WORKERS' COMPENSATION UPDATE
July 2022
It’s so hot . . . The fire ants really are on fire!
As we come to the end of July, Texas continues to bake even more than most summers with no relief in sight. This means more workers’ compensation claims from heat-related injuries such as heat stroke. To help prevent heat-related illnesses, the Division provides a great deal of useful information on its website including fact sheets and videos. Here are just a few examples:
https://www.tdi.texas.gov/tips/safety/heathazards.html
https://www.tdi.texas.gov/pubs/videoresource/fsheatinjur.pdf
The pandemic-induced work from home trend has yielded some surprising advantages. However, one of the most unexpected may be that you never have to leave your house for your job and risk a work-related sunburn. For those of us lucky enough to be working in air-conditioned offices or spare bedrooms this summer, let’s take a moment to say thanks for everyone toiling outside in the blazing inferno.
Appellate court holds the Division is not a proper party to a suit for judicial review
Pro se workers’ compensation claimant Alvy Childress filed suit for judicial review of a Division decision denying his claim for benefits. Childress named as defendants his employer, the carrier, and the Division. The Division filed a plea to the jurisdiction which the trial court granted, and Childress appealed. The Third Court of Appeals affirmed the trial court’s order granting the Division’s plea to the jurisdiction. Childress complained on appeal about the hearing he received at the Division including the fact that it was held by telephone due to the pandemic and that he was allegedly prevented from presenting evidence or reviewing or verifying evidence presented at the hearing.
The court of appeals’ decision doesn’t announce any new law but does affirm some long-held principles. First, pro se litigants are held to the same standards as represented parties, even at the appellate level. “We construe appellant’s brief liberally, attempting to discern and comprehend his appellate issues as best we can, but we must hold him to the same standards as appellants represented by counsel.” As courts have explained before, if this were not the case, unrepresented parties would have an unfair advantage. Second, the Division is not a proper party to a suit for judicial review. The court cites numerous cases for the proposition that the Texas Workers’ Compensation Act does not waive the state’s sovereign immunity and provide a claimant with the right to sue the Division in a judicial review action.
Childress v. Travelers Indemn. Co., et al., No. 03-21-00579-CV, 2022 WL 2542005 (Tex. App.—Austin July 8, 2022, no pet.) (mem. op.).
Temporary worker can’t sue staffing company or client company
Temporary worker Demetrius Grant was hired by staffing company Arrow Personnel and assigned to work at client company Wind Turbine and Energy Cables (WTEC) where he was injured. He sued Arrow, WTEC, and other entities for negligence. The Fort Worth Court of Appeals held that Grant’s suit against WTEC is barred by the exclusive remedy defense because: 1) WTEC was Grant’s employer at the time of the injury based on a right-of- control analysis, and 2) WTEC was covered by a workers’ compensation policy. Arrow was not a subscriber to workers’ compensation and therefore, not entitled to assert the exclusive remedy defense. The court nonetheless held that Grant could not sue Arrow for negligence because Arrow was not his employer under the right-of-control test with respect to the work at issue and therefore, owed him no duty. Although not expressly stated by the court, the takeaway here is that Grant’s remedy for his injury is workers’ compensation benefits under WTEC’s policy.
Grant v. Wind Turbine and Energy Cables Corp., et al., No. 02-21-00036-CV, 2022 WL 2840142 (Tex. App.—Ft. Worth July 21, 2022, no pet.) (mem. op.).
Crime & Punishment – What Not to Do
The Division entered into a consent order with American Zurich Insurance Company fining it $72,000.00 for multiple violations including failure to pay accrued income benefits based on a designated doctor report, failure to timely pay impairment income benefits, failure to timely act on a medical bill, failure to timely initiate payment of accrued temporary income benefits, failure to timely pay initial TIBs, failure to timely or accurately report EDI data to DWC, failure to pay subsequent quarters of supplemental income benefits, failure to timely pay attorney fees ordered by DWC, failure to timely comply with a final contested case hearing decision and order, and failure to timely notify of decision for preauthorization. Consent Order No. 2022-7361, July 6, 2022.
The Division entered into a consent order with South Texas Health System fining it $6,500.00 for improperly pursuing a private claim against an injured employee. Consent Order No. 2022-7363, July 7, 2022. The Workers’ Compensation Act prohibits health care providers from billing injured employees for treatment of their work injuries. While some hospitals may not be aware of this prohibition, others are so concerned about violating it that they bill the workers’ compensation carrier for all treatment rendered to an injured employee regardless of whether the treatment had anything to do with the work injury. This practice, done out of an abundance of caution, often creates unnecessary subclaimant disputes.
I just don’t feel like I have to explain myself
The Division announced its health care provider PBO assessment methodology on July 26th. The memo states that one of the assessment measures will be whether the provider explained how the work injury prevents the injured employee from working in any capacity.
This is a perennial problem where the provider checks the “complete inability to work” box but doesn’t explain how the injury prevents the injured employee from returning to work:
Division Rule 129.5 requires the doctor to explain how the claimant’s injury prevents them from working in order for the report to be considered complete. Carriers are not required to reimburse doctors for incomplete work status reports. In addition, the failure to provide a complete report may also constitute an administrative violation.
Requiring providers to explain why the claimant can’t return to work in any capacity may cause providers to consider more closely whether the claimant could be working with restrictions. Doing so may facilitate early return to work which benefits the injured employee and the employer.
Comings and Goings
We can officially report that Robin Holm (known to system participants as Robin Lowenkron) is the new Administrative Law Judge in the Houston West Field Office. She replaces Eric Robertson who left the Division to enter private practice. Ms. Holm née Lowenkron worked for Smith & Carr for more than a decade and was a very well-respected attorney among the Division judges. We welcome Judge Holm to the bench!
Copyright 2022, Stone Loughlin & Swanson, LLP
Workers’ compensation legal services offer a great deal for clients
The average hourly rate for lawyers in Texas varies by practice type from $130 per hour for juvenile law to $415 per hour for mediation/arbitration, according to a report from Clio, a legal billing software company: https://www.clio.com/resources/legal-trends/compare-lawyer-rates/tx/
Comparing the hourly rates for workers’ compensation with other practice types, workers’ compensation attorney fees are the least expensive of any practice area other than juvenile law which usually involves court appointments for juvenile criminal court proceedings.
From 1991 to 2015, workers’ compensation attorney fees were capped at $150 per hour. In 2015, the Division raised the cap to $200 per hour where it remains today. However, many claimant and carrier attorneys charge less than the cap putting the average rate at around $175 per hour.
Comparing this rate to the rate for other practice areas makes workers’ compensation look like a real bargain. Examples of the hourly rate for other practice types include administrative law at $317, bankruptcy law at $360, civil litigation $297, employment/labor law at $314, family law at $279, and real estate at $293. The hourly rate for workers’ compensation is even on par with the hourly rate charged by some plumbers and auto mechanics, as demand for those services has increased.
The hourly rate for workers’ compensation law looks even better when considering the level of expertise of the workers’ compensation bar as a whole. Many of its practitioners are board-certified in workers’ compensation and have been in practice for twenty or more years. Also good news is that the average legal costs per claim have decreased since the elimination of in-person benefit review conferences. Attorneys no longer have to travel to attend BRCs now that they are all conducted by telephone or videoconference. This pandemic-induced change was made permanent effective December 9, 2021.
However, one downside of the low rates for workers’ compensation is that they seem to be attracting fewer new attorneys to the practice of workers’ compensation law. The workers’ compensation bar is graying and as experienced workers’ compensation attorneys retire, they’re not necessarily being replaced. There will also continue to be economic pressure on workers’ compensation attorneys to raise their rates (subject to the cap) due to the significant inflation our country is currently experiencing.
Copyright 2022, Stone Loughlin & Swanson, LLP
Workers’ compensation in popular culture
Sandra Bullock once played a character known as “Accident Amy” on the George Lopez Show. “Accident Amy” was so-named by her co-workers because she was accident prone and always getting hurt at work. You can see “Accident Amy” in action here: https://www.youtube.com/watch?v=e89asOS0rIU.
We recently came across our very own “Accident Amy” when DWC’s response to our request for a record check revealed our claimant had a total of 12 workers’ compensation claims. This prompted the following suggestion about how she ought to dress at work:
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