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

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  512-343-1385

Giving Credit Where Credit Is Due


Vindication for the Appeals Panel!  The Court of Appeals in Amarillo determined this month that an insurance carrier may take credit for previously paid Indemnity Income Benefits (IIBs) and Supplemental Income Benefits (SIBs) by redesignating them as Lifetime Income Benefits (LIBs) if either were paid prior to the LIBs accrual date.  Lubbock County v. Reyna, No. 07-23-00380-CV, 2024 WL 2925337.

The injured worker sustained a traumatic brain injury entitling him to Lifetime Income Benefits. However, Claimant had already received approximately four and a half years of IIBs and SIBs after the LIBs accrual date.  He won a summary judgment decision at the district court level, where he asserted his right to collect LIBs during the same time frame he previously received IIBs and SIBs.  Lubbock County’s summary judgment motion, asserting that such double recoveries are prohibited as a matter of law, was denied.

The Court of Appeals reversed the trial court in holding that an injured worker may recover only one form of income benefits for a single compensable injury at any given time.  Referencing the Appeals Panel’s decision in the case that both IIBs and SIBs could properly be redesignated as LIBs, the Court of Appeals concurred.  To permit receipt of multiple forms of income benefits for the same period would potentially allow an injured worker to recover more than his or her average weekly wage in indemnity benefits, something the Texas Labor Code forbids.

Instructions to the insurance carrier on the PLN-7 form (“Notice of Change of Indemnity Benefit Type”) have been changed to advise that the form is to be used when an injured worker gains entitlement to LIBs following payment of a previous income benefit type.  

Copyright 2024, Stone Loughlin & Swanson, LLP

Gift Shift


Effective July 11, 2024, the DWC will adopt changes to 28 Texas Administrative Code Section 102.2, pertaining to gifts, grants, and donations made to the Division.  

Heretofore, a gift of $500.00 or more to the agency necessitated a majority vote by the commissioners at a public meeting to acknowledge the gift within 90 days of its acceptance. Now, the DWC will be required to post any gift/grant/donation of $500.00 or more to its public website for at least five years from the date of receipt, identifying the donor, the amount, and the date and purpose of the bequeathment, if known. Left intact is the prohibition on a donation or gift (again, ≥ $500.00) from anyone who is a party to a contested case until thirty days after the decision in that case has become final.  

So, if you have $500.00 burning a hole in your pocket and don’t know what to do with it, you can always hand it over to the DWC.  But we have a better idea.

Copyright 2024, Stone Loughlin & Swanson, LLP

Golf Club


SLS is a proud partner of Kids’ Chance of Texas (KCTX), whose mission is to assist children of catastrophically injured workers with their higher education though renewable $2,500.00 semester scholarships.  The goal this Fall is a record-breaking forty scholarships, and you can help.  

KCTX’s annual golf tournament is its primary fundraiser.  Registration for the October 28 contest is now open, and you’re invited. Tournament details can be found at: www.kidschanceoftexas.org/golf-tourney-2024/.  

To register as a golfer, visit www.kidschanceoftexas.org/golf-tourney-2024-golfer/, or as a sponsor at www.kidschanceoftexas.org/golf-tourney-2024-sponsor/. This is your chance to make a difference in a young person’s life, help guide someone’s destiny, and just generally…
 


School district has immunity so employee can’t sue for workers’ compensation retaliatory discharge

 

On May 23, 2024, the Ninth Court of Appeals in Beaumont held that political subdivisions, including school districts, have governmental immunity from workers’ compensation retaliatory discharge claims brought by their employees under Chapter 451 of the Workers’ Compensation Act, except when the employee is a first responder. The case is Conroe Independent School District v. Osuna.

Maria Osuna, a custodian for Conroe Independent School District, sued her employer alleging she was wrongfully terminated in violation of section 451.001 of the Act which provides in part that a person may not discharge or in any other manner discriminate against an employee because the employee has filed a workers’ compensation claim in good faith.  The law provides for reasonable damages incurred by the employee as a result of the violation and reinstatement in the former position of employment.  

Osuna alleged in her lawsuit against the District that she was exposed to a chemical disinfectant that caused her to feel sick and that she was terminated when she got into a disagreement with the District over her work restrictions which provided that she not be exposed to the chemical disinfectant or other allegedly hazardous chemicals.  She claimed her termination was in violation of Chapter 451.

The court of appeals held that the trial court erred when it denied the District’s plea to the jurisdiction asserting that it had immunity from chapter 451 retaliation claims: “We hold the trial court erred by implying that the Legislature waived the immunity of the District to Osuna’s retaliatory discharge claim.”  The court of appeals granted the District’s plea and dismissed Osuna’s lawsuit.

Retaliatory discharge claims are on the rise

 

While political subdivisions may be immune to retaliatory discharge lawsuits, private employers are not and in recent years; we have seen an increase in the number of such lawsuits.  For claimant attorneys, retaliatory discharge lawsuits can be a natural complement to their practice and an added revenue source.   

Retaliatory discharge lawsuits often seem to arise in situations where the employee and employer are not getting along, the employee realizes they are about to be terminated; and files a questionable claim, e.g., unwitnessed, late-reported, and/or with minor, non-verifiable type injuries.  The employer, already irritated with the employee, follows through with the termination.  

Employers can legally terminate an employee as long as they have a legitimate non-discriminatory reason for doing so.  However, employers should nonetheless be wary of terminating an employee shortly after the employee files a workers’ compensation claim because the employee is likely to sue the employer alleging that the employee was really fired for filing a workers’ compensation claim.

Employers should also keep in mind that the standard workers’ compensation policy does not provide coverage for retaliatory discharge lawsuits.  Therefore, the employer may have to defend the lawsuit and pay any settlement or judgment out of pocket.  Employment practices liability (EPL) insurance does provide coverage but it is expensive and not all employers carry it.
 

Copyright 2024, Stone Loughlin & Swanson, LLP 


Penalty of the month

 
The largest fine levied against an insurance carrier in May was for $9,000.00 in Consent Order 2024-8648 dated May 7, 2024.  Violations included failure to timely pay TIBs, failure to timely act on a medical bill, failure to timely pay a designated doctor, and failure to respond to an injured employee’s request for reimbursement.  

The facts that caught our attention were for failing to respond to an injured employee’s request for reimbursement.  The order states that the injured employee obtained a travel reimbursement form from the carrier’s third-party administrator (TPA) website.  However, this form did not contain any language explaining the proper method for submitting travel reimbursement requests under DWC rules.  

When the employee submitted the request on this form, the carrier failed to respond and failed to direct the employee to use form DWC048, Request to Get Reimbursed for Travel Expenses.  In its defense, the carrier “cited the injured employee’s use of its own form as justification for the late payment.”  In other words, the carrier argued that it did not timely respond because the employee used the wrong form (which they gave the employee).  

This argument clearly did not go over well with DWC given that DWC chose to include it as a finding of fact in the consent order.  This order serves as a good reminder that carriers are responsible for the acts of their agents and need to keep a close eye on them.
 


DWC offers educational resources to help avoid penalties


Texas has a very robust enforcement system as demonstrated by the numerous disciplinary orders issued each month. While some system participants may view administrative penalties as part of the “cost of doing business” in this state, for those that don’t like to pay fines, DWC now offers its CompCourses live webinar series where system participants can learn more about the Texas workers’ compensation system.
 
The most recent CompCourses live webinar was presented on May 22, 2024 and covered presiding officer directives (PODs). The recording is now available on DWC’s website and can also be viewed here. As an added bonus, attendees also receive continuing education credit for attending a live CompCourses webinar so stay tuned for upcoming webinars.

DWC closes medical billing complaint loophole


On May 7, 2024, DWC adopted amendments to rule 180.2 concerning filing a complaint.  The amendments prevent health care providers from using the complaint process to circumvent the one-year filing deadline for medical fee disputes. The amended rule states:    
A health care provider cannot submit a complaint about a medical billing issue if the date of service for the medical billing issue was more than 12 months before the date of the complaint, unless the issue qualifies for an exception to the filing deadline under §133.307(c)(1)(B) of this title, concerning medical fee dispute resolution. If the issue qualifies for an exception to the medical fee dispute resolution filing deadline under §133.307(c)(1)(B), then a health care provider cannot submit a complaint about that issue if the medical fee dispute resolution filing deadline in §133.307(c)(1)(B) has passed. 
The rule also notes, “This subsection does not apply to a health care provider submitting a complaint under Insurance Code Chapter 1305.”  Section 1305.401 of the Workers’ Compensation Health Care Network Act requires each network to implement and maintain a complaint system to resolve complaints.  A health care provider may submit a complaint to the network over a fee dispute and if dissatisfied with the outcome, the provider may file a complaint with TDI’s complaint resolution process.

In-network fee disputes are not governed by Section 413.031 of the Workers’ Compensation Act and so there is not a one-year filing deadline for those disputes. DWC also does not have jurisdiction to resolve disputes over fees for medical services provided subject to a network contract.  Those are contract disputes that are governed by the terms of the contract between the network and health care provider and if the dispute is not resolved through the complaint process, it can be resolved through litigation or arbitration, if the contract mandates arbitration.

Mental health post-pandemic


Our friends at IMO just published a new article that discusses many of the current stressors we are all facing that have led to an increase in mental health issues and it offers helpful strategies to maintain good mental health.  It’s well worth a read: Mental Health — Managing the Growing Chaos Among Us.

Copyright 2024, Stone Loughlin & Swanson, LLP


Movin’ on up!


Amanda Barlow, Administrative Law Judge in the Fort Worth Field Office since 2015, is joining the Division Appeals Panel.  Judge Barlow is the current Secretary of the Texas State Bar workers’ compensation section.    Judge Barlow obtained her law degree in 2007 from Texas Wesleyan University which was acquired by Texas A&M in 2013 and is now known as the Texas A&M University School of Law.  In 2024, it was named the 26th best law school in the country by U.S. News & World Report. Gig Em, Aggies!  We look forward to her bringing her nine years of practical experience to the jurisprudence of the Appeals Panel.    

Copyright 2024, Stone Loughlin & Swanson, LLP

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