Local attorney and mother denied virtual hearings despite caring for high-risk infant

El Paso News

Courtesy Jordan Scruggs

EL PASO, Texas (KTSM) — The COVID-19 pandemic shifted the ways we live, work, and function. Although some professionals are returning to traditional in-person work days, that model no longer works for professionals who also serve as caregivers.

KTSM 9 News spoke with two attorneys who specialize in workers’ compensation claims who are also caregivers. Both say they’ve made requests to the Texas Department of Insurance (TDI), Division of Workers’ Compensation (DWC) to participate in virtual hearings after the agency returned to in-person on August 2, 2021.

“It’s not like they’re being asked to do something new. They’ve done this for a year,” says Brad McClellan, an attorney caring for his mother in hospice care. 

McClellan shared an order denying his request for virtual hearings with KTSM that reads in part: 

“As there is no provision in the venue statute, original or as amended, to hold hearings in any manner other than in-person at the appropriate field office, the request to conduct the entire hearing by video conference is denied. Further, in an otherwise in-person hearing, hearing rooms do not have the necessary equipment to facilitate appearance by only some participants via video conference.”

On the contrary, the State Office of Administrative Hearings states that:

“Under the current emergency order relating to COVID-19, parties should expect that most non-emergency hearings will be conducted remotely by teleconference or videoconference. If a party wishes to request a continuance or refuses to consent to a remote hearing, they must file a motion for continuance or objection that includes a brief demonstrating good cause as the why the use of remote technologies is not feasible or in the interest of justice.” 

“These remote hearings are more efficient, they cost the system less money, it costs everyone less time and expense,” McClellan says, “and I haven’t had a judge who hasn’t accommodated my situation in the last year and a half.” 

In a statement to KTSM, a public information officer for the Texas Department of Insurance’s Division of Workers’ Compensation says:

“There are generally two types of proceedings held at the Texas Department of Insurance,  Division of Workers’ Compensation (DWC): benefit review conferences and contested case hearings. A benefit review conference is very similar to mediation, where parties work with a mediator to try and reach an agreement. Contested case hearings are administrative proceedings that are conducted much like regular court hearings.

After a recent statutory change, DWC is conducting benefit review conferences remotely.

Hearing participants can petition to participate by telephone, which may be granted if the requestor has good cause.

A participant may also ask to continue (delay) a hearing for health reasons, including related to COVID-19.

DWC has safety and health measures in place for hearing rooms, such as placing plexiglass dividers between participants, encouraging masks, and asking non-essential participants to wait outside until called to testify.”

Kate Sidora, Public Information Officer, TDI Division of Worker’s Compensation

Research suggests that plexiglass dividers may not be as effective as we think, and there are many high-risk people who are unable to risk exposure despite extensive protocols.

Jordan Scruggs is a single working mom in El Paso who, like McClellan, represents severely-injured people and their families in workers’ compensation claims. 

Scruggs gave birth to a miracle baby, Bailey, who is a medically-complex infant.

Bailey was born with end stage renal disease — or kidney failure — secondary to autosomal recessive polycystic kidney disease.

Her condition requires daily dialysis that’s administered by her mother.

A statement from Bailey’s doctors says “Due to her medical issues, Bailey is at high risk for infections, requiring close monitoring and limited interactions with people outside of the home.”

Still, Scruggs says that her requests for virtual hearings have either been ignored or denied, like McClellan’s.

“Keeping her alive every day is a full-time job in and of itself,” says Scruggs. “I give her medications, I do her g-tube feeds, I do her dialysis for 12 hours a day.”

Scruggs and Bailey spent the first seven months of Bailey’s life at Texas Children’s Hospital in Houston, where Scruggs fulfilled her duties as an attorney while working as a mom around the clock. 

“I did Zoom hearings when she was in the Neonatal Intensive Care Unit. I did Zoom hearings when she was in the Pediatric Intensive Care Unit,” says Scruggs, who adds there is no reason to risk potentially exposing Bailey by going to in-person hearings when virtual has proven effective.

“For the last  year and a half, we’ve all been participating remotely — through Zoom — and the position that the agency has taken ‘that it’s no longer feasible’ or ‘they don’t have the technology’ I can’t comprehend,” says Scruggs. 

The El Paso County Council of Judges sent a statement to El Paso Bar attorneys regarding the courts’ response to COVID-19 and determined: 

“All non-essential, in-person proceedings may pose an unnecessary or unreasonable risk to participants, court staff, or the public.”

El Paso Council of Judges statement to El Paso Bar Attorneys court response to coronavirus

Still, Scruggs, McClellan, and other caregiver-professionals like them are stuck between a rock and a hard place when it comes to choosing between their livelihoods and the lives of those whom they care for. 

“I have been practicing law for the past eight years — practicing in El Paso County — doing primarily workers’ comp, work-related injuries. Representing these severely-injured workers for the entirety of my career,” says Scruggs.

“But I am a mother before I’m an attorney.”

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