November 2002 ©2002 – Flahive, Ogden & Latson Volume 7, No ... · November 2002 ©2002 –...

©2002 – Flahive, Ogden & LatsonNovember 2002 Volume 7, No. 11

A Privileged Attorney-Client Communication by Flahive, Ogden & Latson

FOLFOLFOLFOLFOLFOLFOLIO

In This Issue . . .New Appointments to ROCMedical Fee Schedules StudyDeveloping a Return to Work Program

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An Act designed to strengthen penalties againstcarriers who violate final or interlocutory TWCCorders was the first workers’compensation bill filed inanticipation of the 78th

legislative session. The second,a bill designed prohibit TWCCdispute resolution employeesfrom going to work for a compcarrier or representing aninjured worker before theCommission in any matter “thatwas within the person’s officialresponsibility while the personwas associated with the commission”, was prefiled onthe same day.

Legislative rules permit a state senator or staterepresentative to prefile legislation. Both bills werefiled on the first day possible under House and Senaterules, and are among a number of proposals expectedto work their way through the Capitol as the 78th TexasLegislature returns to Austin January 14, 2003. The140-day session lasts through June 2, 2003 and comesat a time in which Republican members control thestate House, Senate and Governor’s mansion for thefirst time since 1870.

HB 145, by Rep. Burt Solomons (R-Carrollton)authorizes the TWCC to file suit in Travis County toenforce its interlocutory and final orders. The legislationprovides “if the commission brings suit to enforce aninterlocutory order, final order, or decision of the

Commission, the Commission is entitled to reasonableattorney’s fees and costs for the prosecution and collection

of the claim, in addition to ajudgment enforcing the order ordecision and any other remedyprovided by law.”

The second prefiled bill, SB101, by Sen. Leticia Van de Putte(D-San Antonio), would prohibitTWCC Commissioners,ombudsmen or “a commissionemployee whose officialresponsibilities involve the

Two Comp Bills Prefiled onOpening Day

Rep. Burt Solomons Sen. Leticia Van de Putte

TWCC Announces ItsLegislative Wish List

The Texas Workers’ Compensation Commission hasproposed a number of legislative recommendations for the78th legislative session. The recommendations werediscussed during the course of the TWCC public meetingheld on August 29, 2002 and on September 19, 2002.

In its August meeting, the Commissioners voted torecommend that the number of Commissioners remainssix and that their terms be set at two years. This vote wasin response to an amendment of the Texas Constitution,which requires state agencies to have either an oddnumber of Commissioners or an even number ofCommissioners with their terms set at two years.

CLIENT NEWSLETTER BY FLAHIVE, OGDEN & LATSON

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Flahive, Ogden & Latson, a 25 lawyer firm,defends contested workers’ compensation casesstatewide every day. The firm has representedinsurance companies and employers before theTexas Workers’ Compensation agency for morethan 50 years.

For general questions concerning thenewsletter call (512) 435-2225. FOLIO's Editor-in-Chief is Jack W. Latson.

FO&LFO&L

Flahive, Ogden & LatsonP.O. Box 13367

Austin Texas 78711

Our regular office hours are 8:15 a.m. to 4:45 p.m..If you need to call after 4:45, please call Patsy Shelton at(512) 435-2234. She will be on duty until 6:00 p.m. daily.

DON’T WAIT UNTIL THE LAST HOUR OFTHE DAY FOR DEADLINE FILING. ANY FAXESWITH INFORMATION DUE MUST BE RECEIVEDBY 3:30 p.m. for any deadline handling for same daydelivery to the Commission, and faxed according to thefax directory listed on the last page of FOLIO.Furthermore, if you have a last minute deadline, call ouroffice by 3:00 p.m. and speak with Tillie Aguirre or PatsyShelton to advise that a last minute filing is necessary tomeet a deadline. We will be watching and waiting for thefax. Otherwise, last minute faxes could delay receipt. Ourlast daily run to the Commission will be at 4:00 p.m., inorder to get across town to meet their 5:00 closing time.

FO&L OFFICE HOURS

An electronic copy of FOLIO, our monthly client newsletter, is now available for clients. If you are interested in receiving FOLIOby e-mail, please let us know. FOLIO is prepared for the exclusive use of Flahive, Ogden & Latson clients only. It containsprivileged communications and further sharing of this newsletter (in either hard copy or electronic format) outside yourcompany without the express written consent of Flahive, Ogden & Latson is not permitted.

The Texas Medical Association will pursue the passageof prompt payment legislation during the 2003 legislativesession. TMA reported that a consultant it has hired hasestimated that almost $1 billion in claims remain unpaid andthat this threatens the viability of many physicians’ practices.

In 2001, Gov. Rick Perry vetoed a prompt pay bill thatcontained a provision which he asserted would undercutthe use of binding arbitration to resolves contract disputes.TMA said that subsequent prompt pay enforcement by theTexas Department of Insurance, while appreciated, hasfallen short. TMA also said that the TDI prompt paymentenforcement has not compensated physicians for lost feesnor eliminated payment delays. Physicians believe thatambiguous definitions of what constitutes a “clean claim”magnify prompt pay problems. TMA said that physiciansfind it difficult negotiating contracts with health insurers,who often present take-it-or-leave-it contracts.

TMA representatives argue that although Texas lawallows joint negotiation by physicians in certaincircumstances, the complex requirements for its use limitits effectiveness in offsetting the tremendous economicdisparity between the plans and physicians in contractnegotiations. n

TMA SeeksPrompt PaymentLegislation This

Session

Did you know...?

A caption is the part of a legislative bill thatgives the Legislature and public reasonablenotice of the subject of a Bill or resolution.For Bills and joint resolutions, it is the firstsentence of the text that summarizes the contentsof the Bill or resolution.


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The TWCC has adopted Rule134.501and issued a final form relatedto pharmaceutical services. FormTWCC-66a (dated 01/01/03 in thelower left corner) replaces formscurrently in use. This new form isrequired beginning January 1, 2003,but may be used sooner. Theannouncement is found in TWCCAdvisory 2002-17.

The new form is designed for use,and required to be used where apharmacist wishes to invoke provisionsof Rule 134.501. That rule providesfor payment of specified

pharmaceutical services sufficient forthe first seven days following the dateof injury. This is necessary becausethe new form contains a field for thepharmacist to indicate verification ofinsurance coverage and receipt of averbal confirmation of an injury fromthe employer or from the carrier.

In April 2002, TWCC released aninterim form TWCC-66a for reviewby system participants. TheCommission incorporated thefeedback it received and revised theform somewhat. Advisory 2002-17rescinds Advisory 2002-06B (which

TWCC Issues Final PharmacyServices Form

allowed the use of multiple versions ofthe TWCC-66a until the form wasfinalized). After January 1, 2003 thisnew form (dated 01/01/03) will be theCommission’s only acceptable form.

The final form contains severalchanges that are worth noting.

• First, there is a place toindicate who to remit payment toif the pharmacy has assigned thebenefits to a third party agent.Often pharmacies havearrangements with billingcompanies that reimburse themdirectly and then bill the carrierfor the medication.Putting thisinformation on the form shouldfacilitate payment to the pharmacyby properly routing payments andshould also prevent doublecompensation (once from theagent and then a second timefrom the carrier).• Second, the form makes iteasier to ensure that genericmedications are being distributedin all cases other than those whena generic is nonexistent or whenthe prescribing doctor hasindicated that it is medicallynecessary to “dispense aswritten.” The form now providesspace to indicate whether themedication that was dispensedwas generic or name brand.Asfollow-on questions for whenname-brand medications areprovided, the form requires theprovider to indicate if a genericalternative was available, and ifgeneric is available to indicatewhether the doctor required themedication to be dispensed aswritten. The follow-on questionsare only required when a brand-name medication is dispensed.

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State Representative ScottHochberg (D-Houston) will retain hisseat as Chair of the Board of Directorsof the Research and OversightCouncil on Workers’ Compensation.Hochberg replaced outgoing ChairSenator Troy Fraser. Senator JohnCarona of Dallas will serve as Vice-Chair of the ROC following his earlierappointment by Lieutenant GovernorBill Ratliff. Sen. Carona replacesoutgoing Vice-Chair Kim Brimer.

The Speaker of the House mustreplace two members of the ROC’sboard of directors. RepresentativeKim Brimer, who has exercised aninfluential role on the agency’s boardin past years, won election to theState Senate and will relinquish hisrole on the ROC, for at least the timebeing. Moreover, Rep. David Countswas defeated in a redistricting-affected race that pitted him againstincumbent Republican Rep. RickHardcastle. Newly elected Speakerof the House Tom Craddick (R-Midland) will exercise his right toselect replacements for both positions.

Rep. Hochberg and Sen. Caronaare experienced legislators who willlead the ROC as the TWCC movestoward Sunset Review in 2005. Briefbiographies of each man follow.Rep. Scott Hochberg

Rep. Hochberg is serving his fifthterm as State Representative to theTexas Legislature from District 132in southwest Houston. Rep. Hochbergsurvived a tough challenge, mademore difficult by changes in his districtas a result of the redistricting process.He won re-election from newly drawnDistrict 137.

Rep. Hochberg chairs theEducation Subcommittee of the HouseCommittee on Appropriations and hasbeen recognized as one of the ten best

New Chair and Vice-ChairAppointed to ROC

legislators by Texas Monthlymagazine. He has passed legislation toprotect patients from late billing byhospitals, and to provide fair workers’compensation payments for workersinjured on part-time jobs.Sen. John Carona

Sen. John Carona of Dallas hasserved in the Texas Senate since 1996.He began his legislative service in theTexas House of Representatives in1990, where he was vice-chair of theHouse Financial Institutions Committeeand served on the House AppropriationsCommittee.

Senator Carona was elected tothe Texas Senate in a special electionin June of 1996. He represents District16, which includes parts of Dallas andRockwall counties. Sen. Carona servedas the vice-chair of the Senate Healthand Human Services Committee duringthe 2001 legislative session. He alsoserved as a member on the SenateBusiness and Commerce and StateAffairs Committees.

The leadership of the ROC Boardchanges every two years. Theremaining members of the ROC’sboard of directors are:

Black mold may not be a gravethreat to everyone’s health, accordingto a report published by the TexasMedical Association’s Council onScientific Affairs. In an effort to linkmold-spore inhalation and healthproblems, the council recentlyconducted an extensive review ofscientific literature and contactedexperts and specialists from acrossthe country. The report states thatpublic concern for adverse healtheffects from inhalation of black-moldspores is generally not supported bytheir findings, and their researchindicates that only people allergic toblack mold will experience problems.

The TMA report concludes thatadverse health effects fromStachybotrys mold spores in water-damaged buildings are not supportedby peer-reviewed reports in medicalliterature in its report, “Black Mold andHuman Illness.” “This reportstrengthens insurers’ contentions thatmold exposure standards are prematureat best and quite possibly a mistake,”

said David Golden, director ofCommercial Lines for the NationalAssociation of Independent Insurers.

The report recommends that theTMA support continued scientificresearch; educate its members, othermedical professionals and the publicon this issue; share the report withstate governmental agencies; andsupport general water damageremediation techniques in homes andother buildings unless there is clearmedical evidence that mold iscontributing to a particular illness.

“The report also sets outrequirements necessary toscientifically validate an environmentalagent as a contributor to human illness.This requirement will help insurers todebunk junk science regarding mold,”said Golden.

According to the NAII, thereport’s findings support insuranceindustry messages that mold isgenerally not a significant health threat;allergic reactions to mold vary from

Report Casts Doubt onHealth Risks of Mold

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The substantial variation inworkers’ compensation medical feeschedules among the states is notrelated to the different costs healthcare providers incur delivering medicalservices to injured workers, accordingto a new study by the WorkersCompensation Research Institute.

The disparity between medicalfee schedule levels and provider costsraises concerns that states may becreating incentives to either over-utilizeor under-utilize medical services intheir workers’ compensation systems,according to the study, Benchmarksfor Designing Workers’ CompensationMedical Fee Schedules: 2001-2002.

Medical fee schedules are used in42 jurisdictions to contain medicalcosts in their workers’ compensationsystems. If schedule rates are set toohigh, the fee schedule will not achieveits cost containment goal. Conversely,if rates are too low, access to quality

care may be jeopardized.The study also found:• While a few state feeschedules reimburse health careproviders at or near Medicarelevels in their states, a large numberreimburse providers at a“premium” of double theMedicare levels or more.• Three states set feeschedules, on average, at or belowthe Medicare levels in their states.• The “premiums” overMedicare levels vary greatlyacross different service groupswithin a state, with the highestpremiums for surgery andradiology and the lowest forphysical medicine and evaluationand management.• A significant number of statefee schedules may be higher thannecessary to support qualitymedical care.

• In states where fee schedulesare below Medicarereimbursement levels,policymakers should pay attentionto concerns about access toservices.“By providing important

benchmarks for the design of feeschedules in workers’ compensation,this report helps to ground the debatesabout fee schedules in analytic facts,rather than anecdotes or partisanclaims,” said Dr. Richard Victor,executive director of WCRI, theCambridge, Mass.-based independent,not-for-profit research organization.“This is especially important since thedevelopment or update of a feeschedule is often subject toconsiderable political pressure frompayors and providers.”

The study reported that there isvery little correlation between the feesin Medicare fee schedules (a goodmeasure of how costs to providersvary among the states) and fees inworkers’ compensation fee schedulesas they vary from state to state. Forexample, average Medicare fees inMassachusetts and Connecticut, are13 percent and 15 percent higher,respectively, than Medicare fees inthe median state. By contrast, theMassachusetts workers’compensation fee schedule is 26percent lower than the median state,and the workers’ compensation feelevel in neighboring Connecticut is 48higher than the median state.

“A rational system of feeschedules would provide for higherreimbursements in states where it costsproviders more to deliver services,and vice versa,” said Stacey Eccleston,senior analyst and author of the study.“This does not occur in workers’

Study: WC Medical Fee Schedules VaryDifferences Unrelated to Provider Costs, Says WCRI

On October 11, 2002, the TexasWorkers’ Compensation Commissionupdated the CARF Accredited FacilityList on the agency’s website.

There are 56 work hardening andwork conditioning CARF accreditedprograms that are now exempted fromthe requirement set out in TWCC’sRule 134.600 that health careproviders preauthorize or obtainconcurrent review approval for workhardening and work conditioning priorto providing such treatment to aninjured employee.

Work hardening and workconditioning programs can obtain anexemption from the preauthorization

and concurrent review requirementsby submitting current Commission onAccreditation of RehabilitationFacilities documentation to TWCC.Exempted programs are subject toverification of CARF accreditationand audits by TWCC.

All work hardening or workconditioning programs, regardless ofaccreditation, will be subject topreauthorization and concurrentreview on January 1, 2003 unlessTWCC takes action to extend thework hardening and work conditioningprograms exemption provisions of Rule134.600. n

TWCC Updates CARFAccredited Facility List


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The TWCC Austin field office has movedfrom its offices on the far east side of the cityto new offices on the north side of town. TheAustin central office remains headquarteredin the Southfield building on Interstate-35South.

The new address for the Austin fieldoffice is 4616 W. Howard Lane, No. 130,Austin, Texas 77828. The phone and faxnumbers will remain the same.

The move marks a return to the northside of Austin, where the field office waslocated until the late 1990s. All benefit disputehearings are conducted in the field office,while policy hearings, Commissionermeetings and other Commission businesstake place in the Southfield offices.

Austin Field Office Has Moved

A story last month in the DallasMorning News slammed the Texasworkers’ comp system, arguing thatmany injured workers “cannot accesslong-term workers’ compensationbenefits that would tide them overuntil they can return to their jobs”. Thestory, “Adding Insult to Injury” byMorning News reporter KatherineYung, focuses on complaints with theSIBs system.

The Morning News articlefocuses on anecdotal complaints fromSIBs claimants who complain thatsuch benefits are difficult to obtain.One claimant quoted in the articleprotested that the system was unfairto her because she had been advisedto look for at least five jobs per day, toobtain benefits. According to thearticle, the 39-year old claimant refuseda job as a department store doorgreeter and “spent three days lookingfor work in Midlothian before givingup”.

Another criticism of the workers’comp system highlighted in the article

is that the system is too complicated.The Morning News article notes that“even when injured workers qualifyfor payments, they also must rememberto reapply for the benefits eachquarter.”

While the Morning News reportquoted three injured workers, oneCommission senior ombudsman, oneformer claimant’s attorney (now anappellate judge) and one currentclaimant’s attorney, the reporterquoted only one state regulator (fromthe ROC) and one “industryspokesman.” The article states thatone carrier refused to comment forthe story, without noting that theWorkers’ Compensation Act requiresall claim information be heldconfidential. Moreover, no employerwas quoted to provide a viewpointfrom the standpoint of the party who“pays the premium” for workers’comp policies.

The article, and other publiccriticism of the Texas workers’compensation system, comes as the

Dallas Newspaper Critical ofComp System

Texas Legislature prepares to returnto session in January 2003. Every twoyears, it seems, the industry is thesubject of critical press coverage, justas the legislature returns to Austin.This year, it seems, will be nodifferent. n

Did you know...?

A conference committee is aLegislative committee composed offive members from each houseappointed by the respectivepresiding officers to resolve thedifferences between the House andSenate versions of a measure whenthe originating chamber refuses toconcur in the changes made by theopposite chamber. Upon reachingan agreement, the conferees issue areport that is then considered forapproval by both houses.


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New Maximum and Minimum Comp Rates Announced

Fiscal Year SAWW TIBs IIBs SIBs LIBs Death Benefits max min max min max min max min max min

‘91 (1/1/91-8/31/91) $428.25 428.00 64.00 300.00 64.00 300.00 N/A 428.00 64.00 428.00 N/A

‘92 (9/1/91-8/31/92) $437.65 438.00 66.00 306.00 66.00 306.00 N/A 438.00 66.00 438.00 N/A

‘93 (9/1/92-8/31/93) $456.36 456.00 68.00 319.00 68.00 319.00 N/A 456.00 68.00 456.00 N/A

‘94 (9/1/93-8/31/94) $464.10 464.00 70.00 325.00 70.00 325.00 N/A 464.00 70.00 464.00 N/A

‘95 (9/1/94-8/31/95) $471.66 472.00 71.00 330.00 71.00 330.00 N/A 472.00 71.00 472.00 N/A

‘96 (9/1/95-8/31/96) $480.13 480.00 72.00 336.00 72.00 336.00 N/A 480.00 72.00 480.00 N/A

‘97 (9/1/96-8/31/97) $490.92 491.00 74.00 344.00 74.00 344.00 N/A 491.00 74.00 491.00 N/A

‘98 (9/1/97-8/31/98) $508.26 508.00 76.00 356.00 76.00 356.00 N/A 508.00 76.00 508.00 N/A

‘99 (9/1/98-8/31/99) $523.31 523.00 78.00 366.00 78.00 366.00 N/A 523.00 78.00 523.00 N/A

‘00 (9/1/99-8/31/00) $531.00 531.00 80.00 372.00 80.00 372.00 N/A 531.00 80.00 531.00 N/A

‘01 (9/1/00-8/31/01) $533.00 533.00 80.00 373.00 80.00 373.00 N/A 533.00 80.00 533.00 N/A

‘02 (9/1/01-8/31/02) $535.62 536.00 80.00 375.00 80.00 375.00 N/A 536.00 80.00 536.00 N/A

‘03 (9/1/02-8/31/03) $536.74 537.00 81.00 376.00 81.00 376.00 N/A 537.00 81.00 537.00 N/A

Maximum income benefit rateswill jump only one dollar next year.This is the smallest increase inmaximum rates since the 1989 ReformAct took effect in January 1991.

The Texas Workers’Compensation Commission has

calculated the new maximum TIBsand LIBs rates to be $537, up from$536 last year. The Maximum IIBsand SIBs rates will be $376. Minimumrates, where applicable, increasedfrom $80 per week to $81.

The following table provides themaximum and minimum weeklybenefits established in the TexasWorkers’ Compensation Actapplicable to dates of injuries on orafter January 1, 1991. n

The Texas Workers’ Compensation Commission hashired a Houston lawyer, Warren Hancock, to fill the openHearing Officer’s position in Denton. Mr. Hancock willtake over the docket previously managed by Allen Rountree,who died earlier this year. Mr. Hancock is now trainingwith various Hearing Officers statewide and is expected tobegin hearing cases in January 2003.

The Commission has promoted a Fort WorthOmbudsman to the position of Benefit Review Officer inthat office. Jamie Polson, an Ombudsman in the Fort Worthfield office for more than five years, will begin training totake over the vacancy created by the death of veteranBRO Kathryn Britt. Ms. Polson is expected to beginhandling a BRC docket in late January 2003. n

TWCC Hires NewHearing Officer,

Promotes a New BROReimbursement rates for mileage and other travelrelated expenses remained nearly flat this year, with theexception of a slight bump in the mileage rate. The dailyreimbursement rates for meals and lodging did not change,while the mileage reimbursement rate rose from 34.5cents to 35 cents per mile.

The Commission announced the annual rates in anadvisory that affects the payment of meals, mileage andlodging to claimants under the workers’ compensationsystem. Those rates are governed by the rate applicablefor reimbursement to state employees who engage inbusiness-related travel within Texas. Effective September1, 2002, the new travel rates for state employees travelingwithin Texas are as follows:

Mileage: 35 cents a mileMeal Rate: $30.00 a dayLodging Rate: $80.00 a dayAccordingly, any mileage or other applicable

reimbursements paid to claimants after September 1,2002 should be calculated and paid at these rates. n

Travel ReimbursementRates Nearly Flat


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Developing a Return toWork Program--Part 6

The maintenance tax rate willdecline again in 2003. TWCCExecutive Director Richard Reynoldsannounced that next year themaintenance tax rate will be 1.51percent of the gross premiumscollected in 2001. This maintenancetax funds and supports theCommission. The rate will declinefrom last year’s rate of 1.67 percent.The rate has now dropped for twostraight years.

The Texas Workers’Compensation Commissiondetermines the maintenance tax ratepursuant to Texas Labor Code, Section403.003. Each year, the Commissionsets a gross premium tax assessmentrate sufficient to provide the level offunding the Commission estimates willbe necessary to pay the expenses ofregulating workers’ compensationinsurance during the next year.

Insurance carriers writingworkers’ compensation policies inTexas pay the tax. The adjusted rateof assessment may not exceed twopercent of the gross premiums onworkers’ compensation insurance.

Tax funds are deposited in thegeneral revenue fund of the statetreasury and credited to the accountof the TWCC. The money may thenbe requisitioned by the Commissionand spent as authorized by legislativeappropriation.

The Commission, in cooperationwith the Research and OversightCouncil on Workers’ Compensation,has also certified that the maintenancetax for the support of the Researchand Oversight Council on Workers’Compensation be set at .039 percentof the gross premiums collected in2002. This represents a slight increaseover the ROC tax rate for last year. n

Maintenance Tax Continuesto Decline

The TWCC has created aresource for employers who want todevelop a return to work program.The Commission provides guidanceabout the purposes and benefits ofearly return to work, a program outline,and sample documents. It discussesnon-medical factors that can influencelost time related to an on-the-job illnessor injury. In a series of articles, FOLIOlooks at the TWCC return to workrecommendations. This month, weexamine the Importance of EmployeeInvolvement in Program De-velopment.

Prior to the initiation of an earlyreturn to work program, provideinformation to all employees, includingsupervisors and managers, about the

human and financial costs of workplaceinjuries, the benefits of an early returnto work program, and their roles andresponsibilities.

All employees, includingsupervisors and managers, must agreethat every effort will be made to returnany injured worker to work as soon aspossible following an on the job injuryand understand why that is important.Everyone needs to understand thatthe return of an injured worker mightrequire what is perceived as “specialtreatment”. Understanding theprogram will provide reassurance thateveryone will receive similarconsideration and treatment if theyare ever injured. Supervisors andmanagers should be held accountable

for supporting the program and forassisting to provide return to workopportunities as often as possible.

Having an early return to workprogram does not obligate employersto create unnecessary work or toreturn an injured worker if there is noappropriate productive work available.Having a program does obligate theemployer to try to provide meaningfulproductive work that accommodatesthe injured workers’ medical abilitiesas often as possible. Initiating aprogram may require new thinkingand developing different perceptionsof work assignments, such as dividingcertain tasks between jobs to free upan uninjured employee to do otherwork, or temporary transfers to otherdepartments. It is more economical tohave a trained and experiencedemployee working at a reduced paceor schedule than not working at all.

Some employers present the earlyreturn to work program as part of theirbenefit packages. Includinginformation about the program on aroutine basis during safety meetingsand new hire orientations, periodicallyreminding employees about theprogram in newsletters, and putting upposters or using payroll stuffers willhelp integrate the expectation of earlyreturn to work into the basic culture ofthe organization. Continuous remindersabout the program reinforce thecompany’s commitment to employeesand to successful return to work.

Providing information about theworkers’ compensation system priorto an injury can be helpful in alleviatingsome of the concerns andmisconceptions of employees.Reassure employees that, if they areinjured on the job, returning to workdoes not impact their eligibility for

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With so much information tocommunicate, it can be confusing toremember whether you are requiredto report to the Commission on paperor by electronic data interchange. Wehave prepared a handy checklist ofwhat information must be filed withthe TWCC in paper format, and whatinformation must be communicatedby EDI.

1. Per Rule 124.2, carriers mustreport to TWCC by EDI for all ofthe following events:A. Employer Report of Injury

(TWCC-1);B. Denial of a claim (148-04 if

no benefits paid, A49-04 ifbenefits paid);

C. Notice of a compensabledeath with no beneficiary;

D. First payment;E. Change in net amount paid to

claimant;D. Change from one income

benefit type to another (TIBsto IIB to SIBs);

G. Resumption of benefits;H. Suspension of benefits;I. Notice of salary continuation

by employer;J. Any correction of TWCC

identified errors from aprevious EDI transmission;

K. Any change in claimant oremployer mailing address.

2. For events B – I, (denial or anyother development affecting theamount paid to the claimant)carriers must generate a plainlanguage notice and send it to theclaimant. Depending upon thesituation, one of three Commission

forms should be used. To notifythe claimant of the first paymentof TIBs, use the TWCC-26 form.To notify the claimant of theinitiation of IIBs, use the TWCC-28 form. Use the TWCC-21 in allother situations.

3. Except for Notices of Refusal, theplain language notices (TWCC-21, TWCC-26, or TWCC-28)should not be sent to TWCC.This is the most important part ofthis advisory. Never send aTWCC-21 form to TWCC forany reason other than notices ofrefusal or a Downs notices usingthe Downs protocol (Advisory 329and 330). You should find an EDImaintenance code tocommunicate any EDIdevelopment. If you have acoding question, call TWCC orFrank Clary at FO&L (e-mail [email protected]).

4. Notice of Refusals (See Box 43 ofTWCC-21 form) must be sent bypaper to TWCC with a copy tothe claimant. Use a Notice ofRefusal to dispute compensability,extent of injury, relatedness, anddisability. Use the Downs Cert21process to reserve defenses priorto filing a Notice of Refusal.Failure to send this form to TWCCwithin seven days of first writtennotice of the injury arguablywaives defenses per Downs.State all defenses on the firstnotice. n

Practice PointersWhen to File Documents and When

to use EDIPayment of IRO

FeesSome carriers are having difficulty

reimbursing IRO fees in cases that gobefore the State Office ofAdministrative Hearings. That cancause a serious problem with theCommission and may subject thecarrier to administrative violations.

Upon notice of an IROassignment, the carrier prepays theIRO fees if it is a preauthorizationissue or if it is an employee“reimbursement” issue. Rule133.308(q)(1)(A). For retrospectivemedical necessity disputes (the servicehas already been provided and thecarrier has denied the bill on thegrounds that the service was notnecessary treatment), the healthcareprovider prepays the IRO fee. Rule133.308(q)(B).

If the provider is a doctor orosteopath, the charge is $650. For allother providers, the charge is $460.

In the event that the IRO decisionis favorable to the provider, theCommission will order the payment ofthe disputed bill, and will order thecarrier to reimburse the provider. Thecarrier is liable for the payment “uponreceipt of the order.” Rule133.308(q)(9). We recommend thatthe fee be paid with twenty days ofreceipt of the adverse decision andorder whether or not the case is timelyappealed to SOAH.

Providers are beginning to referthese cases to TWCC Compliance &Practices Division. TWCC will issueadministrative violations. Rememberthat on all cases in which the providerprevails before the IRO, the IRO feemust be reimbursed by the carrierwhether or not the case is timelyappealed. n


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Practice Pointers

For injuries on or after July 1,2002, an employee may be entitled totemporary income benefits based uponanother employment at which theemployee was working on the date ofthe injury.

In the event that the employeeprovides a Multiple Employment WageStatement consistent with Rule 122.5,the carrier may be obligated to increasethe income benefits in accordancewith the earnings at other employment.

To the extent that your liability isincreased because of the additionalemployment, carriers may petition theSubsequent Injury Fund to bereimbursed for the increased liability.However, for this class ofreimbursement only, TWCC hasprovided a deadline for filingSubsequent Injury Fund requests. Therequest must be filed for paymentsmade during the same or previousfiscal year. Rule 116.11(e). That is,carriers will have at least one year, butno more than two years, to seekreimbursement from the SIF forincome benefits due to multipleemployments. TWCC’s fiscal yearends on August 31 of each year.

The rule specifies the informationto be provided to TWCC at the time ofthe request for reimbursement. Formultiple employment reimbursementrequests, benefits paid in a prior fiscalyear will not be considered. Thoseprior payments are basically forfeited.

Accordingly, assume that multipleemployment benefits are paid in August2003 – September 2004. A carriermust submit the request forreimbursement by August 31st for allbenefits paid through August 31st. Asubsequent request must be filed for

payments made on September 1st andafter.

With the exception ofreimbursement for initialpharmaceutical coverage proposed byTWCC but not yet adopted, whichshould provide for a similar deadline

Multiple Employment Reimbursement DeadlinesClarified

for payments made during the sameor previous fiscal year, this is the onlyreimbursement deadline in theSubsequent Injury Fund’s statute orrules. Care should be taken to complywith it. n

In the seminal 1995 decisionTWCC v. Garcia, the Texas SupremeCourt (in dicta) indicated that adesignated doctor’s opinion (or report)is not entitled to presumptive weight inthe court house. The Court reachedthis conclusion based upon the thenexisting language of Texas LaborCode Ann. Secs. 408.122 and 408.125.

The Supreme Court’s dicta mayno longer apply.

Last legislative session, the TexasLegislature passed an omnibusworkers’ comp bill, HB2600. The

Presumptive Weight on Judicial Review

legislation did many things. One of theprovisions in HB 2600 added anadditional Section, 408.0041(e), whichdoes not limit the presumptive weightof the designated doctor to mattersbefore the TWCC, but rather simplystates that “The report of thedesignated doctor has presumptiveweight unless the great weight of theevidence is to the contrary.”

If you have cases involving thisissue pending on judicial review, youshould discuss this development withyour defense counsel. n

Many underemployed SIBsclaimants may forget to include thevalue of their present fringe benefits(such as health insurance and travelallowances) in their applications forSIBs. You are entitled to take suchbenefits into account when calculatingthe correct SIBs rate. In some cases,the value of these benefits may causethe post-injury wages to exceed the80 percent SIBs threshold.

A good case to remember isAppeals Panel Decision 022018 inwhich the hearing officer noted that it

SIBs Fringe Benefitswas the claimant’s burden to establishthe amount of the fringe benefits in hisnew job. Moreover, a claimant whofails to do so was ruled to have failedto prove that he earned less than 80percent of the AWW. Accordinglythe Appeals Panel held that SIBswere properly denied. n


-11-FOLIO

FLAHIVE, OGDEN & LATSON DIRECTORY

KEY TASK DIRECTORY

Allain Collins 435-2170 867-1715 APC Raina Walpole 435-2231

Bobby Stokes 435-2150 867-1705 RDS Anita Drake 435-2249

Carlos Acosta 435-2177 867-1712 CA1 Sally Stephens 435-2236

Chuck Finch 435-2158 867-1713 CCF Dayna Dixon 435-2223

Dana Gannon 435-2151 867-1710 DMG Margo Davis 435-2263

Greg Solcher 435-2175 867-1718 GDS Lisa Black 435-2260

Jack Latson 435-2156 867-1724 JWL Patsy Shelton 435-2234

James Sheffield 435-2169 867-1703 JRS Sharissa Karol 435-2224

Katie Flahive 435-2168 867-1702 KMF Gina Mitschke 435-2229

Kevin MacEwan 435-2166 867-1706 KEM Cynthia Sherman 435-2274

Lynette Phillips 435-2165 867-1708 LLP Karen Vanloo 435-2240

Pamela Peavy 435-2163 867-1736 PEP Rita Paul 435-2250

Paul Stone 435-2157 867-1716 PBS Bronna Sanders 435-2269

Paul Warren 435-2159 867-1719 PDW Julie Marceaux 435-2233

Rebecca Strandwitz 435-2160 867-1720 RMS Sally Stephens 435-2236

Rhett Robinson 435-2154 867-1709 SRR Raina Walpole 435-2231

Rob Dollars 435-2164 867-1707 RAD Bronna Sanders 435-2269

Ron Johnson 435-2178 867-1722 RMJ Dayna Dixon 435-2223

Roy Leatherberry 435-2179 867-1714 RJL Kim Harrington 435-2228

Scott Bouton 435-2153 867-1737 SDB Erin Harrelson 435-2257

Steve Tipton 435-2162 867-1704 SMT1 Mary Casebier 435-2275

Susan Veltman 435-2152 867-1717 SRV Sharon Durr 435-2230

Tom Wilkins 435-2183 867-1727 TRW Gina Mitschke 435-2229

Tricia Blackshear 435-2180 867-1723 PHB Lisa Black 435-2260

Attorneys Direct Dial(512)

Direct Fax*(512)

E-Mail **[email protected]

Paralegal Paralegal(512)

*Attorney's direct dial fax no. is directed to his/her paralegal.

** Alternative e-mail address: first initial+last [email protected] (Example: [email protected])

Admin. Violations Patsy Shelton 435-2234 867-1724 PGS

BRC Settings (FO&L - Req. For Evid.) Cindi Friedel 435-2244 477-4987 CAF

Disputed Claims (TWCC-21) Tillie Aguirre 435-2235 477-4996* TAA

General Questions Receptionist 477-4405 867-1700 GQS

Insurance Coverage (TWCC-20) Phyllis Devine 435-2267 867-1748 PAD

Med Review Disputes Annette Moffett 435-2266 867-1733 AMM

Records Request/Photostats Phyllis Devine 435-2267 867-1748 PAD

Request for BRC (TWCC-45) Tillie Aguirre 435-2235 477-4996 TAA

Designated Doctor Filings Rob Cunning 435-2251 479-5319 RKC

TWCC Manual Sales Joel Ogden 435-2256 472-9160 JMO

*#2 TWCC-21 fax # Tillie Aguirre 435-2235 472-4935* TAA

Task Direct Dial(512)

Direct Fax(512)

[email protected]

ContactPerson


-12- FOLIO

A

Q

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Q

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Here are several of the most significantgeneral questions ( and answers) asked ofFO&L attorneys this month.

CornerQG

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Do you have any recommendations on how tocalculate interest on partial TIBs when theweekly rate changes each week? Please advise.

If each week is different, you will just have to doa separate calculation for each week and add upthe interest. As an alternative that should overpay

the interest by less than a dollar (and save much more thanthat in the value of your time saved), assume a constantweekly benefit in the amount of the highest week of partialTIBs. Calculate the interest on the partial benefits as if thebenefits were paid at that rate for the entire period.

What about beginning TIBs on an employeewho only works two days a week on Mondayand Friday. Do we determine waiting period

using the 7-day calendar period, or do we say Mondaywould be the claimant’s first day of lost time and thenFriday would be the second day of lost time?

For the waiting period, count each Friday andMonday as a day of disability. After sevenFridays and Mondays are missed the waiting

period is met.

After the waiting period is satisfied, review disability on aweek by week basis. For any week during which theclaimant has lost wages, TIBs are potentially owed.Calculate TIBS based on the weekly AWW vs. weeklypost injury earnings.

We have received a claim that involves a PoliceDetective for one of our self-insureds. Thisdetective was on his way home, driving an

unmarked police car, which the self-insured providesfor his use, when he was involved in a MVA. Sincepolice officers are considered on duty 24 - 7, the self-insured wants to know if this would be a compensable

injury. Claimant sustained injury to his shoulder.

This is probably not compensable. Travel to/fromwork in an employer provided car is compensableonly if the claimant was otherwise engaged in

furthering the affairs of the employer. Merely being on callor subject to duty during off-hours does not make allactivities within the course and scope of employment.Absent something else, the general travel doctrine ruleapplies. See Appeal No. 950361, which discusses verysimilar facts.

I have an IW who is currently out of work. Ihave just received his wage statement andmade the necessary adjustments. The estimated

amount we were paying him was higher; therefore, wecurrently have an overpayment which I will take creditfor. The IW just called to dispute his AWW. He had aprior injury during the 13-week period before hiscurrent injury, therefore, his wages are lower. We hadthe claim and paid him partial TIBs. Do I include thewages we paid him when calculating AWW, or do I onlybase it on the wage statement?

You do not include the TIBs you paid, as these arenot wages. However, if the claimant were earningwages at a lower amount than he otherwise would

have due to an injury or illness, then you have to use the justand fair method per Section 408.041(c). Under thecircumstances, I would suggest that you use the AWWfrom the prior injury as a fair approximation of what theclaimant would have otherwise have earned.

When disputing the impairment rating providedby the treating doctor, do we have to pay anyimpairment income benefits or can we wait

until the designated doctor renders an impairmentrating?

If the claimant has reached statutory maximummedical improvement, and there is no validassignment of impairment rating, you are no longer

required to make a reasonable assessment, although youmay do so per Rule 130.2(e).

If, however, there is a valid certification of maximummedical improvement and impairment rating that you aredisputing, you must request a designated doctor and initiatepayment of impairment income benefits based upon your


-13-FOLIO

Q

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AQ

Qreasonable assessment. The TWCC-28 is used to notifythe claimant of the reasonable assessment. Do not copyit to the Texas Workers’ Compensation Commission.Instead, notify the TWCC of the change in benefits byelectronic filing. You must stop temporary income benefitsand initiate payment of impairment income benefits basedupon your reasonable assessment no later than the fifthday after you receive the treating doctor’s report per §408.121 of the Act. You must file a TWCC-32 indicatingyour dispute with the TWCC. There is no provision in thestatute or rules to notify the TWCC of the reasonableassessment prospectively. There is no specific deadlinefor requesting a designated doctor; however, I would do soat the time you decide to dispute the treating doctor’scertification. If the claimant has not been certified ashaving reached maximum medical improvement, then youcould file a TWCC-32 requesting a designated doctor ifyou believe that the claimant has, in fact, reached maximummedical improvement. Upon receipt of the designateddoctor’s report, you must initiate impairment incomebenefits no later than the fifth day after receiving thereport.

If we file the “Downs 21” prior to filing theTWCC-21 denial even though we are still withinour first 7 days, does this obligate us in anyway

to pay any benefits including medical on a claim?

Assuming that you received notice of injury withinthe first seven days of disability, indemnity benefitswill not be due. If, however, you received notice

of injury after the benefits had accrued, you will be liablefor them unless you dispute compensability. Further, if youfail to dispute compensability within seven days, you arelikewise liable for all accrued medical benefits. (Medicalbenefits do not, however, accrue until the 45th day after thecarrier files a completed copy of the bill. Texas LaborCode Ann. Sec. 408.027. Therefore, a carrier must onlypay medical bills that have accrued before the date it filesit’s notice of refusal. Stated another way, if the carrier filesit’s contest of compensability before the 45th day after itreceives a completed medical bill, that bill is contested andnot owed unless the Commission determines that the claimis compensable.) Finally, filing a “Downs” notice will notinsulate a carrier if the carrier later fails to initiate benefitswhen they are “due.” The duty to pay benefits continuesto the date of the denial. Therefore, if the denial date isprior to the date any benefits are due, no benefits would bepayable.

It is our understanding that we cannot take onthe responsibility of the employer. The definitionof Employer appears to be very precise.

“Employer” means, unless otherwise specified, aperson who makes a contract of hire, employs oneor more employees, and has workers’ compensationinsurance coverage...” How do modified workprograms come into play in this situation?

Section 401.011 (18) defines employer. Also seeRule 129.6. It is the employer rather than thecarrier/adjuster that is to make the offer of

employment. The Rule is clear and unambiguous in thisregard.

If the insured is seeking assistance from the carrier, onething the carrier may do is obtain a TWCC-73 (WorkStatus Report) and forward it to the insured so that anoffer of employment may be made based on the TWCC-73. The Rule allows either the employer or the carrier torequest the treating doctor to provide a TWCC-73 byproviding the doctor a set of functional job descriptionswhich list modified duty positions which the employer hasavailable for the injured worker. See Rule 129.6(a). Thus,while the carrier cannot tender the BFO to the injuredworker, it may still be of assistance in the process.

We have a peer review, which states futuretreatment is not appropriate. Later, a physiciancalls for pre-authorization for treatment. Can

the adjuster deny treatment and inform the providerthe denial is based on a peer review or are we requiredto refer the request on to our certified agent to rendera denial?

See Rule 134.600 on pages 486 - 489 of the FOLWorker's Compensation Manual and the editorialcomments as well. An appropriate doctor or

healthcare provider who is licensed or trained to performthe health care under review and certified as an URA mustmake any denial. An adjuster may not deny pre-authorizationunless they are certified as an URA. If they are, they mayuse anything they feel comfortable in using in denying. Apeer review is not necessary, as they are, presumably,qualified to act as an URA. n

A


-14- FOLIO

Interest CalculatorFourth Quarter

5.28%

12

3

4

5

"X" Value Weeks "X" Value Weeks "Y" Value Weeks "Y" Value0.0015 27 0.3833 1 0.0010 27 0.02740.0035 28 0.4116 2 0.0020 28 0.02840.0066 29 0.4410 3 0.0030 29 0.02940.0106 30 0.4714 4 0.0041 30 0.03050.0157 31 0.5028 5 0.0051 31 0.03150.0218 32 0.5352 6 0.0061 32 0.03250.0289 33 0.5686 7 0.0071 33 0.03350.0370 34 0.6030 8 0.0081 34 0.03450.0461 35 0.6384 9 0.0091 35 0.03550.0562 36 0.6749 10 0.0102 36 0.03660.0673 37 0.7124 11 0.0112 37 0.03760.0795 38 0.7508 12 0.0122 38 0.03860.0926 39 0.7903 13 0.0132 39 0.03960.1068 40 0.8308 14 0.0142 40 0.04060.1220 41 0.8724 15 0.0152 41 0.04160.1382 42 0.9149 16 0.0162 42 0.04260.1554 43 0.9584 17 0.0173 43 0.04370.1737 44 1.0030 18 0.0183 44 0.04470.1929 45 1.0485 19 0.0193 45 0.04570.2131 46 1.0951 20 0.0203 46 0.04670.2344 47 1.1427 21 0.0213 47 0.04770.2567 48 1.1913 22 0.0223 48 0.04870.2800 49 1.2409 23 0.0234 49 0.04980.3043 50 1.2916 24 0.0244 50 0.05080.3296 51 1.3432 25 0.0254 51 0.05180.3559 52 1.3959 26 0.0264 52 0.0528

NOTE: For partial weeks, round up to next week (8 2/7ths weeks = 9 weeks).

Determine number of weeks of continuous payment owed. Find corresponding “X” value on chart.

TIBs: Calculate interest from the 7th day after first day benefits began, or the 7th day after the first notice, whichever is LATER .

Calculate interest from the 5th day after notice of the certification of MMI and impairment, or the date of a CARRIER dispute of MMI or impairment, whichever is EARLIER .

IIBs:

Interest Rate Effective from 10/1/2002 through 12/31/2002:

Determine total benefits plus interest owed by adding interest from steps 2 and 4, and adding total benefits to be paid.

Multiply “Y” by the total benefits owed (not including interest determined in steps 1 and 2 above). This is the approximate amount of interest owed from benefit ending date to payment date.

Determine number of weeks between ending date of payments and date benefits are to be paid. Find corresponding “Y” value on chart.

Multiply “X” by weekly compensation rate. This is the approximate amount of interest owed on the ending date of benefits.

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1920

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4

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Weeks1

Accumulated Interest from Beginning to End of Continuous Payment

Accumulated Interest from End of Payment Period to Date Paid


-15-FOLIO

APPEALS PANEL DECISIONS

Texas Workers’ Compensation Commission Appeal No. 020108sThe failure of the carrier to give the claimant 10-days notice of a rescheduled RME examination does notrequire the continuation of temporary income benefits, where the claimant fails to attend the rescheduledexamination without good cause.

Facts: The claimant originally had an appointment with an RME doctor scheduled for August 23, 2001. Thatappointment was rescheduled at the request of the doctor. The claimant failed to attend the appointment scheduledfor September 12, 2001, because of transportation problems. A Contested Case Hearing was held on the issue ofwhether or not the claimant had good cause for failing to attend the examination, and whether the carrier was entitledto suspend temporary income benefits as the result of the claimant’s nonattendance. The Hearing Officer found thatthe claimant did not have good cause for missing the examination; however, the Hearing Officer further concluded thatthe carrier was not entitled to suspend temporary income benefits, because the carrier had failed to give the claimant10-days notice of the examination. The carrier appealed contending that in deciding that the claimant had not been given10-days notice of the examination, the Hearing Officer had decided an issue not in dispute.

Holding: Reversed and rendered. Initially, the Appeals Panel disagrees with the carrier’s contention that theHearing Officer lacked jurisdiction to decide the issue of whether or not the failure to give the claimant 10-days noticeof the examination precluded a suspension of benefits following the no-show. In that regard the Panel states thefollowing: “The carrier needs to provide sufficient information that it has complied with the requirements for having theclaimant participate in the RME before the sanction of suspending temporary income benefits can be imposed on theclaimant.” Nonetheless, the Appeals Panel disagrees with the Hearing Officer’s finding that the failure to provide theclaimant with 10-days notice of the rescheduled examination precluded a suspension of temporary income benefits. Inthat regard, the Panel states the following: “There is a requirement for a 10-day notice of the employee and theemployee’s representative when the RME is initially scheduled. The rule goes on, however, to discuss rescheduling ofan RME at the request of the employee and specifically notes that, ‘the 10-day notice requirement does not apply toa rescheduled examination.’ While this case differs from the scenario presented by the rule in that the doctor was theone to reschedule the RME rather than the claimant, we find no reason to apply a 10-day notice requirement to arescheduling done at the request of the doctor.” The Panel notes that the claimant received notice of the rescheduledexamination at least seven days prior to the date of the examination. “The record is clear, however, that the claimanthad sufficient notice of the RME to have transportation arrangements made at some time prior to September 12, 2001to take her to the rescheduled RME on September 12th.”

Texas Workers’ Compensation Commission Appeal No. 020469For purposes of determining impairment under the Third Edition of the AMA Guides an IDET must be treatedas a surgical procedure.

Facts: The claimant sustained a compensable low back injury. His treating doctor initially assessed animpairment rating of 18%. That rating was later revised to 25%, when he added additional impairment for the IntraDiscal Electro Thermal Treatment procedure that took place on April 19, 2001. Dr. K was selected as the designateddoctor. Dr. K awarded an 8% impairment rating. The claimant contested this rating contending, among other things,that the designated doctor was required to consider the IDET procedure as a surgical procedure and award impairmentaccordingly under the Third Edition of the AMA Guides. The doctor responded without changing his impairment rating.Following the Contested Case Hearing, the Hearing Officer adopted the 18% impairment rating awarded by thedesignated doctor. The claimant appealed.

Holding: Reversed and remanded. “However, we must agree that the designated doctor failed to properlyapply the AMA Guides when he failed to assess impairment for the claimant’s IDET. We have held that for purposesof impairment rating assessment under the AMA Guides that the IDET is a surgical procedure notwithstanding thatAdvisory 2001-03 states that IDET is not subject to the spinal surgery second opinion process. Texas Workers’


-16- FOLIO

CASE DECISIONSTEXAS COURT OF APPEALS

Compensation Appeal No. 012635s decided December 13, 2001.” “We remand the case to her for her to seek aclarification from the designated doctor after instructing him that the purposes of rating impairment under the AMAGuides that IDET must be treated as a surgical procedure.”

Texas Workers’ Compensation Commission Appeal No. 020783As with the intoxication exception, the carrier has the responsibility of presenting sufficient evidence to raisethe issue of horseplay, before the burden shifts to the claimant to establish that he was not engaged in horseplayat the time of his injury.

Facts: The claimant claimed that he was injured when his foot and ankle were caught under the back wheelof a three-wheel ATV while in the course and scope of employment. The carrier’s evidence included evidence thatthe claimant did not have permission to be on the ATV at the time of the injury. The claimant was terminated soonfollowing the incident, at which point in time the claimant threatened litigation against the employer for a wrongfultermination. The carrier contended that the claim was a spite claim. The carrier argued that the evidence did notestablish that the claimant sustained an “injury.” The carrier further argued that any injury sustained was sustained whilethe claimant was engaged in horseplay.

The Hearing Officer determined that the claimant did not sustain an injury in the course and scope ofemployment. She further determined that the claimant was participating in horseplay at the time of the injury.Concerning the horseplay issue, the Hearing Officer noted in her decision that, “…although there is little if any directevidence that horseplay occurred, the mechanism of injury which claimant described is extremely difficult to envisionas having occurred pursuant to the normal use of an ATV.” The claimant appealed the Hearing Officer’s determination.

Holding: Affirmed in part and reversed and rendered in part. The Appeals Panel affirms the Hearing Officer’sdetermination that the claimant did not sustain an injury. They point to the lack of evidence of any damage or harm tothe physical structure of the body to support this finding. Concerning horseplay, the Panel states the following: “Weview these comments as constituting an implied finding that the carrier did not raise the horseplay exception to its liabilitywith sufficient probative evidence so as to shift the burden to the claimant to prove in effect that he was neverthelessinjured in the course and scope of employment notwithstanding the evidence of horseplay. Consequently, the horseplayexception to liability was not raised by the carrier and the burden to go forward with evidence on the absence ofhorseplay did not shift to the claimant.”

Bridges v. Andrews Transport, Inc. No. 09-01-477-CV, (Tex.App.—Beaumont 2002).Provisions in contracts providing that the lessor(as an independent contractor) reimburse employers foremployees’ wages and employement taxes are not held to be illegal as a matter of law

Facts: Lloyd Bridges is a truck driver who owned his own truck. Bridges and Andrews Transport enteredinto a lessor/lessee relationship by written agreement. Both parties also entered into an employment relationship createdby an at-will employment agreement. Both contracts stipulated that the lease and employment ended May 12, 1997and provided for how employment expenses were to be deducted.

During the course of the relationship, Bridges received his wages as a driver with the employee’s contributiontoward payroll withheld from each check. He received a separate check for the truck rental that reflected deductionsfor “driver’s wages,” “payroll FICA expenses,” “payroll FUTA expenses,” “payroll SUTA expenses,” and “workers’compensation expenses” from the gross revenue. The payments were reported as rents to the IRS and Bridges reportedthe proceeds as business profit/losses. In other words, Andrews Transport hired the driver and paid all of the state/federal and unemployment taxes and reduced Bridges lease payment by the amount of expenses elated to the driver.

Bridges argues that the amount taken out for workers’ compensation is statutorily mandated to be theemployer’s responsibility and were wrongfully passed on to him. Motion for Summary Judgment filed by Bridges statedthat Andrews Transport had defrauded him by giving him a handbook stating that it would provide for workers’compensation payments. Andrews Transport filed its own Motion for Summary Judgment and stated that Bridges had


-17-FOLIOa dual role. Bridges role as an employee was distinct from his lessee status. This distinct relationship should precludeBridges’ claim as a matter of law. The trial courts granted Andrew Transport’s motion. Bridges appealed.

Holding: Affirmed. Bridges contended that the Labor Code mandates employers to pay all contributions dueunder the code, and so, the fact that Andrews Transport charged the expenses back to Bridges constituted a violationof the code.

The existence of an employer/employee relationship does not render a simultaneously existing lessor/lesseerelationship between the same parties’ void as a matter of law. The relevant provision do not forbid the practice ofcharging the employee cost back to the lessor. Although the statute forbids the employer from charging back such costto an employee, it does not preclude the employer from charging back cost to an independent contractor.

Since Andrews Transport charged back employee cost to Bridges in his capacity as a lessor and not anemployee, Andrews Transport did not violate the Labor Code. Therefore, the Court of Appeals held that the contractprovisions in dispute were not void and affirmed the trial court’s decision.

Dow Chemical Company v. Bright. No. 99-0929 (Tex.2002).A general contractor must exhibit contractual or actual control over the contractor’s work in order to owe aduty of reasonable care to keep the premises safe for the employees.

Facts: Dow Chemical Company retained Gulf States as an independent contractor. Gulf States employedLarry Bright as a carpenter. Bright was injured on the job and sued Dow for negligence and that it had a duty ofreasonable care to keep the premises safe.

The accident occurred while Bright was removing plywood forms from the concrete pier. An overhead pipefell on him and injured him. The pipe was placed and improperly secured by an employee of Gulf States. Brightcontended that Dow had contractual and actual control of the premises, and therefore, had a duty of reasonable careto keep the premises safe.

Dow contended that Gulf States was an independent contractor, therefore relieving Dow of any obligation toBright. The trial court found in favor of Dow. Bright appealed. The court of appeals reversed and remanded. Dowappealed to the Texas Supreme Court.

Holding: The Texas Supreme Court reversed the court of appeals decision and rendered judgement that Brighttake nothing.

For a general contractor to be liable for an independent contractor for contractual control, the general contractormust have the right to control the means, methods or details of the independent contractor’s work. The control mustrelate to injury the negligence caused, and the contract must grant the contractor at least power to direct the order inwhich work is to be done.

Bright argued that Dow had the contractual rights to control the premises because Dow required Gulf Statesto comply with Dow’s safety rules and regulations promulgated. Dow contended that the contract stated that Gulf Statewas an independent contractor and that Gulf State retained the right of control not Dow.

The Court held that the agreement imposed on Dow no duty of care to Bright. Dow had no right of controlof the means, methods, or details of the work. Nor did the contract give Dow any power to direct orders. Therefore,Dow had no contractual control over Bright and did not owe him a duty of reasonable care.

If general contractor exercises actual control over the contractor’s work, he may be held liable for negligence.Merely exercising or retaining a general right to recommend a safe manner for the independent contractor’s employeesis not enough to subject him to liability. The control must relate to the injury. A pipe that was placed by a Gulf Stateemployee injured Bright. Dow did not instruct Bright on how to do his job, or to the employee on how to secure thepipe. Bright claimed that Dow could have stopped the work because of the hazard and that Dow’s safety inspectorshould not have issued a safe permit to continue work.

Dow at most owed Bright a duty that any safety requirements or procedures did not unreasonably increasethe probability and severity of injury. The facts indicate that Gulf States had their own safety representatives and wasaware that it was responsible for the safety of their employees. The fact that Dow had safety inspectors and requireda safe permit to be issued did not unreasonably increase the probability of injury. This is also not evidence that Brightor Gulf State did not have the right to control their work.


-18- FOLIOBecause none of Dow’s safety requirements or promulgation increased the probability and severity of injury, Dow didnot exercise actual control over Gulf State or Bright. Therefore, the Texas Supreme Court reversed the court of appealsdecision and rendered judgment that Bright takes nothing.

Hartford Underwriters Ins. Co. v. Hafley., No. 03-02-00107-CV. (Tex.App.—Austin 2002).The Commission has the discretion to choose a net income method over a gross income method for calculatingthe equivalent of statutory wages for self-employed claimants when determining whether the claimant is entitledto Supplemental Income Benefits.

Facts: In 1992, Richard Hafley was awarded disability benefits for an on the job injury. In 1994 he reachedmaximum medical improvement and was assigned an impairment rating of 17%. This impairment rating qualified himto receive SIBs so long as his wages were 80% less than his pre-injury wages.

Hafley was self-employed during the benefit period. The hearing officer calculated wages for SIBs based onHafley’s net income—the difference between total self-employed income minus business expenses. HartfordUnderwriters Insurance Company contended that wages should be calculated on the total gross amount of self-employed income, not the net amount. Hartford also argued that Hafley did not prevail on any issue within the scopeof the statute, and therefore, was not entitled to attorney’s fee.

The trial court affirmed the Commission net income calculation for awarding SIBs and also awarded attorney’sfees to the claimant. Hartford appealed.

Holding: The Court of Appeals affirmed. To qualify for SIBs, Hafley had to prove his average weekly wagesduring the compensable quarter was less than 80% of his pre-injury wage. He submitted evidence of his income frombeing self-employed during this period along with evidence of business expenses. Hafley’s accountant and anindependent expert accountant verified these expenses as legitimate. The Commission ruled on the evidence presentedand awarded Hafley SIBs for the compensable quarter.

Hartford contended that wages include “all forms of remuneration payable for a given period to an employee.”Therefore, the wage calculation should be the gross earnings of Hafley during this period not the net earnings. Hafleyreplied by analogizing self-employment wages to wage-earning employment. Therefore, he defined wages as theamount of money available to the employee for personal use.

The Appellate Court held that the Commission has wide latitude to determine how to best accomplish regulatoryresponsibilities as long as it does not create new powers and responsibilities. Based on the facts, the Commission choseto calculate wages on net income to fulfil the Act’s intent. The appeals court affirmed the District Court’s judgment.

Security Nat’l Ins. Co. v. Farmer. No. 2-00-377-CV (Tex.App.—Fort Worth 2002).On suit for judicial review following dispute resolution on an issue of compensability, the trial court shouldexercise a modified de novo standard of review and not the substantial evidence standard.

Facts: Roger Farmer sustained a low back injury on the job in January 1995. Medical reports revealed smalldisc herniations at L4-5 and L5-S1. Security National Insurance, carrier at the time, paid out workers’ compensationbenefits.

In March 1995 Farmer reached maximum medical improvement with a zero percent IR and was released toreturn to work. Farmer sought medical treatment for his back in December 1995 but was unable to relate it to a specificincident.

In April 1998 Farmer sustained a second on the job injury. Reports revealed L4-5, L5-S1, and L3-4 discherniation and bone spurts indicative of degenerative bone disease. Hartford Fire Insurance Company was the carrierat this time, and it acknowledged the injury to L3-4 disc and paid benefits. But Hartford disputed the remaining backinjuries contending that it was a continuation of the January 1995 injury.

Throughout the CCH and appeals panel, Security National contended that Farmer’s condition was solelycaused by his April 1998 injury and/or degenerative disc disease. At the CCH, the hearing officer ruled against SecurityNational, the appeals panel affirmed. Security National appealed to the trial court.

The trial court determined that the substantial evidence rule applied, quashed Security National’s discoveryrequest to Hartford, and ruled that the parties could only conduct discovery in accordance with a substantial evidencereview of the appeals panel decision.


-19-FOLIO

The sole issue on appeal is whether the trial court erred in ruling that the issues of this case were subject toa substantial evidence review.

Holding: Reversed and remanded. Issues regarding compensability are limited to the issues brought beforethe Commission appeals panel and are subject to a modified de novo review and may be tried to a jury. Issues otherthan those regarding compensability or eligibility for benefits are tried to the court and are subject to a substantialevidence review.

Since Security National continually raised the arguments concerning the injury to the L4-5 and L5-S1 was duesolely to the April 1998 injury before the Commission and trial court, it properly preserved the issue for review by theappellate court. Because these issues regarded compensability or eligibility of benefits, the trial court should haveapplied the modified de novo standard of review and not the substantial evidence standard of review. Therefore, theappellate court reversed and remanded the cause to the trial court to apply the correct standard of review. nnnnn

ON THE LEGE

Legislative Dates of InterestTuesday, November 12, 2002Prefiling of legislation for the 78th Legislature began.

Tuesday, January 14, 2003 (1st day)78th Legislature convenes.

Friday, March 14, 2003 (60th day)Deadline for filing bills and joint resolutions that are not local or have not been declared anemergency by the Governor.

Monday, June 2, 2003 (140th day)Last day of 78th Regular Session. Corrections only in house and senate.

Sunday, June 22, 2003Last day Governor can sign or veto Bills passed during the previous Legislative session.

Monday, September 1, 2003Date that bills without specific effective dates (that could not be effective immediately)become law.


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Legislative Wish ListContinued from p. 1

At the September meeting, the Commissioners voted 5-0 to recommend 21 staff recommendations for legislativeenactment. These amendments to the Texas Labor Codewould, if enacted by the 78th Legislature, bring about manychanges to the current system. Four recommendations arequite significant.• A party to a medical necessity dispute would no longer

have the right to request a hearing before the StateOffice of Administrative Hearings when they disagreewith the findings of an independent review organizationdecision regarding a medical necessity dispute.

• Imposition of a “good cause” rule that will restrict theintroduction of new evidence at a state office ofadministration hearing proceeding

• In cases where a summary judgment is issued by acourt, insurers would not be able to obtain reimbursementof benefits from the SIF.

• Insurers would lose the right to obtain a post-designateddoctor required medical examination when not inagreement with the findings of the designated doctor.

SOAH Judicial ReviewTWCC staff has recommended that Sec. 413.031 of the

Texas Labor Code be amended so as to eliminate theappellate rights of a party to a medical necessity dispute inthe manner provided for HMO independent revieworganization decisions. Sec. 413.031 of the statute wasamended last session to allow a party to a medical dispute toappeal the decision of the SOAH to the Travis CountyDistrict Court. The Commission had argued in a series ofcourt cases that the Texas Labor Code did not provide forjudicial review of medical disputes and that SOAH was thefinal review body for these types of disputes.

The recommended amendment of Sec. 413.031 of theTexas Labor Code would eliminate the current statutorylanguage that provides the disputing parties’ with the right toseek judicial review of a SOAH decision and also not allowfor judicial review of medical dispute resolution decisionsissued by SOAH.

The Texas Legislature added judicial review language toSec. 413.031 during the 77th legislative session. Theamendment followed the Texas Supreme Court’s holding inContinental Cas. Ins. Co. v. Functional RestorationAssociates, 19 S.W.3d 393 (Tex. 2000) that a carrier has nostatutory right to judicial review of SOAH decisions inmedical dispute resolution cases and that the carrier in thatcase had failed to plead a right to inherent judicial review.

SOAH Evidentiary BarThe Commission has recommended that the Texas

Labor Code be amended to prohibit introduction of new

evidence at the State Office of Administrative Hearingsunless there is good cause. This provision is currently inTWCC Rule 148.18(a). However, SOAH has declined toenforce TWCC’s rule prohibiting the introduction of newevidence since the hearings are considered to be de novoproceedings.

This proposed amendment of the Texas Labor Codewould not allow disputing parties to introduce new evidenceduring the course of a SOAH hearing in a medical disputeresolution case. The Commission believes that this practiceincreases expenses for all parties at the SOAH medicaldispute resolution hearing level.

Use of Summary Judgment on Judicial ReviewThe Texas Labor Code allows insurers to seek

reimbursement for any overpayments of benefits madeunder an interlocutory order or decision issued by TWCC,if that order or decision is “reversed or modified” by finalarbitration, order, or decision of the Commission or a court.The Texas Labor Code also states that, for purposes ofreimbursement from the Subsequent Injury Fund, a defaultjudgment does not constitute a modification or reversal of anappeals panel decision.

The Commission contends that the legislature intendedto discourage an insurer from appealing a case for the solepurpose of securing reimbursement from the SubsequentInjury Fund. The Commission has observed that theSubsequent Injury Fund has received a number of requestsfor reimbursement based upon summary judgment resolution.The Commission believes that many of these summaryjudgments have been supported only by a request foradmissions for which no response has been filed. As such,they have recommended this statutory change to discouragecarriers from obtaining the functional equivalent of a defaultjudgment.

Post Designated Doctor RME ProhibitionLast legislative session, the omnibus workers’

compensation bill, HB 2600, made numerous changes in theway required medical examinations were exercised byinsurance carriers. The Commission believes that aninconsistency was created when the Texas Labor Code wasamended.

For example, an RME cannot be used for MMI/IRpurposes unless there has first been a designated doctorexam. By statute, designated doctor’s report has presumptiveweight, yet the statute still provides that insurers cansuspend TIBs based upon the RME doctor’s opinion that theemployee has reached MMI, if the Commission does nothold a BRC within 10 days. Sec. 408.004(f) of the TexasLabor Code provides an insurer with the right to a RME afterthe DD examination if the insurer is not satisfied with theopinion rendered by the designated doctor. Accordingly, theCommission has recommended that the §408.004(f) of theTexas Labor Code regarding RMEs be deleted. n


-21-FOLIO

Bills PrefiledContinued from p. 1

determination of a workers’ compensation claim or theadjudication under Chapter 410 of a dispute involving aworkers’ compensation claim” from employment withTexas workers’ comp carriers. The prohibition extends,also, to State Office of Administrative Hearings judgeswho are “involved in hearing workers’ compensationcases”.

SB 101 would also prohibit such Commission andSOAH employees from representing a person “before the

Other Commission legislative recommendations include:

1. The clarification of TWCC’s responsibility and authority to review and audit health care providers and other billingentities and bill for the audits regardless of whether or not the provider or entity has violated a TWCC fee or utilizationguideline.

2. The immunity and defense of Medical Quality Review Panel members in lawsuits arising out of their actions as MQRPmembers.

3. The effect of an appeal of TWCC sanctions or removal of doctors from the Approved Doctor List.4. The amendment of Sec. 409.021 of the Texas Labor Code to provide that an insurer is not required to notify TWCC

within 7 days of written notice of injury, of its intent to pay income or death benefits, if benefits have not yet accrued.This recommendation was prompted by the Texas Supreme Court’s decision in the Downs case.

5. A conflict between the Texas Labor Code and Section 562.009 of the Occupations Code that requires a pharmacistto either inform patients of their right to refuse generic equivalent substitution or to display a sign that informs patientsof their right to refuse generic substitution. The Texas Labor Code requires doctors to prescribe generic medicationsunless they can substantiate the reasonableness of brand name drugs. TWCC’s access to records in the possessionof system participants.

6. The amendment of Sec. 408.0231 to allow TWCC to sanction non-doctor health care providers.7. The immediate suspension of a doctor from the Approved Doctor List pending an expedited administrative law hearing

after TWCC takes action to remove the doctor from the list.8. The amendment of Sec. 410.253 of the Texas Labor Code to ensure that TWCC receives notice of every petition and

notice of appeal at the time it is filed with the district court or court of appeals.9. The amendment of Sec. 410.306(b) of the Texas Labor Code to make TWCC’s hearing records admissible in court.10. The addition of a statutory provision prohibiting a business from using the acronym TWCC or the term “Workers’

Compensation Commission” or any acronym or term deceptively similar to those words or initials that create theimpression that the business is affiliated with, sponsored or approved by the Commission.

11. The amendment Sec. 409.011 of the Texas Labor Code to eliminate the requirement that TWCC mail “Rights andResponsibilities” statements to employers and instead require insurers to mail these statements to employers along withtheir insurance policy.

12. The amendment of Sec. 408.003 (c) of the Texas Labor Code to state that the TWCC-2, Employer’s Request forReimbursement form does not have to be filed with TWCC unless requested by TWCC, but must continue to be filedwith the insurer.

13. The amendment of Sections 406.004 and 406.007 of the Texas Labor Code to eliminate the requirement for anemployer to file a copy of the Employer’s Notice of No Coverage or Termination of Coverage with TWCC.

14. The amendment of Sections 406.144 and 406.145 of the Texas Labor Code to omit the requirement for independentcontractors and building and construction workers to file contractual coverage agreements with TWCC.

15. The amendment of Sec. 410.025 of the Texas Labor Code that requires that a Benefit Contested Case Hearing bescheduled at the time the Benefit Review Conference is scheduled.

16. The administrative “clean up” of Sections 409.021, 406.051(c), and 408.003(e) (as they pertain to employerreporting).

17. The correction of several statutory citations in the Texas Labor Code.

commission or State Office of Administrative Hearings ora court in a matter: (A) in which the person was personallyinvolved while associated with the commission or StateOffice of Administrative Hearings; or (B) that was withinthe person’s official responsibility while the person wasassociated with the commission or State Office ofAdministrative Hearings.” The legislation appears designedto prevent Commission employees from obtaining “on thejob training” and then moving into higher paying jobsrepresenting claimants or working for carriers.

FOLIO will track legislative developments each monththroughout the 78th session. n


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Health RisksContinued from p. 4

Pharmacy FormContinued from p. 3

ROC AppointmentsContinued from p. 4

• The new form uses a number of checkboxes toindicate answers to questions and for the provider toprovide the affirmation to invoke the provisions of Rule134.501 relating to the initial pharmaceutical coverageperiod. Some providers have indicated they use “dot-matrix” printers which makes use of check boxesdifficult. Therefore, providers are free to program theform into their system and simply place an “X” in a blank(rather than a box) if that is easier for them to reproduce.A copy of the form is available to Flahive, Ogden &

Latson clients in the resource center of the FO&L website,www.fol.com. n

• Senator Troy Fraser;• Senator Leticia Van de Putte;• Rebecca Olivares, TWCC Commissioner

(Employee);• Lonnie Watson, TWCC Commissioner (Employer);

and• Nancy Moore, Commissioner of Insurance designee.The ROC plays an important role in developing long

term workers’ compensation policy in Texas. The chair andvice-chair head a nine-member board of directors consistingof three state senators, three state representatives, twoCommissioners from the Texas Workers’ CompensationCommission (one representing employers and onerepresenting employees), and the Texas InsuranceCommissioner (or person designated by the Commissioner). n

individual to individual and most mold problems can beavoided through routine maintenance and a quick responseto water leaks.

“Junk science and other unfounded claims have helpedto fuel the public’s concern about mold and their health. Theeffort of the Texas Medical Association and other well-respected medical and public health experts to promote thefacts about mold are very helpful in calming fears,” saidGolden.

The NAII, based in suburban Chicago, is the nation’sleading property/casualty trade association with more than715 member companies writing more than $98 billion inannual premium. NAII members write more than 33 percentof the property/casualty insurance in the country and inTexas. n

Medical Fee SchedulesContinued from p. 4

compensation fee schedules when you look across states.”Out of the 40 states studied, five states – Nebraska,

Connecticut, Oregon, Alaska and Idaho – set the feeschedule at nearly double or even triple the Medicare rate ineach state. In three states – Florida, Massachusetts andMaryland – the fee schedules are, on average, at or below theMedicare levels in their state.

The study also reported that the greatest interstatevariation and the largest “premium” over Medicarereimbursement rates occur for surgical services and radiology.The median “premiums” are about 80 percent for surgeryand 60 percent for radiology. Physical medicine and evaluationand management services have the least interstate variationand smallest “premiums” over Medicare with the median“premium” for these two services at less than 20 percent.

“Many argue that workers’ compensation reimbursementmay require certain premiums over Medicare due to thespecial administrative requirements, such as the focus onreturn to work and other issues unique to occupationalhealth,” said the study. “Ironically, this should have createda higher premium over Medicare for office visits or physicalmedicine procedures where greater documentation andtargeted procedures are required, rather than standardradiology and surgical procedures.”

The study found that a significant number of state feeschedules might be higher than necessary to support qualitymedical care. This conclusion is based on the large variationin fee schedules across the states, the low correlationbetween fee schedule levels and the costs to deliver servicesand large differences in many states between the workers’compensation fee levels and the Medicare benchmark ineach state.

The study reported that 18 of 40 states have “premiums”over Medicare that are more than 100 percent for at least onemajor service category. In addition, 13 states have surgeryfee levels that are double the Medicare rates in the state andthree states have surgery fees that are near triple or more. “Itis not unreasonable to insist that such a substantial premiumover Medicare should have a clear public policy justificationin terms of improved health outcomes,” said the study.

On the other hand, the study observed that “policymakersshould certainly pay attention to questions of access toprimary care services in states where the workers’compensation fee schedule levels are near or below Medicarereimbursement levels.”

The study found that 17 of 40 states have less than afive-percent premium over Medicare for evaluation andmanagement services (office visits). In fact, 11 states have

continued on next page


-23-FOLIOevaluation and management fees that are below the Medicarelevel in their state. In Massachusetts, Florida and New York,for example, evaluation and management fees are 17 percentto 36 percent below Medicare levels. For physical medicineservices, 13 of 40 states have less than a five- percentpremium over Medicare. In Maryland, Florida and Coloradoand Colorado, physical medicine fees are 17 percent to 37percent below the Medicare fees. n

benefits. Employees should know beforehand thatTemporary Income Benefits may be reduced or suspendeddepending on the amount of earnings they receive forworking. Temporary Income Benefits may be reinstated,depending on continued eligibility, if they are unable tocontinue working or if suitable work is no longer availablethrough the early return to work program. Returning towork does not impact eligibility for medical benefits relatedto a compensable injury. The Texas Workers’Compensation Commission has information available onthe TWCC website at www.twcc.state.tx.us that will helpeducate employees about the workers’ compensationsystem and in communicating accurate information toemployees.Importance of Employee Involvement inProgram Development

Involving employees in the development andimplementation of the early return to work programencourages a feeling of ownership of the program andmaximizes the opportunities for success. Keeping thefocus on safety and the emphasis on early return to workis a joint effort. The program will benefit from having theinput of experienced and knowledgeable workers. Theresult should also be an improved safety record for thecompany or business. Employees who are involved are more likely toencourage and accept return to work efforts on their ownbehalf and on behalf of their co-workers. Employees,supervisors, and managers who help with training andeducation efforts, reviewing accident history, developingjob descriptions, recommending modifications to jobs, andidentifying meaningful alternate assignments develop asense of ownership and responsibility for the success ofthe program. n

Next month, FOLIO considers the importance ofcommunication among the parties concerned withreturn to work issues.

Return to Work ProgramContinued from p. 8

Republicans won each open seat on the Texas SupremeCourt this month, continuing an all-GOP makeup on thestate’s high court.

In one of the few closely watched races, RepublicanSteve Smith of Austin outpaced Democrat MargaretMirabal of Houston in Place 4 on the Texas SupremeCourt. Ms. Mirabal spent more than $600,000 on the race.Mr. Smith, best known for filing the Hopwood caseprotesting race-based admissions at the University ofTexas Law School, had only tepid support from his ownparty.

Mr. Smith angered many Republicans when heunseated Gov. Rick Perry’s appointee, Xavier Rodriguez,in the primary. During the campaign, he characterizedJudge Mirabal, who sought to break the Republican hold onthe state’s highest civil court, as a liberal activist judge.“The bottom line is that my conservative judicial philosophywas in line with Texas voters,” Mr. Smith said on electioneve as he enjoyed a lead over his opponent.

Other races for the state’s top civil court were low-key, particularly that of chief justice. Incumbent TomPhillips, who took no campaign contributions and confinedspending to the $20,000 he had on hand, handily beatDemocrat Richard Baker of Liberty, who also held spendingto a minimum. Libertarian Eugene Flynn, a Dallas attorney,was a distant third.

In Place 1, Republican Mike Schneider of Houstondefeated Democrat Linda Yanez, a Corpus Christi appealscourt judge, and Libertarian Quanah Parker. JusticeSchneider, a former Houston appeals court judge, wasappointed to the Supreme Court by Gov. Perry in Augustafter Justice James Baker retired. At that time, JusticeSchneider already had started his race for the court.

In Place 2, Republican Dale Wainwright of Houstonbeat Democrat Jim Parsons of Palestine, a former presidentof the State Bar of Texas and Green Party candidate BradRockwell of Austin. Mr. Wainwright has become thesecond African American member of the court. JusticeWainwright will succeed Justice Deborah Hankinson,who did not seek re-election.

The first African American member of the court,incumbent Republican Wallace Jefferson, a Perryappointee, defeated William Moody, a Democratic statedistrict judge from El Paso, in the race for Place 3. n

Supreme CourtRemains All-Republican

Fax Number Attention To: Subject Matter:

(512) 867-1700 FOL All materials not listed below

(512) 867-1732 Rob Cunning Suspension of TIBs

(512) 479-5319 Rob Cunning Designated Doctor Filings, RME, BRC

(512) 867-1724 Patsy Shelton Advisory Info., APA-Admin.ViolationsCompliance & PracticeExtra Hazardous

(512) 477-4996 Tillie Aguirre Billing InquiriesRequest for Treating Doctor (TWCC-53)

(512) 477-4996 Tillie Aguirre Status of BRC RequestsNotice of Controversion

(512) 867-1700 Paralegals All CCH Related Info.

(512) 477-4996 Tillie Aguirre TWCC- Filing (all except TWCC-20)(512) 472-4935

(512) 477-4987 Cindi Friedel BRC & PHC HearingsRFEs, Set Notices, Hearings,Files, Set Notice Cancellations

(512) 867-1748 Phyllis Devine Insurance Coverage (TWCC-20)Request for Record Checks & TWCC Files

(512) 867-1733 Annette Moffett Med Review Disputes/Initial SubmissionsSOAH/Medical Review

(512) 472-9160 Joel Ogden TWC Manual Orders & Request for Info.

Flahive, Ogden & LatsonP.O. Box 13367Austin, Texas 78711

FO&L Fax DirectoryTo help expedite your faxed information to the correct area within FO&L and get it to the responsible person at the earliest time, use thefollowing fax directory. Please remember the 3:30 p.m. receipt deadline for material required to be date stamped at theCommission. Material received after 4:00 p.m. does not permit time to deliver across town prior to the Commission close.

Note: Time-sensitive fax numbers are highlighted in bold face.


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