WORKERS' COMPENSATION UPDATE
August 2022
The Dog Days of Summer have finally come to an end and we at SLS are glad to see them go! August brought us record heat for all of Texas, record rain for some of you and all manner of interesting tidbits for us to share.
DWC Welcomes New Commissioner – Jeff Nelson
Earlier this month, Governor Abbott appointed Jeff Nelson to the long-vacant post of Commissioner of Workers’ Compensation. Nelson previously served as Director of External Relations for the Division of Workers’ Compensation (a post he held since October of 2016). A graduate of the University of Texas, Commissioner Nelson has extensive experience with the Texas legislature including posts with Senator Tommy Williams, Governor Rick Perry and Congressman Kevin Brady. We look forward to working with Commissioner Nelson in the coming years.
Crime Doesn’t Pay – at Least Not in Texas Workers’ Comp
August was chock full of examples of this old adage! On the Division Disciplinary Order side of things, orders were issued against Chadwick Lee, an attorney who received payment directly from his client after being paid by the Carrier pursuant to an attorney fee order. Apparently, Mr. Lee claimed he was underpaid by the Carrier and informed his client he had to make up the difference. The Division found Mr. Lee took fees in an amount in excess of the amount approved by the Division and assessed a $5400.00 penalty. The Division also assessed a $6,000 penalty against the Texas Pain Relief Group for failing to comply with a Carrier refund request.
Meanwhile, down in San Antonio, the co-owner of Bill Hall Jr. Trucking Company, turned herself in to authorities on outstanding warrants for workers’ compensation fraud. She is alleged to have defrauded Texas Mutual out of over $9 million in insurance premiums by filing false payroll information and concealing payroll reports. It is not Mrs. Hall’s first time in the criminal spotlight though – in 2013, she was found guilty of killing her husband when she chased him and his mistress on a rural stretch of Highway 1604 and hit him with her SUV - killing Hall and injuring his mistress. Ms. Hall spent two years in the Lane Murray Unit of the Texas Department of Corrections in Gatesville before being released to return to apparently less violent criminal endeavors.
Last, but not certainly not least, last week, Austin barbeque aficionados were shocked to hear that the owner and manager of a popular East Austin eatery, La Barbecue, were indicted on workers’ compensation fraud charges. LeAnn Mueller and her wife, Allison Clem, owned the restaurant in 2016 when an employee was severely burned while using a piece of kitchen equipment. It is alleged that four days later, they contacted an insurance company to obtain workers’ compensation coverage and did not disclose the injury – in fact, they asked that the policy be back-dated to three weeks before the accident occurred. The application for the policy, signed by Mueller, attested that there had been no previous losses. Travelers Casualty Insurance Company has paid over $350,000 in medical and indemnity benefits to date. The attorney for Mueller and Clem appears to be relying on an argument that it is “perfectly legal to obtain a backdated policy in Texas” as a defense to the fraud allegations. It will be interesting to see how this one plays out.
Case Law Update – Exclusive means Exclusive – Even if you Don’t File a Claim
The question of exclusive jurisdiction of the Texas Workers’ Compensation Act comes up often and we get many questions about its application. The Austin Court of Appeals recently took a look at a wrongful death case where a worker’s potential beneficiaries did not file a claim for death benefits. The beneficiaries took the position that he was not an employee. Texas Mutual filed a BRC request. The Division held that the worker sustained a compensable injury and his beneficiaries were entitled to death benefits. However, his beneficiaries didn’t want death benefits. They wanted to sue the worker’s employer in court without the limitations imposed by the Act’s exclusive remedy provision. Therefore, the worker’s beneficiaries argued that the Division did not have jurisdiction to determine they were entitled to benefits because they didn’t file a workers’ compensation claim. The Court of Appeals held that it didn’t matter whether the beneficiaries filed a claim: “However, we need not resolve that question to dispose of this case, as we conclude that DWC had exclusive jurisdiction over the question of eligibility regardless of whether there was, in fact, a pending claim or merely a potential claim.” Long-standing case law holds that the Division, with its unique expertise, has exclusive jurisdiction to resolve any question regarding eligibility for workers' compensation benefits, including questions over employment status. Sometimes plaintiffs seek to avoid the workers' compensation system in hopes of a bigger payday in the courts. This case affirms that plaintiffs cannot avoid the Division’s exclusive jurisdiction simply by electing not to file a workers’ compensation claim. In Re Hellas Construction, Inc. 2022 WL 2975702 (July 28, 2022).
The DD Shortage – The DWC Solution Appears to Be Automation
As the DWC continues to see the number of designated doctors dwindling (there are now less than 300 on the list and only 65 of those are MDs), the agency has posted proposed changes to various DWC rules dealing with the designated doctor program including billing and reimbursement for designated doctor, RME and MMI/IR examinations performed by treating and referral doctors. The first informal proposal to the billing rules details changes to the methods for billing – so no information is available regarding changes to the actual rates charged for these examinations, which begs the question – will the reimbursement rate increase enough to entice medical doctors to return to the fold?
DWC will offer a virtual DD Billing and Reimbursement Rule Stakeholder Meeting Thursday, September 8, 2022.
For more information: https://www.tdi.texas.gov/alert/event/2022/09/dwc0908.html.
At a recent conference, Division staff addressed an increasing problem in finding qualified doctors to perform examinations for more complex injuries and offered as a potential solution the plan to open up the qualification standards to include all board certifications for those examinations requiring a specialization and allowing the Division more discretion in appointing doctors without specialization in those geographical regions where qualified doctors are not currently on the list.
The Division focus certainly appears to be more on process and procedure rather than addressing the more systemic problems of quality, quantity and oversight of the remaining doctors on the list. For now, the Division appears to be streamlining and reducing the amount of training, the frequency of testing and the certification process in efforts to make being a designated doctor less administratively burdensome for doctors.
Designated doctors and their administrators will, however, be required to use the Division’s own TXCOMP system to accept and manage appointments AND file their reports online beginning 9/19/22. The Division will be training doctors in the use of the system. Apparently, RME doctors will also see pending RME appointments in their TXCOMP profile and enter basic information to upload their reports as well.
COVID-19 and Workers’ Compensation – The Light at the End of the Tunnel
For over 2 years now, the Division has been collecting information from Carriers on COVID-19 claims. The Research and Evaluation Group recently published their findings from the collection of that data. A complete analysis of the information can be found at:
https://www.tdi.texas.gov/wc/information/documents/covid19txwc0822.pdf.
Some of the key findings of the study were:
- As of 8/7/22, there were more than 90,000 COVID-19 claims and 459 fatalities and more than half of those involved first responders and correctional officers.
- More than 2/3 of all claims involved injured employees who tested positive or were diagnosed with COVID-19.
- Carriers denied less than half of the claims with positive tests.
- Slightly more than 1/3 of all COVID-19 claims had medical or indemnity benefit payments associated with them, and most involved indemnity benefits rather than medical benefits.
- About one out of four claims that received professional or hospital services received those services beyond one month post-injury.
Spotlight on Kids’ Chance – One of Our Favorite Things
Seven years ago, our firm was honored to be part of launching the Texas chapter of Kids’ Chance, a non-profit organization geared towards providing educational opportunities and scholarships for the children of workers seriously or fatally injured on the job. Kids’ Chance of Texas has gone from an organization struggling to find recipients to a group of committed members who have supported nearly 50 students since 2015 that will have 31 scholarship students this year alone. One of this year’s recipients is Mariam Falana, the 2022 Jim Hudak and Sally Silvia Scholarship awardee, who will attend Rice University pursuing a degree in neuroscience.
In her scholarship application, Mariam tells the story of being called to the office from her gym class the day before her 13th birthday only to be told her father had been killed in a motor vehicle accident while at work that day. She reflected on the hardships thrust on her mother in her new role as the sole breadwinner for the family and the ways her father’s death changed Mariam’s perception of the small inconveniences that so many of us get wrapped up in every day. She concluded by sharing that the memory of her father served as constant motivation for her to live as he did “spreading laughter and positivity as I challenge the conventions of today to innovate a better tomorrow.” Mariam embodies the spirit of the young people Kids’ Chance of Texas strives to serve each year.
One way Kids’ Chance of Texas has been able to expand its reach over the last seven years is to take its show on the road. The Marketing Committee has developed a Road Show strategy that involves mapping out all of the workers’ compensation industry conferences, meetings and activities for the year and setting about staffing all of those events with volunteers and board members. Those folks are equipped with a “kit” that includes banners, displays and materials that have helped spread the word and reach as many potential recipients as possible.
You too can be a part of Kids’ Chance of Texas! Please visit the website at: www.kidschanceoftexas.org to donate, volunteer or participate in an event.
SAVE THE DATE: October 28, 2022 – Golf Tournament – Cowboys Golf Club, Grapevine Texas
Just When You Think You’ve Seen It All – OR – We Can’t Make this Stuff Up
Earlier this month, we at SLS experienced a first in appellate jurisprudence when our own Robert Greenlaw was tasked with responding to an appeal in which the claimant requested the Division Appeals Panel reverse a CCH Decision in his favor on issues of extent of injury, MMI, impairment rating and disability. Yes, you read that correctly – despite the fact that the Carrier had accepted all conditions previously in dispute, and the fact that the designated doctor and post-DD RME doctor agreed (as did the Carrier) that the claimant reached MMI on the statutory date, rather than an earlier clinical date – the claimant insisted on a CCH. Not surprisingly – at least to the Carrier – the ALJ found that all of the claimed conditions were compensable, pushed the MMI date out to the latest dated allowable by law, assigned the impairment rating agreed upon by both the designated doctor and the RME doctor, and awarded almost 10 months of disability.
Incredibly, for reasons known only to the Claimant, he asked the Appeals Panel to reverse that decision. As Mr. Greenlaw pointed out in his response to this novel appeal, the claimant expended extraordinary efforts throughout the life of his claim in complaints about his adjusters, doctors, ombudsmen and, of course, the Carrier’s attorney. While the Carrier did not appeal the D&O, Rob found himself agreeing with the claimant on appeal and joining in his request that the Appeals Panel reverse the CCH D&O in his favor on all of the issues.
|
