Update on the Texas Workers’ Comp System
I caught up this week with Stuart Colburn, defense attorney, Comp Laude® winner and partner at Downs Stafford, PC law firm in their Austin, Texas office. He is also co-author of the Texas Workers’ Compensation Handbook published by Lexis-Nexis. Stuart has agreed to give us a monthly update on what’s happening in Texas workers’ compensation.
Q: What is happening right now in the Texas workers’ comp system that we should be paying attention to?
A: Two things: attorney fees and some legislation that is just getting filed in the 86th Texas Legislative Session.
Q: Tell me more about attorney fees. What about attorney fees is the issue?
A: There is a lot of buzz because a list of 2018 100 top billing attorneys, both claimant and defense, has just come out. WorkCompCentral recently published this article List of Top-Billing Attorneys Show Fees Down Slightly on the issue. There are significant questions regarding the amount of hours some of the attorneys billed, especially when the attorney also performs legal work outside of workers compensation administrative hearings and thus those hours are not included in the list.
Q: Who publishes the list and why?
A: The list is released by the Texas Department of Insurance, Division of Workers Compensation. An anonymous attorney requested the list through the Freedom of Information Act. The publication of this list follows a similar list published last year that caught everyone’s attention.
Q: Does it have to do with the increase in the maximum allowable rate initiated in Jan 2017? I found this:
A: The increase in the maximum allowable fee might have some impact, especially for claimant attorneys. But not all carrier attorneys have raised their fees and very few raised their fees to the maximum level.
Q: So, what does this mean? What can we expect to happen in regards to attorney fees?
A: DWC has the authority to regulate attorney billing. I understand DWC is investigating several attorneys who allegedly submitted billing for work not performed. We may or may not see some administrative penalties in 2019.
Q: Okay, now let’s talk about some new bills filed in the legislature. What do we need to know about these new bills that have been introduced?
A: So far, there are less than 10 bills filed. The last day to file a bill is March 8, so we may see a few more. Some of the bills we know about include:
- Senate Bill 163. This bill would require construction contractors that provide services to the state government to carry workers’ compensation insurance. Some of the proponents include contractors and subcontractors who complain they are at a competitive disadvantage when their competitors do not carry workers compensation insurance. Pro-business groups are expected to oppose this bill.
- HB 1005. This bill supported by the Office of Injured Workers’ Counsel would require insurance carriers to pay for one causation report for each notice disputing the extent of the injury. If passed, the Division of Workers’ Compensation will need to develop and publicize rules to implement the bill.
- HB 387. This bill would allow nurse practitioners to sign status reports indicating whether or not an injured worker is able to return to work. Last session, the legislature granted such authority to Physician Assistants.
- HB 359. This bill would prohibit public employers from terminating certain injured workers before they reach maximum medical improvement.
- SB 229. This bill would require notices sent to injured workers by OIEC describing their rights and responsibilities also include a notice that the worker has the right to choose their doctor.
More details on the bills outlined above can be found in this article by WorkCompCentral: Bill Would Require Comp for Contractors, Pay for Causation Reports.
Q: Thanks for that overview, Stuart. Do you expect any other bills to be introduced before the deadline? Have you heard of anything?
A: I hear a great deal but I would rather not speculate. It takes a great deal of preparation to draft proposed legislation and find a legislator who agrees to sponsor the bill and submit the bill timely. Let’s wait until the deadline and we’ll talk again.
Check out the Texas Workers’ Compensation Handbook – updated version released in January 2019 and co-authored by Stuart Colburn, Joe Anderson and Albert Betts.