WORKERS' COMPENSATION UPDATE
October 2021
Hearings Happenings
We understand that Corpus Christi ALJ Alice Orta recently retired and we extend our best wishes to her in whatever new adventures she may pursue.
Our sources are being tight-lipped concerning Judge Orta’s replacement but, for now, we understand that Judge Carol Fougerat is manning (personing?) the bench in Corpus.
Dallas ALJ Gerri Lyn Thomas and San Antonio ALJ Ana Thornton have been promoted to Northwest Regional Director of Hearings and Southeast Regional Director of Hearings, respectively. We offer our congratulations to these two excellent and knowledgeable judges. We understand that they will no longer hear cases but will work within the system to maintain excellence within the Hearings process.
Finally, we are advised that two new ALJs will take the front-line posts vacated by Judges Thomas and Thornton. Lindsey Wallace is currently training and will serve as the new ALJ in Dallas. Gilbert Atkinson is slated to join the Hearings Division in mid-November as an ALJ in the San Antonio Field Office. Each of these new ALJs has extensive experience in the Texas workers’ compensation arena. We look forward to working with these excellent additions to the ALJ corps.
Copyright 2021, Stone Loughlin & Swanson, LLP
Justice Delayed Is...
We were recently disappointed by a last-minute call from the Division notifying us that our CCH was being reset due to the unavailability of a judge to hear the case. We asked whether a traveling ALJ might be sent in to cover and were advised that Hearings no longer has traveling ALJs. We appreciate that illness and unforeseen circumstances may result in the inability of a judge to preside over his or her scheduled proceeding, particularly in light of the recent pandemic, and think it might be a good idea for the powers that be in Hearings to keep a traveling ALJ or two around for just such eventualities as has previously been the practice for as long as any of us can remember.
Copyright 2021, Stone Loughlin & Swanson, LLP
"Try Again. Fail Again. Fail Better." - Samuel Beckett
In our February 2021 Compendium, we addressed a longstanding misapplication of the 4th Edition of the AMA Guides to the Evaluation of Permanent Impairment for lower extremity impairments (“Question: When is a 2% impairment rating actually a 14% impairment rating?”). We noted that the tables located on page 3/78, pertaining to hip, knee, ankle, hindfoot, and toe impairments, have routinely been used to generate artificially inflated impairment ratings by way of Appeals Panel Decision No. 110741, which created a method for rating lower extremity impairments not contemplated in the Guides.
Rather than assigning an overall value for mild, moderate and severe impairment as provided in Tables 40 through 45, the aforementioned AP decision allowed the examiner to add multiple range of motion deficits in the same joint together, thus elevating the impairment rating well beyond the maximum values allocated for each category. Hence, a mild hip impairment that might merit a 2% whole person impairment under Table 40 could also warrant a 14% rating under the same table, with 2% assigned for each of seven range of motion measurements for the same joint.
An example provided on page 3/78 makes abundantly clear that the methodology devised by the Appeals Panel for rating the lower extremity was not intended by the drafters of the Guides. Rather, the correct way to assign an impairment for hip, knee, ankle, hindfoot, or toe motion loss is to provide one impairment based on whichever classification (mild, moderate, or severe impairment) is most appropriate.
This month, a new Appeals Panel Decision, 211091-s, filed September 10, 2021, offered hope that ten years of erroneous lower extremity impairment ratings had perhaps been rectified, as it indicated that Decision No. 110741 had been overruled. “Huzzah and rejoice,” you might think. “At long last, a clear and correct interpretation of Chapter 3.2 of the Guides!”
Nope. APD 211091-s merely clarifies that while an evaluating doctor may not add range of motion impairments for each vector of motion in the same joint, he or she may combine them via the Combined Values Chart on page 322.
So, in the example described above, under the holding in Appeals Panel Decision No. 211091-s the 2% impairment rating for mild hip impairment can no longer be egregiously inflated to a 14%; it can only be egregiously inflated to 13%!
Where Have All the Doctors Gone, Long Time Passing?
The Division hosted a Designated Doctor Program Stakeholder Meeting this month to present ideas and gather feedback on ways to improve the designated doctor program. Our readers will recall the September issue of The Compendium and our discussion that the number of designated doctors in the workers’ compensation system continues to decline and had dropped to a total of 272 as of August 2021, only 75 of which are physicians. We noted that it appears physicians have made an economic decision that the costs associated with serving as a designated doctor are not worth the benefits.
A physician responded to our newsletter indicating that he and other physicians have offered feedback and suggestions to the Division over the past several years but have never received a response or seen evidence that any of their suggestions had been considered or implemented. This physician noted that DWC requires recertification of all designated doctors every two years, requiring that they attend the DWC training course and take the computerized designated doctor test, all at their expense. He noted further that most M.D. board certifications require re-certification every ten years and suggested that a longer certification period of 5-10 years might help relieve the biggest issue with most physicians which he termed the “DWC hassle factor.”
After sitting in on the stakeholder meeting, we are optimistic that meaningful changes are on the horizon that may go a long way toward reducing that “DWC hassle factor” and increasing the number of physicians choosing to serve as designated doctors. Joe McElrath, Deputy Commissioner of Business Process, and Mary Landrum, Director of Designated Doctor Operations, hosted the meeting and indicated that they are committed to improving the system, have examined various areas for potential improvement, and are seeking input and suggestions from system participants for ways to improve the designated doctor program. Their goals are to increase physician participation while maintaining doctor of chiropractic participation and decreasing the administrative burden for participation in the program.
Stay tuned to the Compendium for further reports on this ongoing project.
Hey, There's a Form for That.
The Division this month adopted five newly revised DWC Joint Agreement Forms allowing general contractors and subcontractors, including motor carriers, owner-operators, and building and construction workers, to agree upon and specify the party responsible for providing workers’ compensation coverage for the subcontractor and the subcontractor’s employees. The revised forms, posted on the Division’s website in draft form from August 31 through September 17, 2021, have been adopted and are available for immediate use.
Form DWC081 memorializes an agreement between a general contractor and subcontractor that the general is the employer for the sub and the sub’s employees for the purpose of providing workers’ compensation insurance coverage only.
Form DWC082 notices an agreement between a motor carrier and an owner operator that the motor carrier will provide workers’ compensation coverage to the owner operator and the owner operator’s employees and will assume responsibilities of an employer for work performance or that the owner operator will act as employer.
Form DWC083 affirms an agreement between a hiring contractor and an independent subcontractor that the hiring contractor will act as the employer of the subcontractor and the sub’s employees for purposes of providing workers’ compensation coverage only or that the parties agree that the independent contractor and its employees are not employees of the hiring contract and are not entitled to workers’ compensation coverage from the hiring contractor.
Form DWC084 is to be used by parties to a subsequent hiring agreement that the terms of an existing DWC083, Joint Agreement to Affirm Independent Relationship for Certain Building and Construction Workers, do not apply to the subsequent hiring agreement.
Form DWC085 is an agreement establishing an independent relationship between a general contractor and subcontractor, the parties agreeing that the subcontractor assumes responsibility of an employer for performance of the work and that the subcontractor’s employees are not employees of the general contractor for purposes of workers’ compensation coverage.
The general contractor, motor carrier, or hiring contractor must file a copy of the applicable form with its workers’ compensation carrier within 10 days of signing the agreement and must keep the original.
Research and Evaluation Group: 2021 Network Report Card
The Division’s Workers’ Compensation Research and Evaluation Group published the results of its 2021 annual report comparing the performance of certified workers’ compensation healthcare networks with each other and with non-network claims on a number of measures including health care costs, satisfaction with care, return to work, and health outcomes. The study includes 99,647 new injured employees with injuries occurring between June 1, 2019, and May 31, 2020. Results of the study compare 11 groups, 9 of which are individual networks, 1 that is comprised of the remaining, generally smaller networks as well as public entities and political subdivisions, and the final group which includes non-network injured employees.
The report noted that almost half of all new claims are treated in networks and that the percentage of new claims treated in networks has not changed significantly since 2015. Overall, networks were found generally to have lower medical costs, apparently due, in part, to a higher percentage of non-network injured employees who received hospital services.
Overall satisfaction with medical care was mixed, but, many network injured employees reported higher levels of satisfaction with their treating doctor. Regardless of network status, 3 out of 4 injured employees reported their work-related medical care was the same or better than care they normally receive for non-work-related injury or illness.
Finally, network claims, overall, had a higher return-to-work rate and higher physical and mental functioning scores than non-network claims.
You may review the full 2021 Network Report Card Results at:
https://www.tdi.texas.gov/reports/wcreg/documents/netrc2021.pdf
Copyright 2021, Stone Loughlin & Swanson, LLP
More Exciting News from the Research and Evaluation Group
The Division’s Workers’ Compensation Research and Evaluation Group this month also published its report evaluating telemedicine services in the Texas workers’ compensation system since 2018. Telemedicine utilization was quite low prior to Governor Greg Abbott’s March 13, 2020, disaster declaration due to the COVID-19 pandemic. Only 951 claims had at least one telemedicine service pre-pandemic, comprising less than 1 percent of all claims.
As one might expect, however, that number increased substantially during the pandemic to a total of 21,086 claims or 7 percent of all claims. Also, as one might expect, utilization of telemedicine declined rapidly when Texas began reopening and Governor Abbott issued Executive Order GA 34 relating to the opening of Texas on March 2, 2021.
The report further addresses the demographics of injured employees receiving telemedicine services during the pandemic, the types of services most often rendered telephonically during the pandemic and the costs of such services during the pandemic.
Should you wish to delve deeper into this riveting study, you may find it here:
https://www.tdi.texas.gov/reports/wcreg/documents/telemedicine21.pdf
Copyright 2021, Stone Loughlin & Swanson, LLP
Congratulations Bill!!!
Congratulations to Bill Baker, a friend of SLS and Kids’ Chance of Texas, on being the recipient of the 2021 Association for Responsible Alternatives to Workers' Compensation Excellence in Advocacy Award for his extraordinary efforts in improving the Texas model, benefits, and better outcomes for all injured Texas employees. And congratulations to Bill and also to Tom Glasson, another friend of SLS and Kids’ Chance of Texas, for their Comp Laude 2021 nomination! Both are Kids’ Chance board members who give their all to the Kids!
Copyright 2021, Stone Loughlin & Swanson, LLP
We are exceedingly proud and excited to learn that Marcos A. Mendoza, a good friend of the SLS family, will receive the Steven S. Goldberg Award for Distinguished Scholarship in Education Law for 2021. The Education Law Association, a national non-profit organization that promotes the interest and understanding of the legal framework of education and the rights of students, parents, school boards, and school employees, presents this award each year to an author whose scholarly excellence impacts education law. Although the list of candidates this year was particularly crowded, the committee recognized the excellence and importance of Mr. Mendoza’s article The Limits of Insurance as Governance: Professional Liability coverage for Civil Rights Claims Against Public School Districts in awarding him this prestigious award. He joins such former winners as Professor Justin Driver of Yale Law School and former Harvard Law School Dean, Martha Minow.
Please join us in offering our congratulations to Marcos!
Copyright 2021, Stone Loughlin & Swanson, LLP
What did the skeleton say to the chiropractor? You crack me up!
Just in time for Halloween, here are some fun facts about chiropractic. Daniel David (D.D.) Palmer was a practitioner of magnetic healing before he founded chiropractic in the 1890s after saying he received it from “the other world.” Chiropractic focuses on the diagnosis and treatment of mechanical disorders of the musculoskeletal system and in particular, the spine. Chiropractic was founded on the belief that all disease is a result of altered “nerve flow” and that by adjusting the spine to correct “vertebral subluxations,” the “nerve flow” can be restored. Palmer claimed to have restored a man’s hearing by adjusting his spine.
“Straight” chiropractors, who are now in the minority, still consider vertebral subluxations to be the cause of all disease. They also emphasize vitalism and “innate intelligence,” which is described by chiropractors as an energy or life force. One chiropractic website explains: “Chiropractors adjust the bones of the neck and back in order to remove interference with the expression of Innate Intelligence. When a vertebra becomes misaligned or joints become damaged, the nerves that run through them become ‘short-circuited,’ and we begin to get choked off from our full expression of life. By removing subluxations, the chiropractic adjustment isn’t just making someone feel better; it is restoring our connection to all of life.”
However, as the aptly titled book Trick or Treatment succinctly put it, “X-rays can reveal neither the subluxations nor the innate intelligence associated with chiropractic philosophy, because they do not exist.” These assertions are supported by evidence-based medicine. The other category of chiropractors, known as “mixers,” because they mix treatment approaches from mainstream medicine, now comprise a majority of chiropractors. Click here to learn more about the topic of chiropractic.
Copyright 2021, Stone Loughlin & Swanson, LLP
And Finally...
The runner-up of this year’s annual Stone Loughlin & Swanson, LLP Pumpkin Carving Competition is Owl House (a.k.a. Bumpy Grumpy Pumpkin) by Karen Widdifield.
Copyright 2021, Stone Loughlin & Swanson, LLP
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