August 2019 Edition

The Workers’ Comp News Digest is a monthly summary of Texas and National articles of interest to our members.
Texas News
DWC News
August 29 – DWC issued a bulletin summarizing selected workers' compensation legislation that affects individuals and entities who participate in the Texas workers' compensation system. The bulletin includes the effective date of each bill.
August 23 – The Division of Workers’ Compensation (DWC) announced it is accepting public comment on a proposed new form: DWC Form-029, Request for Standard Detailed Data Reports. Insurance carriers, including certified self-insurers, certified self-insurer groups, and governmental entities, may submit the new form to ask for claim-level data they have already submitted to DWC. The data will be made available to them or another entity on their behalf. Comments must be received by 5 p.m., Central time, Friday, September 6, 2019.
August 23 – DWC recognized the Four Seasons Hotel Houston for its exemplary workplace safety program at its Lamar Street location. The Four Seasons is the first hotel to receive the Lone Star Safety Award.
August 22 – reported that while a number of states have struggled to keep their second-injury funds afloat and others have eliminated the funds altogether, Texas regulators have quietly found a way to eliminate a backlog of hundreds of refund requests while keeping their fund solvent. DWC announced that the agency had eliminated a big backlog of refund requests. (A subscription or purchase of the article is required to read this story)
August 7 – DWC announced that the health care provider system (“Provider”) was being moved to the TXCOMP Claims and Coverage system (“TXCOMP”). This change is being made to consolidate and modernize the Division of Workers’ Compensation’s (DWC) enterprise systems.
August 7 – DWC announced that it was revising DWC Form-073, Work Status Report, to implement  HB 387 which allows advanced practice registered nurses (APRNs) to complete and
file the form. Because HB 387 becomes effective September 1, 2019, DWC will approve the revised DWC Form-073 before adopting amendments to Rule 129.5.
August 1 – DWC announced it was accepting comments on an informal working draft of rule amendments for Rules 124.2, 124.3, 180.8, and 180.26 to implement  SB 2551, passed by the 86th Legislature. Comments were due august 19. SB 2551 clarifies the Presumptive Act (Chapter 607 Texas Government Code) by identifying specific cancers in statute for which the presumption will apply. A detailed analysis of the SB 2551 is available here.

Cancer Presumption
August 9 – The Houston Chronicle reported that a Houston Fire Department senior captain with neuroendocrine cancer won his appeal for workers compensation benefits, more than a year after the city denied his claim, arguing his illness was unrelated to his job. The ruling could help firefighters with cancer across Texas, who have struggled to win approval for workers’ compensation claims, despite medical research linking certain cancers to the fire service.  Between 2012 and last year, 91 percent of workers comp cancer claims in Texas were rejected.
Exclusive Remedy
August 20 – reported that NCCI included a recent Texas case upholding the immunity of the exclusive remedy provision of workers' compensation in their latest Court Case Update.
Home Modifications
August 20 – reported that The David Corey Company is hosting a national conference in Dallas next month. The CHAMPConnect Conference, set for Sept. 16-18, will offer a number of presenters and attendees, including carrier representatives who will share stories about their frustrations with contractors, and the way business is often conducted on home modifications. This year's conference, a TED-Talk-like format, features a keynote address by Amberley Snyder, a champion rodeo rider who was paralyzed in a truck accident in 2010. After rehab and some special modifications to her saddle, she returned to riding and still competes.

ICT News
August 22 – The Insurance Council of Texas reported that its 2019 Workers’ Compensation Conference will highlight changes facing the insurance industry. The conference features a variety of topics presented by industry leaders on topics ranging from workplace violence and catastrophic claims to expanded benefits for certain classes of workers. The conference agenda and online registration is available here.

August 5 – reported that after 18 years of administrative decisions, court rulings and appeals-court reversals and remands, a dispute over hospital reimbursements for unusually extensive treatments of injured workers is headed for more litigation. The dispute centers around a "stop-loss exception" to the state's per-diem reimbursement plan under medical fee guidelines that was included in rules the Texas Workers' Compensation Commission adopted in 1997. The DWC adopted medical fee schedules in 2008 that curtailed hefty hospital bills based on the stop-loss exception. But like the pain from surgical complications, litigation may continue for some time. (A subscription or purchase of the article is required to read this story)

TDI News
August 28 – TDI issued a bulletin reminding health plans, pharmacy benefit managers, and utilization review agents of the utilization review and adverse determination requirements and changes starting September 1, 2019.
August 14 – TDI announced the approval of changes to the National Council on Compensation Insurance (NCCI) Basic Manual for Workers Compensation and Employers Liability Insurance. The changes: eliminate or replace certain national and state special classifications; revise Appendix E - Table of Classifications by Hazard Group to update codes being eliminated or established; and revise certain state special phraseologies. The changes apply to new and renewal workers' compensation policies effective on and after July 1, 2020.
August 8 – TDI announced a proposal to repeal an old rule and adopt new rules that require certain policies to clearly state they do not provide workers’ compensation insurance. The disclosure would also be required on policy applications, advertisements, and materials provided to employers and employees.
National News
Firefighter Cancer Presumption
August 2 – reported that as state lawmakers continue to expand firefighter cancer presumption laws across the nation, University of California researcher Frank Neuhauser has written an article questioning the scientific basis for the policies. The research’s article appears in the July edition of Perspectives, a publication of the International Association of Industrial Accident Boards and Commissions, or IAIABC. (A subscription or purchase of the article is required to read this story)
August 21 – reported that a Boston trolley driver reported that a masked man attacked him and pulled him off of the trolley. Turns out there was more to the story, the attack was fake. The trolley driver’s reward was three years in state prison for workers’ compensation fraud followed by three years of probation, plus he must pay a $5,000 fine and $60,000 in restitution.
August 19 – Business Insurance reported that marijuana-related workers compensation cases and challenges to the exclusive remedy provision of the Workers Compensation Act continue to be widely litigated issues, according to the National Council on Compensation Insurance’s recent court case update. Legalization of marijuana and its impact on workers' comp continues to be an
area of broad interest.
August 13 – reported that with increased legalization, employers and insurers may have to consider the impact of legal cannabis in the workplace and workers’ comp claims. In terms of whether or not to provide coverage for cannabis for workers’ compensation or health-related claims, there are no easy answers for insurers. The conflicts between state and federal laws will continue to raise questions about what is acceptable in the workplace and what cannabis-related claims must be covered.
Prescription Drugs and Opioids
August 28 – reported that the development of a model law for states seeking to adopt a workers’ comp drug formulary has sparked a debate over the role of utilization review in disputed drug requests. Maximus Federal Citizen Services is advocating for a streamlined, independent appeals process that would prevent delays and ensure the injured worker receives a fair and unbiased review of drug disputes. (A subscription or purchase of the article is required to read this story)
August 27 – The Insurance Journal reported that while some Johnson & Johnson investors were relieved that the company’s $572 million penalty for fueling Oklahoma’s opioid epidemic wasn’t as high as feared, lawyers for other U.S. states, cities and counties could hardly contain their glee. That’s because the ruling was the first affirmation in court of a high-risk legal strategy using public-nuisance laws to punish predatory drug marketing. More than 45 other states and 2,000 local governments are hoping to win billions of dollars in verdicts with the same arguments.
August 27 – Claims Journal reported that the $572 million judgment against Johnson & Johnson may mean one analyst’s “bear case scenario” of $150 billion in opioid damages just got one step closer. That sum includes federal litigation involving more than 45 states and 2,000 localities, where lawyers have sought a settlement of $100 billion.
August 26 – Insurance Business Magazine reported that despite increased attention from the media and government, the opioid crisis continues to plague the United States, and in turn has implications for workers’ compensation insurance. To address the risks associated with
employees’ overuse of opioids, AmTrust Financial Services has partnered up with pharmacy care management company Optum Workers’ Comp and Auto No-Fault to implement processes that have driven down overall opioid prescriptions to insureds’ injured employees.
August 26 – Business Insurance reported that an Oklahoma judge found Johnson & Johnson liable for fueling an opioid epidemic in the state by deceptively marketing painkillers and ordered the drug maker to pay damages of $572 million. Opioids were involved in almost 400,000 overdose deaths from 1999 to 2017, according to the U.S. Centers for Disease Control and Prevention. Since 2000, some 6,000 Oklahomans have died from opioid overdoses, according to the state’s lawyers.
August 6 – reported that a study has found that initial opioid prescriptions of as short as five to nine days are associated with an increased chance of an injured worker who was previously opioid-free using the painkillers long-term. The study was published last month in JAMA Network Open. (A subscription or purchase of the article is required to read this story)
August 28 – reported that exoskeletons — devices that have allowed some injured workers to walk again after becoming paralyzed below the waist — are now taking the next step: helping patients walk without using crutches. The technology is an example of how exoskeletons continue to evolve. (A subscription or purchase of the article is required to read this story)
August 27 – reported that a report in Property Casualty 360 makes the case that the utilization review process for workers' compensation claims is ripe for automation. Currently, requests for authorization are submitted, a nurse compares the requested care against evidence-based medical guidelines, and a determination is issued. This is changing with new UR platforms that combine optical character recognition tools and automated intelligence or AI. (A subscription or purchase of the article is required to read this story)
August 26 – Carrier Management reported that Liberty Mutual is developing a next-generation workers compensation claims management system in order to help maintain and boost its market share. The company said it will work with Duck Creek Technologies as its technology partner for the multi-year effort to build a new, fully integrated workers compensation claims management system, which blends functional and technical capabilities, coupled with a focus on long-term partnerships. The teams will use the latest agile software methods and techniques to deliver the system.
August 12 – reported that The Hartford is using artificial intelligence to scour the medical records of injured employees as part of an effort to identify red flags for opioid abuse. When a claimant's profile shows a red flag, a nurse or senior-level claims manager is assigned to find out more information. In some cases, a nurse may contact the claimant's doctor or pharmacist seeking a change in medication or dosage. (A subscription or purchase of the article is required to read this story)


Dec 5-10

NAIC 2019 Fall National Meeting
JW Marriott, Austin, TX

Dec 10-13

NCOIL Annual Meeting
JW Marriott, Austin, TX

Dec 10

TWIA Quarterly Board Meeting
Omni, Corpus Christi, TX