State News : Texas

Karissa Coleman thought she was clever enough as an insurance agent to teach herself how to code medical bills for cancer treatment. Ms. Coleman created fake medical bills and fake medical records and then submitted fake claims for payment for out of pocket medical expenses not covered by medical insurance.  As “treatment” for her fakery, Ms Coleman got a real sentence: 10 years of probation and a requirement to perform 100 hours of community service.  Plus, she must pay back over $300,000.  We wonder whether she still has her ill-gotten gains so that she can actually make restitution.  The lesson here is that the more complex a system, the easier it is for bad actors to fly under the radar.  It costs us all.

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

No less inventive than the pleadings in the prior entry is the basis for a lawsuit filed by a group of injured workers against the Division, claiming that a designated doctor’s ability to assign maximum medical improvement prior to the date of the certifying examination amounts to an unconstitutional “taking” of property under the Fifth Amendment.  The grounds for suitseems to be that an insurance carrier’s ability to recoup or convert overpaid Temporary Income Benefits (TIBs) deprives them of a vested property right to said benefits. 

“Seems” is the operative word here, as per the Court of Appeals’ memorandum opinion: “Appellants’ pleadings are so vague as to be difficult to assess and their briefing is at times insufficient under the rules.” The Court elaborates: “Appellants . . . have not identified which statutory provision they seek to challenge, presented clear argument about how the statute was unconstitutional, or provided citations to the record or to relevant authority.” 

The Court of Appeals explained that for a takings claim to have validity, the injured workers must establish a vested, constitutionally protected property interest. That requires more than mere expectancy of a benefit, it demands a “legitimate claim of entitlement.” An injured worker has “a mere expectancy” in receiving TIBs, per the Court, and not a vested right to such benefits. The injured workers in this case provided no authority to support their assertion to the contrary other than to argue, in essence, that because the insurance company paid their benefits, they must be entitled to them.

Holt v. Texas Department of Insurance—Division of Workers’ Compensation, No. 03-17-00758-CV, 2018 WL 6695725 (Tex. App.—Austin Dec. 20, 2018, affirmed) (mem. op.).

-  Copyright 2018, Stone Loughlin & Swanson, LLP.

Of the twenty-one original defendants indicted in the Forest Park bribery and kickback scheme in 2016, ten remain scheduled to appear in federal court in Dallas. Among them is Royce Bicklein, noted claimants’ attorney and the chairman of the State Bar of Texas' Workers’ Compensation Section. Bicklein is accused of receiving kickbacks in the amount of $100,000 for referring clients to Forest Park Medical Center, and if court filings are any indication, Mr. Bicklein appears poised to offer a novel defense strategy: his clients authorized him to break the law.

Bicklein maintains that his clients were asked to sign a consent form, which apprised them of the possibility that their attorney might stand to gain financially from referrals made to certain medical professionals on their behalf. Mr. Bicklein’s defense seems to suggest that he committed no crimes because his clients knew of his financial relationship with Forest Park and consented to it.

Aside from the fact that subpoenas have thus far produced no such signed consent forms, prosecutors argue that client consent does not obviate penalties for commission of a crime, and the existence of such a form may actually demonstrate that Bicklein and his law firm knew that they were in violation of Texas and federal anti-kickback statutes; the consent form was apparently generated on the advice of Mr. Bicklein’s own law partner.

Mr. Bicklein’s trial is set to start February 19, 2019, in federal district court in Dallas.

-  Copyright 2018,Stone Loughlin & Swanson, LLP.

The Texas Department of Insurance, Division of Workers’ Compensation, adopted a new rule, 28 TAC §140.9, which took effect on January 7, 2019, requiring that parties seeking to reset, reschedule, or continue any proceeding include with their requests a signed statement that reasonable efforts were made to confer with the opposing party about the subject of the request.  Parties must indicate whether the motion is opposed and provide dates and times they areboth available for a rescheduled proceeding. Those dates and times must also be coordinated with the DWC docketing staff, thus ensuring that none of this will ever happen. The Division has modified the DWC Form-045 pursuant to the rule change. 

In addition, 28 TAC §141.2 has been amended to clarify that a “first request” to reschedule a benefit review conference, which does not require a demonstration of good cause, pertains to the first such request made in adispute, not the first request made by a particular party.  In other words, any subsequent request to reschedule a BRC by either party will require a showing of good cause. 

Finally, 28 TAC §142.11 has been amended to legitimize the Division’s long-standing practice of issuing a “10-day letter” to a party who fails to attend a scheduled contested case hearing.  The absent party is afforded ten days to respond and request that the hearing be reset. With the addition of this new rule, Administrative Law Judges are empowered to determine whether good cause has been established for the failure to attend and, if not, issue a decision based on the evidence previously admitted.

-  Copyright 2018,Stone Loughlin & Swanson, LLP.

Several of the Division’s Administrative Law Judges are relocating to new offices, while others are either leaving for good or returning for more.

Just last October, Judge Geri-Lyn Thomas left the DWC to preside over cases at the State Office of Administrative Hearings. However, after a brief sojourn, Judge Thomas has returned to her post at the Division’s Dallas Field Office. We are certainly glad to have her back. 

Judge Katie Kidd will be transferring from the Dallas Field Office to the Division’s Central Office in Austin, where she will assume a new position in quality control and oversight.

As one judge arrives in Austin, another departs. Last May, Dee Marlo Chico, formerly one of the DWC’s traveling judges, accepted a position on the Appeals Panel, but has decided to move on.  Judge Chico is leaving the DWC imminently for her new post at the Railroad Commission. 

No word yet on who might replace Judge Chico on the Appeals Panel, but one possibility might be Judge Travis Dupree. Judge Dupree has been the Division’s sole ALJ in Midland since 2015, but is also relocating to the Central Office in Austin as the Division’s new designated traveling ALJ, a position most recently held by . . . Judge Dee Marlo Chico!

Finally, the Midland judgeship is the province of Robert Clarkson, a University of Houston alum who graduated from the University of Pittsburgh Law School in 2000. Judge Clarkson previously practiced insurance defense litigation in Irving, Texas. We are happy to welcome him.

-  Copyright 2018,Stone Loughlin & Swanson, LLP. 

Extreme overcharging for medical services is the basis for a class action lawsuit filed against CIGNA Health and Life Insurance in the U.S. District Court for the District of Connecticut.  The class is comprised of patients who allege CIGNA and a home-care service provider, CareCentrix, were unjustly enriched through the fraudulent inflation of copayments and coinsurance paid by their patients.  One particularly egregious example of overcharging cited in the lawsuit involved a blood test billed to a patient at the rate of $2,000, under the pretense that it cost the insurance company $17,000.  The actual cost: $471.

-  Copyright 2018,Stone Loughlin & Swanson, LLP.

News from the Office of Injured Employee Counsel: OIEC’s public counsel, Jessica Barta, has recommended a change in filing deadlines for ombudsman-assisted claimants seeking judicial review of their work comp decisions.

In their Biennial Report to the Legislature, OIEC suggests that the current 45-day deadline by which a petition for judicial review must be filed is simply too short to afford an unrepresented injured worker time to locate an attorney and submit the necessary paperwork.  Because Texas law prohibits claimant attorneys from collecting fees for such litigation, and because ombudsmen are not permitted to assist injured workers in judicial reviews, OIEC asserts that the deadline should be extended to 90 days to give unrepresented claimants time to hire representation and marshal their evidence. 

OIEC has also proposed a method by which doctors may be compensated for supplying medical causation letters to claimants, an essential component of meeting their burden of proof on most extent of injury disputes.

-  Copyright 2018,Stone Loughlin & Swanson, LLP.

Alpha Mar, a Houston-based company, is guilty of committing workers’ compensation premium fraud and has been ordered by a Travis County District Court to pay $250,000.00 in restitution to Texas Mutual Insurance Company.  Alpha Mar entered a plea of guilty to defrauding its workers’ compensation carrier by concealing payroll and falsifying the number of employees in an attempt to secure lower workers’ compensation premiums, which are calculated, in part, on an employer’s payroll. The scam succeeded for four years. The Division’s fraud unit in the Travis County District Attorney’s Office prosecuted the case. 

The DWC Appeals Panel has been busy cleaning up things ALJs have missed and/or advising them that they cannot do certain things at all.  We have it on good authority that this is an area of particular interest for the new Commissioner at DWC.

ALJ Can’t Order Payment for Alternate Certification.  In APD 182018, the ALJ heard issues in a medical fee dispute.  This was a network claim and the treating doctor referred the claimant to a non-network doctor for an MMI/IR evaluation.  At the CCH, on his own motion, the ALJ added the issue of whether the carrier had to pay for the non-network MMI/IR examination. Spoiler Alert:  the ALJ said the Carrier was liable.  The Appeals Panel said it was not the ALJ’s decision to make and reversed and rendered saying the dispute over payment for providing an MMI/IR examination is a medical fee dispute adjudicated through the MFDR process. 
 
If it’s Litigated, You Have to Make a Decision.  In APD 182017, the hearing was set on MMI/IR.  Apparently, however, extent of injury and the proper appointment of a second DD were also litigated at the CCH.  The crux of the matter was, apparently, whether the injury included one leg fracture or multiple leg fractures.  If there were multiple leg fractures, the DD appointed would not have been qualified.  The Appeals Panel reviewed the records and said that the parties did actually litigate the extent of injury and DD qualification issues.  As such, the ALJ’s MMI/IR determination could not be affirmed as the DD might not have been qualified.  The case was sent back to the ALJ to determine the extent of the injury, qualification of the DD and, ultimately the MMI/IR issues.
 
In APD 182119, the Appeals Panel reviewed extent of injury.  The BRO report showed that the self-insured “accepted” a condition but, at the CCH, it declined to stipulate to the condition as compensable.  The compensability of that condition was litigated, and the ALJ discussed it in the decision, but made no findings of fact or conclusions of law about it.  The Appeals Panel reversed and remanded for the ALJ to address the missing condition in the extent of injury decision.
 
 ALJ Who Misquotes Expert Cannot Rely on that Expert. In APD 182350, the Appeals Panel determined that the ALJ misstated the evidence when she asserted that one of the experts said the claimant had diabetes, by way of explaining that EMG/NCV results were consistent with polyneuropathy rather than radiculopathy.  The ALJ stated that she found that expert’s opinion most persuasive and found that the claimant did not have lumbar radiculopathy.  The Appeals Panel said that the expert did not, in fact, say that the Claimant had diabetes.  The AP held that the decision of the ALJ was based on a misstatement of the medical evidence in the case and reversed and rendered the extent of injury determination.  They also noted in a footnote, that the ALJ incorrectly referenced the date of injury in the issue statement and the discussion section of the decision.
 
No Permanent Impairment and 0% Impairment are Different. In APD 182195, the Appeals Panel reviewed the ALJ’s determination that Claimant reached MMI with no permanent impairment and reformed the decision.  The certification adopted by the ALJ actually assigned a 0% impairment rating, which differs from a finding that there is no permanent impairment. 
 
Carrier Denied RME was An Abuse of Discretion.  In APD 182111, a complex case involving multiple injuries and multiple certifications of MMI/IR, the ALJ issued a Presiding Officer Directive to a DD.  Upon receipt of the report, the Carrier asked for a continuance and the opportunity to get a post-DD RME.  The ALJ denied the request and closed the record, finding MMI/IR per that DD.  The Appeals Panel cited 408.0041(f) of the Act and Rule 126.5(c)(2) which entitles the Carrier to a post-DD RME, and found that the ALJ did abuse his discretion in not allowing the Carrier to get a post-DD RME following the DD examination ordered by the ALJ.

-  Copyright 2018,Stone Loughlin & Swanson, LLP.

There has been an uptick in the number of “Monitoring Letters” from DWC. The issues include: failing to attend a BRC without good cause; failing to timely respond to Claimant requests for information; failing to timely file notice of coverage and claim administration contact information to the DWC; failing to electronically file Employer’s First Report of Injury; and, failing to provide all pertinent information to the DWC and parties prior to a BRC. 
 
We are not sure what has spawned the recent activity, but will continue to monitor the situation.  We do know that in two instances we requested withdrawal of the letter upon proof that the allegations were categorically unfounded.

-  Copyright 2018,Stone Loughlin & Swanson, LLP.