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February 2022

Carriers Still Flying High After Latest Air Ambulance Decision

On February 3, 2022, the Texas Third Court of Appeals in Austin issued the most recent decision in the PHI Air Medical Case. The Texas Supreme Court remanded the case to the Third Court of Appeals so that the Third Court could decide the issues that it did not reach the first time it decided the case.  

The primary issue on remand to the Third Court of Appeals was whether the Airline Deregulation Act (ADA) preempts the Workers’ Compensation Act’s prohibition against balance-billing injured workers. The court of appeals held that PHI did not meet its burden to show, on the record before the court, that the balance-billing prohibition has a “significant effect” on its prices. Therefore, the court held, "[T]he ADA does not preempt Section 413.042 of the Act or any of the challenged provisions of the Act, when properly considered together.”

Accordingly, the court of appeals affirmed the portion of the trial court’s judgment which determined that the ADA does not preempt the Act’s balance-billing prohibition or reimbursement provisions. However, the court of appeals concluded that the trial court erred in granting the carriers’ plea to the jurisdiction and dismissing PHI’s suit for judicial review of SOAH’s decision. Therefore, the court of appeals reversed the trial court’s order granting the plea and ordered the case remanded to the trial court for further proceedings.

The case won’t go back to the trial court yet though if PHI files a motion for rehearing with the court of appeals or a petition for review with the Texas Supreme Court challenging the court of appeals’ decision on the preemption issue.  

PHI’s deadline to file a motion for rehearing or a petition for review with the Texas Supreme Court is March 21, 2022.

To read the decision, click here.

One Circuitous Flightpath: The Turbulent Trajectory of Air Ambulance Litigation

As we enter the second decade of the air ambulance litigation, what better time to pause and ruminate on where we've been? Below is a visual representation of our journey so far.

We’ve gone all the way from the Division of Workers’ Compensation to the United States Supreme Court, which declined PHI Air Medical's request to review the case, and are currently back at the Third Court of Appeals in Austin which issued a second decision on February 3, 2022.

We can’t say when the PHI Air Medical Case will finally be over, but we remain confident that the ultimate result will be that carriers will not be compelled to pay air ambulance providers their full-billed charges and providers will not be permitted to recover the balance from injured workers.

Copyright 2022, Stone Loughlin & Swanson, LLP 

“All in all, I’d rather in be in Philadelphia.”

The National Workers’ Compensation Defense Network is holding its regional conference in Philadelphia on April 27th and 28th.  Our very own James Loughlin will be attending for SLS, and the speaker line-up is impressive. Those interested in participating can register at the NWCDN website. The conference is free for clients of SLS.  

Also, save the date for the NWCDN national conference August 3rd – 5th in Nashville! Updates will be on the NWCDN website and, of course, in our future newsletters.

The Dream Police

The claimant, a former police detective, was demoted to night patrol duty.  According to her testimony, she experienced such stress over the transfer and the resultant inability to maintain contact with the victims in her cases any longer that she fell off her bed and passed out. She sought benefits under the diagnoses of PTSD, depression, and anxiety.  

The Appeals Panel, in Decision No. 211953 (decided January 21, 2022) clarified that while a compensable claim of PTSD can be found from one or more events occurring in the course and scope of employment, rather than from a single traumatizing event as had been the standard prior to September 1, 2019, those events must still be traceable to a definite time, place and cause, and may not be because of a “legitimate personnel action, including a transfer, promotion, demotion, or termination,” per Section 408.006(b) of the Texas Workers’ Compensation Act.  

The AP affirmed the decision of the Administrative Law Judge that the origin for the claimed injury was a demotion—a legitimate personnel action—and thus not a properly compensable claim.

Copyright 2022, Stone Loughlin & Swanson, LLP 

Well, It’s Still Better Than Peacock

TDI recently added a series of free online safety videos to its website. With more than 700 titles, there is no shortage of content, so the next time you can’t find anything good on Netflix, why not educate yourself on proper workplace safety?  A few of our favorites are “Moving Sows: Be Safe and Smart,” “Grain Engulfment,” “Dealing with Hostile and Potentially Dangerous Library User Behaviors,” and “Stepladder Safety,” as presented by the American Ladder Institute. (Note: The American Ladder Institute is real, and they mean business.)

Videos can be viewed here

Focus Locus

The Division of Workers’ Compensation is convening its Designated Doctor Program Focus Group on March 10, 2022, between 9:00 and 10:00 a.m.  Those interested in attending may access the meeting via Zoom with meeting ID 968 9261 8132. Stakeholders are invited to raise ideas and concerns on the topic designated doctor billing and reimbursement.

The topic could not be timelier.  In recent months, system participants have noticed a marked uptick in the rate at which designated doctor exams are being rescheduled. When that occurs, parties (but perhaps not the DWC) receive notice from the designated doctor’s office of the need to reschedule the exam.  The reason most often cited is a “scheduling conflict,” but without any further information.  

Reasons for this noticeable increase in rescheduled exams may be the ever-dwindling number of available designated doctors. According to data accumulated by the Texas Department of Insurance, the ratio of medical doctors to chiropractors on the available designated doctor list has held steady: since February 2020 (the earliest month made available by TDI’s ‘Designated Doctors and Appointments by County and Month’ chart), medical doctors have consistently comprised between 25 and 26% of the available designated doctors in Texas.  Adding doctors of osteopathy to that number raises the percentage of availability to 29%, again, a consistent figure of the past two years.  

However, the alarming data involve the overall number of medical doctors, doctors of osteopathy, and chiropractors in the Texas work comp system. That number has decreased proportionately for each of the three aforementioned groups, falling from 376 in February 2020 to just 265 as of January 2022. As a point of reference, in September 2012 there were 1,247 designated doctors appeared on the list.  

The precipitous drop in the number of available designated doctors means that each remaining physician is called upon to examine injured workers far more frequently. Combining the increasing demand on their time with the stagnant rate of reimbursement for the assignments has led to something of a mass exodus from the system, a trend that may not slow or reverse as long as remuneration rates remain fixed, low, and out of synch with the changing costs of living.  

Or, as one designated doctor pleaded in a cover letter accompanying a recent reimbursement bill: “I am really good with peanut butter and jelly sandwiches, but I am tired of them!”

From PB & J to PBO

On February 16, 2022, TDI released the results from its 2021 Health Care Provider Performance-Based Oversight (PBO), which evaluated medical providers’ responsiveness in two areas: timeliness of filing DWC Form-069 Reports of Medical Evaluation, and completeness of DWC Form-73 Work Status Reports.  

Of the 96 providers assessed for the former category, 66 were placed in the high performer category, indicating a timely filing of DWC-69 certifications of maximum medical improvement and impairment rating.  The remaining providers split equally into the average and poor performer groups, with 15 apiece.  

For the completeness of DWC-73 work status reports, 45 of the 91 reviewed medical providers were high performers, 38 were deemed average, and only 8 were found deficient. 

TDI posted these findings on its website with the courtesy warning that all health care providers, whether reviewed in this data or not, are required to comply with the Texas Labor Code and DWC rules regarding prompt and complete issuance of DWC forms.

The DWC will also evaluate insurance carriers sometime in 2022.

Copyright 2022, Stone Loughlin & Swanson, LLP

Some Substance Over Forms

Speaking of DWC-73s, the Division is considering a change to its Work Status Reports and is inviting feedback from system participants until March 4, 2022. (Comments can be submitted at or by mail to Legal Services, MC-LS, Texas Department of Insurance, Division of Workers’ Compensation, P. O. Box 12050, Austin, TX 78711.) The planned change would require health care providers to identify an injured employee’s job classification if work restrictions are to be imposed. The revised forms are available on TDI’s website. 

While we’re on the topic of form changes, the Division has adopted its revised DWC Form-007. Regrettably, the form does not grant one entry into Her Majesty’s Secret Service, but instead allows non-subscribing employers to report work injuries and occupational diseases.  

We here at the Comp-endium are all about segues, so here’s another: Texas employers who do not provide workers’ compensation coverage (the aforementioned non-subscribers), must file DWC Form-005, the Employer Notice of No Coverage or Termination of Coverage, which notifies the Division that the employer has either opted out of providing work comp coverage, or else that coverage has expired. The form must be filed annually between February 1 and April 30.  

Plain Language Notices are changing, too. A revised PLN-08 (Notice of Change of Amount of Indemnity Benefit Payment) will come with an instruction to file the new PLN-10B when lump sum payments are issued. The PLN-10B (Notice of Lump Sum Payment of Income or Death Benefits) requires insurers to notify injured employees or their beneficiaries when a lump sum payment is made. The erstwhile PLN-10 will be rechristened as the PLN-10A.  

But wait, there’s more!  Not to be outdone, the former PLN-02 (Notice of First Temporary Income Benefit) will also henceforth be known as PLN-02A following the creation of PLN-02B, Notice of First Payment of Income Benefits on an Acquired Claim. This new form (because, really, can we ever have enough forms?) will alert injured workers when a new claims administrator begins issuing benefit payments.  

Copyright 2022, Stone Loughlin & Swanson, LLP

Tibial-Industrial Menace: What is Behind the Rising Tide of Injuries Affecting America’s Stock Photo Construction Workers?

We at SLS have noticed an emerging trend that has gone vastly unreported elsewhere: something is injuring America’s stock photo construction workers at an alarming rate. These injuries appear to affect the tibia (shin bone) of said fictional workers to a disproportionately high degree. Whether it is a workers’ compensation seminar brochure, a personal injury attorney’s homepage, or a state agency’s work comp website, rampant shin-related injuries are plaguing stock photo actors at unprecedented levels.  And while occasionally warehouse workers and semi-professional athletes suffer similar injuries, the greatest percentage of afflicted phony employees can undoubtedly be found in the construction sector.

Stock photo tibia injury can be identified by the following signs: a hard-hatted employee, in either the seated or prone position, will be splayed out on the floor, with both hands clutching the leg at the purported injury site.  

Frequently, a grimace accompanies the injury, which is also typified by the conspicuous absence of blood.

The most serious stock photo shin injuries give rise to immediate onset of existential dread.

Proper first-aid for stock photo shin injuries involves inviting a co-worker over to examine the wound, of which there will be none.  

Together, they roll up the pant leg of the distressed worker to ensure, once again, that there is neither a visible wound nor any other indication that anything injurious has just occurred.  

While the cause of Stock Photo Shin Injury is currently unknown, evidence suggests a common factor may be close proximity to ladders.

“Apparently, none of these stock photo construction workers bothered to watch ‘Stepladder Safety'," commented a representative from The American Ladder Institute.  

Copyright 2022, Stone Loughlin & Swanson, LLP

Kids' Chance of Texas Golfing Fundraiser

Everybody knows that SLS is a proud sponsor of Kids’ Chance of Texas.  We even went so far as to send a team of marginally experienced golfers to the October 28th fundraiser at the Dallas Cowboy Club in Dallas. Jane Stone with SLS and her husband, along with IMO’s Catherine Benavidez and her husband, made it all the way through 18 holes. The event raised over $100,000, ensuring Kids’ Chance’s ability to support even more children in 2022!  Save the date for next year’s event on October 28, 2022!


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