We want to hear from you. Please reply back and let us know what you think.                 View this email in your browser



September 2021

DWC is Soon to "B" Under New Management

Governor Greg Abbott appointed Cassie Brown the Commissioner of Insurance on September 7, 2021 to fill the position formerly held by Kent Sullivan who returned to the private sector in September 2020.

Cassie Brown has served as the Commissioner of Workers’ Compensation since June 2018.  She has improved on the successes of her predecessors and she leaves the Division in even better shape than when she arrived.  Notably, she did a remarkable job leading the Division through the pandemic.  We’d like to thank her for her service and wish her the best in her new job.

There’s no word yet on Brown’s replacement to be the Commissioner of Workers’ Compensation but if history is any guide, the new commissioner’s last name will begin with a “B.”  The last four commissioners have been Cassie Brown, Ryan Brannan, Rod Bordelon, and Albert Betts.    

Copyright 2021, Stone Loughlin & Swanson, LLP 

It's been SOAH long!

The Division is once again referring medical fee disputes to the State Office of Administrative Hearings (SOAH) for contested case hearings. The Division put a hold on filing requests to docket with SOAH pending the final outcome of the litigation regarding the placement of the burden of proof at SOAH.  

On December 5, 2018, the Austin Court of Appeals held that the burden of proof remains on the health care provider in a medical fee dispute even when the carrier lost at the Division and is the appealing party. Facility Ins. Corp. v. Patients Med. Ctr, 574 S.W.3d 436, 443 (Tex. App.—Austin 2018, rev’d).    

The Texas Supreme Court reversed the Austin Court of Appeals on January 29, 2021. The Court held that “in a worker's compensation medical fee dispute resolution proceeding, the burden of proof in a contested case hearing before SOAH is on the party seeking review of the Division's initial MFDR decision. Accordingly, the court of appeals erred in holding that the burden always and necessarily remains on the provider.” Patients Med. Ctr. v. Facility Ins. Corp., 623 S.W.3d 336, 342 (Tex. 2021). Facility Insurance Corporation filed a motion for rehearing which was denied by the Texas Supreme Court on June 18, 2021. The Division resumed filing requests to docket cases with SOAH shortly thereafter.     

The Division took the pause in hearings as an opportunity to revise its process for referring cases to SOAH. The Division’s forms and process for referring cases to SOAH are much improved. The Division’s request to docket case letter to SOAH follows the Division’s plain language style by providing all of the necessary information in an easy-to-understand format.   

Although the process for referring cases to SOAH is significantly improved, there are likely to be far less medical fee disputes referred to SOAH.  According to the Division’s medical fee dispute resolution web page, there were a total of only 339 medical fee disputes pending at the Division as of August 2021, not including the air ambulance disputes.

The reasons for the significant drop in the number of medical fee disputes include the adoption of Medicare-based fee guidelines and workers’ compensation health care networks. Medicare provides more billing guidance than the Division’s former proprietary fee guidelines which leaves less room for disagreement between the parties.  Providing a maximum allowable reimbursement for more services also means fewer “fair and reasonable” disputes. And for claims covered by a workers’ compensation health care network, medical fee disputes are resolved through the network and not the Division.  

If you do go to SOAH, you don’t want to be the loser.  The loser at SOAH has to pay SOAH’s costs including its administrative law judge services at $100 per hour.  That rate was set in 2012.  No word yet on whether it will or has been increased.


Copyright 2021, Stone Loughlin & Swanson, LLP 

Education Letters Should be Educational

The Division often issues what it refers to as “education letters” whose purpose is ostensibly to educate the recipient.  We recently saw an “education” letter that said:
The Texas Department of Insurance, Division of Workers’ Compensation (DWC) has received an allegation relating to:  Failure to notify DWC and the injured employee of an action occurring on a claim within 10 days of taking the action.

What action? We don’t know. That’s all it says. If the letter is going to serve its purpose, it should specify the action the carrier took of which it allegedly failed to notify the Division and claimant.


Copyright 2021, Stone Loughlin & Swanson, LLP 

Physicians Don't Want to Be Designated Doctors

The number of designated doctors in the workers’ compensation system continues to decline while the number of physicians in Texas hits record numbers.  

For the state’s fiscal year ended August 31, 2021, the Texas Medical Board issued a record 5,304 physician licenses. There are currently 94,544 physicians licensed in Texas.

However, all those doctors are not lining up to take the designated doctor certification exam. The number of designated doctors continues to shrink.  

In January 2020, there were a total of 384 designated doctors. By January 2021, the number had dropped to 318.  As of August 2021, we're down to a total of 272 designated doctors. Source.

Seventy-five of those designated doctors are physicians while the other 197 are chiropractors. In other words, over two and a half times more chiropractors are designated doctors than physicians.     

It appears that many physicians have made an economic decision that the costs of being a designated doctor are not worth the benefits while chiropractors are more incentivized by the current rates. If we want more and better designated doctors, we may need to pay them more. It’s likely to be less expensive than the costs associated with bad designated doctor reports.

Happy New Year! Don't Forget the New Benefits Rates

The 2022 fiscal year starts October 1, 2021 and runs through September 30, 2022.  A new fiscal year means a new state average weekly wage and new maximum and minimum weekly benefits.

For 2022, the state average weekly wage (SAWW) increases by $51.67, from $1,006.71 to $1,058.38.  The maximum weekly benefit for temporary income benefits, lifetime income benefits, and death benefits is 100% of the SAWW rounded to the nearest whole dollar.  Therefore, the maximum TIBs, LIBs, and DIBs rate for 2022 is $1,058.00. The maximum weekly benefit for impairment income benefits and supplemental income benefits is 70% of the AWW rounded to the nearest whole dollar which equals $741.00 for 2022. The minimum weekly benefit is 15% of the SAWW which equals $159.00 for 2022. The minimum rate applies to TIBs, IIBs, and LIBs.  Hopefully, these increases can keep pace with inflation.


And the Emmy Goes To...

Congratulations to Tina “There Is No Alternative” Brittain with the Accident Fund Group. Brittain was recently recognized by her supervisor, Steve Wilson, for teaming with Stone Loughlin & Swanson, LLP to achieve excellence in the handling of her claims.

Copyright 2021, Stone Loughlin & Swanson, LLP  

Calling All Golfers!

There are several golfing spots open for the 2021 Kids’ Chance of Texas Golf Tournament benefiting Kids’ Chance of Texas! Here’s the Flyer. AND SLS can arrange for a complimentary round of golf at The Cowboys course in Dallas on October 28th for the first 4 of you who respond to this e-mail! Great Cause, Great Course! Contact by October 10th if you want to sign up!

Copyright 2021, Stone Loughlin & Swanson, LLP 


Please reply back and let us know what you think.

Copyright © 2021 Stone Loughlin & Swanson, LLP, All rights reserved.
You are receiving this newsletter because you have either signed up for it via our website, or because you have done business with our firm in the past. Thank you for your interest in our firm's monthly newsletter.

Our mailing address is:
Stone Loughlin & Swanson, LLP
PO Box 30111
Austin, TX 78755

Add us to your address book

Want to change how you receive these emails?
You can update your preferences or unsubscribe from this list

Email Marketing Powered by MailChimp