State News : Texas

NWCDN is a network of law firms dedicated to protecting employers in workers’ compensation claims.


NWCDN Members regularly post articles and summary judgements in workers’ compensations law in your state.  


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Texas

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To interpret the current LIBs statute, appeals court approves definition of “imbecility” from dictionary published when William Howard Taft was President  


The El Paso court of appeals has provided new guidance for interpreting the term “incurable imbecility” in Texas Labor Code section 408.161 pertaining to eligibility for Lifetime Income Benefits. In El Paso Independent School District v. Portillo, the court approved of a definition of imbecility from a 1910 edition of Black’s Law Dictionary.

The dispute arose when Alejandro Portillo, who worked for EPISD as a heating and air conditioning technician, climbed a ladder to assist a coworker and the coworker fell on top of him, causing Portillo to suffer a head injury. He received medical treatment at a rehabilitation facility for five months and thereafter experienced continuing headaches and dizziness which caused him to lose his balance and fall. Although he was eventually released to return to work in a semi-sedentary position at EPISD, he was not able to return to his prior job as an HVAC technician and subsequently chose to retire from the school district. He applied for LIBs on the ground that the injury left him with incurable imbecility. He lost at the Division but appealed to district court where a jury agreed that he was entitled to LIBs and the trial court entered judgment in his favor. 

On appeal, EPISD argued (among other things) that the jury charge contained an erroneous definition of “imbecility” because (1) it was based on an excerpt of the definition of that term in the dictionary from 1910 and (2) it was different than the definition used by the Administrative Law Judge at the Division, thereby changing the issue to be decided by the jury and “moving the goalposts” in Portillo’s favor. The court of appeals rejected both arguments and affirmed the trial court’s judgment that he suffers from “incurable imbecility.” 

In doing so, the court of appeals explained why it approved of a definition from 1910. It noted that words can change meaning over time – a concept known as “semantic drift” – so to construe the Legislature’s intent in using a statutorily undefined term it is appropriate to consider how the term was defined in dictionaries published as close in time to the enactment of the statute as possible. Since the Legislature added the term “imbecility” to the statute in 1917, the use of a dictionary from 1910, it said, is appropriate.  

The definition of “imbecility” given by the trial court and approved by the court of appeals is the following:
A more or less advanced decay and feebleness of the intellectual faculties; that weakness of mind which, without depriving the person entirely of the use of his reason, leaves only the faculty of conceiving the most common and ordinary ideas and such as relate almost always to physical wants and habits. 
Ahem . . . apparently, people talked differently in 1910. It was, after all, a different time. William Howard Taft was President and the maximum speed limit in most cities was 10 – 12 mph.

It may be time for the Legislature to update the statute. 

Dirk Johnson appointed as Injured Employee Public Counsel


This month Governor Greg Abbott appointed Dirk Johnson to serve as Injured Employee Public Counsel. In that role, he will oversee the Office of Injured Employee Counsel which, among other things, provides ombudsmen to assist injured employees at Benefit Review Conferences and Contested Case Hearings. Dirk has a wealth of experience in the industry and has previously served as general counsel to the Texas Department of Insurance, Division of Workers’ Compensation. 

His newest appointment is subject to Senate confirmation. Congratulations, Dirk!
 

Hit the links for a good cause in October


Save the date for the annual Kids’ Chance of Texas golf tournament in Dallas on Monday, October 23rd.  More information will come as the date approaches. In the meantime, if you know of a child of a catastrophically injured worker who may qualify for a Kids’ Chance scholarship, please contact Jane Stone at jstone@slsaustin.com.  She can help!
 

Practice tip for carriers – request a BRC

 
A decision this month from the Court of Appeals in Corpus Christi may offer a practice tip for practitioners involved in disputes over the Division’s exclusive jurisdiction to adjudicate the issue of whether a worker was in the course and scope of employment. In The University of Texas Rio Grande Valley v. Oteka, the court held that the injured worker was not required to exhaust her administrative remedies with the Division before filing a personal injury lawsuit against her employer. In doing so, it distinguished similar but conflicting decisions in its sister courts of appeal. 

The case began when Oteka, a UTRGV nursing professor, attended a graduation ceremony for UTRGV students at McAllen Convention Center and, as she was walking to her car after the ceremony, was struck by a vehicle driven by a UTRGV police officer. She sued UTRGV for negligence, and UTRGV asserted the exclusive remedy defense under the Texas Workers’ Compensation Act. Oteka, who did not file a claim for compensation with the Division, contended that she was not in the course and scope of her employment at the time of her injury. UTRGV filed a plea to the jurisdiction, asserting that the compensability determination, including the issue of whether Oteka was in the course and scope of her employment, is within the exclusive jurisdiction of the Division. 

The court of appeals agreed with Oteka and held that the trial court had jurisdiction to decide the issue. The basis for its holding was its conclusion that Oteka’s suit was “not based on the ultimate question of whether she is eligible for workers’ compensation benefits.” 

The court noted that the Houston and Austin courts of appeal had reached the opposite conclusion in cases with similar facts (In re Tyler Asphalt & Gravel Co., Inc. and In re Hellas Constr., Inc.). But it distinguished them, noting that in both of those cases the administrative process at the Division had been invoked by one of the parties and the courts of appeal held that because the administrative process had been invoked, the personal injury suits should be abated (not dismissed) pending the outcome of that process. The Corpus Christi court then said that because there was no collateral proceeding in which the Division was determining the compensability of Oteka’s injuries, the holdings in the Houston and Austin courts were “inapposite.”

The takeaway here may be that, where a party is challenging a trial court’s jurisdiction to adjudicate the issue of course and scope of employment and arguing that the Division has exclusive jurisdiction over that issue, that party may wish to initiate an administrative proceeding at the Division, by requesting a Benefit Review Conference, thereby allowing it to cite Tyler Asphalt and Hellas as authority and distinguish Oteka.

With accomplices like these . . . 


The Division recently entered into a consent order with the Langford, Wise, and Farahmand Law Firm through its manager and agent, claimant attorney Roger Farahmand.  

Pursuant to the order, the law firm shall not seek payment of any attorney fee orders issued between July 1, 2017 and August 31, 2019 and shall not seek payment for representing any workers’ compensation participant for the next ten years.  Notably, the order also requires Mr. Farahmand to testify against claimant attorney Leslie Casaubon:
Respondent, through its Manager agent Roger Arash Farahmand, must cooperate fully with the Travis County District Attorney's Office investigation and prosecution(s) of Leslie Casaubon and provide complete and truthful testimony when and if called upon to do so in any criminal proceeding.  
As Paul Harvey would say, the rest of the story is that Roger Farahmand and Leslie Casaubon were both indicted for billing fraud in 2021: https://www.tdi.texas.gov/news/2021/dwc03262021.html.

Mr. Farahmand and Ms. Casaubon were indicted for engaging in organized criminal activity and securing the execution of a document by deception.  The indictments against Ms. Casaubon and Mr. Farahmand allege that they caused data to be submitted to the Division’s attorney fee processing system “representing that services had been rendered by Roger Farahmand and James T. Langford when services were not rendered by Roger Farahmand and James T. Langford.”

The case against Mr. Farahmand was dismissed on December 29, 2022 for the reason that “[t]he defendant has been granted immunity in light of his testimony.”  The case against Ms. Casaubon remains pending with a pre-trial hearing set for March 7, 2023.  Mr. Farahmand will presumably be called to testify against her at trial if a plea agreement is not reached.  
 

Trouble Seeing?  Call an eye doctor, not a chiropractor.


On January 13, 2023, the Division fined chiropractor Poorvi Sandesara, D.C. $8,000.00 for treating an injured employee’s compensable eye injury. For those that don’t know or aren’t frequent readers of our newsletter, chiropractors are not the same as medical doctors. The Texas legislature has limited chiropractors’ scope of practice to the evaluation and treatment of the “biomechanical condition of the spine and musculoskeletal system.” Chiropractors are prohibited by law from performing surgery, giving injections, and prescribing drugs, among other things.  However, the entrepreneurial spirit is alive and well in chiropractors and sometimes they push their scope of practice boundaries, to the detriment of injured employees. According to the Division’s consent order:
Failure to act within the scope of practice for a chiropractor is deceptive and harmful to injured employees, the public, and the Texas workers’ compensation system.  This conduct directly interferes with the division’s goal of providing timely, appropriate, and high-quality medical care supporting restoration of the injured employee’s physical condition and earning capacity.
We couldn’t have put it better ourselves.  This case also raises the obvious question of why someone would treat with a chiropractor for an eye injury.  Did the injured employee not know better or did their attorney refer them to the chiropractor?  It seems the goal in such cases is to stay off work longer rather than to get the best possible medical care.  The Division’s actions in this case are in the best interests of injured employees and are to be commended.  Next up on the Division’s agenda should be chiropractors treating injured employees with burn injuries which, believe it or not, we’ve also seen before.

Un-Rea-liable evidence gets Crump-ed in Dallas Court of Appeals


After water damage to a University of Texas at Dallas building in February 2015 led to mold, which was remediated 3 months later, UT system employee Diane Bartek made an occupational disease claim for exposure to mold in her workplace. To support her claim for conditions such as “autoimmune nervous system dysfunction, immune deregulation, and toxic encephalopathy,” William Rea, M.D. produced a causation opinion which was based, in part, on an assumption that Bartek’s mold exposure lasted for 5 years and, in part, on a series of tests that were neither medically or scientifically recognized to support the claimed medical conditions. Neither a Texas Department of Insurance, Division of Workers’ Compensation (DWC) administrative law judge nor the Appeals Panel fell for the junk science. Despite objections to Dr. Rea’s testimony as based on clearly erroneous assumptions and unsound testing methods, a Dallas County jury was allowed to hear Dr. Rea’s causation evidence, and they found she sustained an occupational disease injury from continuous exposure to mold.

The UT System appealed to the Dallas Court of Appeals, arguing that the jury verdict was based on unreliable medical evidence and so there was legally and factually no evidence to support the trial court’s judgment. Bartek responded by arguing that Dr. Rea was her treating doctor and was, therefore, “empowered by the Texas Workers’ Compensation Act to provide a causation report.” Finding that Transcontinental Ins. Co v. Crump, 330 S. W.3d 211 (Tex. 2010), is not at all moldy, the Dallas Court of Appeals agreed with UT System for two reasons: 1) Dr. Rea’s opinion was based on an unreliable foundation; and 2) each of Dr. Rea’s testing methods were shown to be rejected by the scientific and medical communities. The court of appeals threw out the trial court judgment and rendered a take-nothing judgment in favor of UT System. 

Copyright 2023, Stone Loughlin & Swanson, LLP 

Did someone suggest bringing back extent of injury waiver?   


For about a five-year spell, the Division’s Appeals Panel interpreted Labor Code section 409.021’s 60-day compensability deadline to mean that an insurance carrier could waive its right to raise an extent of injury dispute if it did not dispute a condition within 60 days from its initial notice. This waiver theory meant that the mere utterance of a diagnosis on a medical record or even a work status report obligated an insurance carrier to dispute the condition or waive its right to do so.
 
This waiver theory created a new dimension to CCH evidence: the injured employee had to identify the date the diagnosis was first mentioned and the insurance carrier had to show that it had conducted a “reasonable investigation” and disputed the diagnosis at its earliest opportunity. Extent of injury disputes frequently boiled down to mere words on a page, the adjuster’s ability to scrutinize each medical report, and a hearing officer’s opinion about what is a reasonable investigation.  (See APD 060233).

What’s a reasonable investigation, you ask? Well, for a real rabbit hole analysis, the Appeals Panel once stated that “reasonable investigation with the claimant’s treating doctor would have disclosed a referral, and the referral doctor’s referral for diagnostic testing.” (See APD 081222).

Then, in 2009, the Texas Supreme Court in State Office of Risk Management v. Lawton found that the 60-day waiver in Labor Code section 409.021 should not apply to extent of injury disputes.  That seemed to be waiver’s last breath.
   
That is, until November 2022, when House Bill 790 was filed before the 88th Legislative Session even began.  House Bill 790 would create a statutory right to the extent of injury waiver and require every first designated doctor request to include a request for an extent of injury opinion, proposing changes to Texas Labor Code 409.021 and 408.0041.   

Although this seems to be designed mostly for persons covered under Gov’t Code §§607.051 (first responders), HB 790 proposes to include that an insurance carrier who fails to comply with new subsection (a) (not just the part related to first responders) within 60 days waives its right to deny the extent of the specific injury claimed by the injured worker or “reasonably reflected” in a review of the injured worker’s medical records. We will provide an update if this gets past the committee.
 


Congratulations are in order

 
The Division just issued a list of the hardest working comp attorneys for 2022. Here are the top three claimant and top three carrier attorneys with the average number of hours worked per day assuming they worked every single day of the year, weekends and holidays included, and billed at the Division’s maximum allowable rate of $200 per hour: 

Claimant Attorney    Approved Fees      Hours per day
Bill Abbott                   $958,162.50           13.13
Adam Henderson       $939,700.00           12.87
Kim Wyatt                   $774,820.00           10.61
 
Carrier Attorney      Approved Fees        Hours per day
Dean Pappas            $880,492.50             12.06
Jeremy Lunn             $641,589.00              8.79
Mark Midkiff              $509,600.30              6.98

Bill Abbott moved up to first place from number two in 2021 while Kim Wyatt dropped from first to third and Adam Henderson moved up one spot to number two for 2022. Mr. Henderson was indicted for billing fraud in 2021 along with Leslie Casaubon and Roger Farahmand (see story above). The indictment alleges that Mr. Henderson submitted bills for work he did not do from January 1, 2012 to January 31, 2019. The case remains pending and he has a pretrial hearing set for February 9, 2023. Dean Pappas was the number one carrier attorney again, making him the top carrier attorney five out of the last six years.
 
To view the amount of approved attorney’s fees for each of the top 100 Claimant and Carrier workers’ compensation attorneys for 2022, click the following link: Top 100 2022

Prior years can be viewed here: Top 100 2021, Top 100 2020, Top 100 2019, Top 100 2018, Top 2017

Austin court of appeals may be close to deciding fate of SIBs rule


The Third Court of Appeals in Austin has signaled that it may be on the verge of issuing its long-awaited decision in the challenge to the validity of the Division’s rule on Supplemental Income Benefits. The validity challenge, styled Texas Department of Insurance, Division of Workers’ Compensation v. Accident Fund Insurance Company of America and Texas Cotton Ginners’ Trust, has been at the court of appeals since February 12, 2021. 

The case began when Accident Fund (represented by this firm) and TCGT filed petitions for declaratory relief in Travis County district court, challenging the validity of the SIBs rule. The carriers argued that the Division exceeded its rule-making authority because the rule is inconsistent with the Texas Workers’ Compensation Act – specifically, the rule permits a worker to qualify for SIBs even if the worker does not meet any of the three criteria for SIBs required by the Act. Travis County district judge Maya Guerra Gamble agreed with the carriers, held the rule invalid, and enjoined the Division from applying it. But the Division appealed, and the appeal has stayed the trial court’s ruling for almost two years. 

In a letter this month, the court of appeals notified the parties that the cause is set for submission on briefs on February 1, 2023. That could mean that the court’s decision will issue on that date or soon thereafter. 
 

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