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.
A Travis County
District Court this month convicted HSC International, Ltd. of a second-degree
felony in its scheme to defraud Texas Mutual Insurance Company.
The court found that between September, 2014 and December, 2016 the janitorial
service company owned by Hyong Su Choi, provided false payroll numbers to avoid
paying proper premiums for workers’ compensation coverage. The company pleaded
guilty and will pay $180,000.00 in restitution.
Copyright 2023, Stone Loughlin & Swanson, LLP
On December 1, 2022,
Commissioner Jeff Nelson released DWC’s biennial report to the 88th legislature
providing an update on the Texas workers’ compensation system including
legislative recommendations.
The Commissioner’s first recommendation is in response to the Comptroller of
Public Accounts’ October 20, 2022 Private Letter Ruling stating that designated
doctor examinations performed pursuant to Labor Code §408.0041 are considered
“insurance services” and are subject to Texas sales and use tax. DWC already
struggles with a dearth of qualified designated doctors and the Commissioner
recognizes that other specialty examinations performed within the workers’
compensation system may also be considered taxable insurance services. For such
reason and in an effort to attract and retain more doctors, the Commissioner
recommends amendment of the Tax Code §151.0039(b) to exempt from sales and use
tax any medical examination or service performed to determine the appropriate
level of benefits under the Workers’ Compensation Act.
In his second recommendation, the Commissioner seeks amendment of Labor Code
Chapter 410 to add a limited public information exception for working papers
and electronic communications for DWC administrative law judges and Appeals
Panel judges. The Commissioner indicates that such an amendment will empower
DWC ALJ’s and Appeals Panel judges to remain impartial fact finders and afford
them the same protections as ALJs at the State Office of Administrative
Hearings (SOAH).
The Commissioner’s recommendation makes a good argument, however, the Division
is very different from SOAH. SOAH ALJs are in an agency completely separate
from the agencies whose proceedings come before them. The Division, on the
other hand, acts as the executive, legislative and judicial functionary in all
things related to workers’ compensation. There is no separation of power. This
potentially opens the door to inside influences such as direction from agency
personnel in different sections of the Division which could very well influence
an ALJ’s duty as a fact finder to render a decision based solely on the law and
the evidence admitted.
Finally, the Commissioner noted an emerging issue concerning shortfalls in the
maintenance tax generated under Labor Code §403.002 which funds DWC and the
Office of Injured Employee Counsel (OIEC). Specifically, tax collections are
not adequate to match the amount appropriated by the legislature to fund
operations of DWC and OIEC resulting in a $9.4 million shortfall in fiscal year
2023.
The Commissioner indicates TDI has tools to accommodate this shortfall in the
near term, however, the current 2% statutory cap on the maintenance tax is
unlikely to generate sufficient revenues in the future.
Copyright 2023, Stone Loughlin & Swanson, LLP
Readers will recall
the article in last month’s Compendium
concerning the adventure of attending a CCH at the new Barbara Jordan Building
in the Capital Complex at 1601 Congress Avenue. That article included the
shortcut to a YouTube video produced by the Division containing instructions
for parking and attending a hearing.
This month the Division released additional information calculated to address
some of the confusion surrounding availability of parking while attending a
hearing. You may find the Division’s latest instructions here: TDI website
A few of the high points:
1)
Mobility-impaired participants may park in the garage beneath the Barbara
Jordan Building if they have a valid handicap parking permit and contact DWC.
2) The Division does provide a limited number of parking
spaces for hearing participants, however, you must contact DWC at least 5
working days prior to the hearing to request a parking pass which will be
emailed to you. Print the parking pass and place it on your vehicle’s front
window. If you wish a parking pass mailed to you, contact the Division at least
10 working days prior to the hearing.
3) Visitors to the DWC offices must park in Garage B, on the
top floor in a space that is not marked “reserved.” To make parking and
visiting the DWC offices easier, the Division has provided the following handy
map:
Copyright 2023, Stone Loughlin & Swanson, LLP
Santa paid a visit and
David Swanson won 1st place in the annual SLS Christmas Tree-Topper competition
for 2022 with this design:
Copyright 2023, Stone Loughlin & Swanson, LLP
The Division this
month released its annual report on fatal occupational injuries in Texas. In
2021 there were 533 fatal occupational injuries, a 12% increase over 2020 and a
12% decrease when compared to fatal injuries in 2019. The highest number of
fatalities (182) was in the transportation and warehousing industry followed by
127 fatalities in the constructions industry. The occupations with the highest
number of fatalities were driver/sales workers and truck drivers with 147. You
may review the report in its entirety here: report
Copyright 2023, Stone Loughlin & Swanson, LLP
Kara Mace, Deputy
Commissioner, Legal Services announced this month that suspension of Government
Code sections 607.002(1) and (2) implemented on March 30, 2020 in response to
the COVID-19 pandemic has been lifted effective December 21, 2022. Section
607.002 relates to reimbursement for disease prevention.
Section 607.002 provides that a public safety employee who is exposed to a
contagious disease is entitled to reimbursement from the employing governmental
agency for reasonable medical expenses incurred in treatment for the prevention
of the disease if (1) the disease is not an ordinary disease of life as that
term is used in the context of a workers’ compensation claim; and (2) the
exposure to the disease occurs during the course of the employment.
Governor Abbott suspended §§607.002 (1) and (2) to ensure that public safety
employees who were likely to have been exposed to COVID-19 while in the course
and scope of their employment were entitled to reimbursement from their
employer for reasonable medical expenses related to such exposure.
Copyright 2023, Stone Loughlin & Swanson, LLP
A California federal
judge has sentenced neurosurgeon, Lokesh Tantuwaya, to five years in prison for
his part in a multimillion dollar, 15-year-long fraud scheme that used bribes
and kickbacks to funnel thousands of patients to now-defunct Pacific Hospital
for overcharged invasive spinal surgeries.
Tantuwaya, who raked in $3.3 million for his part in the scheme, is just the
latest to be convicted and sentenced in the scam which was led by the former
owner of Pacific Hospital who paid kickbacks of $15,000.00 per lumbar fusion
and $10,000.00 per cervical fusion and then inflated the costs of implanted
medical devices to insurers, many of which were workers’ compensation
carriers.
Reportedly, many of Tantuwaya’s patients are now agonizing over the quality of
their implants as well as whether they even needed the surgery in the first
place.
Copyright 2023, Stone Loughlin & Swanson, LLP
A common refrain of
late is that nobody seems to want to work anymore. While that’s nothing
new for those of us in workers’ comp, we were surprised to hear that even the
beloved CEO of Jolly St. Nick, Inc. (JSN) experienced significant difficulty
this past year obtaining a sufficient number of qualified workers to
manufacture the toys necessary for him to complete his annual task. The
shortage of qualified staff appears to be linked in part to post-pandemic
preferences many workers hold for working from home rather than in the Far
North. There were also some recruiting snafus . . .
We are hopeful that personnel matters improve for the big guy next year . . .
Best Wishes for the New
Year from all of us at Stone Loughlin and Swanson, LLP!
Copyright 2023, Stone Loughlin & Swanson, LLP
November 14th was the
first day of bill prefiling for Texas’ upcoming 88th Legislative Session. 921
bills and resolutions were filed that day, including a couple that are of
particular interest to workers’ compensation participants.
Benefits for the National Guard
On April 25, 2022, Texas National Guardsman Bishop E. Evans died on duty while
attempting to save lives but because he was serving in a State Active Duty
status as opposed to federal order, his family was not guaranteed any surviving
financial assistance. Texas legislators thus introduced HB 90 and SB 155 to
improve workers’ compensation and death benefits for Texas Military Forces
while serving in a State Active Duty status. Among other things, the proposed
bills would authorize a $500,000 death benefit lump sum payment for surviving
families, apply accelerated dispute resolution procedures to guardsmen claiming
workplace injuries, and include PTSD coverage similar to that given to first
responders.
Bundling Benefits
Pending legislation also has been proposed to allow Texas companies to offer
their employees a bundled workers’ compensation plan with group health
coverage. HB 351 authorizes a workers’ compensation insurance company to
contract with an accident and health insurance company to offer a packaged plan
that would provide for medical benefits under the group health plan and other
benefits to be paid exclusively through the workers’ compensation policy. The
packaged plan would not permit cost-sharing requirements for workers’
compensation medical benefits nor for employee contributions to the premiums
paid for the group health coverage allocated to workers’ compensation medical
benefits.
Copyright 2022, Stone Loughlin & Swanson, LLP
The number of designated
doctors in the state continues to decline, with only 251 doctors (63 MDs, 11
DOs, and 177 DCs) now certified to perform exams, a decrease from the 273
certified doctors a year ago. So last month’s private letter ruling by the
Texas Comptroller of Public Accounts that DD exam charges are now taxable was
especially unwelcome, as it was expected to result in even more DDs jumping
ship.
We are relieved to report that the Comptroller delayed implementation of its
ruling that charges for designated doctor exams are subject to Texas sales and
use tax until after the 2023 legislative session to allow DWC and system
participants to seek a legislative change. Designated doctors are not
currently required to collect tax on charges for exams.
In other news, proposed rule changes and increased fees for DDs and RMEs are on
the agenda for the stakeholder meeting scheduled tomorrow, Thursday, December
1, at 1:30 p.m. A draft revised fee schedule includes proposed increases for
all elements of DD and RME exams, and new fees for missed appointments and
specialists:
https://www.tdi.texas.gov/wc/rules/documents/drddfee1122.pdf
Comments to the proposed changes should be emailed no later than 5:00 p.m. CST
on Friday, December 16, 2022 to RuleComments@tdi.texas.gov with “Chapters 133
and 134 Informal Posting” noted in the subject line. You may also mail or
deliver comments to Legal Services, MC-LS Texas Department of Insurance,
Division of Workers’ Compensation, P.O. Box 12050, Austin, Texas, 78711.
Copyright 2022, Stone Loughlin & Swanson, LLP