State News : Texas

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

We are taking a chance that you will be interested in the latest court of appeals decision on the “coming and going” rule.  The Amarillo Court of Appeals in Steen v. Texas Mutual Ins. Co. held at the end of last month that an employee who gave a prospective employee of the company a ride to his job interview at the company office was not in the course and scope of his employment because when he was killed en route his injury did not originate in the employer’s work, trade or profession because transporting the friend was not essential to his employment, that the employee was not expected to be at the office because there were no job openings, and that transporting people for interviews was not part of his job description.  Further, the employee was not on a “special mission” at the behest of the employer.  This sure seems to us to be a lot of words which really boil down to the employee not being furthering the affairs of the employer at the time of his injury.  This type of case almost always involves a serious injury or death, and unusual fact patterns.  Every case hinges not on the law, but on the particular actions of the employee vis a vis his job duties at the time of the incident. 

Or rather perhaps the Texas Side Step.  Chiropractor Robert Coolbaugh failed to refund money to an insurance company even after an ALJ with the State Office of Administrative Hearings ordered him to do so.  To avoid complying, he found a lawyer to file a lawsuit in Travis County in the guise of a declaratory judgment action, arguing that this was a penalty order that was “void and unconstitutional.”  The Austin Court of Appeals upheld the trial court’s ruling that it lacked jurisdiction to review the SOAH order because the order had become final over two years before the doctor filed suit.  The Court noted in particular the fact that Coolbaugh tried to get around the finality of the SOAH order by disguising his complaint as a suit for declaratory relief.

 -  Copyright 2019, Jane Lipscomb Stone, Stone Loughlin & Swanson, LLP

Wiggling around the exclusive remedy defense is still pretty hard to do. The Corpus Christi Court of Appeals held early this month in Barrett v. Berry Contracting, LP  that in the context of general contractor/subcontrator claims, if the claimant accepts workers’ compensation benefits where a general contractor purchased a policy of insurance that covered subcontractors, the claimant cannot escape and the comp bar applies.  It is not clear whether the Court’s analysis would have been different if the claimant hadn’t “accepted” the benefits.  

 -  Copyright 2019,Jane Lipscomb Stone, Stone Loughlin & Swanson, LLP

There has been a 97% decrease in the number of comp claims where the injured worker was receiving high levels of N-drug opioids between 2009 and 2015... the closed formulary went into effect in 2011.  As a further bonus, the average return-to-work rate for both network and non-network claims increased after the closed formulary went into effect.  Texas is becoming a standard bearer across the nation on this issue, and when we attended the National Workers’ Compensation Defense Conference last month in Chicago, we were frequently approached by national insurers and risk managers wanting more information about Texas’ success.  We, of course, are not surprised that Texas leads the nation in, well, everything good!  And some of you may remember when Jane Stone from the firm and Suzanne Novak, M.D. Ph.D. first raised the alarm when presenting at ICT and the State Bar about the opioid crisis in Texas comp. The lesson?  It pays to bring things to light, even if it takes time for regulations to be implemented to address the problem. https://www.tdi.texas.gov/wc/regulation/roc/formulary2019.html.

As a side note, William Rabb reports that medical disputes in Texas comp have “dropped like a rock.”  Very true, and good news for the system because the reason for the drop in disputes is effective, targeted regulation.
 

-  Copyright 2019, Jane Lipscomb Stone, Stone Loughlin & Swanson, LLP

“Andrew Michael Garrett, D.C. is hereby forever removed from the Texas workers’ compensation system’s designated doctor list [which] removal shall be permanent, of indefinite duration and without a right of reconsideration at any point in the future. . . .“ So, what did he do?  He performed 11 exams and never filed a report from the exams.  To top it off he refused to perform subsequent DD exams when appointed to do so.  The icing on the cake was his failure to respond to a Letter of Clarification.  And then there was the cherry on top of the icing on top of the cake – he is forever banned from providing treatment within the Texas workers’ compensation system and was ordered to pay a $2,500 fine.

-  Copyright 2019,Jane Lipscomb Stone, Stone Loughlin & Swanson, LLP

La petite mort is more than a mere expression in France; it turns out it may actually constitute a compensable work injury. 

According to aNew York Post article of September 10, 2019, an engineer working for a Paris railroad construction company was on a business trip in February 2013 when he suffered a fatal heart attack in his hotel.   His death was determined to be an“accident du travail”—a work accident—thus allowing the deceased man’s family to claim benefits from the state and the employer.  Benefits were deemed payable in the amount of 80% of the decedent’s salary until his would-be retirement age, after which his beneficiaries would be entitled to a portion of his pension. 

The employer fought the determination, citing the non-work-relatedness of the married man’s activities at the time of his death, which occurred during a spontaneous round of adulterous intercourse with a local woman he had just met. 

However, an appeals court decided that the victim was under continuous coverage during his business trip, thus entitling him to benefits sustained via a work-related injury.  The Court equated the sexual encounter to any other “act of normal life like taking a shower or eating a meal.” Such romantics, the French.

(Editor’s note: alternate titles for this entry included “Really Dangerous Liaisons” and “French Kiss of Death”.)
 
Copyright 2019,Stone Loughlin & Swanson, LLP

The Division is once again bypassing public discourse in its latest effort at ad hoc rule-making. During the DWC’s August Workers’ Compensation seminar in Austin, Benefit Review Officers were instructed that an insurance carrier representative in a Benefit Review Conference must do more than merely state the conditions thus far accepted by their clients, he or she will be required to sign a Form DWC024 agreement to that effect.  In other words, a party’s assurance that a given set of conditions is not in dispute will no longer suffice; a formal and legally-binding agreement must be entered into instead.  

This new policy has yet to be circulated in writing to system participants for comment or questions, so much of what is known of it has been obtained anecdotally.  According to those we have spoken with, the Benefit Review Officer will ask the parties to sign a DWC024 accepting as compensable any conditions listed as such in a PLN-11 or DWC032 completed by the Carrier.  If the Carrier representative will not agree, he or she may be subject to a violation referral, and the heretofore undisputed conditions would then become part of an extent of injury issue. 

The goal of having the parties enter into such an agreement is ostensibly to minimize the number of previously accepted conditions that suddenly become disputed ones.  The Division has been silent as to why this policy does not create the very problem it was intended to solve.

The purported authority for this rule change is Section 415.002(a), which states that “[a]n insurance carrier or its representative commits an administrative violation if that person: (9) attends a dispute resolution proceeding within the division without complete authority or fails to exercise authority to effectuate agreement or settlement.”  Thus far presiding officers have not been swayed by protestations that PLN-11’s and DWC032’s are not legally-binding documents, that stipulated conditions can simply be memorialized in a Benefit Review Officer’s Report, or that accepted injuries may change as the medical evidence develops. 

In the meantime, Carrier representatives are faced with a difficult choice: either sign an agreement that is perhaps not in their clients’ best interests, or subject themselves to potential violation referrals if they refuse.
 
Copyright 2019, Stone Loughlin & Swanson, LLP