeal Judge Connor’s
decision to the court of appeals but did not do so, making her decision final.
Judge Connor found that PHI Air Medical did not timely file its petition
for judicial review challenging SOAH’s decision awarding payment of 149% of the
Medicare rate and agreed with the carriers that 149% of the Medicare rate exceeds
the Workers’ Compensation Act’s fair and reasonable reimbursement standards for
the 33 fee disputes at issue in the case.
The PHI case began at the State Office of Administrative Hearings (SOAH) in
2015 when Administrative Law Judge Craig Bennett consolidated the 33 fee
disputes involving eight carriers consisting of Texas Mutual Insurance Company,
Hartford Underwriters Insurance Company, TASB Risk Management Fund,
Transportation Insurance Company, Truck Insurance Exchange, Twin City Fire
Insurance Company, Valley Forge Insurance Company, and Zenith Insurance
Company.
The PHI case went all the way to the Texas Supreme Court which ruled in favor
of the carriers. PHI petitioned the U.S. Supreme Court for review but it
declined to hear the case. The case then went back to the court of
appeals for a second decision before heading back down to the trial court where
the carriers filed a motion for summary judgment. Because PHI did not
appeal Judge Connor’s order granting summary judgment for the carriers, the PHI
case will now be remanded to SOAH for further proceedings consistent with Judge
Connor’s final judgment.
The rest of the air ambulance disputes at SOAH and DWC have been abated while
the PHI case proceeded. However, Air Evac, another air ambulance
provider, recently filed a motion to lift the abatement of its cases at SOAH so
that it could brief how a 2018 injunction that it obtained applies to its cases
at SOAH. The injunction states that DWC is “enjoined from enforcing Texas
Labor Code § 413.011 and 28 Texas Administrative Code against Plaintiff Air
Evac EMS, Inc.” The parties filed a proposed briefing schedule on
September 15, 2023 which the ALJ has not yet ruled upon.
As of August 2023, there are 2,414 air ambulance disputes pending at DWC.
This figure does not include the air ambulance fee disputes pending at
SOAH. The average amount sought by the air ambulance provider in each
case at DWC is estimated to be at least $50,000, which is the difference
between what the air ambulance provider was paid by the carrier and its
unregulated billed charges. This makes the total amount sought by the air
ambulance providers in the disputes at DWC over one hundred and twenty million
dollars plus interest.
There are five air ambulance providers that comprise the vast majority of the
air ambulance disputes. These providers are Air Evac EMS, Inc., EagleMed, LLC,
Med-Trans Corp., Rocky Mountain Holdings, and PHI Air Medical, LLC. These
five providers are owned by two private equity firms and a publicly traded
company. Air Evac EMS, Inc., EagleMed, LLC, and Med-Trans Corp. are
subsidiaries of Air Medical Group Holdings (AMGH) which is owned by private
equity firm KKR. Rocky Mountain Holdings (a subsidiary of Air Methods) is
owned by private equity firm American Securities, LLC. And PHI Air Medical, LLC
is a subsidiary of publicly-traded Petroleum Helicopter International, Inc. (PHIL).
The air ambulance providers continue to argue that the federal Airline
Deregulation Act (ADA) preempts Texas workers’ compensation laws that regulate
reimbursement to air ambulance carriers and therefore, DWC must order the
carriers to pay their grossly inflated billed charges. However, the Texas
Supreme Court already squarely rejected this argument in the PHI case:
“First, if ADA preemption applies, neither state nor federal law provides for full reimbursement of air carrier bills—or for any reimbursement at all. Second, the effect of federal preemption cannot be that States must provide full reimbursement, as that outcome would violate the Tenth Amendment. For these reasons, the result of ADA preemption here would not be full reimbursement—it would be no reimbursement.”
If the air ambulance providers were able to force DWC to order payment of its
billed charges, it would result in a massive wealth transfer to private equity
investors and reward the takeover of the air ambulance industry by private equity.
See The Air-Ambulance Vultures A search for why my flight
cost $86,184 led to a hidden culprit: private equity.
Copyright 2023, Stone Loughlin & Swanson, LLP
The Division has announced the State AWW and maximum/minimum weekly benefits
for the period from October 1, 2023 through September 30, 2024 and it should
come as no surprise that the effects of inflation continue to impact the SAWW
and weekly benefits.
For the period from October 1, 2023 through September 30, 2024, the new SAWW
and weekly benefits were increased approximately 5.6% as follows:
State Average Weekly
Wage:
From $1,111.55 to $1,173.81
Maximum Temporary Income Benefits: From
$1,112.00 to $1,174.00
Minimum Temporary Income Benefits: From
$167.00 to $176.00
Maximum Impairment Income Benefits: From $778.00 to
$822.00
Minimum Impairment Income Benefits: From
$167.00 to $176.00
Maximum Supplemental Income Benefits: From $778.00 to $822.00
Maximum Lifetime Income Benefits:
From $1,112.00 to $1,174.00
Minimum Lifetime Income Benefits:
From $167.00 to $176.00
Maximum Death Benefits:
From $1,112.00 to $1,174.00
To access the SAWW and maximum/minimum weekly benefits for Fiscal years 1991
through 2024, click here.
Copyright 2023, Stone Loughlin & Swanson, LLP
The vast majority of
enforcement actions are against insurance carriers for failure to timely pay
income benefits and medical bills. While these violations are certainly
worthy of enforcement action, they don’t usually make for very exciting
reading. Enforcement actions against providers, on the other hand, often
have unique facts which make them much more entertaining. To demonstrate
this point, here is a summary of the most recent consent orders against
providers.
On September 6, 2023, the Commissioner signed a consent order concerning disciplinary action
against Dan Mai Ung, D.C. The Commissioner found that Dr. Ung, in treating an
injured employee for work-related cervical and lumbar strains and right knee
pain, had referred the injured worker for two unnecessary MRIs. Not only did
the doctor fail to provide a rationale or document findings supporting MRI
testing pursuant to the Official Disability Guidelines, but he also failed to
disclose that the clinic to which the injured worker was referred for the MRIs,
Americana Injury Clinic, was, in fact, owned by Dr. Ung. (Note: Unlike federal
health care programs, it is not against the law to self-refer in Texas workers’
compensation; it is just a violation if you self-refer and don’t disclose your
financial interest.).
The Commissioner concluded that Dr. Ung had provided treatment or services
which were improper, unreasonable, or unnecessary; that he violated treatment
guidelines; that he failed to explain the basis for his return-to-work
determinations; and that he failed to disclose his financial interest in
Americana Injury Clinic.
Dr. Ung was ordered to pay an administrative penalty of $7,000.00 and ordered
to attend 6 hours of continuing medical education including 2 hours each in
evidence-based spinal evaluation, evidence-based knee evaluation, and
ethics.
On September 14, 2023, the Commissioner signed a consent order concerning disciplinary action
against Ray R. Trey Fulp III, D.O. The Commissioner found that Dr. Fulp failed
to provide treatment in accordance with the Official Disability Guidelines and
performed improper, unreasonable, or medically unnecessary spinal surgery. Dr.
Fulp was ordered to pay an administrative penalty of $10,000.00 and required to
attend 6 hours of continuing medical education in the topic of spine diagnosis
or treatment. Dr. Fulp was further required to attend and successfully complete
the Center for Personalized Education for Professionals Medical Record Keeping
Seminar and PROBE Ethics and Boundaries Program.
On August 31, 2023, the Commissioner signed a consent order concerning disciplinary action
against Anthony Owusu, Jr., M.D. under two DWC Enforcement files. In the first,
the Commissioner found that Dr. Owusu had completed a designated doctor
examination of injured employee No. 1 on April 17, 2021, but had failed to
complete the report or receive approval for additional time to complete the
report within 15 working days of the examination date. Dr. Owusu filed his
request for an extension of time on June 2, 2021, 26 calendar days late.
In the second Enforcement File, the Commissioner found Dr. Owusu, as a
designated doctor, had reported performing a physical examination of injured
employee No. 2 but failed to document a focused medical examination of the
injured body part in the record. Dr. Owusu was further found to have failed to
reference or follow the required MD Guidelines in his return-to-work evaluation
or to justify deviating from the guidelines using evidence-based medicine.
Finally, Dr. Owusu’s work restrictions and conclusions were inconsistent with
the clinical findings of the treating doctor, however, he failed to acknowledge
or differentiate these findings in his rationale supporting his determination
that injured employee No. 2 was incapable of returning to work.
Dr. Owusu was ordered to pay an administrative penalty of $8,500.00 and
required to attend and complete 6 hours of continuing medical education.
The Commissioner further ordered that Dr. Owusu shall not reapply for
designated doctor certification or participate as a designated doctor in the
Texas workers’ compensation system, and that any future applications for
certification will be denied.
Finally, the Commissioner ordered that Dr. Owusu shall not practice or receive
any remuneration from the Texas workers’ compensation system as a consulting
doctor, Required Medical Examination doctor, or as a peer reviewer.
Copyright 2023, Stone Loughlin & Swanson, LLP
The Workers’ Compensation Research and Evaluation Group this month released its
report on pharmacy utilization and cost in the Texas workers’ compensation
system between 2009 and 2022. The aim was to capture data before and after the
introduction of the pharmacy closed formula and the results are interesting:
To access the entire report, click here. For a quick overview, see the snapshot on the TDI website.
Copyright 2023, Stone Loughlin & Swanson, LLP
We advised you last month that long-time Division Administrative Law Judge,
Carol Fougerat, decided to hang up her gavel (ALJs don’t wear robes) last month
and is now pursuing her next big adventure in life. Judge Fougerat was a most
excellent ALJ and will be missed.
This month, we can further announce that another favorite ALJ, Britt Clark, has
also left Hearings. Judge Clark, an astute judge with a wealth of knowledge,
has accepted a position with General Counsel. We wish him well in his new
position.
Copyright 2023, Stone Loughlin & Swanson, LLP
There is still time to help us help the kids by becoming a participant or
sponsor and joining us for fun and camaraderie at The Lakes at Castle Hills on
October 23 for the Fourth Annual Kids’ Chance Texas Golf Tournament!! All
proceeds will fund Kids’ Chance of Texas scholarships. Do not delay, spots are
limited and filling quickly.
As we remind readers on a regular basis, 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.
For more information and to register as a player and/or sponsor, click here.
Copyright 2023, Stone Loughlin & Swanson, LLP
Will the Texas Department of Insurance, Division of Workers’ Compensation begin
requiring applicants for Supplemental Income Benefits to provide material evidence of job
applications they have submitted in their search for work? It sure looks that
way.
In a memo to stakeholders on August 17, General Counsel Kara Mace enclosed
proposed changes to the DWC Form-052, Supplemental
Income Benefits Application. The proposed revision includes an FAQ
page with the following guidance for applicants who are looking for work on
their own:
Show you were actively looking for a job by attaching job applications or other documents showing you were looking for a job.
If the Division adopts the proposed version, and if it requires SIBs applicants
to actually attach job applications to the Form-052, that would be a welcome
change. Currently, Division ALJs typically do not require a SIBs applicant to
submit material evidence of job applications they have submitted. Instead, the
Division’s position is that an applicant’s assertion,
on the Form-052, that he submitted applications is sufficient documentation of
such applications.
Of course, many stakeholders disagree with the Division’s position, and that
position is one reason that Accident Fund Insurance Company of America,
represented by this Firm, filed an action for declaratory relief in the Travis
County district court challenging the validity and applicability of the
Division’s SIBs rule. As we have reported previously, the district court held
the rule invalid, the Division appealed, and the Austin court of appeals issued
a decision on February 28, 2023. Texas
Department of Insurance, Division of Workers’ Compensation v. Accident Fund
Insurance Company of America, et al. A petition for review is
currently pending in the Supreme Court of Texas.
We will continue to monitor and report on the proposed changes to the
Form-052.
Copyright 2023, Stone Loughlin & Swanson, LLP
Other proposed form changes include a complete (and long overdue) overhaul of
the forms relating to adjusting income benefits for seasonal employees. The DWC
intends to retire Form-054 (Notice to Employee: Intention to Request Division
Permission to Adjust Benefits) and Form-056 (Seasonal Employee Wage Information
from Texas Workforce Commission Records). The proposed new Form-055 will
combine the Notice to Employee and Carrier’s Request to Adjust Average Weekly
Wage. The DWC invites all who wish to submit comments on the proposed changes
to email them to RuleComments@tdi.texas.gov by 5 pm CST on
September 18th.
Copyright 2023, Stone Loughlin & Swanson, LLP