State News : Texas

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.

Alexis C. Norman, from Midlothian, Texas, and her co-conspirator, Karen Jones, created a fake business in Tyler, Texas and used stolen identities of licensed counselors and Medicaid recipients to submit false claims to Medicaid. 
 
Norman pleaded guilty and went to prison in April 2016.  Apparently, she and her cohort, Jones, didn’t stop there.  They created another fake company in Waco, and Norman supplied Jones with more stolen counselor and Medicaid patient identities from prisonby hiding pieces of paper in her shoe to give to Jones during visits.   Her motivation for continuing the criminal activity?  She needed to pay her criminal defense lawyer.
 
Meanwhile, in Dallas, Texas workers’ compensation claimants’ lawyer, Royce Bicklein, is scheduled for trial in federal court on February 19, 2019.  Bicklein was named in a federal court indictment concerning the Forest Park Medical Center and allegations against 21 people and involving over $40 million in alleged bribes and kickbacks.

-  Copyright 2018, Stone Loughlin & Swanson, LLP.

DWC announced this month that eligible spouses of first responders remain eligible for death benefits for life after remarrying (if they remarry on or after 9/1/17), if the first responder died in the course and scope of employment or while providing volunteer services, regardless of the date on which the death of the first responder occurred. If you weren't married to a first responder, you still shouldn't get remarried.
 
DWC also published its annual report of work-related deaths in Texas.  There were 534 fatal occupational injuries in 2017, which is a 2% decrease from 2016.  Trade, transportation and utilities was the category with the highest number of fatal work injuries (148), while construction ranked second (133).  The full report can be found at the following link:  TDI website.

-  Copyright 2018, Stone Loughlin & Swanson, LLP.

A woman who visited a chiropractor for neck manipulation intended to treat her headaches wound up with damage to her right eye. Immediately after the visit she began seeing spots which were symptoms of ruptures in the eye’s blood vessels known as preretinal hemorrhages.

The technique used by the chiropractor, known as high-velocity, low-amplitude spinal manipulation, involves the application of short, quick thrusts to the back of the patient’s neck. Those manipulations caused the woman’s retinal hemorrhages According to findings published in the September issue of theAmerican Journal of Ophthalmology Case Reports.

-  Copyright 2018,David L. Swanson, Stone Loughlin & Swanson, LLP

The Texas Supreme Court announced this month that it has set a workers’ compensation death benefits case for oral argument.  InChicas v. Texas Mutual Insurance Company, the issue is whether a court lacks jurisdiction to review the DWC’s decision in a death benefits case if the claimant files the appeal in a probate court and does not file it in a district court until after expiration of the 45-day deadline in Labor Code section 410.252(a).

Santiago Chicas was cleaning rain gutters at the home of his employer’s president when he fell from a ladder and died. His widow, Bertilla, filed a claim for death benefits and, when Texas Mutual denied the claim, she initiated a proceeding at the DWC to resolve the issue. She also filed a wrongful death action in Harris County Probate Court Number 2.

An Administrative Law Judge at DWC found that Santiago was not in the course and scope of his employment and denied Bertilla’s claim for benefits and the DWC Appeals Panel allowed the decision to become final. Within the 45-day time limit for filing a petition for judicial review, Bertilla amended her petition in the probate court to include her claim for judicial review of the DWC’s decision. Five months later, Texas Mutual filed a plea to the jurisdiction which the probate court granted. Bertilla then filed a petition for judicial review in the Harris County District Court. Texas Mutual filed a plea to the jurisdiction which the district court granted. The Houston Court of Appeals (1^st. Dist.) reversed the trial court judgment and Texas Mutual appealed to the Texas Supreme Court.

The outcome of the case turns on whether the 45-day deadline in section 410.252(a) is jurisdictional or merely mandatory. The courts of appeal are divided on this issue – at least one court has said that it is jurisdictional while others have said that it is not. Hopefully the Texas Supreme Court will resolve the conflict.

Oral argument is set for January 22, 2019.

-  Copyright 2018,David L. Swanson, Stone Loughlin & Swanson, LLP.