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.
In an unexpected move earlier this month, the Senate unanimously passed an
amended bill that would delay by four more years the scheduled sunset review
for TDI, DWC, OPIC and OIEC. This will push sunset review of the Division
of Workers’ Compensation and the Office of Injured Employee Counsel to 2029,
rather than 2025 as originally scheduled. SB1659, which was introduced by
Senator Charles Schwertner of Georgetown - current chairman of the Texas Sunset
Advisory Commission - will now go to the House of Representatives for further
deliberations. At this time, we have no idea what is behind the legislation to
postpone review of these agencies, but the legislation seeks to modify the
review process for more than 40 Texas agencies.
Copyright 2023, Stone Loughlin & Swanson, LLP
No rule change would be complete without changes to the corresponding forms and
no form gets more facelifts than our beloved DWC-32. Here are some fun facts
about the changes:
• She’s lost
some weight – down to four pages now – really 3-1/2 since the 4th page is just
signatures.
• Just the facts ma’am. The form has been streamlined to request
very basic identifying information of the parties, their representative and
doctors. Gone are the questions regarding authorized agents and bill
review agents.
• The accepted compensable injury is a thing of the past. Box 37 is gone – caput –
no one cares. Regardless of whether the designated doctor is asked to
address extent of injury. Fear not, dear reader - the designated doctor
will determine the compensable injury during the examination.
• Interestingly, there is a “yes” or “no” box” where you can tell
someone that a DWC-24, CCH Decision or final court order determining the
compensable conditions exists; however, there is no corresponding place to
elaborate on that determination.
The New DWC-32 must be
used starting 6/5/23 and can be found on the Division’s website at: https://www.tdi.texas.gov/forms/form20numeric.html.
There are also new forms for the doctors to apply for certification and new
DWC-68 forms for doctors to record extent of injury findings “more precisely.”
Copyright 2023, Stone Loughlin & Swanson, LLP
The National Workers’ Compensation Defense Network will host its Southeast
Regional Conference in Charlotte, North Carolina May 4-5, 2023. The conference
is set to focus on what is on the horizon for workers’ compensation, with the
keynote speaker – Mark Pew – speaking on managing pain through technology.
The conference is fee to guests of SLS. You can check out the
course agenda here:
While you are in Charlotte, be sure to swing by and visit the home of
world-famous race car driver Ricky Bobby – in fact, if you like it you can even
put in an offer as his palatial mansion is for sale!
Copyright 2023, Stone Loughlin & Swanson, LLP
SLS bids farewell to Administrative Law Judge Rabiat Ngbwa who presided over
Contested Case Hearings in the Austin Field Office. No word yet on who
will replace Judge Ngbwa, but we wish her well in her future endeavors.
Copyright 2023, Stone Loughlin & Swanson, LLP
If you live long enough things definitely seem to come full circle. I began my
workers’ compensation career as a Hearing Officer in the field when designated
doctors only addressed MMI and impairment ratings. As time went by, they added
other issues to their repertoire and the list grew. Local treating doctors
provided MMI/IR certifications and, if you didn’t like it, you requested a
designated doctor. Then the scheduling companies moved in and doctors started
traveling from Houston to Abilene to see patients and the whole landscape
changed. Seemingly before we knew it, the tail was wagging the dog and the
companies were making 60% of the amount billed for the examinations and
recruiting doctors from all disciplines, demographics and age groups to be
designated doctors. It was truly the wild, wild west.
The Division, spurred by the Sunset Advisory Commission and the 82nd
Legislature took action and in January of 2011, I was in Austin and was charged
– along with many others – with making changes to the designated doctor
program. Many people at the Division spent untold hours working very hard
to improve the program and developed new rules, qualification and certification
criteria, testing, and training curriculum that met the statutory requirements
and systems designated to ensure qualified doctors were selected for the
thousands of examinations that were requested each year. It was a
complete overhaul of the system that was not without its fits and starts, but
overall, we saw great improvement in the training, testing, and competence and
resources available to the doctors charged with providing the opinions
necessary for the system participants to use in resolving their disputes.
All of these changes came with consequences – some anticipated and some
unforeseen. The requirements to become a designated doctor – or even a
doctor certified to evaluate MMI/IR – were now more burdensome, time consuming
and costly. The number of examinations available no longer justified the
cost for many and some made the economic decision to let their certifications
lapse. The training for years had been perfunctory and the testing was
not monitored or meaningful. Now, the Division was requiring a three-day
training at no small expense and was requiring doctors to have access to the
ODG and MD Guidelines – additional expense items. Many doctors did not
want to take the time to learn or maintain the certification.
Some unintended problems with the way the Division selected the most qualified
doctors - and the additional costs associated with new training, testing and
administrative requirements under the new rules - pushed many MDs and DOs out
of the system. In September of 2012, there were over 1,200 doctors on the
Division’s list. As of the date of this newsletter, the list is down to
238 and less than 30% are MDs and DOs.
Over the years, the Division attempted to solve the problem of the
ever-shrinking list with rule changes. In December of 2018, they
implemented a rule change designed to change the way the examinations were
assigned and modified the qualification standards, yet the list continued to
shrink. This new set of rules has the stated goal of maintaining and increasing
participation in the designated doctor program and allowing better access to
certain kinds of examinations. While it may well achieve the latter,
there is little hope of it doing the former for one simple reason. In the
April 10, 2023 rule memo, the Division clearly stated that neither rule
concerns one of the most important issues that the Division has not changed in
decades – billing and reimbursement. While they may be working to
address that issue, the status of the billing and reimbursement rules project
remains unclear. In light of the current state of the list, a change to the fee
structure could be, at this point, too little too late.
The medical doctors and osteopaths left because it was no longer cost effective
for them to do the work. The medical fee guidelines for designated doctor
examinations have not been updated to adequately reflect the changes in the
designated doctor program. The administrative burden on designated
doctors – with or without scheduling company assistance – increased considerably
when the rules changed. The complexity of the cases the board-certified
doctors are asked to address – especially regarding the extent of the injury -
and the sheer volume of medical records they are asked to review in order to
adequately evaluate those kinds of issues – are not reflected in the medical
fee guidelines. There is no reimbursement when a doctor travels out of
town to see a claimant that doesn’t show up. There is no incentive for
local doctors who feel as though they are being priced out of the market by
traveling doctors.
The administrative burden has lessened to some degree, however. The
doctors, under the new rule, don’t have to test anymore. Over time other
requirements have lessened: training is no longer three days long every two
years and much of it is available by webinar instead of live training; doctors
are no longer required to have access to MDGuidelines or ODG, they just have to
“apply” them. The obvious casualty of these changes – report quality.
While the doctors have concerns that are no doubt legitimate, practitioners
have their own concerns about the rules. Notwithstanding the obvious
concerns about the declining quality of the designated doctor reports, we are
now back to square one (circa 2010) with the designated doctor deciding what is
compensable – without regard for what the carrier has accepted or disputed –
whether the doctor is addressing extent of injury or not. The designated
doctor will no longer provide multiple certifications unless the Division
orders it. This begs the question – how does this help us with informal
resolution?
Meanwhile, the Carrier is required to pay benefits based on the designated
doctor’s certification of MMI/IR – even if they have disputed the condition the
designated doctor has rated. The question then becomes, is this a
voluntary payment according to the SIF when it comes time to seek reimbursement
if the Carrier is able to get the MMI/IR determination overturned at a CCH?
How do we advise our clients?
A lot of very hard work went in to making positive changes to the designated
doctor program after the last Sunset Commission recognized the problems the
Division was facing. In this girl’s opinion the Division was on the right
track with training and testing and educating a group of doctors to provide
meaningful tools to aid system participants and the Division in dispute
resolution.
Unfortunately, just easing up on the administrative burdens and continuing to
change the qualification criteria will not bring more doctors into the system.
Changing the criteria to make it easier for a doctor to “qualify” does
not make a doctor more qualified.
Copyright 2023, Stone Loughlin & Swanson, LLP
There are not many new SOAH decisions these days because there are not nearly
as many medical fee disputes as there used to be. Therefore, when a new
SOAH decision comes out it bears mention.
In SOAH Docket No. 454-22-09437, the
Administrative Law Judge held that the claimant was not entitled to
reimbursement for his out-of-pocket medical expenses because he did not file
his request for medical fee dispute resolution with the Division until about
ten months after the filing deadline:
[Claimant] argues that he has much experience in workers’ compensation—having even written a book on it—and “if someone as well versed in the workers’ compensation system cannot prevail in this matter, what hope does the average injured worker have?” Although the fairness of a labyrinthine workers’ compensation system can be questioned, ultimately its existence and structure is a question for the Texas Legislature and for the Commissioner of Insurance. The ALJ only applies the law as it is. Because [claimant’s] request for resolution was untimely, he is not entitled to reimbursement of his out-of-pocket medical expenses involved in this appeal.
The ALJ’s decision to strictly enforce the Division’s filing deadline should come as no surprise. As the Texas Supreme Court put it, “A deadline is not something one can substantially comply with. A miss is as good as a mile.” Edwards Aquifer Auth. v. Chemical Lime, Ltd., 291 S.W.3d 392, 403 (Tex. 2009). The U.S. Supreme Court has explained why filing deadlines must be strictly enforced:
The notion that a filing deadline can be complied with by filing sometime after the deadline falls due is, to say the least, a surprising notion, and it is a notion without limiting principle. If 1–day late filings are acceptable, 10–day late filings might be equally acceptable, and so on in a cascade of exceptions that would engulf the rule erected by the filing deadline; yet regardless of where the cutoff line is set, some individuals will always fall just on the other side of it. Filing deadlines, like statutes of limitations, necessarily operate harshly and arbitrarily with respect to individuals who fall just on the other side of them, but if the concept of a filing deadline is to have any content, the deadline must be enforced. Any less rigid standard would risk encouraging a lax attitude toward filing dates. A filing deadline cannot be complied with, substantially or otherwise, by filing late—even by one day.
United States v. Locke, 471 U.S. 84, 100–101
(1985).
The Supreme Court’s words are important to remember. The Texas workers’
compensation system is replete with deadlines that must be strictly enforced to
keep the system running smoothly.
Copyright 2023, Stone Loughlin & Swanson, LLP
It is a common misperception in the industry that the exclusive remedy defense
prevents an employee of a subsidiary company from suing the parent company. It
does not. The Dallas Court of Appeals makes this clear in Olivares v. Chevron, issued March
14, 2023.
For a defendant to assert the exclusive remedy defense, the defendant must be
the plaintiff’s employer. However, the Dallas Court explains that
employees of a subsidiary company are not by default also employees of the
parent company and in fact, there is a strong presumption that a parent
corporation is not the employer of its subsidiary employees. The court’s
decision continues:
“An injured employee of a subsidiary corporation, who is estopped under an exclusive remedy provision in his state's workers’ compensation act from suing his employer, may nonetheless bring a third-party claim against the subsidiary's parent or sibling corporation.” Sims v. W. Waste Indus., 918 S.W.2d 682, 684 (Tex. App.—Beaumont 1996, writ denied) (cleaned up). “We are not persuaded that the legislature ever intended parent corporations, who deliberately chose to establish a subsidiary corporation, to be allowed to assert immunity under the Texas Workers’ Compensation Act by reverse piercing of the corporate veil they themselves established.” Id. at 686.
The plaintiff in Olivares v. Chevron was
employed by Apache Global, a subsidiary of Apache Industrial Services, Inc.
Chevron sought to show that it had an owner-controlled insurance program (OCIP)
with the plaintiff’s employer meaning that Chevron would also be considered his
employer and therefore, could not be sued for his work injury. The court
held that Chevron failed to show that the OCIP was with Apache Global, the
subsidiary company, rather than Apache Industrial, the parent company and
because employees of a subsidiary company are not also employees of the parent
company, the exclusive remedy defense did not prevent the plaintiff from suing
Chevron.
Chevron presumably spent a lot of money to put this OCIP together to prevent it
from being sued for work injuries on its premises and it was for naught. This
case provides some good practice pointers for anyone working with OCIPs to make
sure they are set up and administered properly.
Copyright 2023, Stone Loughlin & Swanson, LLP
The Third Court of
Appeals decision issued on February 28, 2023 in Texas Department of Insurance, Division of Workers’
Compensation v. Accident Fund Insurance Company of America and Texas Cotton
Ginners’ Trust prevents the Division of Workers’ Compensation (DWC)
from using work search contacts as a substitute for job applications submitted
to a prospective employer by a worker eligible to apply for Supplemental Income
Benefits. Experience over the years since 2005 when the Texas Legislature
did away with the “good faith” SIBs standard and replaced it with the four objectively
verifiable methods by which a worker qualifies for SIBs, showed that the
methods used gradually devolved over time.
In recent years, SIBS applications were approved by the DWC administrative law
judges where only work search contacts were submitted in a check-box manner
with no supporting documentation that the worker made an active, meaningful,
and personal work search. During discovery, DWC admitted that its position was
that solo job seekers do not need to personally file any job applications to qualify
for SIBs: they could rely on "work search activities" filed by
another on their behalf. Applications were rare where the worker attested to
participating in a vocational rehab program, participated with the Texas
Workforce Commission (TWC), or documented his job search with copies of
applications submitted to employers.
As a result, many carriers rubber-stamped and approved applications showing
only contacts, knowing that disputing a workers’ entitlement to SIBs was a
fool’s errand because of the DWC’s instructions through its Appeals Panel
Manual to system participants simply to count whether the requisite number of
“contacts” was made. For the same reason, carriers were not offering vocational
rehabilitation programs to their injured workers eligible to apply for SIBs.
And the incentive was removed for workers to go through the TWC, an
agency with a variety of resources for Texas workers who can work in some
capacity to find employers who post job openings for which the worker would
qualify.
What can we expect next? We can expect closer scrutiny by the DWC when
considering SIBs applications, either at the first quarter or subsequent ones
as may be disputed and taken to a contested case hearing. Even though
applying for jobs can now be done on-line, the worker can prove his search by
submitting a copy of applications submitted and attach them to the DWC-52 for
review by the carrier and the agency for credibility. He can show that he
is participating with the TWC. He can accept a carrier’s offer to
participate in vocational rehabilitation. These methods will result in a
meaningful, active job search—a search most likely to bring a job offer and
return the worker to gainful employment.
This is, after all, the goal of the Labor Code. SIBs are to provide a bridge to
support a worker returning to the workforce to the extent he is able. It
is short-sighted for workers to forego the resources available to them for
finding work. This is because even if they manage to get a regular check from the
carrier for the entire SIBs period, the benefits will end 401 weeks from the
date disability began, leaving the worker without income.
A job is a much more reliable and meaningful outcome of the SIBs process, and
is what the Texas Legislature intended.
Editor’s note: Jane Stone and David Swanson of the Firm represent Accident Fund
Insurance Company of America in this case.
Copyright 2023, Stone Loughlin & Swanson, LLP
For all you non-subscribers not enjoying the many benefits of the Texas workers’ compensation system, it is that time of year again when you must tell DWC that you do not care enough to provide your employees with workers’ compensation coverage. Employers must use the DWC-Form 005 to let DWC know they have opted out of the workers’ compensation system. According to the Division’s Biennial Report to the 88th Legislature, “In 2022, the percentage of employers that were non-subscribers (25%) was the lowest in six years” and “The percentage of Texas employees working for non-subscribers (17%) was the lowest in 12 years.” In other words, three out of four employers have decided that it is in the best interest of them and their employees to carry workers’ compensation coverage. Check out this link for more information for non-subscribers including a coverage comparison and analysis of alternative coverages: https://www.tdi.texas.gov/wc/employer/cb007.html
Copyright 2023, Stone Loughlin & Swanson, LLP
In Appeal No. 230067 issued March 3, 2023, the Appeal Panel reversed the ALJ’s decision that the carrier is entitled to reduce the claimant’s IIBs by 50% based on contribution from an earlier compensable injury and rendered a new decision that the carrier is not entitled to a reduction of the claimant’s IIBs. The Appeals Panel held that the carrier still bore the burden of proof at the hearing even though the Division issued an order approving the carrier’s application for contribution which the claimant appealed. The Appeals Panel held that because the carrier failed to present a cumulative impact analysis, it did not meet its burden of proof. The Appeals Panel analogized the case to the situation in which the Division determines a claimant is entitled to first quarter SIBs and the carrier appeals the determination. In that situation, the employee still has the burden of proof at the hearing. The decision was authored by Appeals Panel Judge Carisa Space-Beam. Appeal No. 230067, filed March 3, 2023.
Copyright 2023, Stone Loughlin & Swanson, LLP