State News : Texas

NWCDN is a network of law firms dedicated to protecting employers in workers’ compensation claims.


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.


Texas

STONE LOUGHLIN & SWANSON, LLP

  512-343-1385

In Memorium – Dr. Bob Gant Has Passed Away

 

Dr. Gant was an integral member of the very small group of qualified doctors who were willing to provide objective and fair psychological evaluations and opinions for injured workers.  We were saddened to hear that he died on December 4th.  He was buried among three generations of Texas family at Cana Cemetery near Willis Point, Texas.  He was a friend to many in the comp system and gained our respect over the many years we worked with him on cases, and in reading the many reports he wrote on behalf of his patients.  His obituary describing his remarkable path through life is at https://www.hlfhs.com/obituary/Bobby-GantPhD


Copyright 2024, Stone Loughlin & Swanson, LLP  

DWC Targets Doctor in Five Year Battle But Misses Its Mark

 

The opinion piece below describes events that should make us all pause.  The point is that although it is admirable that cooler heads prevailed at the Division and they withdrew their case, in regard to the actual costs to the doctor the relief is too little, and far too late. The greater cost is to the system that can ill afford to lose qualified doctors willing to travel across the state to provide quality examinations and reports that benefit all system participants at every stage of the dispute resolution process.  Excellence is rarely rewarded.
 

One Girl’s Opinion – Editorial by Erika Copeland


As we begin the new year, we all tend to do some reflection and I am no exception. I certainly had not intended to make the editorial a permanent fixture when my number was up for newsletter contribution, but I felt compelled to take at least one more stab at it when we at SLS received a bit of a surprise “gift” in the form of the Division’s Motion to Dismiss a disciplinary action before the State Office of Administrative Hearings against Dr. Steven Doores.  

First a little context. For those of you who know me only as lawyer at SLS, my first exposure to Texas workers’ compensation was working for the Division back when they called Administrative Law Judges “Hearing Officers.”  I did that job for almost 15 years in Abilene and San Angelo.  As an ALJ in hundreds of cases I regularly read peer review, RME and DD reports from Dr. Doores.  By 2011, I had moved to Austin and headed a team of people charged with making sweeping changes to the designated doctor program as part of a legislative mandate.  As part of that process, we enlisted the help of several subject matter experts– which is just a fancy way of saying “doctors” – one of whom was Dr. Doores.  

At that time, Dr. Doores was no stranger to the eagle eye of the Division, having been called on the carpet (via letter of education) – along with numerous other doctors performing MMI/IR certification examinations – following a performance-based audit. Following that audit, rather than getting his proverbial knickers in a twist, Dr. Doores went to great lengths to meet personally with staff at the Office of the Medical Advisor (OMA) to find out what exactly the Division wanted and expected with regard to MMI/IR examinations at a time when the Division had farmed out all training and testing to an outside vendor, not bothering to oversee the curriculum or testing administered by the vendor. Determined to make sure he knew exactly what the Division wanted, Dr. Doores had numerous discussions and meetings with OMA staff to ensure he knew how to evaluate MMI and impairment ratings in accordance with the Division’s expectations. 

With that backdrop, it should come as no surprise that when the Division took over development, implementation and oversight of designated doctor training and testing, Dr. Doores was on the top of the list of providers tapped to provide his expertise. To be clear, those experts were “compensated” by the Division much like the Hearing Officers and lawyers were compensated – at a much lower rate than anyone doing the same kind of work in the private sector.   

As the Director of that program at the Division, I personally witnessed his participation meetings in Austin to develop a completely new three-day training program for designated doctors that had never been undertaken by the Division before. I was also there when he attended meetings in Austin with a private test development company that put us through the rigorous process of writing, vetting and approving hundreds of test questions for those doctors seeking to be certified by the Division. (Dr. Doores was responsible for personally writing the lion’s share of the upper extremity and MMI questions and there were hundreds needed for the question bank). I was there in the early stages when we took our show on the road and provided the Division training to doctors in Houston and Dallas for three days at a time. I was there when Division executives decided we needed to include some supplemental training that involved the Hearing Officers in other locations around the state to teach extent of injury to a larger number of doctors who had never heard of that concept, much less been tested on it or written a meaningful report addressing it. I was also there for phone conferences and in-person meetings too numerous to count with other Division staff, subject matter experts and attorneys in which Dr. Doores spent hours for which he received no compensation from the Division.  I was NOT there for what could only have been hundreds of hours Dr. Doores spent developing training materials and test questions, traveling and meeting with various Division employees and system participants and doctors for which he received no compensation at all.

What I can speak to personally is the fact that Dr. Doores was a dedicated colleague and true believer in the necessity to make designated doctor training and testing better for the doctors, the Division and the system as a whole. It is with that context that you could have knocked me over with a feather when I became aware that the Division launched a campaign to remove Dr. Doores from participating in the system that he worked so hard to improve.  

It started slowly – after I left the Division.  Dr. Doores was not asked to speak at as many training sessions and stopped being asked to provide test questions for the new versions of the certification examination.  Eventually he was politely uninvited to participate in any of his prior Division duties, including his role as an MQRP arbiter – but that was only the beginning.  

Soon, Dr. Doores found himself on the receiving end of numerous complaints and investigations – with no notice or knowledge of the source of the complaints.  Each time, Dr. Doores was able to show he complied with applicable rules. 

The latest disciplinary action began as an incomprehensible laundry list of wrongs Dr. Doores received through the Division’s Medical Quality Review “process.”  What started with a seemingly shotgun approach was eventually whittled down to five allegations stemming from one examination that took place almost eight years ago.  

At its core the Division’s position involved its disapproval of Dr. Doores’ opinion and conclusions in an addendum post-DD RME report (which had been mislabeled a peer review due to a typographical error).  For example, although the document was clearly NOT a peer review the Division fashioned a series of allegations against Dr. Doores for doing things he could not – under the Act or Rules – do as a peer reviewer – even though a plain reading of his report made it clear that it was not, in fact a peer review.  At the Contested Case Hearing, the Administrative Law Judge admitted Dr. Doores’ post-DD RME addendum, with an explanation by the attorney offering it that it was mislabeled. Every participant in the workers’ compensation system – with the exception, apparently, of the people involved in the Division’s MQRP process – understood the nature and intent of that report. The right hand, in this particular case, definitely had no idea what the left hand was doing.  This action was just the final step in a concerted effort to get Dr. Doores out of the system by any means available and – unfortunately it has for all intents and purposes been successful. 

If you have been doing this work for a while you know there are very few qualified doctors who provide quality examinations and reports as either a designated doctor or post-DD or treatment RME provider in the Texas workers’ compensation system.  Even fewer are willing to travel to under-served or hard to get to counties.  Dr. Doores was a provider who would travel to almost any location and provide quality examinations, reports and testimony if necessary. Due, in no small part, to the relentless harassment by those in charge of the system he worked so hard to help improve, Dr. Doores has taken the target off his back by declining to provide certifying examinations for MMI/IR.  

For anyone who may take the position that Dr. Doores is a Carrier-paid mouthpiece and the system is better off without him, I say: 1) you have an agenda that needs further scrutiny; or 2) you are not aware that the number of cases that actually end up disputed, much less in a contested case hearing, in the Texas workers’ compensation system is actually quite small. The reports penned by Dr. Doores you may have seen from our office likely support the Carrier’s position. There are, I assure you, any number of reports from Dr. Doores in which he found injuries compensable, conditions caused by a work incident and impairment ratings well in excess of 0% - in fact, well in excess of 15%. Those reports, do not end up in dispute – so you won’t see them in hearings, AP Decisions or PLN-11s.

This latest barrage by the Division has taken an unforgiveable toll in this girl’s opinion. Full disclosure, I consider Steven Doores a friend and am deeply troubled by the financial and personal cost to the man who gave so much of himself and his time to a project that also meant so much to me. Most frustrating is that we may never know the real reason agency personnel were willing to spend so much time and money on a case that from the start clearly had no legal merit.


Copyright 2024, Stone Loughlin & Swanson, LLP 

If You Pay Them, They Will Come: DWC Proposes DD Billing and Reimbursement Changes

 

The moment many designated doctors have long awaited and lobbied (dare we say begged) for has finally arrived.  The Division has proposed changes to the billing and reimbursement structure for certain workers’ compensation services that will also benefit RME providers as well as treating and referral doctors.  Who knows, maybe the promise of greater financial incentive is responsible for the recent bump in the number of designated doctors on the Division’s list that has swollen from the 238 reported in March to a whopping 288 in November (all but 12 of the 50 being chiropractors). 

The proposal includes adjusting fees once by applying the Medicare Economic Index (MEI) adjustment factor for examinations performed 2009-2024; adjusting the fees annually on January 1st by applying that factor in Section 134.203(c)(2); rounding the fees to whole dollars; creating a specialist fee of $300.00 and including the much longed for $100.00 missed appointment fee.  The proposal also eliminates the current tiering structure so that for DD and RME examinations, all issues addressed in one exam are paid at the established fee and not reduced.  An assignment number in the prior authorization field of medical billing forms will be required to identify DD-associated billing.   

For more information about the proposed rule amendments, click here.

You can view the proposed changes here: Chapter 133 and Chapter 134.

A public hearing on the rules is scheduled for 11:00 a.m. on January 23, 2024. 


Copyright 2024, Stone Loughlin & Swanson, LLP

New Year – New Form


The Division has revised the DWC-42 and PLN12 in connection with amendments to the death benefits legislation out of the 88th Legislative Session.  The forms are designed to help eligible beneficiaries file claims for death benefits with the Division or the Carrier.  The new rule was effective December 11, 2023 and the forms are available on the Division’s website here.

 

Copyright 2024, Stone Loughlin & Swanson, LLP 


Ten Year Health Care and Utilization Report – Costs are Looking . . . Down!

 

The Workers’ Compensation Research and Evaluation Group (REG) released a new report on health care cost and utilization in the Texas workers’ compensation system between 2012 and 2022 that shows total health care declined 30% during that period.  Key findings include claims are down 20%, professional service costs down 26%, hospital costs down 20%, and pharmacy service costs down 71%.  Click here for a drill-down analysis of the claim, provider, service and drug types, among other categories.
 

Copyright 2024, Stone Loughlin & Swanson, LLP


AP “Decisions” in December


The Merriam-Webster Dictionary defines “decision” as an authoritative determination (as a decree or judgment) made after consideration of facts or law.  Each month, the Division posts to its website a comprehensive list of “decisions” made by the Division’s Appeals Panel and lists them by date filed and issue addressed. In December, you will find two such decisions on the issues of SIBs-Permanent Loss of Entitlement and Extent of Injury.  If you are hoping to find any insight or guidance on either of those topics, alas, you will have to look elsewhere.  Further investigation will reveal those decisions to be of the “affirmed as reformed” variety. In other words, the ALJ made a typographical error that was corrected by the Appeals Panel and no substantive change was made.  In AP No. 231626, the Appeals Panel corrected the name of the claimant’s county of residence and in AP No. 231546, the Appeals Panel corrected the name of the carrier’s registered agent. Perhaps a separate column entitled “clerical correction” or “oops I did it again” would save participants valuable legal research time.


Copyright 2024, Stone Loughlin & Swanson, LLP

Carrier Quarterly Meeting


The Division will hold the first Carrier Quarterly Meeting of 2024 on January 10, 2024 from 2 to 3:30 p.m.  Updates will be provided from the usual departments including Claims and Customer Service, Health and Safety, Business Process and Operations and External Relations as well as a chance to hear from the new Deputy Commissioner of Compliance & Investigations.  For Zoom Info and Agenda, click here.

 

Copyright 2024, Stone Loughlin & Swanson, LLP 

Claimant Attorney Leslie Causabon Found Not Guilty

 
On October 31, 2023, a Travis County jury found attorney Leslie Casaubon not guilty of the offenses of Securing Document by Deception and Insurance Fraud. You can view the Jury Verdict here.

DWC announced Ms. Casaubon’s indictment in a News Release issued on March 26, 2021. The indictments alleged that from July 1, 2017 to August 31, 2019, Ms. Casaubon and her staff submitted billing to DWC’s attorney fee processing system for work they did not do.

In January, we reported that attorney Roger Farahmand, who was indicted along with Ms. Casaubon, had entered into a consent order with the Division which required him to testify in Ms. Casaubon’s trial.  The criminal case against Mr. Farahmand was dismissed on December 29, 2022 because “[t]he defendant has been granted immunity in light of his testimony.”  It is not known whether Mr. Farahmand was called to testify in Ms. Casaubon’s trial.    

Claimant attorney Adam Henderson was also indicted at the same time as Ms. Casaubon and Mr. Farahmand for allegedly submitting bills for work he did not do.  The case against Mr. Henderson is still pending. There is a pre-trial hearing currently set in his case for December 21, 2023.  

DWC Has a New Deputy Commissioner for Compliance and Investigations



Dan LaBruyere has been named by Commissioner Jeff Nelson as the new Deputy Commissioner for Compliance and Investigations to replace Debra Knight, who was appointed State Fire Marshal in August. Here is DWC’s current organizational chart showing its executive staff including Dan:  
 

As the Deputy Commissioner of Compliance and Investigations, Dan will be responsible for overseeing DWC’s investigation of administrative and criminal violations. Compliance and Investigations includes Audits and Investigations, Enforcement, the Fraud Unit, and the Fraud Prosecution Unit. Dan previously served as a prosecutor in Travis, Hays, and Wharton Counties. 

Dan has been licensed to practice law since 2012. He is a UT grad and obtained his law degree from Baylor University. We look forward to working with Dan and getting to know him better.

Copyright 2023, Stone Loughlin & Swanson, LLP 

Intergovernmental Risk Pool Not Immune from Being Fined by DWC

 
The Texas Third Court of Appeals in Austin rejected arguments by the Texas Political Subdivisions Joint Self-Insurance Fund (TPS Fund) that DWC could not fine it for violating the Workers’ Compensation Act.  The TPS Fund describes itself as a political subdivision of the State that operates as a risk-management pool and workers’ compensation claims administrator for its members, which are public-school districts, counties, cities, and other units of local government.

DWC issued orders fining the TPS Fund a total of $132,500 for nonpayment or late payment of benefits to injured employees. The TPS Fund argued that as a political subdivision of the State, governmental immunity protects it from fines by DWC unless the legislature waives its immunity, which it says the legislature had not done for these violations, which were committed prior to a change in the law.

The gist of the TPS Fund’s argument was that prior to June 10, 2019, the legislature had not waived political subdivisions’ immunity for fines by DWC.  Effective June 10, 2019, the legislature added language to section 504.053(e) of the Act expressly waiving political subdivisions’ governmental immunity “for sanctions, administrative penalties, and other remedies authorized by Chapter 415 [the section of the Workers’ Compensation Act governing administrative violations].”

The TPS Fund argued that this newly added statute represented a change in existing law while DWC argued that the statute merely codified or clarified existing law and that there was already a waiver of governmental immunity prior to this statute.  The Austin Court of Appeals agreed with DWC citing its own prior holding in a case from 2000 holding that political subdivisions that self-insure under the Workers’ Compensation Act are subject to fines by DWC.
  
Part of the court’s rationale in that case was that “If a subdivision chooses to provide [workers’ compensation] benefits through self-insurance, then the subdivision falls under the Act’s definition of insurance carrier,’ which expressly includes ‘a governmental entity that self-insures, either individually or collectively.’”  In other words, the legislature made it clear that if a subdivision elects to self-insure, they are also subject to DWC’s regulations.  They have to take the bitter with the sweet.

You can read the Court’s decision here: TPS Fund v. TDI-DWC.