The new 2008 edition of the Texas Workers' Compensation Handbook (Larson Series) is available now for purchase. To order your copy, click here.

HIGHLIGHTS

Legislative and Regulatory Changes - 2007 legislative and regulatory changes through March 2008 are covered in Parts I, III, and IV of this handbook.

Recent Case Law - Significant cases are discussed in Parts I and II of this handbook.

New Chapter on Actions Against Employers and Third Parties - These topics are analyzed in Part I, Chapter 18 of this handbook.

SOAH and SORM Rules - State Office of Administrative Hearings and State Office of Risk Management rules have been added to Part IV of this handbook.

STATUTORY AND REGULATORY UPDATES 

Licensing Requirements for Independent Review of Medical Decisions in Workers' Compensation Claims Amended.  Labor Code § 413.031 and Ins. Code § 1305.355 were amended to provide that an independent review organization that uses doctors to perform health care services review in workers' compensation cases must use doctors licensed to practice in Texas.  See Part I, 11, § 11.03.

Physician Licensing Requirements for Peer Review, Utilization, and Retrospective Review of Medical Decisions in Workers' Compensation Claims Amended.  Labor Code § 408.023 and Ins. Code § 1305.351 were amended to provide that if a utilization review agent or insurance carrier uses a doctor to perform a review of health care services, which could include utilization review, retrospective review, or peer review, that doctor must be licensed to practice in Texas.  See Part I, 10, § 10.07[9].

Reviewing Physician Certification in Specialty Appropriate to Worker's Injury Required.  Labor Code §§ 408.0043 through 408.0046 were added to provide that a physician, chiropractor, or dentist performing peer review, utilization review, independent or retrospective review services, or serving as a designated doctor or required medical examination doctor, or serving as a member of the medical quality review panel, must hold a professional certification in a health care specialty appropriate to the type of health care the injured worker is receiving.  See Part I, 9, §§ 9.03[2], 9.04[1], and 10, § 10.02[6][a].

Prohibition on Kickback Payments or Other Improper Inducements in Workers' Compensation Claims.  Labor Code § 415.0036 was added to provide that an insurance adjustor, case manager, or other person who has authority under the workers' compensation statute to request the performance of a service affecting the delivery of benefits to an injured employee, or who actually performs such a service, commits an administrative violation if the person offers to pay, pays, solicits, or receives an improper inducement relating to the delivery of benefits to an injured employee, or improperly attempts to influence the delivery of benefits to an injured employee, including through the making of improper threats.  See Part I, 17, § 17.02[3][i].

Possible Penalties for Workers' Compensation Fraud Expanded.  Labor Code § 418.003 was added to provide that a person who commits fraudulent conduct under Chapter 418 of the Labor Code may be prosecuted under that chapter or under any other law of the state under which the person may be prosecuted.  See Part I, 17, § 17.05[2].

Ombudsman Authorized to Receive Medical Records, With Reimbursement to Provider.  Labor Code § 404.155 was added to require a health care provider, upon written request, to provide copies of an injured employee's medical records to an ombudsman assisting in the case, and to require the workers' compensation carrier to pay for the cost of the copies.  See Part I, 13, § 13.01[5].

Workers' Compensation for Volunteer Responders Added.  Government Code § 614.121 et seq. was added, which defines ``volunteer police force member'' and mandates workers' compensation coverage for such individuals.  See Part I, 5, § 5.03[3].

Coverage for Damage to Artificial Limbs Added.  Labor Code § 401.011 was amended to provide that the definition of ``health care'' under the workers' compensation statute includes prosthetic or orthotic devices, including the fitting of, changing, or repairing of such devices.  See Part I, 4, § 4.01[1][b], and 10, § 10.01[1][b].

Protections for Health Care Provider Who Bills Wrong Carrier Added.  Labor Code § 408.0272 was added to provide that a health care provider does not forfeit the right to reimbursement for medical services provided to a covered employee if a claim for payment is timely filed, but with the wrong insurer, so long as the health care provider submits the claim to the correct carrier within 95 days of being notified of the error.  See Part I, 10, § 10.06[4].

Use of ``Informal'' Contractual Health Care Networks Regulated.  Labor Code § 413.011 was amended and Labor Code § 413.0115 added to provide that, until January 1, 2011, insurance carriers may continue to use ``voluntary'' or ``informal'' networks to obtain contractual agreements providing for fees different than those allowed under the Division's fee guidelines, so long as certain statutory requirements are met.  See Part I, 10, § 10.05[6].

Benefit Review Officers Authorized to Issue Interlocutory Orders.  Labor Code § 410.032 was amended to provide that a benefit review officer presiding over a benefit review conference has the authority to issue an interlocutory order addressing the payment or suspension of workers' compensation benefits, after giving the opposing party an opportunity to respond.  See Part I, 13, § 13.02[6][c].

Recovery of Insurance Overpayment Made Pursuant to Designated Doctor Opinion Authorized.  Labor Code § 408.0041 was amended to provide for reimbursement from the subsequent injury fund when an insurance carrier overpays benefits pursuant to the opinion of a designated doctor and that opinion is reversed or modified by a final arbitration award or final order or decision of the Division or a court.  See Part I, 8, § 8.04[1].

Appeals Procedures for Medical Dispute Amended to Include SOAH Hearings and Contested Case Hearings.  Labor Code § 413.031 was amended to provide for a hearing with the State Office of Administrative Hearings for most medical disputes that remain disputed after a decision by the Division. Labor Code § 413.0311 was also added to provide for a contested case hearing for certain medical disputes that remain unresolved after any applicable review under § 413.031.  See Part I, 11, § 11.02[5], [6].

Reimbursement of Health Insurance Carriers Who Pay for Workers' Compensation Treatment Authorized.  Labor Code § 408.027 was amended and Labor Code § 409.0091 added to provide for the reimbursement of accident or health insurance carriers who have paid for health care covered under workers compensation.  See Part I, 10, § 10.05[7].

Recovery of Death Benefits by Parents Authorized.  Labor Code §§ 408.182 and 408.183 were amended to provide for recovery of death benefits by surviving eligible parents of the decedent.  See Part I, 6, § 6.06[2][f].

MDA Guidelines Adopted for Return-to-Work Issues.  28 Adm. C. § 137.10 was amended to provide that insurance carriers, health care providers, and employers are required to use the disability duration values in the current edition of the Medical Disability Advisor, Workplace Guidelines for Disability Duration, (MDA) published by the Reed Group, Ltd., except those sections and tables relating to rehabilitation, as guidelines for the evaluation of expected or average return to work time frames. For diagnoses or injuries not addressed by the MDA Guidelines, system participants must establish disability duration parameters and return to work goals in accordance with principles of evidence-based medicine.  See Part I, 6, § 6.02[1][b][iv].

Treating Planning Rule Repealed.  28 Adm. C. § 137.300, which was originally scheduled to go into effect on May 1, 2007, and would have required treating doctors to submit to workers' compensation insurance carriers treatment plans for preauthorization of certain treatment, has been repealed in order to allow system participants additional time to establish systems and processes to address required treatment planning in an appropriate and effective manner.  See Part I, 10, § 10.04[2].

Medical Fee Guidelines Updated.  New medical fee guidelines for professional services and services provided in an inpatient acute care hospital or outpatient cute care hospital have been adopted by the Division.  See Part I, 10, § 10.05[2].

Rules for Filing Employer's First Report of Injury Amended.  28 Adm. C. § 120.2 has been amended to change the rules regarding an employer's first report of injury and the consequences of failing to file a timely report.  See Part I, 12, § 12.02[2][a].

CASE LAW UPDATES

Premises Owner May Also Be General Contractor for Workers' Compensation Purposes.  In Entergy Gulf States, Inc. v. Summers, -- S.W.3d --, 2007 Tex. LEXIS 799 (Tex. 2007), the Texas Supreme Court held that a premises owner who ``undertakes to procure the performance of work or a service'' may also serve as a general contractor when hiring subcontractors to perform work on the hirer's property, and if providing workers' compensation coverage as a general contractor, may assert the exclusive remedy doctrine to a tort suit brought by a subcontractor's injured employee.  See Part I, 2, § 2.02[6][b][i].

Payment of Workers Compensation Benefits by Employment Agency Does Not Bar Client Company From Asserting Exclusive Remedy Doctrine.  In Mosqueda v. G & H Diversified Mfg., Inc., 223 S.W.3d 571 (Tex. App.--Houston [14th Dist.] 2007, pet. filed), the court of appeals held that if a client company hiring employees from a temporary employment ageny has its own workers' compensation coverage, the client company may assert the exclusive remedy doctrine as a defense even if workers' compensation benefits are paid by the insurer of the temporary employment agency.  See Part I, 2, § 2.02[5][a].

LIBs Possible for Spinal Injury Without Paralysis.  In DWC Appeals Panel Decision No. 070063 (Mar. 22, 2007), 2007 TX Wrk. Comp. LEXIS 16, an appeals panel held that although injury to the spine that results in permanent and complete paralysis of both arms, both legs, or one arm and one leg, can support an award of LIBs, a claimant can prove entitlement to LIBs through loss of use of limbs under other provisions without a showing of paralysis, even if caused by a spinal injury.  See Part I, 6, § 6.05[2].

Minor Dependent Stepchild Eligible for Death Benefits to Same Extent as Other Child.  In TPCIGA ex rel. Reliance Nat. v. Morrison, 212 S.W.3d 349 (Tex. App.--Austin 2006, pet. denied), the court of appeals held that a dependent stepchild meets the definition of a ``child'' under Lab. C. § 401.011(7), and if a dependent stepchild was a minor at the time of the decedent's death, the stepchild, as any other child would be, is entitled to receive death benefits until age 18, or until age 25 if meeting the requirements of Lab. C. § 408.183(d).  See Part I, 6, § 6.06[4][b].

Carrier Must Exhaust Administrative Remedies Before Pursuing Lawsuit for Insurance Fraud.  In Guideone Ins. Co. v. Cupps, 207 S.W.3d 900 (Tex. App.--Fort Worth 2006, pet. denied), the court of appeals held that because the Division has exclusive jurisdiction under the workers' compensation statute to make the initial determination of whether benefits were obtained fraudulently, a carrier cannot file suit for fraud without first exhausting the administrative remedies available through the Division.  See Part I, 8, § 8.04[2].

MMI Certification May Be Rejected Based on Evidence of Subsequent Improvement.  In DWC Appeals Panel Decision No. 071599 (Oct. 31, 2007), 2007 TX Wrk. Comp. LEXIS 90, an appeals panel held that a designated doctor's certification of MMI may be rejected based on evidence establishing significant and steady improvement of the claimant's condition after the date of MMI certified by the designated doctor.  See Part I, 9, § 9.03[6].

Health Care Provider May Not Supplement Workers' Compensation Payment Through Lien Against Recovery From Third-Party Tortfeasor. In Daughters of Charity Health Servs. v. Linnstaedter, 226 S.W.3d 409 (Tex. 2007), the Texas Supreme Court held that health care providers may not file liens against an employee's third-party recovery to recoup a higher payment for medical treatment rendered to an injured employee than the amount permitted under the Labor Code.  See Part I, 10, § 10.01[3].

Subclaimant Recovery Barred When Claimant Recovery Barred.  In Texas Mut. Ins. v. Sonic Systems Intern., 214 S.W.3d 469 (Tex. App.--Houston [14th Dist.] 2006, pet. denied), the court of appeals held that when a claimant is barred from recovering benefits, a subclaimant is similarly barred.  See Part I, 12, § 12.04.

Decedent's Pre-Death Settlement Cannot Compromise Beneficiaries' Right to Death Benefits.  In DWC Appeals Panel Decision No. 071277 (Oct. 18, 2007), 2007 TX Wrk. Comp. LEXIS 86, an appeals panel held that an injured employee cannot prior to death compromise through settlement the rights of his or her legal beneficiaries to collect workers' compensation death benefits that would otherwise be due to the beneficiaries, even if the settlement is signed by one of those legal beneficiaries on behalf of the injured worker.  See Part I, 14, § 14.02[1].

Trial Court Retains Jurisdiction to Approve Settlement After Initial Failure to Provide Division WIth Advance Notice.  In Metropolitan Transit Authority v. Jackson, 212 S.W.3d 797 (Tex. App.--Houston [1st Dist.] 2006, pet. denied), the court of appeals held that if a trial court enters judgment on a petition for judicial review of a proposed settlement, but the parties have failed to provide the required notice to the Division, that judgment is void and the court retains jurisdiction to enter a new judgment after the required notice is given.  See Part I, 14, § 14.02[3][b].

Error to Instruct Jury to Give Division's Claim Decision ``No Special Weight''.  In Liberty Mut. Ins. Co. v. Camacho, 228 S.W.3d 453 (Tex. App.--Beaumont 2007, pet. filed), the court of appeals held that a trial court on judicial review of a workers' compensation claim commits reversible error if it instructs the jury to afford the administrative decision ``no special weight,'' as that instruction may serve to create the impression among the jury that the trial court judge disagrees with the administrative decision.  See Part I, 15, § 15.01[2].

Equitable Tolling Inapplicable When Wrong Party Files Suit for Judicial Review.  In Texas Mun. League v. Burns, 209 S.W.3d 806 (Tex. App.--Fort Worth 2006, no pet.), the court of appeals held that if the party filing a timely suit for judicial review is not the proper party, equitable tolling does not apply and the proper plaintiff must be substituted in prior to expiration of the 40-day period for filing suit.  See Part I, 15, § 15.03.

Dispute Over Proper Employer Was Dispute Over Compensability.  In Morales v. Liberty Mut. Ins. Co., -- S.W.3d --, 2007 Tex. LEXIS 1080 (Tex. 2007), the Texas Supreme Court held that because an injury is not compensable if the worker was not an employee of the covered employer when injured, or if the worker was not injured in the course and scope of employment, a dispute about any one of these elements regarding compensability or eligibility for benefits is subject to judicial review under Lab. C. §§ 410.252 and 410.301. Thus, a dispute about whether a worker killed because of an on-the-job injury was an independent contractor or an employee of one of three companies at the time of the accident was a dispute about compensability or eligibility for benefits. Similarly, in Texas Prop. & Cas. v. National American Ins., 208 S.W.3d 523 (Tex. App.--Austin 2006, pet. denied), the court of appeals held that a dispute over whether a worker at the time of injury was acting within the scope of employment with one employer, rather than a second employer, is considered a dispute over compensability or eligibility for benefits for purposes of a subsequent petition for judicial review.  See Part I, 15, § 15.05.

No Attorney's Fees Under SIBs Fee Provisions for Time Spent Seeking Attorney's Fees.  In Twin City Fire Ins. Co. v. Vega-Garcia, 223 S.W.3d 762 (Tex. App.--Dallas 2007, pet. denied), the court of appeals held that the provisions governing recovery of attorney's fees in SIBs disputes do not authorize an award of fees to compensate for prosecuting an affirmative claim for attorney's fees.  See Part I, 16, § 16.01[3][a].

Nonsuit of Carrier Petition for Judicial Review May Entitle Claimant to Attorney's Fees Under SIBs Provisions.  In Twin City Fire Ins. Co. v. Vega-Garcia, 223 S.W.3d 762 (Tex. App.--Dallas 2007, pet. denied), the court of appeals held that a claimant may be considered the prevailing party under the SIBs attorney fee provisions if the carrier files a petition for judicial review, forcing the claimant to defend against the suit, but the carrier nonsuits the action before a decision on the merits is reached.  See Part I, 16, § 16.01[3][a].

NEW CHAPTER ON ACTIONS AGAINST EMPLOYERS AND THIRD PARTIES. This chapter covers actions against employers for gross negligence or intentional tort, actions against uninsured employers, actions for retaliatory discharge or discrimination, and actions against third parties. See Part I, 18, § 18.01 et seq.

CASE SUMMARIES. Part II of the handbook includes summaries of recent significant cases. See Part II, § 50.01 et seq.

RULES.  State Office of Administrative Hearings (SOAH) rules have been added. See Part IV, 1 Adm. C. § 155.1 et seq.  State Office of Risk Management (SORM) rules have been added as well. See Part IV, 28 Adm. C. § 251.1 et seq.

TABLES. The benefits and mileage tables have been updated. See Part V, § 100.02 and § 100.03. Time tables have been added. See Part V, § 100.06 Time Table: Deadlines for Notices, Reports, and Claims, § 100.07 Time Table: Deadlines for Benefit Review Conference, § 100.08 Time Table: Deadlines for Contested Case Hearing, and § 100.09 Time Table: Deadlines for Review by Appeals Panel.

TABLE OF CONTENTS AND INDEX.  The main table of contents in the beginning of the handbook has been expanded to