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.
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 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
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
Disclaimer: This is not an
actual flow chart and is not intended to accurately represent real persons or
events.
Copyright 2023, Stone Loughlin & Swanson, LLP
When we dusted off our rule book to look at the rules in the aforementioned
chapters of the Administrative Code, we discovered all kinds of little
treasures. For example, many acronyms that we use every day in the system, such
as AWW, BRC, MMI, etc., are actually codified in DWC Rule 102.7. Others, such
as BRO, DD, LOC, POD, etc. are not included.
This past month saw some new acronyms enter the system, resulting in a new form
and some new additions to DWC staff hierarchy.
You might recall that the new DD request form (DWC032) implemented on 6/5/23
does not include a box for the Carrier to identify the accepted condition and
thus, the DD determines the compensable injury during the exam. In the April
edition of The Compendium,
our own Erika Copeland predicted that the change to the DWC032 would create
more problems with informal resolution. Kudos to Erika and her foresight,
because the new OARFI (“Request for Information”) appears to be the first
attempt at righting the ship. The OARFI lists multiple conditions and requests
that the Carrier check whether it “Accepts” or “Disputes” the condition. It
also asks the parties to identify any additional injuries that they believe
should be considered when assessing MMI or the impairment rating. The parties
are asked to send the information to a named “Benefit Review Officer” within
three business days, and notice is given that the information is for “mediation
purposes only.” The Carrier is told that the answers are not binding and that
they can change their mind but inaccurate answers will likely cause additional
exams and delays in the dispute resolution process. Likewise, to date there
doesn’t appear to be any penalty associated with not returning the form.
The “Benefit Review Officer” named on the form is actually known as a “BRO-1”
(which begs the question – is the BRO that presides over the BRC now known as
“Big Bro”?). The BRO-1 has been charged with looking at issues before a BRC and
requesting information of the parties so a Presiding Officer’s Directive (POD)
can be sent to the DD.
Meanwhile, we have been informed that if you need to request the status of LOC
requests or responses, DD reports, or RME reports, you need to contact the
Proceeding Resolution Officer or “PRO.” If you are seeking information about
scheduling, resets, requests for dates, motions, subpoenas, agreements, or
interpreter requests, you need to contact the Docketer.
Unfortunately, we do not have the key to knowing who actually handles the
docketing for each field office nor are we able to keep up with the frequent
changes in PRO assignments. Our wish list for next month includes periodic
information updates from the DWC regarding these changes. Until then, here is
our (non)helpful chart of how this works on a daily basis.
Copyright 2023, Stone Loughlin & Swanson, LLP
The DWC will be
reviewing multiple sections of the Texas Administrative Code (Chapters 102,
104, 109, 110, 112, 114, and 116) to determine whether the rules are still
relevant and necessary. The DWC Legal Services team is requesting that system
participants send written comments along with proposed alternative language to RuleComments@tdi.texas.gov
by 5 p.m. CST on October 3, 2023.
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
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
Don’t miss this unique chance to golf at The Lakes at Castle Hills on October
23rd! Register today for a rewarding day of golf, while supporting an amazing
cause. Our first full golf team has already signed up! Thank you, Kyle
Morris, for putting together a team and showing up again this year! Spots are
limited and filling quickly. All proceeds benefit Kids’ Chance of Texas
scholarship recipients and provide these students with the opportunity for a
strong education and career, despite the most difficult circumstances. Register here. You can also find information
at www.kidschanceoftexas.org, and for those of
you with modern skills, there is a QR code. See you on the course!
Copyright 2023, Stone Loughlin & Swanson, LLP
SLS is the Texas selected member of the National Workers’ Compensation Defense
Network (NWCDN). This year, the NWCDN conference is set in Chicago October 18th
and 19th and we would love to send you an invitation if you are interested in
attending. The conference is free, and there are greatly reduced hotel
rates at the Radisson Blu Aqua blocked if you book by September 19th.
Here is a link to the registration materials and the terrific agenda: Program Agenda. Hope to see you
there!
Copyright 2023, Stone Loughlin & Swanson, LLP