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.


Texas

STONE LOUGHLIN & SWANSON, LLP

  512-343-1385

The Long Arm of the Law Reaches Phlebotomist


Ruth Castilleja of Baytown got caught for fraud after reporting an injury while working as a phlebotomist.  Texas Mutual accepted her workers’ compensation claim and started her benefits for income replacement.  That is until they learned that she was working, again as a phlebotomist but at another company. In the parlance of workers’ comp, this is called “double dipping.”  She said she was too hurt to work in order to get workers’ compensation income replacement benefits, but in reality she was not so hurt that she couldn’t work.  Her punishment?  Three days in Travis County Jail where she attended some classes on theft, and $7,100 to be paid in restitution to Texas Mutual (presumably to be paid from her ill-gotten gains). 


Copyright 2024, Stone Loughlin & Swanson, LLP

Creative Pleading Abounds

 

Anecdotally, we are seeing plaintiffs trying novel means of getting around the Labor Code’s exclusive remedy provision which protects insured employers from suits claiming negligence. A recent example is a negligence suit filed by an injured worker where a claim of fraud was tacked on.  Fraud is an intentional tort that may not be covered by the employer’s liability part of the workers’ compensation policy. The lesson? Read the allegations in suits against employers carefully in case there is a coverage issue lurking behind the negligence claim. 

Retaliatory discharge cases are still a favorite of plaintiff attorneys, and are often a way to relief for a worker who can’t overcome the exclusive remedy.  A new case provides a good opportunity for a refresher in the law.  Mr. Frausto was an injured worker who was on light duty who failed to show up for work or inform his employer that he wasn’t coming in.  After he was fired under a consistently applied company policy, he claimed (among other things) that he was fired because he had filed a workers’ compensation claim.  The Corpus Christi Court of Appeals explained that a plaintiff filing a retaliatory discharge claim relying on Texas Labor Code Sec. 451.001 must make a prima facie showing that his workers’ compensation claim was filed in good faith and that there is a causal link between the filing of his claim and his discharge.  He can do this if he proves that he would not have been fired but for his filing a workers’ compensation claim.  The burden of proof then shifts to the employer to show that it had a legitimate, non-discriminatory reason for the discharge.  If the employer succeeds in proving this, then the burden shifts back to the worker to produce evidence of a retaliatory motive. In this case, the employer had a uniformly enforced absence control policy that overcame the claim that its motives were pretextual.  Frausto v. RC Industries, LLC, (Tex. App. - Corpus Christi), January 11, 2024, WL 117601. 
 

Copyright 2024, Stone Loughlin & Swanson, LLP

A Tale of Two Realities: Court Briefing Attorneys and ALJ’s Not on the Same Page


The Texas Supreme Court has asked for full briefing from the parties on Accident Fund’s Petition for Review of Accident Fund’s challenge to the agency’s SIBs qualification rule, which we are hopeful signals that the Court will hear the case on the merits of the rule challenge.

While we wait for the Court to decide the case, the saga continues at the agency level. The moral of this story (if you choose to read it, below) is that at least for now, in the real world it’s the Claimant’s claim of “believe me when I say so” rather than objective proof of an actual job search that satisfies the SIBs work search requirement.

Once upon a time we told you that the Division provided guidance through an FAQ from its General Counsel that claimants who were applying for SIBs (without the help of the Workforce Commission) were to show they were actively looking for a job by attaching job applications or other documents showing they were looking for a job.  Later, we told you the tale of the Attorney General’s briefing to the Highest Court in the Land (well, Texas anyway) that the Division, in fact, does require those claimants to document their searches by job applications and to submit copies of those applications (whether they apply online or by hard-copy) with their SIBs application.  

Unfortunately, real life has not lived up to the story we told. Our firm recently defended a SIBs quarter in which the claimant’s DWC-52 spun a tale of job searches for each week of the qualifying period, but she did not submit a copy of one single job application with her DWC-52 nor did she bother identifying information for any single employer she claimed to have contacted. Instead, she simply wrote down the names of employers she allegedly contacted on the DWC-52.

As recently as October of this year, the version of the story the Division told the Supreme Court of Texas was that the Division requires every claimant (not assisted by the Workforce Commission) who is seeking entitlement to SIBS to provide copies of job applications with the DWC-52. Our firm made this argument to the ALJ mere weeks ago, providing the very words from the AG for her consideration, but the ALJ appears to have missed the Division’s memo on the subject. The ALJ found the claimant was entitled to SIBs.

 

Copyright 2024, Stone Loughlin & Swanson, LLP 

Stone Loughlin & Swanson – 20 Year Firm Anniversary!

 

We are grateful to all of you who have supported the Firm all these years. The practice of workers’ compensation law has changed a lot over the years– as have we. Workers’ compensation system participants comprise a relatively small group. Untangling and deciphering agency regulation has made the jobs of insurance adjusters, ombudsmen, doctors, lawyers and claimants more difficult by the day. We try to keep up for you with developments as they occur. This issue of the Compendium continues that tradition. We learn from and welcome your favorable comments and your criticisms and thank you for the time you take to read about what we think it is important to know.


Copyright 2024, Stone Loughlin & Swanson, LLP 

DWC Targets Doctor in Five Year Battle But Misses Its Mark

 

The opinion piece below describes events that should make us all pause.  The point is that although it is admirable that cooler heads prevailed at the Division and they withdrew their case, in regard to the actual costs to the doctor the relief is too little, and far too late. The greater cost is to the system that can ill afford to lose qualified doctors willing to travel across the state to provide quality examinations and reports that benefit all system participants at every stage of the dispute resolution process.  Excellence is rarely rewarded.
 

One Girl’s Opinion – Editorial by Erika Copeland


As we begin the new year, we all tend to do some reflection and I am no exception. I certainly had not intended to make the editorial a permanent fixture when my number was up for newsletter contribution, but I felt compelled to take at least one more stab at it when we at SLS received a bit of a surprise “gift” in the form of the Division’s Motion to Dismiss a disciplinary action before the State Office of Administrative Hearings against Dr. Steven Doores.  

First a little context. For those of you who know me only as lawyer at SLS, my first exposure to Texas workers’ compensation was working for the Division back when they called Administrative Law Judges “Hearing Officers.”  I did that job for almost 15 years in Abilene and San Angelo.  As an ALJ in hundreds of cases I regularly read peer review, RME and DD reports from Dr. Doores.  By 2011, I had moved to Austin and headed a team of people charged with making sweeping changes to the designated doctor program as part of a legislative mandate.  As part of that process, we enlisted the help of several subject matter experts– which is just a fancy way of saying “doctors” – one of whom was Dr. Doores.  

At that time, Dr. Doores was no stranger to the eagle eye of the Division, having been called on the carpet (via letter of education) – along with numerous other doctors performing MMI/IR certification examinations – following a performance-based audit. Following that audit, rather than getting his proverbial knickers in a twist, Dr. Doores went to great lengths to meet personally with staff at the Office of the Medical Advisor (OMA) to find out what exactly the Division wanted and expected with regard to MMI/IR examinations at a time when the Division had farmed out all training and testing to an outside vendor, not bothering to oversee the curriculum or testing administered by the vendor. Determined to make sure he knew exactly what the Division wanted, Dr. Doores had numerous discussions and meetings with OMA staff to ensure he knew how to evaluate MMI and impairment ratings in accordance with the Division’s expectations. 

With that backdrop, it should come as no surprise that when the Division took over development, implementation and oversight of designated doctor training and testing, Dr. Doores was on the top of the list of providers tapped to provide his expertise. To be clear, those experts were “compensated” by the Division much like the Hearing Officers and lawyers were compensated – at a much lower rate than anyone doing the same kind of work in the private sector.   

As the Director of that program at the Division, I personally witnessed his participation meetings in Austin to develop a completely new three-day training program for designated doctors that had never been undertaken by the Division before. I was also there when he attended meetings in Austin with a private test development company that put us through the rigorous process of writing, vetting and approving hundreds of test questions for those doctors seeking to be certified by the Division. (Dr. Doores was responsible for personally writing the lion’s share of the upper extremity and MMI questions and there were hundreds needed for the question bank). I was there in the early stages when we took our show on the road and provided the Division training to doctors in Houston and Dallas for three days at a time. I was there when Division executives decided we needed to include some supplemental training that involved the Hearing Officers in other locations around the state to teach extent of injury to a larger number of doctors who had never heard of that concept, much less been tested on it or written a meaningful report addressing it. I was also there for phone conferences and in-person meetings too numerous to count with other Division staff, subject matter experts and attorneys in which Dr. Doores spent hours for which he received no compensation from the Division.  I was NOT there for what could only have been hundreds of hours Dr. Doores spent developing training materials and test questions, traveling and meeting with various Division employees and system participants and doctors for which he received no compensation at all.

What I can speak to personally is the fact that Dr. Doores was a dedicated colleague and true believer in the necessity to make designated doctor training and testing better for the doctors, the Division and the system as a whole. It is with that context that you could have knocked me over with a feather when I became aware that the Division launched a campaign to remove Dr. Doores from participating in the system that he worked so hard to improve.  

It started slowly – after I left the Division.  Dr. Doores was not asked to speak at as many training sessions and stopped being asked to provide test questions for the new versions of the certification examination.  Eventually he was politely uninvited to participate in any of his prior Division duties, including his role as an MQRP arbiter – but that was only the beginning.  

Soon, Dr. Doores found himself on the receiving end of numerous complaints and investigations – with no notice or knowledge of the source of the complaints.  Each time, Dr. Doores was able to show he complied with applicable rules. 

The latest disciplinary action began as an incomprehensible laundry list of wrongs Dr. Doores received through the Division’s Medical Quality Review “process.”  What started with a seemingly shotgun approach was eventually whittled down to five allegations stemming from one examination that took place almost eight years ago.  

At its core the Division’s position involved its disapproval of Dr. Doores’ opinion and conclusions in an addendum post-DD RME report (which had been mislabeled a peer review due to a typographical error).  For example, although the document was clearly NOT a peer review the Division fashioned a series of allegations against Dr. Doores for doing things he could not – under the Act or Rules – do as a peer reviewer – even though a plain reading of his report made it clear that it was not, in fact a peer review.  At the Contested Case Hearing, the Administrative Law Judge admitted Dr. Doores’ post-DD RME addendum, with an explanation by the attorney offering it that it was mislabeled. Every participant in the workers’ compensation system – with the exception, apparently, of the people involved in the Division’s MQRP process – understood the nature and intent of that report. The right hand, in this particular case, definitely had no idea what the left hand was doing.  This action was just the final step in a concerted effort to get Dr. Doores out of the system by any means available and – unfortunately it has for all intents and purposes been successful. 

If you have been doing this work for a while you know there are very few qualified doctors who provide quality examinations and reports as either a designated doctor or post-DD or treatment RME provider in the Texas workers’ compensation system.  Even fewer are willing to travel to under-served or hard to get to counties.  Dr. Doores was a provider who would travel to almost any location and provide quality examinations, reports and testimony if necessary. Due, in no small part, to the relentless harassment by those in charge of the system he worked so hard to help improve, Dr. Doores has taken the target off his back by declining to provide certifying examinations for MMI/IR.  

For anyone who may take the position that Dr. Doores is a Carrier-paid mouthpiece and the system is better off without him, I say: 1) you have an agenda that needs further scrutiny; or 2) you are not aware that the number of cases that actually end up disputed, much less in a contested case hearing, in the Texas workers’ compensation system is actually quite small. The reports penned by Dr. Doores you may have seen from our office likely support the Carrier’s position. There are, I assure you, any number of reports from Dr. Doores in which he found injuries compensable, conditions caused by a work incident and impairment ratings well in excess of 0% - in fact, well in excess of 15%. Those reports, do not end up in dispute – so you won’t see them in hearings, AP Decisions or PLN-11s.

This latest barrage by the Division has taken an unforgiveable toll in this girl’s opinion. Full disclosure, I consider Steven Doores a friend and am deeply troubled by the financial and personal cost to the man who gave so much of himself and his time to a project that also meant so much to me. Most frustrating is that we may never know the real reason agency personnel were willing to spend so much time and money on a case that from the start clearly had no legal merit.


Copyright 2024, Stone Loughlin & Swanson, LLP 

New Year – New Form


The Division has revised the DWC-42 and PLN12 in connection with amendments to the death benefits legislation out of the 88th Legislative Session.  The forms are designed to help eligible beneficiaries file claims for death benefits with the Division or the Carrier.  The new rule was effective December 11, 2023 and the forms are available on the Division’s website here.

 

Copyright 2024, Stone Loughlin & Swanson, LLP 

If You Pay Them, They Will Come: DWC Proposes DD Billing and Reimbursement Changes

 

The moment many designated doctors have long awaited and lobbied (dare we say begged) for has finally arrived.  The Division has proposed changes to the billing and reimbursement structure for certain workers’ compensation services that will also benefit RME providers as well as treating and referral doctors.  Who knows, maybe the promise of greater financial incentive is responsible for the recent bump in the number of designated doctors on the Division’s list that has swollen from the 238 reported in March to a whopping 288 in November (all but 12 of the 50 being chiropractors). 

The proposal includes adjusting fees once by applying the Medicare Economic Index (MEI) adjustment factor for examinations performed 2009-2024; adjusting the fees annually on January 1st by applying that factor in Section 134.203(c)(2); rounding the fees to whole dollars; creating a specialist fee of $300.00 and including the much longed for $100.00 missed appointment fee.  The proposal also eliminates the current tiering structure so that for DD and RME examinations, all issues addressed in one exam are paid at the established fee and not reduced.  An assignment number in the prior authorization field of medical billing forms will be required to identify DD-associated billing.   

For more information about the proposed rule amendments, click here.

You can view the proposed changes here: Chapter 133 and Chapter 134.

A public hearing on the rules is scheduled for 11:00 a.m. on January 23, 2024. 


Copyright 2024, Stone Loughlin & Swanson, LLP


AP “Decisions” in December


The Merriam-Webster Dictionary defines “decision” as an authoritative determination (as a decree or judgment) made after consideration of facts or law.  Each month, the Division posts to its website a comprehensive list of “decisions” made by the Division’s Appeals Panel and lists them by date filed and issue addressed. In December, you will find two such decisions on the issues of SIBs-Permanent Loss of Entitlement and Extent of Injury.  If you are hoping to find any insight or guidance on either of those topics, alas, you will have to look elsewhere.  Further investigation will reveal those decisions to be of the “affirmed as reformed” variety. In other words, the ALJ made a typographical error that was corrected by the Appeals Panel and no substantive change was made.  In AP No. 231626, the Appeals Panel corrected the name of the claimant’s county of residence and in AP No. 231546, the Appeals Panel corrected the name of the carrier’s registered agent. Perhaps a separate column entitled “clerical correction” or “oops I did it again” would save participants valuable legal research time.


Copyright 2024, Stone Loughlin & Swanson, LLP


Ten Year Health Care and Utilization Report – Costs are Looking . . . Down!

 

The Workers’ Compensation Research and Evaluation Group (REG) released a new report on health care cost and utilization in the Texas workers’ compensation system between 2012 and 2022 that shows total health care declined 30% during that period.  Key findings include claims are down 20%, professional service costs down 26%, hospital costs down 20%, and pharmacy service costs down 71%.  Click here for a drill-down analysis of the claim, provider, service and drug types, among other categories.
 

Copyright 2024, Stone Loughlin & Swanson, LLP

Carrier Quarterly Meeting


The Division will hold the first Carrier Quarterly Meeting of 2024 on January 10, 2024 from 2 to 3:30 p.m.  Updates will be provided from the usual departments including Claims and Customer Service, Health and Safety, Business Process and Operations and External Relations as well as a chance to hear from the new Deputy Commissioner of Compliance & Investigations.  For Zoom Info and Agenda, click here.

 

Copyright 2024, Stone Loughlin & Swanson, LLP