State News

At least every other year, the Texas Department of Insurance, Division of Workers’ Compensation is required to evaluate the performance of healthcare providers in the workers’ compensation system. Healthcare providers were evaluated on three criteria: (1) DWC Form-069, Report of Medical Evaluation; (2) Completeness of the DWC Form-073, Work Status Report; and (3) Documentation supporting why the injured worker is prevented from returning to work as reported on the DWC Form-073. The majority of healthcare providers were identified as a “high tier performer.” If you are curious about how well any specific provider performed, you can review the Division resultshere.
 

System participants continue to pursue creative ways to exploit and defraud the workers’ compensation system in Texas. The efforts have not gone unnoticed – or unprosecuted – by the law enforcement authorities. Here’s a review of some recent convictions.
 

Husband of Truck Stop Employee Injured, Insured Fraudulently Claims He is an Employee 

Texas Carrier Fraudulently Billed for FCEs
 
Frequent, unnecessarily-ordered functional capacity exams (FCEs) tend to draw the ire of carriers in the Texas system, with some system participants questioning whether the FCEs are actually taking place. In at least one recent case, the FCEs were found not to have occurred as billed.

EME International, owned by Christine Caldwell, recently plead guilty to a third degree felony for fraudulently billing Texas Mutual for FCEs taking two to four hours. In fact, the FCEs did not take two to four hours to perform. The Company was ordered to pay $30,000 in restitution. The case was also prosecuted by the DWC’s prosecution unit embedded in the Travis County DA’s office.

The DWC press release is available here.

Copyright 2019, Dan Price, Stone Loughlin & Swanson, LLP
 
Federal Comp System Also the Target of Fraudulent Billing in Texas
 
In a grander scheme in dollars if not in design, Rafael Enrique Rodriguez, the owner of San Antonio and Salt Lake City physical therapy clinics, was convicted in federal court and sentenced to up to six years in prison for fraudulently billing -- to the tune of $7.5 million – the Federal Employees Compensation Act, Office of Workers’ Compensation Program. Rodriguez billed the program for PT services provided by a licensed professional when, in fact, such services were provided by unlicensed professionals. Further, the name of the licensed therapist used by Rodriguez in connection with the scheme was used without permission of that therapist. Prior to the fraud being identified, Rodriguez and Company collected over $6 million in fraudulent billings.

The Department of Justice press release is availablehere.

-  Copyright 2019, Dan Price, Stone Loughlin & Swanson, LLP

We recently faced an issue where a Claimant was scheduled to attend a post-DD RME exam to evaluate MMI/IR. The Claimant showed up but then refused to submit to the exam unless his wife was permitted to video record the exam on her phone. The post-DD RME doctor wisely refused this demand, and Claimant left without undergoing the RME. The Carrier then terminated based on failure to attend the RME. Both the RME doctor and the Carrier correctly handled the situation in accordance with long-standing policy of the Division of Workers’ Compensation.

The policy preventing claimants from bringing witnesses to RMEs or recording the exams was laid out by the Texas Workers’ Compensation Commission (now, the Division of Workers’ Compensation) way back in 1996. In APD 960367, an injured employee had presented himself for the post-DD RME with a cassette recorder and video camera. The RME doctor refused to examine the injured employee under these circumstances and sent him away. While the Hearing Officer did not address the issue of whether the claimant had the right to record the examination, the Appeals Panel did stating:
 

"The statute and rule provide a more direct, obvious and effective way to ensure the integrity of the examination by authorizing, at carrier’s expense, the presence of the claimant’s treating doctor at the examination."

 
The Appeals Panel went on to say that, while the treating doctor’s attendance may not necessarily be the only way to establish how a post-DD RME examination is conducted, it is “the only one a claimant is entitled to under the statute and rule.”  (AP 960367).
 
The Appeals Panel also citedTWCC-Advisory 96-01, which directly addressed situations that had arisen where injured employees failed to submit to an RME examination because the doctor would not allow a witness other than the employee’s doctor to attend the examination or allow the examination to be video or audio taped.
 
The Division again cited the Act and Rule provisions that allow the employee to have the treating doctor present at the examination.  The Division went on to advise that, if the claimant wants to have any other person in the examination room, the claimant must obtain prior authorization from the examining doctor:
 
"[V]ideo cameras or other recording equipment will not be allowed in the examination without prior authorization from the examining doctor."
 
Finally, the Advisory states that a doctor’s decision not to allow a witness other than the employee’s doctor to attend the examination or allow the examination to be recorded isnot good cause for failure to submit to the examination. (TWCC-Advisory 96-01 emphasis supplied).  The Division went on to reiterate that, under Section 408.004(f), failure to submit to an RME examination without good cause may result in anadministrative penalty against the claimant.

In short, based on APD 960367 and Advisory 96-01, an injured worker may not record an RME and may not bring a witness to the exam (except the treating doctor). When scheduling RMEs, we recommend reminding your doctors of this now-decades old Division policy.
 

We are deeply saddened to inform you that our dear friend and colleague Bill Nemeth passed away on December 28, 2019.  William “Bill” Nemeth, M.D. was truly a giant in workers’ compensation and occupational medicine.  Bill served numerous roles in the field of workers’ compensation over the course of his remarkable career.  During his tenure as Medical Advisor to the Division of Workers’ Compensation, Bill helped lead a much-needed transition to evidence-based medicine in workers’ compensation.  Bill’s emphasis on evidence-based medicine and his contributions to the ODG Treatment Guidelines improved care for all injured workers in Texas.  Bill recognized earlier than most the dangers of over-treatment with opioids.  He treated his patients’ pain and addiction issues with an empathy that came from personal experience.  Bill also had a gift for being able to explain the most difficult medical concepts in a way that everyone could understand.  We all relied heavily on Bill’s vast knowledge and expertise but it is his wit, humor, and compassion that will be most dearly missed.

-  Copyright 2019,James Loughlin, Stone Loughlin & Swanson, LLP

Effective January 1, 2020, the mileage reimbursement rate for Alabama is 57.5 cents per mile, a .5 cent decrease from 2019.

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About the Author

This blog submission was prepared by Mike Fish, an attorney with Fish Nelson & Holden, LLC, a law firm dedicated to representing self-insured employers, insurance carriers, and third party administrators in all matters related to workers’ compensation. Fish Nelson & Holden is a member of the National Workers’ Compensation Defense Network. If you have any questions about this submission or Alabama workers’ compensation in general, please contact Fish by e-mailing him at mfish@fishnelson.com or by calling him directly at 205-332-1448.

Today marks 100 years since the Alabama Workers’ Compensation Act went into effect.  Back then, it was known as the Alabama Workmen’s Compensation Act.  While it has been expanded in the last century, much of the original 33 page Act (now closer to 450 pages including annotations) has remained unchanged.

Although there has been some recent controversy as to the constitutionality of the Act, it remains a much better alternative to employees having to prove tort liability and tort liability exposure for employers. 

As the Honorable E.R. Mills so adeptly stated in Singletary v. Mangham Construction, 418 So.2d 1138 (Fla. 1st DCA, 1982), “Workers' compensation is a very important field of the law, if not the most important. It touches more lives than any other field of the law. It involves the payments of huge sums of money. The welfare of human beings, the success of business, and the pocketbooks of consumers are affected daily by it.”

About the Author

This blog submission was prepared by Mike Fish, an attorney with Fish Nelson & Holden, LLC, a law firm dedicated to representing self-insured employers, insurance carriers, and third party administrators in all matters related to workers’ compensation. Fish Nelson & Holden is a member of the National Workers’ Compensation Defense Network. If you have any questions about this submission or Alabama workers’ compensation in general, please contact Fish by e-mailing him at mfish@fishnelson.com or by calling him directly at 205-332-1448.

The case of Martin v. Newark Public Schools was the subject of an earlier blog on October 7, 2019.  At the time of that blog, the case had not been approved for publication.  On December 13, 2019, the Committee on Publications decided to approve Martin for publication.  It is now the only published decision in New Jersey workers’ compensation on this specific issue and therefore the leading case on requests for continued opioid use. 

The case involved a not uncommon situation where two physicians disagreed on the need for long-term opioid use. The treating physician, Dr. Patricio Grob, treated petitioner from 2011 to 2017 but then released petitioner in September 2017, writing one final prescription of Percocet as a courtesy to Mr. Martin. Dr. Grob felt that Percocet was poorly controlling Martin’s pain.  He also said that continued Percocet would “not manage petitioner’s radicular complaints . . . and could complicate his recovery.”  After six years of treating petitioner with Percocet, Dr. Grob concluded that prescription pain medication would never improve Martin’s condition. Dr. Grob recommended surgery but petitioner declined surgery due to an unrelated blood condition.

Martin next saw Dr. Harris Bram, an expert in pain medication, for a one-time evaluation.  Dr. Bram noted that petitioner had disc desiccation at L4-5 and L5-S1 and a disc herniation at L5-S1.  Dr. Bram recorded somewhat contradictory statements from petitioner.  In taking petitioner’s history, Dr. Bram said Martin reported opioid medication provided only “small pain relief.”  But he also self-reported in other records that Percocet abated his pain symptoms by approximately 60%.  Dr. Bram concluded that long-term use of opioids would be reasonable for petitioner.

Administrative Supervisory Judge, the Hon. Philip Tornetta, found that petitioner failed to prove continued Percocet treatment would reduce Martin’s pain or permit him to function better.  He commented that Dr. Bram did not provide medical evidence that long-term Percocet use would permit petitioner to function better.

The Appellate Division affirmed the dismissal of petitioner’s motion, first citing to an older case involving a motion for physical therapy.  In Hanrahan v. Twp. Of Sparta, 284 N.J. Super. 327, 336 (App. Div. 1995) the Court found that the claimant who was seeking further physical therapy was required to show the treatment would “probably relieve petitioner’s symptoms and thereby improve his ability to function.”  The Court applied this logic to the Martin case in respect to the request for long-term opioids:

Here, the judge found credible the testimony of Dr. Grob that continued prescribing of pain medication did not, and would never, heal petitioner or relieve his condition.  During the six years he treated petitioner, Dr. Grob concluded Martin’s pain had not been alleviated with therapy or medication.

The Court concluded, “We are satisfied there was sufficient, credible evidence in the record to support the compensation judge’s determination that further treatment with opioid medication would not cure or relieve Martin’s injury.”

The emphasis on this case at both the trial level and appellate level was on improvement of function.  The fact that the treating doctor had observed poor pain control from Percocet over six years posed serious problems for petitioner to overcome at trial.  The case must be seen in the context of the opioid epidemic in the United States.  It demonstrates that employers can actually do something about long-term opioid use under certain situations.  Just testifying in court that opioid medication makes one feel good will not suffice.  There must be medical evidence of improvement of function under this significant decision.

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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. 

We are in holiday season.  Many private and public entities have holiday parties this time of year, and inevitably there will be accidents either going to or from the party or perhaps slipping and falling on the dance floor.  What do employers need to know and what can they do to avoid such claims when they schedule weekend or after-work parties?

First, the employee must prove that the event is a regular incident of employment and that the purpose of the event was to promote an end greater than improvement of morale.  If it is all about morale, it is not compensable.  A fundraiser might be an example of an event whose purpose promotes something greater than morale. 

But even if the employee cannot meet this test, the employee will prevail if he or she can show that attendance was compulsory.  That which is required is considered to be work-related.  Now realistically, most employers do not send out invitations to holiday parties saying that attendance is compulsory.  But that is not the only way for an employee to prove attendance was compelled.  If the person in charge of the party says, “Hi Sam, I sure hope you are going to make the holiday party on Saturday,” Sam may testify at trial that he had a reasonable basis to believe that his attendance was compelled.  If the person in charge of the party keeps asking people whether they are attending, and then presses for explanations on why they are not planning to attend, or suggests that “the boss will be disappointed,” a Judge of Compensation may very well find that the employee had a reasonable basis to believe that attendance was compelled. So the test of compulsion is not whether the words “mandatory attendance” are on the invitation but whether the employee had a reasonable basis to believe he or she must attend.

When employers lose cases involving injuries going to or from holiday parties or slip and falls at the party, it is mostly because the injured employee can convince the Judge of Compensation that he or she felt compelled to attend.  If that is the case, the ride to the party and the ride home is covered by workers’ compensation.  Car accidents are the main cause of injuries, often very serious ones, and the risk of injury may be compounded by use of alcohol or wintry road conditions.   Unfortunately, the New Jersey law does not protect employers from injuries caused largely by intoxication because the current law requires the employer to prove that no cause – other than the use of alcohol – contributed to the accident.  So if you have someone who is intoxicated above the legal limit and the roads are slippery when the accident happens, the employer will lose because there is another reason for the accident besides intoxication, namely the slippery road conditions.  Needless to say, we are in December.

The best way for employers to insure that they do not have to pay for holiday party accidents is to make it crystal clear that attendance is optional.  Put that language all over the invitation.  Make it clear that there will be no names taken of attendees, and non-attendees, and do not pester people who have no plans to attend.  High level employees should not be walking around asking employees why they are not coming to the party.   This may make it harder to guarantee a number of attendees for the restaurant, but that is far better than having to pay a death claim for someone who is tragically injured driving home from a holiday party.

Bear in mind that holiday parties during work hours are a completely different subject.  These parties where people are actually at work and getting paid during normal work hours are almost always covered.   So if there is a party at lunch at Lincoln Company in the cafeteria, and someone slips and falls on the floor while grabbing an egg nog, that injury will be held to be compensable because on-premises injuries are compensable unless they constitute a deviation from employment.

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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. 

On December 6, 2019, the Alabama Court of Civil Appeals released its opinion inJames Brooks v. Austal USA, LLC. The undisputed facts were that while the Complaint was filed prior to the expiration of the Statute of Limitations, the Complaint was not served on the employer for seven months, during which time the Statute of Limitations expired. The Court of Appeals held that to commence an action for Statute of Limitations purposes, a Complaint must be filedand there must be an intent to have the Complaint immediately served; and held further that if the employee performs all of the tasks required to effectuate service at the time of filing, that the action has commenced. In this case, the employee attempted to serve the Complaint at the time it was filed, albeit to an outdated registered agent. While it took several months after the failed attempt for the Complaint to be served, the Court of Appeals determined that there was an attempt to serve at the time of filing. For this reason, the case was reversed and remanded.

About the Author

This article was written by Karen E. Cleveland, Esq. of Fish Nelson & Holden, LLC. Fish Nelson & Holden is a law firm dedicated to representing employers, self-insured employers, and insurance carriers in workers’ compensation cases and related liability matters. Fish Nelson & Holden is a member of The National Workers’ Compensation Defense Network (NWCDN). If you have any questions about this submission, please contact Cleveland by emailing her atkcleveland@fishnelson.com or by calling her directly at 205-332-1599.

On December 6, 2019, the Alabama Court of Civil Appeals released its opinion inColby Furniture Company v. Belinda Overton.  In Overton, the employer sought the termination of the employee’s right to future medical benefits.  The employee injured her neck in 1994 and received pain management treatment for over 22 years.  In 2005, she was given a panel of four pain management doctors from which she selected a new doctor thus burning the one panel owed to her per statute.  In 2015, she was dismissed from pain management for violating the narcotic agreement entered into with her doctor.  The employer subsequently filed a motion for summary judgment asserting that the employee already burned her panel and, in the alternative, that she forfeited her right to benefits due to her own misconduct under an unclean hands theory.  The Judge denied the motion and the matter proceed to an evidentiary hearing.  The Judge subsequently issued a Final Order which required the employer to provide another panel of four from which no appeal was taken.  The employer then undertook to comply with the Order by offering several panels.  Despite its best efforts, none of the selected doctors were willing to accept the employee as a patient.  The employer then filed a Motion for Additional Instructions outlining its efforts at complying with the Order and seeking further guidance from the Court on what could be done.  The Judge then issued a second Order requiring either that a panel of four be offered (presumably from which the employee could select a doctor that would accept her as a patient) or, in the alternative, that the employer negotiate a settlement of the employee’s future medical benefits.  The employer then filed a Motion to Alter Amend or Vacate that Order which was subsequently denied by operation of law.  The employer then appealed the second Order.

On appeal, the employer raised several issues including the fact that the employee was only entitled to one panel per the statute and the doctrine of unclean hands.  The Court of Appeals noted that the first Order which was conclusive and binding on the issues was not appealed.  The Court further noted that, in its Motion for Additional Instructions, the employer did not assert that only one panel was owed or that the employee was guilty of unclean hands.  Therefore, neither issue was deemed to be properly before the Court on appeal.  For that reason and only that reason was the trial Judge’s Order affirmed.

My Two Cents:   

This is one of those situations where no good deed goes unpunished.  The employer clearly tried to bend over backwards to comply with the trial Judge’s wishes.  In doing so rather than immediately appealing the ruling, it was forever precluded from seeking appellate relief.  One point of interest is that the second Order gives the employer an option.  It can either provide a panelOR negotiate a settlement of medical benefits.  This begs the question as to whether in electing to go with option #2, it could simply not provide a panel.  In the usual case, withholding medical benefits while attempting to settle medical benefits would immediately invite a cause of action for outrageous conduct (egregious settlement tactics).  In this case, it would seem that the court’s second Order would insulate the employer from such a lawsuit. 

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About the Author

This blog submission was prepared by Mike Fish, an attorney with Fish Nelson & Holden, LLC, a law firm dedicated to representing self-insured employers, insurance carriers, and third party administrators in all matters related to workers’ compensation. Fish Nelson & Holden is a member of the National Workers’ Compensation Defense Network. If you have any questions about this submission or Alabama workers’ compensation in general, please contact Fish by e-mailing him at mfish@fishnelson.com or by calling him directly at 205-332-1448.