State News : Texas

Cassie Brown, an experienced insurance regulator from the Texas Department of Insurance, is the new Commissioner of Workers’ Compensation.  We look forward to her fresh, informed view of the staffing and structure the Division of Workers’ Compensation to the benefit of all system participants. Commissioner Brown has already confirmed that the attorney fee issue is on her radar and has recommended that all attorneys should take a close look at their hours and fees, and confirm that they are accurate.

Goodbye and well wishes to Bonnie Lopez a well-respected Benefit Review Officer who announced her retirement effective June 28th.  Ms. Lopez has been with Division even longer than our firm has been in business.  She started with the Industrial Accident Board in 1985, leaving that post in 1992. She returned to work at the Division as a BRO in 2005.

Michele Wong Krause, a Dallas based a workers’ compensation attorney, is now a member of  the Board of Governors of the American Bar Association.  Among her other qualifications she served on the ABA Commission on Hispanic Legal Rights and Responsibilities from 2014 to 2017.  She is also an active member of the Workers’ Compensation Law Section of the State Bar of Texas.

-  Copyright 2018, Jane Lipscomb Stone, Stone Loughlin & Swanson, LLP

Attorney Leslie Casaubon has been accused of defrauding injured workers (and the Division of Workers’ Compensation) in regard to attorney fee affidavits she submitted for approval to the Division. She is accused of submitting time under Texas State Bar numbers of other attorneys for work those attorneys did not perform on behalf of her firm. Ms. Casaubon was indicted on three counts. Count I, Securing Execution of a Document by Deception, is a 1st degree felony. The other two counts are 2nd degree felonies but arise out of the same deceptive billing practices. Send an email to jstone@slsaustin.com if you would like to have a copy  of the indictment to learn the particulars of her scheme that has been going on for quite some time. It is a puzzle as to why the Division, who by statute is charged with the duty to regulate attorney fees, did not pick up on the scheme earlier.  

Labor Code 408.221, and Division Rules 152.1-152.3 provide the details of what a claimant’s attorney must certify to the Division when applying for fees. To be paid the 25% of a claimant’s income benefits, the attorney can only submit for payment fees for time the attorney actually worked. It goes without saying that an attorney cannot work more hours than there are in a day, or in a year. It seems as though the Division could easily flag billings where the hours claimed by an attorney under his or her State Bar number exceed a threshold of credibility. For example (based on a recent open records request for 2017 approved fees reported by WorkCompCentral), if an attorney submits fees which are approved for $1,700,000 in a year, that would amount to billing $200/hr. for 8,500 hours worked in that year, which would be around 163 hours per week, which would be close to 24 hours of work every day. Hard working attorneys can sometimes work up to 2,500 hours a year if they work 48 hours every week – and can actually justify billing a client for all of those hours – but anything more than that surely exceeds a threshold of credibility.

The irony is that the “new law” reform of 1989 was driven in part by the perception (or reality) that claimant attorneys were prematurely settling old law claims for medical and indemnity benefits in order to get a quick payout of their attorney fees. Obviously, if a claimant attorney could settle out a case (including medical benefits) for $100,000, 25% of that would be $25,000. There was no tedious administrative  process of having the fees approved the agency by affidavit as there is now under new law. But, the settlements often left the client with no access to medical care even though there may have been latent effects from their work injury.

The “new law” was enacted in 1989, and was promptly challenged on the basis that it violated the Texas Constitution in many respects. In 1995, the Texas Supreme Court eventually determined that the “new law” provisions did not violate the Texas Constitution and issued a lengthy opinion stating its reasoning. Of interest here is that claimant attorneys challenged the “new law” provision that capped the hourly rate for fees at $150 and limited the amount they could be paid to 25% of a claimant’s income benefits. Interestingly, under the “old law” a claimant attorney could not receive fees in excess of 25% of his client’s recovery, but there was also no cap on hourly rates. The “old law” settlements were often insufficient for the claimant to cover his future medical costs. The decision was a blow to claimant attorneys. See Texas Workers’ Compensation Commission v. Garcia, 893 S.W.2d 504 (Tex. 1995).

To quote Winston Churchill,  “Now this is not the end. It is not even the beginning of the end. But it is, perhaps, the end of the beginning.”

-  Copyright 2018,Jane Lipscomb Stone, Stone Loughlin & Swanson, LLP

One of the most serendipitous work injuries in history befell a teenager in a Birmingham, England sheet metal factory circa 1965.  The youth, a welder by trade, was asked to fill in for an absent co-worker whose job was to cut pieces of flattened metal under a guillotine-like blade.  It was the boy’s last day of work, and during his lunch break he contemplated not bothering to finish out his final shift, but his mother convinced him to honor his commitment to his employer, so he returned. 

That afternoon, disaster struck. Lacking the proper training to operate the machine, the 17 year old sustained a grisly work injury, as the industrial blade sliced through the tips of his middle and ring fingers on his right hand.  Emergency medical attention was unsuccessful in reattaching the appendages, and the youth grew despondent—not merely due to the permanent disfigurement to his hand, but because of what it meant for his great passion in life: playing the guitar. 

The boy, it turns out, was left-handed, and therefore used his right hand to press down on the strings along the fretboard.  His work injury had presumably deprived him of the ability to play the guitar ever again. 

However, when the youngster’s foreman visited him in the hospital, he brought with him a record by renowned Belgian jazz guitarist Django Reinhardt, who, following a severe burn injury, had also lost the use of two fingers on his fretting hand.  Inspired by Reinhardt’s rise to international fame after teaching himself to fret his guitar with just two fingers, the boy grew determined that his work injury would not rob him of his nascent musical talent, either.

Necessity, they say, is the mother of invention.  Finding it too painful to press down on the strings with the bony ends of his fingers, and demonstrating an ingenuity far beyond his years, the young Brit engineered fake fingertips for himself by melting down a plastic soap bottle and covering them with bits of a leather jacket.  The homemade prosthetics relieved the pain, but compressing the tight guitar strings still proved too difficult due to loss of sensation. 

In a flash of genius, he decided to try down-tuning the strings, lessening the tension to make them easier to press and bend.  It worked.  Suddenly the boy could play his beloved guitar again.  However, down-tuning had an unavoidable consequence: it lowered the pitch of each string, giving the guitar a deeper, darker timbre, especially when amplified.  The newly-discovered tones intrigued the guitarist, but it was all wrong for his band, a folk-rock outfit named Earth. 

Fortunately his bandmates shared their guitarist’s fondness for his aggressive new sound.  Rather than eject him from the group, they forged an entirely new musical identity around the more foreboding tones emanating from the young man’s self-forged fingertips.   Shrewdly, they agreed that ‘Earth’ no longer suited the Wagner-esque rock music they were now writing.  Serendipity struck again when a Boris Karloff film playing in a movie theater across the street from their rehearsal space delivered the band a fitting new name.  The film was calledBlack Sabbath. 

Now 70 years old, Tony Iommi, the boy who thought he would never play guitar again, has sold over 70 million records worldwide since 1968, was inducted into the Rock & Roll Hall of Fame in 2006, and is widely credited for (pardon the pun) single-handedly inventing the subgenre of rock music known as heavy metal. 

Just think what he might have accomplished with a lumbar sprain.

Copyright 2018,Robert Greenlaw, Stone Loughlin & Swanson, LLP

In an effort to educate injured employees on the complexities of Texas workers’ compensation, the Division has produced seven brief instructional videos, viewable athttp://www.tdi.texas.gov/wc/employee/guide.html. The surprisingly not-terrible videos guide potential claimants through the labyrinthine Texas Work Comp system, providing instructions for how to file a claim, explaining differences in types of income benefits, and mapping out the stages of the dispute resolution process. 

In announcing the creation of the videos, then-Commissioner Brannan hoped that the videos would assist injured workers in better understanding the workers’ comp system, acknowledging that, “People are busy these days and are much more likely to watch a video to learn about something new.”  But there is value in the videos for even the most seasoned Texas Work Comp veteran: eagle-eyed system participants may spot San Antonio Benefit Review Officer Samuel Peralez as “Injured Worker at BRC.”  Spoiler alert: he’s only pretending to be injured.

Copyright 2018, Stone Loughlin & Swanson, LLP

Last month we reported on the Appeals Panel’s puzzling decision to distinguish “headaches” from “ongoing headaches” as separate conditions.  This month, a pair of Appeals Panel Decisions suggests an emerging trend that may itself become an ongoing headache for Carriers.

Appeals Panel Decision No. 180603, decided April 19, 2018, reversed the Administrative Law Judge by determining that headaches were indeed a part of the claimant’s injury, which already included a traumatic brain injury.  The case was remanded for an amended MMI/IR certification by the designated doctor with the newly compensable condition, even though a rating for headaches is (presumably) subsumed in a rating for a traumatic brain injury. 

Similarly, Appeals Panel Decision No. 180602, decided April 30, 2018, remanded the case for a new certification from the DD to incorporate the AP’s finding of headaches as part of the compensable injury.  Their reasoning: the claimant complained of head pain in “numerous medical records,” which is perhaps unsurprising given that the accepted injury was a scalp laceration that required repair with staples. 

And only on May 16, 2018, did the Appeals Panel issue Decision No. 180702.  Once again, the Administrative Law Judge excluded headaches from the compensable injury, only to suffer a reversal at the hands of the AP.  This time, “periodic headaches” resulted from a concussion.  As before, the judge was instructed to obtain a new certification from the designated doctor that includes a rating for “periodic headaches.”

With four of their most recent decisions focused on the addition of headaches to compensable injuries, each requiring case management and a new certification from the designated doctor, it would seem the Appeals Panel has a bit of a bee in its bonnet about this topic lately. (The Appeals Panel is respectfully cautioned that bonneted bees are also a known cause of headaches.)

Copyright 2018, Stone Loughlin & Swanson, LLP

Jammers Groundscapes, a landscaping company operating out of Pflugerville, Texas, just north of Austin, entered a plea of guilty in defrauding its workers’ compensation carrier by omitting the payroll from a non-covered ancillary business.  The omission was Jammers’ attempt to secure lower workers’ compensation premiums, which are calculated, in part, on an employer’s payroll.  The scam succeeded for six years until the carrier’s internal investigation uncovered it.  A Travis County District Court ordered Jammers to reimburse its carrier to the tune of $400,000.00. 

Copyright 2018, Stone Loughlin & Swanson, LLP

A healthcare provider who performed Functional Capacity Evaluations (F.C.E.’s), examinations designed to gauge employees’ abilities to perform their pre-injury job functions, has been sentenced to three years’ deferred adjudication and ordered to pay $10,000.00 in restitution by a Travis County District Court.  Marcus Ricoy of Rancho Viejo was found guilty of falsifying medical claims to an insurer for more time than the examinations required.  The Division of Workers’ Compensation’s unit in the Travis County District Attorney’s Office prosecuted the case. 

Copyright 2018, Stone Loughlin & Swanson, LLP

On 5/18/18, the Texas Department of Insurance, Division of Workers’ Compensation, informed system participants of its intent to amend the designated doctor rules.  The DWC identified three problem areas:  the DD assignment process, qualification standards, and certification requirements. 

The Division acknowledges the dramatic decrease in the number of designated doctors in the system overall and, even more alarmingly, the steep decline in the number of M.D.’s and D.O.’s assigned to perform such examinations.  Much of the blame for this phenomenon lies in in the automated system that assigns a designated doctor to a case, which relegates the most qualified doctors into rarely-needed specialization categories and excludes them from the far more common musculoskeletal examinations.  The unintended result is that the best doctors receive the fewest appointments.

The DWC intends to rectify that problem by implementing two separate DD lists in each county. One list will consist of all available doctors and chiropractors qualified to perform the most common musculoskeletal examinations; the other will be limited to medical doctors qualified to perform the more complex examinations, including those requested to address conditions requiring board-certification. 

The twin list system is intended to remedy the inequity of board-certified M.D.’s or D.O.’s being selected for one specialized examination, then dropping to the bottom of the list and missing out on four or five of the far more common musculoskeletal examinations thereafter.  The new process is intended to raise the number of exams available to M.D.’s and D.O.’s each year, thereby incentivizing the most qualified physicians to become—and remain—designated doctors.

The DWC also seeks to elevate training, testing, and qualification standards by narrowing the timeframe between training and applying for certification/recertification in order to ensure that designated doctors are always apprised of the most current information.  Limiting the number of times a prospective DD can take the qualification examination in a given time period has also been suggested to address problems with test security.   

Finally, the DWC is contemplating adding obligatory reviews of a designated doctor’s work product to the recertification process.  Factors that may be considered include complaint history, excessive requests for deferral from the DD list, a pattern of overturned or substandard reports, a demonstrated inability to apply the AMA Guides, the timeliness of submitted reports, maintaining patient record confidentiality, or participant’s willingness to identify potential disqualifying associations.

Visit http://www.tdi.texas.gov/wc/rules/proposedrules/documents/pr127dd0518.pdf to view the proposed rule changes. 

 Copyright 2018, Stone Loughlin & Swanson, LLP

On April 18, 2018, the Disciplinary Panel of the Texas Medical Board suspended the medical license of John Tai Dang, M.D., of Cleburne, Texas.  The suspension will remain in effect until superseded by an Order of the Board. 

Among the myriad violations of the Medical Practice Act, Dr. Dang was found to have prescribed dangerous drugs (Diazapam, Alprazolam, Opana, and Xartemis) after becoming aware of a patient’s history of substance abuse and her admission into a treatment facility.  While treating that same patient, Dr. Dang borrowed money from her totaling $20,000.00 and used a Care Credit account in her name and without her knowledge to bill another $5,000.00 in fraudulent services.  Worst of all, the doctor was found to have assaulted two patients during examinations. 

The Disciplinary Panel determined that Dr. Dang failed to maintain adequate medical records, failed to adhere to guidelines for treatment of pain, became financially involved with a patient, and engaged in sexual contact with a patient, among other infractions.  In suspending his licencse, the Board deemed Dr. Dang’s medical practice a “continuing threat to the public welfare.”

Copyright 2018, Stone Loughlin & Swanson, LLP

Supreme Court Appears to “Flip” on Coming and Going Rule in Vicarious Liability Case
On April 13, 2018, the Supreme Court reversed the judgment of the Court of Appeals inPainter v. Amerimex Drilling - a negligence case involving an MVA that occurred while a drilling company employee was driving his coworkers from a drill site to housing provided by the employer at the end of their shift.  The Supreme Court held that the employer was not entitled to summary judgment on the injured employee’s vicarious-liability claim.  The injured crew members and the families of the crew members killed in the accident filed suit against Amerimex, alleging vicarious liability for the driver’s negligence. The trial court granted summary judgment for Amerimex, and the Court of Appeals affirmed. The Supreme Court reversed, holding that Amerimex was not entitled to summary judgment on either no-evidence or traditional grounds on the crew members’ vicarious-liability claim.
 
In a dissenting opinion, Justices Green and Brown disagreed with the ruling, noting that, two years earlier, the Supreme Court found in favor of Sandridge Energy (the company that hired Amerimex to drill the well from which the crew members were being transported) in a suit arising out of the same accident.  The dissenting opinion opined that the Supreme Court in the Sandridge Energy case found that the driver was not Sandridge’s employee, as a matter of law, “at least with respect to transporting the crew” and Sandridge was therefore entitled to summary judgment in the vicarious liability claim against Sandridge.  The dissenting justices believed that the same legal rationale should hold true for the drilling company, Amerimex, because the driver was not (as a matter of law) the employee of the drilling company either. 
 
The majority in the Amerimex litigation disagreed and found that there were fact questions to be resolved regarding the driver’s employment status at the time of the MVA.
 
Adding Assault to Injury
The claimant, a special education diagnostician, was assaulted by a parent of one of her students and sustained injury.  During the time she was unable to work, she received assault leave pay from her employer in an amount equal to that of her pre-injury wage.  The Appeals Panel, in Decision No. 180294 (decided March 29, 2018) determined that, because the claimant had performed no personal services for the employer in exchange for the assault leave pay she received, the pay was not properly considered wages under the Texas Workers' Compensation Act.  Therefore, the Appeals Panel reversed the decision by the Administrative Law Judge that the claimant had no disability while receiving assault leave pay.
 
There’s a Reason It Wasn’t the Season
In APD No. 180270, decided March 28, 2018, the Appeals Panel concluded that the claimant, a professional football player, did not qualify as a seasonal employee, even though his salary was only paid in 17 installments during the actual football season.  For the remainder of the year, the claimant was required by contract to further the business affairs of the employer by way of mandatory participation in charitable events, maintenance of his physical condition, production of memorabilia for auctions, cooperation with news media, and protecting the reputation of his team.  The Appeals Panel determined that the claimant's employment does not demonstrate "a pattern of seasonal, cyclical employment," and therefore no adjustment to the claimant's average weekly wage applied.
  
Splitting Headaches
Appeals Panel decisions have been known to cause headaches, but this is ridiculous.  The Administrative Law Judge decided that the claimed headaches were not part of a compensable injury based on a designated doctor's assessment that "the claimant's minor head contusion would not result in ongoing headaches, and this diagnosis should not be considered compensable."   In APD No. 180458, decided March 29, 2018, the Appeals Panel drew a distinction, stating that "headaches" and "ongoing headaches" are two separate injurious conditions.  Because the condition appears sans adjective in the issue, the Appeals Panel concluded that the designated doctor had not considered the proper diagnosis and reversed the ALJ's extent of injury determination.

—Stone Loughlin & Swanson, LLP