State News : Texas

The Division is offering free webinars for health care providers and staff explaining the ins and outs of medical care for injured workers. The webinars will cover topics like utilization review, verification of coverage, medical bill processing, bill disputes, MMI and IR, and healthcare networks. The webinars begin at noon and are an hour long. Registration is available on the Division’s website. For more information on upcoming webinars and a list of topics, please visit:https://www.tdi.texas.gov/alert/event/dwchealthcare.html.   

-  Copyright 2019, Stone Loughlin & Swanson, LLP.

Early this month, Kevin Williams, M.D. voluntarily surrendered his medical license. The Division audited Dr. Williams in 2016, and found that he prescribed compound medications which were not reasonable and/or medically necessary for his patients, and that he failed to follow the Division's fee and treatment guidelines. Dr. Williams was ordered to pay an administrative penalty of $10,000.00, to cease and desist from prescribing compound medications as routine practice in the Texas Workers’ Compensation system, and to attend further record keeping courses. 

The Texas Medical Board also investigated Dr. Williams for his excessive compound drug prescribing practices. Rather than face continued investigation, Dr. Williams agreed to surrender his license. In the Board Order, Dr. Williams neither admits nor denies the accusations, but rather, he chooses to voluntarily surrender his Texas Medical License in lieu of further disciplinary proceedings. The voluntary surrender of his license becomes effective on March 29, 2019. 

Dr. Williams may petition the Texas Medical Board to reissue his Texas Medical License in one year.    
 

We are glad to report that Governor Abbott reappointed Jessica Barta as the Injured Employee Counsel. Not only does OIEC provide excellent assistance to injured workers, Jessica and her staff have been an invaluable resource for Kids’ Chance of Texas. Jessica serves on the board and has transformed Kids’ Chance’s outreach program out of the dark ages and into the light of the tech-savvy potential scholarship applicants . . . Kids’ Chance not only tweets now, it is also on FaceBook!  Check it out atwww.kidschanceoftexas.org. Please do not forget to refer to Kids’s Chance children of any age who have had a parent killed or catastrophically injured while working in Texas. Outreach and fundraising efforts are underway for 2019! 

It is no secret that opioid addiction is a major problem in this county. In 2017, President Trump declared the opioid crisis a national emergency, and states have started fighting back. The Oklahoma attorney general recently announced a $270 million settlement the state reached with Purdue Pharma, the largest manufacturer of prescription opioids. Nevada, Texas, Florida, North Carolina, North Dakota, and Tennessee also filed suit against Purdue Pharma alleging violations of state consumer protection laws by falsely denying or downplaying the addiction risk while overstating the benefits of opioids. Several municipal and county governments in New York are also pursuing litigation against leading opioid manufacturers, including Purdue Pharma, to recover the medical, public health, and law enforcement costs related to opioid abuse.      
   
It seems doctors have heeded the public outcry, as opioid prescriptions are down. A study done by the California Workers’ Compensation Institute found that previously, nearly 33% of medications prescribed in its system were opioids. Now, opioids account for about 18% of the medications. 

The fact that opioid prescriptions are down does not mean we are out of the woods.  Efforts to curb unnecessary opioids should not result in simply replacing those drugs with others that may carry their own risks. The drug group that now accounts for a growing share of workers’ compensation prescriptions has its own set of risks, side effects, and potentially dangerous drug interactions. Benzodiazepines, for example, are highly addictive and have been implicated in overdose deaths. Originally prescribed as tranquilizers, they are found in multiple therapeutic drug groups, such as anticonvulsants and NSAIDs.  Recent research published in the Journal of the American Medical Association shows that prescriptions for these drugs for conditions such as back pain, chronic pain, anxiety, and insomnia are increasingly common. 

The Texas legislature is busy at work in the capital. There are several pieces of proposed legislation affecting workers’ compensation. The following are some of the more notable bills:

• Senate Bill 4418 would allow a licensed advanced practice registered nurse to complete and sign required reports such as DWC-73s.
• House Bill 3537 effectively destroys the intoxication presumption provided in §401.013(c) by limiting it to a specimen taken within four hours of the injury.   
• House Bill 4300 would allow Texas workers’ compensation insurance carriers and injured workers to reach a settlement of medical benefits if: (1) the injured worker enters into a workers’ compensation Medicare set-aside arrangement; (2) the arrangement is approved by the federal Centers for Medicare and Medicaid Services, if the proposed amount of the settlement is eligible for review by that agency; and (3) the settlement provides for oversight of the arrangement by a corporate trustee or other professional administrator, and a reversionary interest on the employee's death allowing the expended funds to be shared by the injured employee's beneficiary and the payor. The proposed legislation also would require that the Texas workers’ compensation insurance carrier and injured worker resolve, to the extent possible, all extent of injury issues before reaching an agreement on any issue. 
• House Bill 1305 would require death benefits to be adjusted at the end of each calendar year as necessary to reflect inflation.
• Senate Bill 2181 would expand lifetime income benefits to include third-degree burns covering the majority of both feet, one hand and one foot, or one hand or foot and the face. An injured worker who is determined permanently and totally disabled by the Bureau of Justice Assistance of the United States Department of Justice would also be eligible for lifetime income benefits if the injured worker is a first responder or “employed by a political subdivision that self-insures.” The bill also provides expanded provisions for coverage of traumatic brain injuries resulting in “permanent cognitive deficits” that render the injured worker permanently unemployable without significant accommodations or affect the injured workers’ non-vocational quality of life “so as to eliminate the employee's ability to engage in a range of usual cognitive processes.”
• House Bill 536 would require that all opioid prescriptions be dispensed only in bottles with red caps. The hope is that the distinctive red caps will serve as a clear notice to “that opioids are unlike milder forms of prescription pain relievers” and “will help to eliminate accidental use and abuse leading to addiction and fatalities,” said Rep. Shawn Thierry who proposed the bill.

 -  Copyright 2019, Stone Loughlin & Swanson, LLP.

PHI Air Medical, the global helicopter transport company at the heart of the dispute over whether air ambulance firms can be bound by workers’ compensation fee schedules, filed for Chapter 11 bankruptcy protection this month.  The move came as no surprise following the company’s widely reported financial struggles in recent months. PHI’s bankruptcy filing has put the air ambulance litigation at the Texas Supreme Court on hold.   On March 22, 2019, the Texas Supreme Court abated the case until further order of the Court.  The Court has asked the parties to file a status report no later than May 21, 2019. 

PHI’s bankruptcy is the third among major helicopter service companies in recent years, including CHC Helicopters and Erickson in 2016.  Jeff Frazier, a partner with Sentinel Air Medical Alliance, indicated that PHI’s bankruptcy could signal the beginning of a shakeout that could lead to lower fees.  He indicated that PHI's, and other air ambulance companies, bankruptcy may lead to a restructuring of the industry, including a move to more hospital-based air services, which could lead to more reasonable rates. 

Whatever the effect of PHI’s bankruptcy, it is clear that the current business model is not working.  Air ambulance services borrow heavy to buy more helicopters, and then charge exorbitant prices to help pay the debt.  Some air ambulance services have loads of debt and reported profits have dropped sharply in recent years.  Air Evan EMS wrote in a court brief that it “faces market pressure in Texas” and, from 2012 through 2017, “suffered net losses in three years and posted minimum profits in the others.”  Evidently, billing patients for the balance did not really help air ambulance companies’ bottom line . . . .

The FDA recently approved the "EyeBox," an eye-tracking test device to help diagnose concussions.  The company that makes the device, Oculogica, Inc., touts that this technology brings in a new era for diagnosing concussion and managing patients. It is marketed to be the first objective diagnostic test for concussion.  In referenced studies the company  claims that the EyeBox had high sensitivity to the presence of concussion and that a negative EyeBox result was consistent with lack of concussion.  We expect to hear more about this given that allegations of traumatic brain injury are common in the workers’ compensation arena.  The Oculogica websitehttp://www.oculogica.com/ emphasizes that the results of the test “cannot be influenced or ‘gamed’ by the patient.

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

There are several pieces of legislation under consideration that affect workers’ compensation. Senate Bill 163 would require every construction contractor that does business with state government to carry workers’ compensation insurance. As usual, business interests oppose the legislation.

House Bill 2143, while only affecting Police or Fire Persons, would expand coverage to PTSD claims where the condition is not alleged to be caused by a single event, but also by exposure to multiple events—a cumulative exposure concept.

House Bill 1005 would require insurance carriers who have issued a PLN denial related to causation based on a medical opinion to also pay for a medical opinion on causation from the claimant’s treating provider or from a doctor to whom the treating provider “previously” referred the claimant.

Senate Bill 934, championed by OIEC, would change the deadline for filing a suit for judicial review of a DWC decision from 45 days to 60 days in order to give the claimant more time to locate an attorney willing to take the case to district court.

Senate Bill 229 would require the notices OIEC now sends to claimants describing their rights and obligations to also include a statement informing the claimant that he has the right to choose a doctor who is a doctor of medicine, osteopathic doctor, optometrist, dentist, podiatrist or chiropractor who is licensed and authorized to practice.

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

The case of New Hampshire Insurance Company v. Rodriguez, No. 08-15-00173-CV, recently decided by the El Paso Court of Appeals, may have a huge impact on workers’ compensation insurance carriers’ subrogation lien rights to plaintiffs’ recoveries in 3^rd party lawsuits. The case involved two potential employers, only one of which had workers’ compensation insurance which paid almost $2 million dollars in workers’ compensation benefits to the catastrophically injured worker. The worker sued both companies, and a jury apportioned the liability among the two companies and the worker. So far, so good. But then the trial judge found that the workers’ compensation insurance carrier’s right of subrogation against the total judgment had to be reduced by the dollar amount the jury attributed to the insured employer’s negligence. The court of appeals affirmed this methodology which, if the Texas Supreme Court allows this to stand as precedent, would mean that a carrier’s statutory lien interest would be reduced or extinguished altogether whenever a jury apportions negligence on an employer, even if the worker were to  be awarded 100% of his damages. The greatest impact will be in the employee leasing context where there are often two potential entities who could be the employer of the injured worker for purposes of a personal injury claim.

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

With the demise of “bad faith” in workers’ compensation we are seeing a lot of attempts by plaintiff attorneys in 3^rd party lawsuits to try to work-around the exclusive remedy defense in order to hold an employer vicariously liable for damages. The core issue is always whether an individual was an employee or an independent contractor of a company at the time of the accident. Many times there will be a contract between an individual and a company where both agree that the individual is not an employee. It seems like this would be enough, but the Houston Court of Appeals recently decided that even where there is a clear agreement between the parties, there must still be an analysis of evidence regarding who has the right to control the details of the individual's work. Because this is a fact question, even a clear agreement cannot be the basis of a summary judgment. Stevenson v. Waste Management of Texas, No. 14-17-00433-CV, 02/21/19. 

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