Workers’ Comp, Texas Style: A Highly Regulated System in a Pro-Business State

Stuart Colburn Albert Betts By Stuart D. Colburn and Albert Betts, Jr.

Cotton, cattle and oil were the primary economic engines when Texas first adopted workers’ compensation. In the 100+ years since, the economy and workers’ compensation laws have changed dramatically. The shift from an agricultural to a manufacturing and then to an information based economy changes the frequency and type of injuries sustained at work. Health insurance, Medicare/Medicaid, and disability insurance alter the landscape of both a social safety net for employees and higher costs for employers.

Each state looks internally to tweak its own system while keeping an eye on other states that are trying to lure businesses away with promises of lower costs. States rush to reform their delivery system of income and medical benefits to injured workers while trying to maintain (or in some cases, obtain) a balance between the interests of the two primary stakeholders: employees and employers.

Each generation finds a new challenge. Concerns over perceived runaway indemnity costs have been replaced with stubbornly high medical costs. Focus shifted to unnecessary medical treatment, including spinal surgeries. Opioid addiction is the topic de jure. In the future, stakeholders may face injuries from nanotechnology or new and expensive medical procedures for claimants with a guarantee of lifetime medical treatment. The legislators, regulators, and stakeholders must adapt the system to fit the needs of the worker injured on the job and the employer who pays the premiums.

Workers’ compensation is a surprisingly complex system. Employers, employees, insurance carriers, health care providers, attorneys and a litany of vendors rarely agree with one another or with the regulators charged with oversight. And the regulators are charged with an impossible task and often succeed in not being able to completely satisfy everyone.

Texas chooses a highly regulated system, a surprise for a state proud of its pro-business heritage. The Texas legislature has created, and regulators administer, a system that has a policy, a procedure, a form, a rule, and an administrative violation for every seemingly anticipated event. Fortunately, most disputes between stakeholders are resolved within the administrative agency.

Most states employ one or more unique or quirky elements, often as a response to some problem, real or perceived, identified long ago. As time goes by, such features become an accepted part of the workers’ compensation fabric. For example, Texas is the only state where private employers may choose whether to provide workers’ compensation insurance for its employees. Another example is the absolute prohibition against settling medical benefits for a lump sum payment, thus providing for lifetime medical benefits. Many employers who do business in multiple jurisdictions would prefer a system that allows settlements but Texas has determined that this approach is the most appropriate for our state.

Yet, Texas is also on the forefront of new innovations and technology. Texas was one of the first to employ the AMA Guides as a sole measure of calculating permanent impairment. The legislators required DWC to adopt evidence based medicine guidelines. As a result, stakeholders have become intimately familiar with the ODG Treatment Guidelines. (Texas also adopted return to work guidelines but those have not been integrated into the system as successfully as the treatment guidelines). Texas is a leader in the development of electronic transfer of medical bills and medical payments.

Like Texas workers’ compensation, the Texas Workers’ Compensation Handbook (LexisNexis) is going through major changes. For starters, two new authors have assumed responsibilities and quickly reorganized and updated Chapters 2-6 of the Handbook. The authors designed the chapters in such a way so attorneys and other workers’ compensation professionals can more easily access information, including cites to statutes, rules, forms and legal precedent in a clear and concise manner. The Handbook includes more Appeals Panel decisions focusing on recent case law. The remaining chapters will be similarly reorganized by the next update.

Aside from ease of use, the authors wanted a Handbook worthy of the LexisNexis brand and reputations of Professor Arthur Larson and Lex K. Larson. Thus, every effort was made to present a balanced view of the current state of the law. We are very thankful to the many lawyers who represent injured workers for their willingness in volunteering to read, review and provide additional comments to improve the Handbook. We deeply appreciate their efforts to help create a resource for our entire profession and industry.

In keeping up with the times, LexisNexis will publish this Handbook in electronic format. The eBook allows professionals to access content on their desktop, tablet, or smartphone. The statutes, rules, and commentary are immediately available with a swipe of your finger, even while you are representing a client at a BRC, CCH, or trial.

We hope you come to rely on the Texas Workers’ Compensation Handbook in your practice or business. We accept constructive criticism and suggestions to improve the book for the betterment of us all.

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