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.
Copyright 2024, Stone Loughlin & Swanson, LLP
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.
This month the 14th Court of Appeals in Houston agreed with
arguments by Stone Loughlin & Swanson, LLP and other firms that Harris
County District Court Judge Fredericka Phillips abused her discretion by (1)
refusing to abate a personal injury action pending judicial review of a TDI-DWC
decision on the worker’s employment status and (2) consolidating the two
actions.
In our law firm’s 20-year history we’ve seen some bizarre workers’ compensation
claims, but this one might just take the cake. It's through-the-looking-glass
procedural history began when, in September 2021, 16-year-old Romny Sanchez
joined his uncle, Leonel Yanez, on a job providing remediation services to
victims of Hurricane Ida in Louisiana. Both men were injured while riding as
passengers in a van driven by Joe Saavedra, who fell asleep and crashed into a
light pole. Saavedra was an employee of All Repair and Restoration, LLC, and
Sanchez and Yanez filed a personal injury suit against All Repair in Harris
County district court alleging everything but the kitchen sink -- asserting
claims for negligence, vicarious liability, fraud, civil conspiracy, gross
negligence, intentional infliction of emotional distress, and violations of the
Fair Labor Standards Act and the Texas Payday Act. All Repair asserted the
affirmative defense that Sanchez and Yanez were its employees and their
exclusive remedy is workers’ compensation benefits under All Repair’s policy
with National Casualty Company.
Sanchez and Yanez disputed that they were All Repair’s employees, so National,
represented by this firm, initiated dispute resolution proceedings at the
TDI-DWC to determine their employment status. Even though the facts were
largely the same for both men, the Division refused National’s request to hear
the cases together. Instead, it insisted on conducting two separate contested
case hearings by two different ALJs. And, as could be predicted, the ALJs
reached different conclusions. The ALJ presiding over Yanez’ case concluded
that he was All Repair’s employee, but the ALJ presiding over Sanchez’
case concluded that he was not All Repair’s employee. All Repair then
filed a petition for judicial review of the decision regarding Sanchez.
At Sanchez’ request, and over the objections of National and All Repair, Judge
Phillips consolidated the two actions and denied a motion to abate the personal
injury action pending resolution of the judicial review action. National and
All Repair then took the extraordinary step of filing a petition for writ of
mandamus with the court of appeals.
The court of appeals found that Judge Phillips abused her discretion on both
counts. It directed her to vacate her order of consolidation because, among
other things, “a vast portion of the evidence to be expected in the personal
injury suit is likely to be inadmissible in the judicial review suit due to the
limited nature of the proceeding.” It also directed her to abate the personal
injury suit pending the outcome of the petition for judicial review, citing its
prior decisions in In re Tyler
Asphalt & Gravel Co. and In re Luby’s Cafeterias, Inc. which
hold that abatement is required under such circumstances.
Copyright 2024, Stone
Loughlin & Swanson, LLP
In Appeal No. 240113, the TDI-DWC Appeals Panel has taken the unusual step of
reversing an ALJ’s decision and rendering a new one on the grounds that ALJ
abused his/her discretion by relieving a claimant from the effects of a
DWC-24.
In the DWC-24, the claimant and carrier agreed that the compensable injury
extends to include right wrist volar carpal ganglion cyst and they agreed to
adopt the date of MMI and the 2% impairment rating assigned by a designated
doctor. Later, however, the claimant argued at a contested case hearing that
she should be relieved from the effects of the agreement because she cannot
read English and the ombudsman assisting her did not fully explain the
agreement to her.
The ALJ found that no fraud or misrepresentation was involved in procuring the
agreement and the claimant was provided with sufficient time to review the
agreement before she signed it. However, the ALJ found that good cause existed
to relive the claimant from the effects of the agreement because the 2% IR
assigned by the designated doctor was a result of misapplication of the Guides to the Evaluation of Permanent
Impairment.
But the Appeals Panel concluded that the calculation of the claimant’s IR
required rounding, which requires medical judgement, so the evidence did not
support the ALJ’s determination that the 2% IR assigned by the designated
doctor was a result of misapplication of the Guides.
Accordingly, the Appeals Panel reversed the ALJ’s decision and rendered a new
decision that there is no good cause for relieving the claimant from the
effects of the agreement and it is final and binding.
Copyright 2024, Stone
Loughlin & Swanson, LLP
On April 23, 2024, TDI-DWC’s General Counsel, Kara Mace, issued
a memorandum to system participants regarding preventative treatment claims
handling. In it, Ms. Mace stated that the Division “would like to remind
insurance carriers of the rules associated with preventative treatment related
to a physical injury and workers’ compensation claims handling.”
The memo notes that preventative treatment “may include medications such as
rabies vaccines, tetanus shots, and post-exposure prophylaxis that are prescribed
by a health care provider.” It also states that “an insurance carrier must
follow treatment guidelines and pay for specified pharmaceutical services
sufficient for the first seven days following the date of injury, regardless of
issues of liability for or compensability of the injury,” citing Texas Labor
Code §413.011 and DWC rules 134.501 and 137.100.
Rule 134.501, titled Initial Pharmaceutical Coverage, provides in part that:
The insurance carrier . . . shall pay for specified
pharmaceutical services sufficient for the first seven days following the date
of injury, regardless of issues of liability for or compensability of the
injury that the carrier may have, if, prior to providing the pharmaceutical
services, the health care provider . . . obtains both a verification of
insurance coverage, and an oral or written confirmation that an injury has been
reported.
. . . Specified pharmaceutical services are prescription drugs and over-the-counter
medications prescribed by a doctor that cure or relieve the effects naturally
resulting from the compensable injury, promote recovery, or enhance the ability
of the employee to return to or retain employment.
Ms. Mace ends the memo by noting that “failure to properly
handle preventative treatment claims under these rules and other applicable
laws may result in the assessment of administrative penalties not to exceed
$25,000 per day per occurrence.”
Copyright 2024, Stone Loughlin & Swanson, LLP
We’ve learned that Angel Hendricks, a Proceedings Resolution Officer (PRO) in
the TDI-DWC Tyler field office, has been promoted to Benefit Review Officer
(BRO) and will replace Olivia Turner, who is embarking on a well-deserved
retirement.
Ms. Hendricks is to start in her new position on June 1, and we are delighted
to begin working with her in that capacity. Congratulations Ms. Hendricks!
Copyright 2024, Stone
Loughlin & Swanson, LLP