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.
While we’re on the
topic of proper Plain Language Notice protocol, the Appeals Panel issued
Decision No. 230503 on June 12, 2023. The case involved an injured worker
who initially reported to his employer—in writing—that his injury occurred in
June 2022. The employer dutifully alerted its work comp carrier to the
injury once it was reported. The carrier, in turn, filed a PLN-1 denying
the claim in full within sixty days following notice.
Thereafter, the claimant asserted that he had been mistaken about the date of
his injury, that it was not June
28 but rather July
28. The Division, operating under the assumption that this was an entirely
different injury, generated a new DWC number for the ersatz second claim.
Claimant and his attorney argued that the carrier waived into accepting the
July 2022 injury because no PLN-1 had been filed to combat it. The
Administrative Law Judge agreed that the carrier accepted the claim via waiver,
even after Claimant testified that he never sustained an injury in June, that
he had mistakenly reported the incorrect date to his employer, and that the two
dates of injury were actually one and the same.
The Appeals Panel reversed, reasoning that the carrier had disputed the claim
when first alerted to it. “Under these facts, to require the carrier in
this case to again dispute the injury it had previously disputed simply because
the claimant alleged a different date of injury due to a typographical error
would represent an elevation of form over substance.”
Copyright 2023, Stone Loughlin & Swanson, LLP
The April 2023 edition of The
Compendium outlined recent changes to the designated doctor rules,
which were presumably designed to incentivize those already on the DD list to
maintain their status while increasing the number of new applicants.
However, as we pointed out, the amendments omitted any updates to the
reimbursement rates for DD exams, perhaps the component most to blame for the
dwindling number of available designated doctors overall and certainly a reason
for the dearth of M.D.s and D.O.s currently on the list.
That oversight seems poised to change, as the DWC announced on June 26, 2023, a
new set of proposed amendments to Rules 133 (General Medical Provisions) and
134 (Guidelines for Medical Services, Charges, and Payments). Key
modifications would include adjusting fees via the Medicare Economic Index
(MEI) percentage adjustment factor for the period of 2009 through 2024, then
annually thereafter every January 1. Fees would be rounded to the nearest
whole dollar, and a $100.00 missed appointment fee would also be permitted when
injured workers neglect to attend their exams. (More on that in a
moment.) These provisions can be found in the new Rule 134.210(b)(4).
The DWC released a table of fee adjustment estimates (estimated because the MEI
percentage adjustment factor for 2024 is not yet set) for Designated Doctor
Exams, Required Medical Examinations, and treating/referral doctor impairment
rating certifications. Fees for extent of injury, disability, return to
work, return to work for SIBs, appropriateness of care (RMEs only), and “other
similar issues” jump from $500.00 to $640.00 per issue (again, estimated).
Maximum medical improvement issues would invite an increase from
$350.00 to $448.00, while the first musculoskeletal impairment rating
assessment rises from a range of between $150.00 and $300.00 to $384.00.
Fees for subsequent impairment rating areas would also increase from
$150.00 to $192.00, approximately.
New additions to some designated doctor bills will include a “Specialist Fee”
of $300.00. Specialist fees pertain to designated doctors (though not
RMEs) asked to evaluate injuries itemized in Rule 127.130(b)(9)(B-I): traumatic
brain injuries, spinal cord injuries, severe burns, complex regional pain
syndrome, multiple fractures, complicated infectious diseases, chemical
exposure, and heart/cardiovascular conditions.
Comments on the proposed changes can be sent via email to RuleComments@tdi.texas.gov.
The DWC advises that “Chapters 133 and 134 Informal Posting” should be
included in the subject line. Comments must be received in writing by
5:00 p.m. on the still-not-random-in-the-least date of July 26, 2023.
Now, about that “Missed Appointment Fee”…
Copyright 2023, Stone Loughlin & Swanson, LLP
As previously
mentioned, House Bill 2702 would have revised portions of the Labor Code by
tagging insurance carriers with an additional expense: a fee for a missed
medical examination. The bill failed to pass the Senate in May 2023, but
its most dubious component has found new life in the DWC’s proposed Rule
134.240(b).
Under the newly drafted rule, an injured worker who fails to attend an
examination by a designated doctor would endure the eternal ignominy of
subjecting his or her workers’ compensation carrier to an additional $100.00
fee. That’ll show ‘em!
You read that correctly—the insurance carrier would be subjected to what
amounts to a fine for an AWOL claimant’s missed DD exam. (And in case you
were wondering, no, the rule does not permit an insurance carrier to take a credit
for that fee from later benefits.)
This change to DD exam billing is intended, one assumes, to offset the lost
time from patients and the general inconvenience experienced by doctors whose
examinees are M.I.A. However, imposing an additional fee on the insurance
carrier for the injured worker’s truancy may invite challenges over the
perceived fairness of the measure, especially in instances where the missed
exam was requested by the Claimant or Claimant’s attorney; the proposed rule
does not take into consideration the party that sought the exam.
Copyright 2023, Stone Loughlin & Swanson, LLP
Further changes to the
Administrative Code were announced on June 21, 2023. Section 55.15(6),
pertaining to requirements for Compromise Settlement Agreements in old law
claims, contains the following instructions, held over from the Old Law days:
“all compromise settlement agreements submitted to the board must be submitted
in four parts--the original must be white, the second copy pink, the third copy
yellow, and fourth copy white. The forms must either be on NCR [no carbon
required] paper or be submitted with carbon left intact.”
For all future “old law” CSAs (of which there are likely to be few), system
participants have finally—finally—been
relieved of these onerous multichromatic paper specifications, which have been
cut from the rule, allowing for submission of settlement agreements “in the
form and manner prescribed by the DWC.” All further paper-related queries
can be directed here: https://youtu.be/6OlEEfvwXnA
Copyright 2023, Stone Loughlin & Swanson, LLP
The DWC’s new
Austin-based Administrative Law Judge, Hsin-Wei Luang, started on June 26.
Judge Luang received a degree in engineering from the University of
Illinois, then her law degree from St. Mary’s School of Law in 1997. She
combined her legal acumen and engineering background for a career in
technology, business, and intellectual property.
Among her prior employment, Judge Luang served as senior counsel for Honda and
vice-president of IP at Lone Star Circle of Care. She owns a business
& technical writing service, and since May 2021 she has used her expertise
in technological and legal writing to produce a blog helping entrepreneurs
start and run small businesses. We congratulate her on accepting the
position with the DWC and certainly look forward to reading her decisions.
Copyright 2023, Stone Loughlin & Swanson, LLP
SLS partner Jane Stone
will be the faculty member providing training in Texas law for
WorkCompCollege.com, which recently initiated a scholarship program for Kids’
Chance recipients, a cause dear to our hearts. Bob Wilson, a long-time
supporter of Kids’ Chance chapters, and Don Abrams and Mark Pew, all of whom
founded the College, have generously committed to providing the scholarships.
More information about that in the link below:
https://urldefense.com/v3/__https://workcompcollege.com/workcompcollege-com-opens-scholarship-program-for-kids-chance-recipients/__;!!Dsthdr1F7A!GuhY24LgRy20lccPSJCHHRbdrSDrdQxZe2xF8o2jTBISh-46psashw6h59YxHt1DYycv5-daXQQ6rA2W8VkoT-rhjUI$
It always amazes us what a small and supportive community workers’ compensation
system participants have established, not just in Texas, but all over the
country. We wish WorkCompCollege.com the best!
Copyright 2023, Stone Loughlin & Swanson, LLP
Yet more changes to
the Administrative Code. This one involves Rule 133.30, pertaining to
billing for Telemedicine and Telehealth Services. The proposed
modification adds “Teledentistry” to the list of reimbursable remote health
care and incorporates the (somewhat redundant) definition from the Texas
Occupations Code, Section 111.001: “ ‘Teledentistry dental service’ means a
health care service delivered by a dentist, or a health professional acting
under the delegation and supervision of a dentist, acting within the scope of
the dentist's or health professional's license or certification to a patient at
a different physical location than the dentist or health professional using
telecommunications or information technology.” Billing for teledentistry
services would follow applicable Medicaid payment policies. The DWC
invites feedback, again via RuleComments@tdi.texas.gov, this time by July
24, 2023.
We were all set to mock the very concept of “Teledentistry” until we happened
upon Marathon Man
on Turner Classic Movies last night.
https://youtu.be/GZayydR4DPs
If nothing else, at least teledentists can’t torture their patients remotely.
Congratulations, Teledentistry. You win.
Copyright 2023, Stone Loughlin & Swanson, LLP