State News : Texas

Victory Belongs to the Most Tenacious

Remember when we reported on the SOAH case where the ALJ questioned the DWC’s actions regarding claim investigation and its method of assessing penalties?  We learned that, but for a courageous Third Party Administrator (Abercrombie Simmons & Gillette) who footed the cost of the litigation for its customer, the City of Baytown, the issues the case presented would still be buried at the agency. They say you “can’t fight City Hall” but that saying only goes to those unwilling to do so.

Copyright 2023, Stone Loughlin & Swanson, LLP 

ALJ on the Move

Our friend and colleague, ALJ Carol Fougerat, will be hanging up her hat at the DWC on September 20th. We will miss her and wish her well on her upcoming adventures!

Copyright 2023, Stone Loughlin & Swanson, LLP 

21st Century Tech Advances on the Horizon

DWC is also conducting a survey to modernize their dispute resolution technology services. They’ve requested that system participants complete the survey at the following link by September 15, 2023. www.surveymonkey.com/r/VPC6NM6

Copyright 2023, Stone Loughlin & Swanson, LLP 

SOAH Rules Against DWC in Significant Enforcement Decision

A three-judge panel at the State Office of Administrative Hearings (SOAH) rejected numerous allegations made by DWC that the City of Baytown (a self-insured governmental entity) violated the law when it denied two first responder cancer claims.

DWC sought to fine Baytown $80,000 based on charges that it failed to adequately investigate and process claims by two firefighters diagnosed with cancer while working for Baytown.  However, in a 66-page decision the three judges found that Baytown committed no violations.

The decision bears a close read by system participants for the guidance it provides about what the law does and does not require when handling not only cancer claims but all claims.  Hopefully, DWC will consider the judges’ guidance in future cases.

Among the ALJs’ conclusions:

• The burden to prove the prima facie elements of the cancer presumption rests with the claimant seeking the benefit of the claimed presumption, and that the insurance carrier is not required to gather specific documents and evidence while investigating a claim.

• The reasonableness and thoroughness of Baytown’s investigations should be informed by the fact that they must be completed within 15 days before making an initial determination. And, in determining whether an investigation was reasonable, the scope of applicable information should be limited to what was available at the time, without the benefit of hindsight.

• The reasonableness and thoroughness of Baytown’s investigations should be informed by the uncertainty of the law at the time of the claims (i.e., the lack of precedent and DWC guidance regarding elements of the presumption such as what constitutes “regularly responded” to fires).

The ALJs also expressed concerns with DWC’s $80,000 penalty stating that “no evidence was presented to prove how Staff’s proposed penalty was calculated or allocated among the claims.” The ALJs stated that, as such, “imposition of an administrative penalty based on Staff’s proposed sanction may result in an arbitrary decision.”  DWC’s unwillingness to explain, in any meaningful fashion, how it arrives at its proposed fine amounts has been a source of ongoing criticism from system participants for many years.

Although DWC’s allegations focused on Baytown’s actions during the initial fifteen-day investigation period, Baytown’s denials seem to have been borne out by the fact that in the first claim, the employee and his family never challenged Baytown’s denials, and in the second claim, the employee signed an agreed judgment finding that his claim was not compensable.
  
First responders are often accorded special treatment in the workers’ compensation system and that was likely a factor in DWC’s decision to prosecute what seems like a questionable case based on the ALJs’ decision.  DWC’s enforcement action was also likely intended to serve as a “reminder” to carriers to be very cautious about denying first responder claims.

The ALJs’ decision highlights the lack of DWC guidance regarding elements of the law Baytown allegedly violated.  Advisories and bulletins are often a better tool for communicating agency policy to system participants than enforcement actions.  However, DWC has made little use of such tools in recent years.

Copyright 2023, Stone Loughlin & Swanson, LLP

Stimulating Topic

Every so often DWC gets around to looking into medical treatments which may or may not be effective.  That is to see if Texas injured workers can benefit or could be harmed, and to evaluate the economic benefits to certain physicians.  Case in point is DWC’s recently announced intent to audit the use of spinal cord stimulators to determine the appropriateness of a physician’s decision to install one into the body of an injured worker, and the effectiveness of the device once installed.  The review will be part of and conducted under the auspices of the DWC’s Medical Quality Review Process. We mention here that these devices require preauthorization under Rule 134.600 so that medical necessity is evaluated by qualified Utilization Review Agent (URA) physicians.  It is unclear whether the audit will scrutinize URAs, the information requesting doctors send to the URA to justify medical necessity, the treatment guidelines criteria for stimulators, or all of the above.  Apparently even our friends “down under” are taking a look at this issue: To hell and back: Devices meant to ease pain are causing trauma.
 

Copyright 2023, Stone Loughlin & Swanson, LLP  

You Just Had to Be There

DWC has for years hosted a conference for stakeholders.  This year the conference came around again on the August calendar in Austin. There was something a little different and refreshing this year– the tone and focus of one of the more memorable presentations.  The WorkCompCollege presenters went well beyond comp basics, calling for a paradigm shift in the way we view the role of workers’ compensation by suggesting the focus should shift from only compensating injured workers to focusing on helping them recover.  A new name could be the Workers’ Recovery System (this writer’s suggestion, not theirs). 
 
Their panel discussion addressed what a whole person recovery mind set can look like.  From rebranding to reflect the higher purpose of comp, to looking beyond the physical to consider psychosocial issues, to choosing words and attitudes carefully, the discussions included suggestions on best practices to enable this change in approach to take hold.  Perhaps if it does, less regulation would result and injured workers would be better served. Maybe the lawyers would be out of business. Definitely something to think about! If you want to know more about this new idea, contact Mark Pew at mpew@workcompcollege.com. Mark has a great work sheet he can send you called Establishing a Whole Person Recovery Mindset in Workers’ Compensation.

Copyright 2023, Stone Loughlin & Swanson, LLP

It is HOT in Texas
 

We couldn’t help but state the obvious.  Stay cool, and plan on supporting Kids’ Chance of Texas by coming to the Annual Kids’ Chance Golf Tournament in DFW.  We can’t guarantee cool weather on October 23rd, but we can guarantee that it will feel good to support our Kids!  Register NOW here.  All levels of players are welcome!

Copyright 2023, Stone Loughlin & Swanson, LLP

For Techies Only
 

EDI is thankfully something most of us never have to think about.  But if you are into compliance issues (as in, avoiding TDI/DWC penalties) you want to know the Implementation Schedule for Claims Electronic Data Interchange Release 3.1.4.  There are lots of DWC forms that have to be sent by way of EDI to DWC that give DWC a way to monitor insurance carrier performance and the delivery of benefits. We put this in the newsletter so that you can’t say we didn’t warn you.  For more info, check out the implementation guide here. 

Copyright 2023, Stone Loughlin & Swanson, LLP

Your Time Is Up!
 

Helpful reminder – July 31st is the last day-old versions of the following forms will be accepted by DWC: DWC Form-022; DWC Form-031; DWC Form-051; DWC Form-057.  More riveting information regarding the new forms (always check for revisions) can be found on the DWC website.  It isn’t clear what the consequence for using the old forms will be.  However, beware.

Copyright 2023, Stone Loughlin & Swanson, LLP

Speaking of the Past

If you have been around Texas comp for a while, you will remember some interesting treatments prescribed by Texas doctors under the umbrella of things that might relieve the effects of a work injury.  For example, the Theramed Bed, various iterations of electrical muscle stimulators (aka transcutaneous electrical nerve stimulators), Vax-D (a spinal decompression table), exercise bikes, recliners, mattresses, special shoes, hot tubs, and placebo treatments galore.  For those with an eye toward the lesson that the past predicts the future, an entertaining read is Quackery: A Brief History of the Worst Ways to Cure Everything.  Some of the treatments (as we see nowadays), seemed like good ideas at the time but were later determined either to be weird and useless or weird and harmful. The common theme, however, is generally profit, with the treatments often benefiting the doctor more than the patient.

Copyright 2023, Stone Loughlin & Swanson, LLP