Camille Espey
Thurman Williams
 Facts
and Figures in the Industry
 Legislative Changes: 2013, 2015
 Success Stories
 Surprising Elements of the Texas
Workers Compensation system
 Recap: Employer Rights and
Responsibilities
White Espey, PLLC 2014
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3
7,000
6556
6,000
5,000
4,000
3,000
2,000
4911
3863
3111
2756
2,4532,301
2197 2156 2055
1,000
0
2004 2005 2006 2007 2008 2009 2010 2011 2012 2013
4
IR ABOVE 15%



69% reduction in
ten years
84% reduction since
peak year (2001)
5% decline from
last year (7%
decline in injuries
Ramifications
7,000
6556
6,000
5,000
4,000
4911
3863
3111
3,000
2,000
2756
2,453 2,301
2197 2156 2055
1,000


Lower IIBS and
attorney fees
0
2004 2005 2006 2007 2008 2009 2010 2011 2012 2013
Lower SIBs
5
Initial App
2,500
2,000
Initial Approved
2015
1501
1,500
1104
1,000
500
0
828
841
613
634
396
489
324
347
218
443
202
534
252
620
330
481
258
6
SIBS



76% reduction in SIBS
apps over last ten years
(80% drop from 2002
peak)
69% reduction in initial
SIBS approval (75% drop
since 2002 peak)
22% decline since last
year
Ramifications

Lower SIBS and attorney
fees

Impacts attorney fees in JR
Initial App
2,500
2,000
1,500
2015
1501
1104
828
1,000
500
0
841
613
489
634
324347
396443
534
620
481
330258
252
218202
7
28,320
21,329
15,793
12,939
2004
2005
2006
2007
11,195 10,610
2008
2009
11,507 11,106
9,035
2010
2011
2012
10,721
2013
8
BRC

DWC reported lower revised figures to me from 2012

62% ten year decline

63% decline from peak in 2003

3% decline from last year

On pace for a decline this year
Ramifications

Number of BRC are levelling off

Don’t know what impact the scheduling order process will have
9
CCHs
8500
8000
7860
7500
7267
7000
6688
6422
6500
6079
6000
5785
5500
4959
5000
4924
4871
4362
4500
4000
2004
2005
2006
2007
2008
2009
2010
2011
2012
201310
CCH

18% decline ten year decline

5% increase from last year
Since 2010

32% increase in hearings

Not including the number of CCHs requiring management

(in 2010, 45% decline from 2004)
Ramifications

Hearing officers are busy
11
HEARINGS
53% drop in
hearings
since 2004
But, a 22%
increase in
hearings
since 2010
Chart Title
40000
35000
30000
25000
20000
15000
10000
5000
0
2004
2006
2008
BRC
2010
CCH
2012
12
BRCs
70%
60%
59%
2012
2013
48%
50%
40%
30%
60%
28%
31%
34%
20%
2008
2009
2010
2011
13
70%
65%
63%
64%
2011
2012
66%
60%
55%
51%
50%
2006
2007
50%
45%
52%
54%
54%
2009
2010
41%
40%
35%
2005
2008
2013
14
CCHs
70%
59%
60%
51%
50%
54%
40%
30%
25%
27%
29%
20%
2008
2009
2010
2011
2012
2013
15
65%
60%
60%
55%
51%
59% 59%
54%
48%
50%
45%
BRC
40%
35%
30%
25%
28%
31%
25%
CCH
34%
27%
29%
20%
2008
2009
2010
2011
2012
2013
16

43% reduction in PLN-1since 2005
◦ Ruttiger?
◦ 33% reduction in injuries?


70% reduction in MDR since 2003
76% reduction in DWC-45s
◦ 44% of all claims in 2003
◦ 17% of all claims in 2013
17
Claimant
Carrier
$41,708,411
$37,693,379
$34,717,356
$33,523,769
$34,402,983
$33,073,867
$32,392,646
$32,629,119
$34,938,208
$32,076,416
$30,612,149
$28,413,207
$23,806,115
$24,350,516
$24,195,900
$23,444,999
$23,089,128
$22,496,199
2004 2005 2006 2007 2008 2009 2010 2011 2012 2013
ATTORNEY FEES
CLAIMANTS



.6% increase from 2012
5% increase from 2010
BUT 16% decrease from 10 years ago
CARRIER





5% increase from 2012
36% increase form 2010
19% increase from ten years ago
Smallest difference between claimant and carrier
BUT audits and reverse actions
19
 The
Texas Legislature
and
 Workers’ Compensation
White Espey, PLLC 2013
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
First Responder Bills…like HB 365 & HB 1091

Public Projects Bills…like HB 475 & SB 740

Political Subdivision Bills…like HB 1430 & HB 1697
& SB 1205
…I’ve seen
these before
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HB 365 would make several changes to the presumption that certain
workers who sustain injuries did so while in the course and scope of
employment. First, this bill would remove the “strenuous activity
requirement” to invoke the myocardial infarction presumption. This
bill would also create an additional presumption that any firefighter
or EMT who contracts AIDS, HIV, Hep B, Hep C or MRSA did so while
in the course and scope of employment as long as there was
potential exposure to said disease during a call or response.
Considered in House
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HB 1091 would entitle former firefighters or EMTs to
a presumption that an injury was sustained while in
the course and scope of employment as long as the
claim was reported within 5 years of leaving the
position as a firefighter or EMT. This bill, although
probably not the intent of the drafter, would put a
deadline on reporting work-related diseases by
former firefighters and EMTs.
Died in committee
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

DWC Recognizes 2014 Star of Texas Award RecipientsAUSTIN, TX
The Division of Workers’ Compensation (DWC) recognizes the
2014 recipients of the Texas Star Award which honors peace
officers, firefighters and emergency medical first responders who
have been seriously injured or killed in the line of duty. Governor
Rick Perry presented these awards to selected first responders
and their families on September 2, 2014. The 78th Legislature
created the awards in 2003 by the passage of House Bill 1937
and recipients are selected by three advisory committees
appointed by the Governor.“Every year first responders are
injured or killed in the line of duty while working to save lives
and keep our communities safe,” said Commissioner of Workers’
Compensation Ryan Brannan. “Our job is to ensure that the
workers’ compensation system is available to those injured
employees and their families and that every injured employee
receives all of the benefits that they are entitled to under the
law.”
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HB 475 & SB 740 would require contractors and
subcontractors to carry workers’ compensation
insurance when performing public projects.
HB 475- Died in committee
SB 740- Read only
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HB 1430 & HB 1697 & SB 1205 would prevent an employer from
discharging, indefinitely suspending, or terminating from
employment a peace officer, detention officer, county jailer,
or firefighter based on the person’s inability to perform their
job duties as a result of a compensable injury, before the
person is certified as having reached maximum medical
improvement. An adverse action made by the employer as
described would result in damages and reinstatement of the
employee.
HB 1430- Considered in House
HB 1697- Died in Committee
SB 1205- Read only
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
Suspend Some Benefits Already

Privileged Communications
… I Love these bills
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HB 1155 would authorize insurance companies to
suspend all income benefits if an employee fails to
submit to an examination by a designated doctor.
The current law only allows suspension of
temporary income benefits, not impairment or
supplemental income benefits.
Considered in House
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HB 1468 & SB 926 would make certain
communications between an insurance carrier and
an employer confidential and privileged. This bill
is in response to In re XL Specialty Insurance
Company and Cambridge Integrated Services
Group, Inc., in which the Texas Supreme Court
found that communications between an insurance
carrier’s attorney and the insured (employer) were
not privileged.
HB 1468- Passed in House, pending in Senate
SB 926- Read only
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




Immunity Waiver Bills…like HB 1424
Impairment Bills…like HB 2249 & SB 1077
◦ or HB 2629 & SB 1051
Attorney Fee Bills…like HB 2787 & SB 1550
(some version of these carrier-pay bills are
filed every session)
Waiver Bills…like 2630
Bad Faith Bills…like SB 1049
…please don’t pass these
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HB 1424 would waive a governmental entity’s
immunity from retaliation lawsuits brought by first
responders. This would effectively overrule the
Texas Supreme Court’s decision in Travis Central
Appraisal District v. Norman as it relates to first
responders.
Considered in House
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HB 2249 & SB 1077 would qualify injured workers for
Lifetime Income Benefits if they receive an
impairment rating of at least 85% or more
according to the AMA Guides.
HB 2249- Read only
SB 1077- Read only
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HB 2629 & SB 1051 would require the Division to use
the range of motion model to determine
impairment in the lumbar spine instead of the
injury/DRE model. (However, this bill states the
range of model method as used in the 6th edition
of the AMA Guides is to be used; the Division’s
Rules currently only permit ratings from the 4th
edition to be used. SB 1051 corrects this
oversight.)
HB 2629- Left pending
SB 1051- Read only
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HB 2787 & SB 1550 would require insurance carriers
to pay an injured worker’s attorney’s fees in
medical necessity disputes brought for judicial
review.
HB 2787- Left pending
SB 1550- Read only
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HB 2630 would create an additional period in which a carrier
can waive its ability to dispute an injury if a timely dispute is
not filed. Currently, the waiver period only applies to the first
60 days following an injury. The carrier waives into the
diagnoses that exist within the first 60 days if a dispute is not
filed by the 60th day. This bill would create an additional 60day waiver period (following the initial 60-day waiver period)
for all new manifestations of the original injury, additional
injuries, or additional diagnoses. Failure to dispute within
this new 60-day period would result in a carrier’s waiver of
its right to contest the extent or compensability of the new
manifestation of the original injury, additional injury, or
diagnosis.
Read only
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SB 1049 would allow bad faith claims to be brought
in workers’ compensation cases.
Died in committee
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



HB 1762 allows a temporary employment service to extend coverage
to all employees assigned to a client.
HB 2645 prohibits an independent review organization from publicly
releasing patient information that is protected by HIPAA and
requires IROs to be established in and maintain a physical address
and mailing address in Texas and to be in good standing with the
comptroller.
HB 3152 requires persons serving as both a management contractor
for a network and as an agent of a health care provider to specify in
the contract the certified network’s contract rate for health care
services and the amount of reimbursement the health care provider
will be paid after the health care provider agent’s fee for providing
administrative services is applied.
SB 1322 allows the creation of limited ancillary service networks for
durable medical equipment or home health services.
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SB 381 prohibits the misuse of the name or symbol of the
Division of Workers’ Compensation of the Texas Department
of Insurance in a deceptive manner on a business document.
It prohibits individuals from using the following phrases in a
deceptive manner:
1.
the words “Texas Department of Insurance,” “Department of
Insurance,” “Texas Workers’ Compensation,” or “division of
workers’ compensation”;
2.
any term using both “Texas” and “Workers’ Compensation”
or any term using both “Texas” and “Workers’ Comp”;
3.
the initials “T.D.I.”; or
4.
any combination or variation of the words or initials, or any
term deceptively similar to the words or initials.
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◦ A. Using the treating doctor to testify: Hight
 Developing relationships with health care providers
◦ B. Taking the Time to Meet with the Attorney: Hancock
◦ C. Battling the Deranged Designated Doctor: Hopens
◦ D. Shut Down Treatment, Shut Down the Claim: Wrobel
 Relationships with health care providers, Part 2
◦ E. Lesser of Two Evils: Extent vs. DD: Hutchton
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



Is Bad Faith Dead? (Ruttiger); Walking Dead? (Palmer)
An employee who can open doors and carry groceries
with his hands can nevertheless qualify for LIBS based
on total and permanent loss of use of both hands
(DeLoss)
An employee is not required to present any medical
evidence to prove that he/she sustained a sprain/strain
injury.
Injuries sustained while merely sitting, standing or
walking at work may be compensable.
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

Dispute resolution is issue-driven. The parties
may go to ten or twelve administrative hearings,
or more, on one claim. Every issue may be
appealed through six levels: BRC (mediation),
CCH (administrative trial), Appeals Panel
(administrative appeal), judicial review (District
Court), Court of Appeals, Texas Supreme Court.
Appeals through the first three levels are
common; appeals through the last three levels
are rare.
In an appeal to District Court, the Carrier may
pay the Claimant’s attorney’s fees if the Carrier
loses.
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 Receive
notice of an injury
within 30 days of the date of
injury
◦ Unless:
 1. Good cause exists.
 2. The employer has actual
knowledge of the injury.
 3. The claim isn’t denied.
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
Contest compensability of a claim if the
insurance carrier accepts liability

Be notified of a proposed settlement

Attend and offer evidence at hearings

Report suspected fraud to the TDI/DWC

Receive return-to-work coordination services to
facilitate an employee’s return to work
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

Notify employees of workers compensation coverage
◦ Post Notices at each work site
◦ Give written notice to all employees
 Usually part of the hiring packet
Report work-related injuries and illnesses
◦ Within eight days of notice of injury, file a DWC-1
Form (First Report of Injury) with the insurance
carrier:
 For a specific-trauma injury that results in
absence from work for more than one day;
 For an occupational illness, (length of absence
isn’t relevant);
 For a fatality.
 Provide a copy to the employee
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
Report Employee’s Wages on a DWC-3 Form
 File the Employee’s Wage Statement with the insurance
carrier within 30 days of
 The date the employer is notified that the employee is entitled
to income benefits, or
 The date of the employee’s death
 File a subsequent wage statement within seven days of a
change in wage information

Report changes in an employee’s pay or
employment status to the insurance carrier
 Form DWC-6
 File the form within ten days of an employee’s resignation,
termination, or change in pay
 File the form within three days of the date an employee
begins to lose time from work as a result of an injury,
returns to work, or misses additional days of work.
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



Document Request Letter
Unconfirmed Allegation
Violation
Enforcement Action
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
Adair Grain Company of West
Order Number:
DWC-2789
Date of Order: 9/30/2013
Action
Taken: Fined $500
Violation: Failed to timely
file and/or accurately complete TDI-DWC
forms, reports or records
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
Alvarado, Hilario III, M.D. of San Antonio
Order Number: DWC-

Gonzales, Mary Anastasia M.D. of Austin
Order Number: DWC-

Lubor Jan Jarolimek M.D. of Houston
Order Number: DWC-2902,
2903, Date of Order: 12/16/2013
Action Taken: Fined
$2,000
Violation: Refused to accept a TDI-DWC appointment to perform
a subsequent designated doctor examination on one injured employee
2901, Date of Order: 12/16/2014
Action Taken: Fined $500; Must
complete designated doctor workshop
Violation: Failed to correctly
apply AMA Guides; Failed to document adequately in one designated
doctor examination,
Date of Order: 12/16/2013
Action Taken: Fined $1,000; Must complete
DD workshop
Violation: Failed to correctly apply the AMA Guides;
ordered an unnecessary medical test; Failed to document an adequate
narrative report
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


Sanders, Mark Seltzer M.D. of
HoustonOrder Number: DWC-2900,
Date of Order: 12/16/2014
Action
Taken: Permanently surrendered designated
doctor certification and certification to assign
maximum medical improvement and impairment
ratings
Violation: Failed to comply with a TDI-DWC
Order for Production;
Ordered an unnecessary medical test as part of a
designated doctor examination
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









Smith, Stephen L., D.O. of Fredericksburg
Order Number: DWC-2910, Date of
Order: 12/17/2013
Action Taken: Must complete designated doctor training and pass
the certification test; upon timely passing the designated doctor certification test, must
participate in medical quality review monitoring review and pay $15,000 fine
Violation: Failed to comply with TDI-DWC decisions and orders;
Designated doctor assessments of injured employees overturned by contested case
hearings;
Used inflammatory and inappropriate language in his designated doctor reports for
injured employees;
Designated doctor examination's diagnoses, evaluations, and impairment ratings were
substantially different from those that Commissioner finds to be fair and reasonable;
Did not address the issues as ordered by TDI-DWC in the form and manner prescribed;
Misrepresented or omitted pertinent facts in his medical evaluations and narrative
reports;
Submitted a charge for health care that was not furnished;
Failed to perform a complete physical examination for purpose of determining MMI and
IR;
Failed to timely file and/or accurately complete TDI-DWC forms, reports or records.
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
Allmerica Financial Benefit Insurance Company of Worcester, MA
Action
Taken: Fined $2,140
Violation: Failed to accurately submit medical bill
and payment

American Casualty Company of Reading, Pennsylvania of Chicago,
IL
Action Taken: Fined $7,312
Violation: Failed to accurately submit
medical bill and payment data




American Guarantee and Liability Insurance Company of Schaumburg,
IL
Action Taken: Fined $1,095
Violation: Failed to accurately submit
medical bill and payment data
American Zurich Insurance Company of Schaumburg, IL
Action
Taken: Fined $16,514
Violation: Failed to accurately submit medical bill
and payment data
City of McAllen of McAllen
Action Taken: Fined $1,804
Violation: Failed
to accurately submit medical bill and payment data
Clarendon National Insurance Company of New York City, NY
Action
Taken: Fined $4,053
Violation: Failed to accurately submit medical bill
and payment data
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
Employers Compensation Insurance Company of Reno,
NV
Action Taken: Fined $1,125
Violation: Failed to
accurately submit medical bill and payment data

GuideOne Elite Insurance Company of West Des Moines,
IA
Action Taken: Fined $4,042
Violation: Failed to
accurately submit medical bill and payment data

Hanover Lloyd's Insurance Company of Worcester,
MA
Action Taken: Fined $2,132; Violation: Failed to
accurately submit medical bill and payment data

Harris County of Houston
Action Taken: Fined
$1,985
Violation: Failed to accurately submit medical bill
and payment data
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White Espey, PLLC
Questions? Call us.
Tim White 512-983-2994
Camille Espey 713-882-5351
Roy Horton 214-998-1567
Thurman Williams 214-288-2459
White Espey, PLLC 2013
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