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 April 2023 edition of The
Compendium outlined recent changes to the designated doctor rules,
which were presumably designed to incentivize those already on the DD list to
maintain their status while increasing the number of new applicants.
However, as we pointed out, the amendments omitted any updates to the
reimbursement rates for DD exams, perhaps the component most to blame for the
dwindling number of available designated doctors overall and certainly a reason
for the dearth of M.D.s and D.O.s currently on the list.
That oversight seems poised to change, as the DWC announced on June 26, 2023, a
new set of proposed amendments to Rules 133 (General Medical Provisions) and
134 (Guidelines for Medical Services, Charges, and Payments). Key
modifications would include adjusting fees via the Medicare Economic Index
(MEI) percentage adjustment factor for the period of 2009 through 2024, then
annually thereafter every January 1. Fees would be rounded to the nearest
whole dollar, and a $100.00 missed appointment fee would also be permitted when
injured workers neglect to attend their exams. (More on that in a
moment.) These provisions can be found in the new Rule 134.210(b)(4).
The DWC released a table of fee adjustment estimates (estimated because the MEI
percentage adjustment factor for 2024 is not yet set) for Designated Doctor
Exams, Required Medical Examinations, and treating/referral doctor impairment
rating certifications. Fees for extent of injury, disability, return to
work, return to work for SIBs, appropriateness of care (RMEs only), and “other
similar issues” jump from $500.00 to $640.00 per issue (again, estimated).
Maximum medical improvement issues would invite an increase from
$350.00 to $448.00, while the first musculoskeletal impairment rating
assessment rises from a range of between $150.00 and $300.00 to $384.00.
Fees for subsequent impairment rating areas would also increase from
$150.00 to $192.00, approximately.
New additions to some designated doctor bills will include a “Specialist Fee”
of $300.00. Specialist fees pertain to designated doctors (though not
RMEs) asked to evaluate injuries itemized in Rule 127.130(b)(9)(B-I): traumatic
brain injuries, spinal cord injuries, severe burns, complex regional pain
syndrome, multiple fractures, complicated infectious diseases, chemical
exposure, and heart/cardiovascular conditions.
Comments on the proposed changes can be sent via email to RuleComments@tdi.texas.gov.
The DWC advises that “Chapters 133 and 134 Informal Posting” should be
included in the subject line. Comments must be received in writing by
5:00 p.m. on the still-not-random-in-the-least date of July 26, 2023.
Now, about that “Missed Appointment Fee”…
Copyright 2023, Stone Loughlin & Swanson, LLP
While we’re on the
topic of proper Plain Language Notice protocol, the Appeals Panel issued
Decision No. 230503 on June 12, 2023. The case involved an injured worker
who initially reported to his employer—in writing—that his injury occurred in
June 2022. The employer dutifully alerted its work comp carrier to the
injury once it was reported. The carrier, in turn, filed a PLN-1 denying
the claim in full within sixty days following notice.
Thereafter, the claimant asserted that he had been mistaken about the date of
his injury, that it was not June
28 but rather July
28. The Division, operating under the assumption that this was an entirely
different injury, generated a new DWC number for the ersatz second claim.
Claimant and his attorney argued that the carrier waived into accepting the
July 2022 injury because no PLN-1 had been filed to combat it. The
Administrative Law Judge agreed that the carrier accepted the claim via waiver,
even after Claimant testified that he never sustained an injury in June, that
he had mistakenly reported the incorrect date to his employer, and that the two
dates of injury were actually one and the same.
The Appeals Panel reversed, reasoning that the carrier had disputed the claim
when first alerted to it. “Under these facts, to require the carrier in
this case to again dispute the injury it had previously disputed simply because
the claimant alleged a different date of injury due to a typographical error
would represent an elevation of form over substance.”
Copyright 2023, Stone Loughlin & Swanson, LLP
That may soon be the question. Ever since reporting back in February 2022
that changes to TDI’s Plain Language Notice forms were on the horizon, eager
system participants have been dying to know when they will be able to use the
new versions. The wait is almost over! The new PLNs become
effective on the not-at-all-random date of July 26, 2023.
The new PLN-2B (Notice of First Payment of Income Benefits on an Acquired
Claim) distinguishes itself from the rechristened PLN-2A (Notice of First
Temporary Income Benefit Payment) by apprising its recipient that his/her claim
administrator has changed and will be sending its first payment. Astute
readers will notice that 2A is limited to Temporary Income Benefits, while 2B
pertains to the first Income Benefit of any type paid by the new administrator
and omits any reference to the injured workers’ average weekly wage. Form
2B should only be used to report the first payment on an acquired claim.
Not to be outdone, the PLN-10 (Reinstatement of Indemnity Benefits) shall
henceforth be known as PLN-10A, while the sleek new PLN-10B alerts injured
workers or beneficiaries to expect a lump sum payment of workers’ compensation
benefits, with the type, amount, and reason for the benefit explained
therein. System participants will be seeing a lot of the PLN-10B, as it
is to be used whenever lump sum payments are issued pursuant to a DWC-24
agreement, a Decision and Order, an interlocutory order, an Appeals Panel Decision,
an advance/acceleration/commutation of benefits, or when past due benefits are
paid with interest.
The time-honored PLN-11 Notice of Disputed Issues and Refusal to Pay Benefits
comes with a new admonition in its instructions. If disability is in dispute,
the Carrier must file the requisite Electronic Data Interchange (EDI)
transaction before the notice of refusal to pay benefits will be considered
complete.
Other changes to the revised forms, including the PLN-8, PLN-10A, PLN-11, and
PLN-14 are more subtle, mostly involving the insertion of the word “Insurance”
before “Carrier” throughout each. This serves as a helpful reminder that
it is Insurance Carriers
who should be using these forms, not any of the following groups:
Copyright 2023, Stone Loughlin & Swanson, LLP
Yet more changes to
the Administrative Code. This one involves Rule 133.30, pertaining to
billing for Telemedicine and Telehealth Services. The proposed
modification adds “Teledentistry” to the list of reimbursable remote health
care and incorporates the (somewhat redundant) definition from the Texas
Occupations Code, Section 111.001: “ ‘Teledentistry dental service’ means a
health care service delivered by a dentist, or a health professional acting
under the delegation and supervision of a dentist, acting within the scope of
the dentist's or health professional's license or certification to a patient at
a different physical location than the dentist or health professional using
telecommunications or information technology.” Billing for teledentistry
services would follow applicable Medicaid payment policies. The DWC
invites feedback, again via RuleComments@tdi.texas.gov, this time by July
24, 2023.
We were all set to mock the very concept of “Teledentistry” until we happened
upon Marathon Man
on Turner Classic Movies last night.
https://youtu.be/GZayydR4DPs
If nothing else, at least teledentists can’t torture their patients remotely.
Congratulations, Teledentistry. You win.
Copyright 2023, Stone Loughlin & Swanson, LLP
SLS partner Jane Stone
will be the faculty member providing training in Texas law for
WorkCompCollege.com, which recently initiated a scholarship program for Kids’
Chance recipients, a cause dear to our hearts. Bob Wilson, a long-time
supporter of Kids’ Chance chapters, and Don Abrams and Mark Pew, all of whom
founded the College, have generously committed to providing the scholarships.
More information about that in the link below:
https://urldefense.com/v3/__https://workcompcollege.com/workcompcollege-com-opens-scholarship-program-for-kids-chance-recipients/__;!!Dsthdr1F7A!GuhY24LgRy20lccPSJCHHRbdrSDrdQxZe2xF8o2jTBISh-46psashw6h59YxHt1DYycv5-daXQQ6rA2W8VkoT-rhjUI$
It always amazes us what a small and supportive community workers’ compensation
system participants have established, not just in Texas, but all over the
country. We wish WorkCompCollege.com the best!
Copyright 2023, Stone Loughlin & Swanson, LLP
The DWC’s new
Austin-based Administrative Law Judge, Hsin-Wei Luang, started on June 26.
Judge Luang received a degree in engineering from the University of
Illinois, then her law degree from St. Mary’s School of Law in 1997. She
combined her legal acumen and engineering background for a career in
technology, business, and intellectual property.
Among her prior employment, Judge Luang served as senior counsel for Honda and
vice-president of IP at Lone Star Circle of Care. She owns a business
& technical writing service, and since May 2021 she has used her expertise
in technological and legal writing to produce a blog helping entrepreneurs
start and run small businesses. We congratulate her on accepting the
position with the DWC and certainly look forward to reading her decisions.
Copyright 2023, Stone Loughlin & Swanson, LLP
Further changes to the
Administrative Code were announced on June 21, 2023. Section 55.15(6),
pertaining to requirements for Compromise Settlement Agreements in old law
claims, contains the following instructions, held over from the Old Law days:
“all compromise settlement agreements submitted to the board must be submitted
in four parts--the original must be white, the second copy pink, the third copy
yellow, and fourth copy white. The forms must either be on NCR [no carbon
required] paper or be submitted with carbon left intact.”
For all future “old law” CSAs (of which there are likely to be few), system
participants have finally—finally—been
relieved of these onerous multichromatic paper specifications, which have been
cut from the rule, allowing for submission of settlement agreements “in the
form and manner prescribed by the DWC.” All further paper-related queries
can be directed here: https://youtu.be/6OlEEfvwXnA
Copyright 2023, Stone Loughlin & Swanson, LLP
As previously
mentioned, House Bill 2702 would have revised portions of the Labor Code by
tagging insurance carriers with an additional expense: a fee for a missed
medical examination. The bill failed to pass the Senate in May 2023, but
its most dubious component has found new life in the DWC’s proposed Rule
134.240(b).
Under the newly drafted rule, an injured worker who fails to attend an
examination by a designated doctor would endure the eternal ignominy of
subjecting his or her workers’ compensation carrier to an additional $100.00
fee. That’ll show ‘em!
You read that correctly—the insurance carrier would be subjected to what
amounts to a fine for an AWOL claimant’s missed DD exam. (And in case you
were wondering, no, the rule does not permit an insurance carrier to take a credit
for that fee from later benefits.)
This change to DD exam billing is intended, one assumes, to offset the lost
time from patients and the general inconvenience experienced by doctors whose
examinees are M.I.A. However, imposing an additional fee on the insurance
carrier for the injured worker’s truancy may invite challenges over the
perceived fairness of the measure, especially in instances where the missed
exam was requested by the Claimant or Claimant’s attorney; the proposed rule
does not take into consideration the party that sought the exam.
Copyright 2023, Stone Loughlin & Swanson, LLP
As we reported last month, the DWC-32 form for requesting a designated doctor exam has been revised, most noticeably in its capacity to alert the examining doctor of the conditions for which he or she should be examining the injured worker. Parties must begin using the new version of the form very soon, on June 5, 2023.
Copyright 2023, Stone Loughlin & Swanson, LLP
In Hartford Accident & Indem. Co. v.
Francois, decided May 23, 2023, the Dallas Court of Appeals spells
out how to allocate a third-party settlement between the workers’ compensation
carrier, injured employee, and injured employee’s attorney. These
calculations are a source of continuing confusion for some despite the plain
language of the statute and the case law applying it.
The Dallas Court of Appeals’ decision also dispels the notion that the law
requires the parties to split a settlement three ways: one-third to the
carrier, one-third to the claimant, and one-third to the claimant’s attorney.
This idea refuses to die despite the fact that there is no support for it
in the law. As a result, some carriers still give up much more than they
should.
Janery Francois sustained a work injury for which Hartford paid her $356,669.73
in workers’ compensation benefits. Francois sued the third-party property owner
of the building where she was injured and recovered $150,000. Hartford argued
that under the Texas Workers’ Compensation Act’s subrogation statute, it was
entitled to $95,206.03 of Francois’s $150,000 recovery.
However, Judge Martin Hoffman, a former personal injury attorney, agreed with
the interpretation of the statute offered by Francois’s attorney and found that
Hartford was only entitled to $57,088.04 and that Francois and her attorney
were entitled to $92,911.96. Of this amount, $4,793.97 was for expenses
and the remaining $88,117.99 was for attorney’s fees for Francois’s attorney.
Judge Hoffman also awarded Francois’s attorney an additional $10,000 in fees
under the Uniform Declaratory Judgment Act (UDJA) which allows the trial court
to award fees that are equitable and just.
The Dallas Court of Appeals reversed Judge Hoffman’s decision and rendered
judgment that Hartford was entitled to $95,206.03 of the third-party
settlement. The court of appeals also found that Judge Hoffman abused his
discretion by awarding Francois’s attorney an additional $10,000 in attorney’s
fees under the UDJA because the award violates the Workers’ Compensation Act
and is not equitable or just.
Francois’s attorney argued at trial that the award is equitable and just
because Hartford refused to agree to a three-way split of the settlement which
would have provided $50,000 to Hartford, $50,000 to Francois, and $50,000 to
Francois’s attorney. This approach would have resulted in Hartford
recovering $45,206.03 less than it was entitled. The Dallas Court of
Appeals rejected this argument:
According to Francois’s counsel, the carrier, employee, and employee’s counsel “always” agree to split a settlement three ways, and he has entered into those agreements “dozens of times.” But Francois cites no authority to support an argument that Hartford was under any obligation to reduce its lien and accept a three-way split.
The Dallas Court of Appeals held that Hartford has a statutory right to recover
its entire lien amount and it should not be penalized for asserting its rights.
The court found that Judge Hoffman abused his discretion by awarding additional
attorney’s fees to Francois’s attorney when “Hartford was well within its right
to seek the full amount of reimbursement permitted under Chapter 417.”
Hartford Accident & Indemnity Co. v. Francois, No.
05-21-00981-CV (Tex. App—Dallas, May 23, 2023).
Copyright 2023, Stone Loughlin & Swanson, LLP