Of special interest to this month’s newsletter author, the Bureau of Labor Statistics notes that nearly 20 percent of adults over 65 continue to work rather than retire.  The reasons are varied, but some folks stay on the job because they like the job they do and the people they work with.  This means that the workforce is aging, and along with that trend comes more medical treatment for ordinary degenerative diseases of life that may be aggravated by work activities – picture an old jalopy with loose fenders and cloudy headlamps.   It may be slow but it’ll get you there. The moniker  “Silver Tsunami” is being applied, but we wonder whatever happened to the “Golden Years?”

The First District Court of Appeals in Houston has upset the apple cart again.  In an opinion recently issued, it held that the 45-day deadline for filing judicial review lawsuits to overturn a final decision of the Division is a statute of limitations, not a jurisdictional requirement.  This decision is in contrast to the opinions of other courts of appeal.  What this means is that late-filed judicial review lawsuits would not be dismissed on the basis that the court lacked the power to hear the case – a jurisdictional argument which would be an absolute bar to bringing the case.  Instead, the Court held that the 45-day deadline is a statute of limitations, with the result that the party bringing the case could argue that the statute of limitations was tolled based on the particular circumstances of the case, such as where Section 16.064 of the Texas Civil Practices and Remedies Code provisions might apply. Chicas v. Texas Mutual Insurance Company, 522 S.W.3d 67 (1st Dist. Houston) 2017.

Governor Abbott appointed Kent Sullivan to be the new Texas Commissioner of Insurance for a term to expire February 1, 2019.  Commissioner Sullivan has impressive qualifications and experience, and we look forward to his 25 years of private practice experience, his prior service as a justice on the Fourteenth Court of Appeals and his practical experience as a state district court judge being a positive influence on the insurance industry in Texas.

DWC brought Tim Riley on as Deputy Commissioner of Compliance and Investigations.  We first met Tim – more years ago than we want to admit– when he represented the old TWCC  doing hearings on medical cases before he went over to Texas Mutual to be vice president of Special Investigations.  We expect that the agency’s newly created Compliance and Investigations program area will benefit greatly from his vast and effective experience in enforcement efforts and criminal prosecutions.

Of note is that DWC closed the comment period on September 1st  for its informal working draft of new rules for the Designated Doctor Program.  The stated intent of DWC is to “improve  program transparency, more efficiently recruit and retain doctors, and help ensure that the most qualified doctors are selected for each Designated Doctor examination.” We await formal rule proposal to see what change it will bring to this cumbersome process.

Question: Will the DWC allow its Designated Doctors to evaluate injured workers through telemetrics?

Question: Will DWC bring telemetrics into the dispute resolution process?

The DWC intends to expand the use of telemedicine in Texas’ workers’ compensation system.  An informal rule proposal is being floated to system participants for comment.  The reasoning behind this change is that the agency wants to be proactive, and believes that this will make the system more efficient by saving employers and injured workers travel time and expense without sacrificing quality of care.  It used to be that under the Medicare reimbursement restrictions telemedicine could only be used in underserved areas.  DWC is using as its justification the 2017 bill passed by the Texas Legislature which addressed telemedicine in Texas to expand the use of telemedicine.   The Texas Medical Board is in the process of drafting rules to implement the legislative changes.  DWC’s rules are expected to be in line with those rules.

We found one company with sites in Texas – XstremeMD– that provides telemedicine services.  A visit to their website might be worth your while in order to see the facilities they currently maintain in Texas.  No doubt when this concept becomes widely accepted by insurance carriers and injured workers we will see a larger presence of these companies.  We are curious how existing workers’ compensation doctors will react to these changes.

The proposed DWC rule references the Texas Occupations Code Chapter 111, which allows the Texas Medical Board to adopt rules necessary to ensure the delivery of good care, prevent abuse and fraud, ensure adequate supervision of non-physician health care professionals who provide telemedicine medical services, and describe when an actual face-to-face consultation between a patient and his physician must take place.   A preliminary review of the Texas Medical Board rules shows that the services have to be performed at an “established medical site” and may be used for all patient visits, including initial evaluations, to establish a physician-patient relationship, regardless of whether the physician is physically present at the telemedicine site.  A “distant site provider” may delegate tasks and activities to a “patient site presenter.”  The patient site presenter must be licensed or certified in Texas to perform health care services  – we assume this would most likely be physician assistants or nurse practictioners, but that remains to be clarified.  The rule has other provisions, such as notice and privacy requirements, but the gist of the concept is that medical services will be provided by telemetric means.  We will be watching the rules closely to see what the DWC has in mind that is specific to workers’ comp.  Jane Stone, Stone Loughlin & Swanson, LLP

It is not uncommon for injured workers to suffer additional injuries due to car accidents on the way to a physician’s office or physical therapist’s office. So what are the rules in New Jersey on compensability?

Q. Is the injured worker covered for workers’ compensation purposes in a car accident on the way to treatment?

A. The case of Camp v. Lockheed Electronics, Inc., 178 N.J. Super. 535 (App. Div.), certif. denied, 87 N.J. 415 (1981) provides the answer to this question. In that case the employee fell at work on December 27, 1968 injuring her coccyx, low back and right leg. Then a year later petitioner was driving back from a visit to her physician when she was seriously injured in a car accident on March 9, 1969. She ended up having surgery in 1970. Her lawyer failed to file a claim petition for the car accident, and the petitioner received no award of compensation. The Appellate Division reversed in favor of petitioner, noting that Professor Larson’s treatise on workers’ compensation summarized the law around the nation on this issue:

A fall or automobile accident during a trip to a doctor’s office has usually been considered sufficiently causally related to the employment by the mere fact that a work-connected injury was the cause of the journey, without any necessity for showing that the first injury in some way contributed to the fall or accident.

The basic rule then is that an injury on the way to authorized treatment is compensable.

Q. Is the injured worker covered in a car accident on the way to an IME for permanency?

A. There is no case directly on point but there is a case which states that an injury in a car accident on the way to a fitness for duty examination requested by the employer does not arise out of work. In this practitioner’s opinion, a commute to an IME for purposes of permanency is not compensable because there is no authorized treatment involved. That is the essence of the rule in Camp noted above. A claimant who pursues permanency benefits does so as part of a litigation process. Both parties send the claimant to respective experts, but the attendance at the exams is due to litigation, not for purposes of treatment.

Q. What if an occupational facility uses a company like Uber to pick up the injured worker from work or home and then take the employee to treatment? Is a car accident on the way to treatment covered under those circumstances?

A. In the opinion of this practitioner, such an injury would be compensable under the rule in Camp. It would make no difference that the injured worker was not driving his or her own car. The rule in Camp would still apply because the employee was on the way to authorized treatment.

Q. Does an employer have a lien if the injured worker sues another driver who causes a car accident on the way to treatment?

A. Yes, since the car accident is a workers’ compensation injury, the employer has lien rights to any recovery from that accident under N.J.S.A. 34:15-40.

More and more occupational facilities are offering to transport injured workers to PT or doctors’ appointments either from work or home, using Uber or Lyft or similar services. A motor vehicle accident in such circumstances will almost certainly lead to a civil law suit because fault will likely lie with either that of the transport service driver or the other driver. The employer must pay workers’ compensation benefits, but there is a high likelihood of a third party claim with subrogation rights reserved to the employer.

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John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers’ Compensation Group.  Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com. 

 Louisiana has adopted certain Medical Treatment Guidelines with the purpose of assisting with the decision making process regarding proposed medical treatment for injured workers. The Medical Treatment Guidelines have been effective for several years.   For any dispute as to whether the recommended care or treatment is in accordance with the medical treatment schedule, or whether a variance from the medical treatment schedule is reasonably required, any aggrieved party may file a Disputed Claim for Medical Treatment appeal with the Office of Workers’ Compensation Medical Director. 

This process was challenged by a group of claimants and their attorneys, under constitutional grounds.  Unfortunately, in March of 2017, a district judge granted this challenge to the medical director system, finding the process unconstitutional, and enjoining the OWC from applying the regulations.  The OWC then filed a suspensive appeal, and the issue is currently awaiting review by the proper appellate court.  The OWC has resumed the medical review process during the pendency of the appeal.  However, the future of the process is uncertain.  We will monitor this issue on an ongoing basis.

In Burgess v. Sewerage & Water Board of New Orleans, 2016-2267 (La. 06/29/2017) the Louisiana Supreme Court has held that the choice of pharmacy in a workers’ compensation case belongs to the employer, and not the employee.  Resolving a split in the state’s circuit courts of appeal, the Supreme Court acknowledged that La. R.S. 23:1203 obligates an employer “to furnish all necessary drugs” to the injured employee. The statute does not, however, directly address who has the right to choose the pharmacy to dispense the drugs.  The Court noted that the Legislature could have explicitly given employees the choice of pharmacy, just as it gave employees the choice of physician under the statutory scheme, but the legislature did not. The Court reasoned that given the statutory ambiguity (and because prescription medications need only be furnished in a timely manner regardless of where they come from), as well as the cost-consciousness implicit in the statute, employers should control pharmacy dispensing.

The recent case of Clavier v. Coburn Supply Co., 2016-0625 (La. 06/27/2017) addressed the issue of choice of functional capacity evaluation (FCE).  For the first time, the Louisiana Supreme Court ruled on the payment of such an FCE.  The Employer had obtained an FCE and the claimant apparently disagreed with the results, and she sought an order from the workers’ compensation judge compelling Employer to pay for an FCE of the claimant’s choosing.  When the judge denied the request, claimant ultimately pursued her appeal to the Louisiana Supreme Court.  The Court denied the request and found that claimant was not entitled to an FCE with her choice of provider at Employer’s cost; Employer could not be required to pay for an FCE with her choice of provider.