NWCDN Members regularly post articles and summary judgements in workers’ compensations law in your state.
Select a state from the dropdown menu below to scroll through the state specific archives for updates and opinions on various workers’ compensation laws in your state.
Contact information for NWCDN members is also located on the state specific links in the event you have additional questions or your company is seeking a workers’ compensation lawyer in your state.
A Houston couple has been indicted by the Department of Justice, which alleges that the pair fraudulently billed the federal government millions of dollars for compound cream medications for injured workers.
George and Marene Tompkins ran Piney Point Pharmacy on Fondren Road in Houston. They have been charged with conspiring to obtain illegitimate prescriptions for compound creams for which they billed the Department of Labor under the Federal Employee Compensation Act (FECA), which is the federal workers’ compensation program. The couple allegedly billed the federal government over $23 million for those compound creams from 2009 to 2016.
On February 21, George and Marene appeared before a U.S. magistrate judge and entered pleas of not guilty. If convicted of the charges against them they reportedly face up to 20 years in federal prison.
Piney Point Pharmacy specialized in compounding. George referred to himself as the “Compound King” on the pharmacy’s website and the pharmacy’s tagline was “Special Meds for Your Special Needs.”
- David Swanson, Stone Loughlin & Swanson, LLP.
The Division’s 14-month project to scan 19,634 boxes of records containing over two million claim files is nearing completion. The paper files are from cases with injury dates between 1992 and 2005.
In 2005, the Division began using an electronic management system and has been keeping digital versions of all paper files since that time.
By law, the Division must maintain records for 50 years. Files older than 1992 had previously been scanned onto microfilm, and the Division had been leasing a 24K square foot storage warehouse to house the records, at a cost of $300K/year.
~ This blog submission was prepared by Erin Shanley, an attorney with Stone Loughlin & Swanson, LLC, a law firm dedicated to representing self-insured employers, insurance carriers, and third party administrators in all matters related to workers’ compensation. Stone Loughlin & Swanson is a member of the National Workers’ Compensation Defense Network (NWCDN). If you have any questions about this submission or Texas workers’ compensation in general, please contact Erin by e-mailing her at eshanley@slsaustin.com or by calling her directly at (512) 343-1300.
According to a recent report from Columbia University, business travel may lead to serious medical conditions that require treatment and may even result in permanent disability. The study found that people who travel for business two weeks or more a month report more symptoms of depression and anxiety than those who travel one to six nights a month. They are also more likely to smoke, be sedentary, and report trouble sleeping. Additionally, for those who consumed alcohol, extensive business travel was associated with symptoms of alcohol dependence.
In Texas, employees engaged in business travel (i.e., a special mission) remain in the course and scope of employment for the duration of the special mission unless there has been a “deviation” from or abandonment of the course and scope of employment. Aetna Cas. & Sur. Co. v. Orgon, 721 S.W.2d 572 (Tex. App.-Austin 1986, writ ref’d n.r.e.). This is sometimes referred to as the principle of “continuous coverage.” The "continuous coverage doctrine" extends workers’ compensation liability for injuries even when an employee is technically off duty.
Bottom line: Employers and carriers should exercise safe protocols to prevent their employees from developing mental health issues, including alcoholism and depression, as there is now scientifically-backed evidence that business travel is a potential occupational hazard.
The results of the study are published online in the Journal of Occupational and Environmental Medicine. (Andrew G. Rundle, Tracey A. Revenson, Michael Friedman. Business travel and behavioral and mental health. Journal of Occupational and Environmental Medicine, 2017; 1 DOI: 10.1097/JOM.0000000000001262.)
~ This blog submission was prepared by Erin Shanley, an attorney with Stone Loughlin & Swanson, LLC, a law firm dedicated to representing self-insured employers, insurance carriers, and third party administrators in all matters related to workers’ compensation. Stone Loughlin & Swanson is a member of the National Workers’ Compensation Defense Network (NWCDN). If you have any questions about this submission or Texas workers’ compensation in general, please contact Erin by e-mailing her at eshanley@slsaustin.com or by calling her directly at (512) 343-1300.
In the wake of Hurricane Harvey making landfall in numerous counties this past August, the Division had issued a bulletin directing insurance carriers and system participants to extend deadlines for medical examinations, authorize payment for pharmacies to dispense 90-day supplies of medications, reimburse for emergency and non-emergency health care services out of network, and expedite change-of-address processing. Additionally, the bulletin had suspended deadlines for claims notifications and filing, electronic data reporting, medical and income payments, medical billing, and medical and income benefit disputes.
The Division has issued a subsequent bulletin directing system participants to resume normal claims processing and dispute resolution operations effective January 10, 2018, stating that it is now practical and in the best interests of the workers’ compensation system to do so. All standard workers’ compensation deadlines and procedures are now back in effect.
~ This blog submission was prepared by Erin Shanley, an attorney with Stone Loughlin & Swanson, LLC, a law firm dedicated to representing self-insured employers, insurance carriers, and third party administrators in all matters related to workers’ compensation. Stone Loughlin & Swanson is a member of the National Workers’ Compensation Defense Network (NWCDN). If you have any questions about this submission or Texas workers’ compensation in general, please contact Erin by e-mailing her at eshanley@slsaustin.com or by calling her directly at (512) 343-1300.
After a report conducted by the Workers’ Compensation Research and Evaluation Group concluded there was no statistical difference in disability duration between CARF-accredited and non CARF-accredited programs, the Division has proposed amendments to Division Rules 134.600 (regarding preauthorization, concurrent utilization review, and voluntary certification of health care) to remove the exemption status from CARF-accredited facilities. The Division is also proposing to amend Rule 134.230 (regarding return to work rehabilitation programs) to set one fee schedule for work hardening and work conditioning services, regardless of a facility’s accreditation status, by removing the increased payment to CARF-accredited facilities providing these services.
The proposed amendments are additionally intended to implement Senate Bill 1494 of the 85th Legislative Regular Session, which amended Texas Labor Code Section 413.014 to require preauthorization and concurrent utilization review for health care facilities providing work-hardening (WH) or work-conditioning (WC) programs. Currently, health care facilities that are accredited by the Commission on Accreditation of Rehabilitation Facilities (CARF) are exempt from preauthorization and concurrent review requirements for WH and WC. The bill no longer requires, but instead permits, the commissioner, by rule, to exempt a credentialed health care facility providing WH and WC services from preauthorization and concurrent review requirements.
The Division is accepting comments for the amendments. The informal working draft is available atwww.tdi.texas.gov/wc/rules/drafts.html. The comment period closes on February 2, 2018 at 5:00 p.m.
~ This blog submission was prepared by Erin Shanley, an attorney with Stone Loughlin & Swanson, LLC, a law firm dedicated to representing self-insured employers, insurance carriers, and third party administrators in all matters related to workers’ compensation. Stone Loughlin & Swanson is a member of the National Workers’ Compensation Defense Network (NWCDN). If you have any questions about this submission or Texas workers’ compensation in general, please contact Erin by e-mailing her at eshanley@slsaustin.com or by calling her directly at (512) 343-1300.
On January 2, 2018, Medical Advisor Patrick M. Palmer, M.D., sent out a notice advising system participants that the Medical Quality Review Panel (MQRP) had finalized its CY 2018 Medical Quality Review Annual Audit Plan (Annual Plan). The Annual Plan sets priorities for the types of audits the MQRP will initiate during the year.
According to the Annual Plan as approved by Commissioner Brannan, the two categories of focus will be: (1) the appropriateness of a health care provider’s decision and recordkeeping for prescribing opioids; and (2) the appropriateness and necessity of health care providers (excludes designated doctors) referring for testing. Notably, the following specific services were specifically mentioned as being subject to review: muscle testing, range of motion (ROM) testing, needle electromyography (EMG), and nerve conduction tests.
The Division had solicited input from workers’ compensation participants on November 20, 2017 regarding the two potential categories for the Annual Plan, but received no input. Therefore, Commissioner Brannan approved the plan as proposed on December 27, 2017.
The Division plans to obtain stakeholder input on the development of each individual plan-based audit proposal for categories within the Annual Plan, and will then post a plan-based audit that, according to the Medical Advisor, includes: inclusion and exclusion criteria; service time frame to be audited; sample size; and subject and case file selection. All medical quality reviews initiated on or after January 1, 2018 will be performed in accordance with this approved medical quality review process.
~ This blog submission was prepared by Erin Shanley, an attorney with Stone Loughlin & Swanson, LLC, a law firm dedicated to representing self-insured employers, insurance carriers, and third party administrators in all matters related to workers’ compensation. Stone Loughlin & Swanson is a member of the National Workers’ Compensation Defense Network (NWCDN). If you have any questions about this submission or Texas workers’ compensation in general, please contact Erin by e-mailing her at eshanley@slsaustin.com or by calling her directly at (512) 343-1300.
The Division is currently accepting public comments on proposed amendments to Division Rules 134.500, 134.530, and 134.540 affecting the provision of compound prescription drugs in the workers’ compensation system. The proposed amendment to Rule 134.500 would exclude from the closed formulary all compound prescription drugs, and proposed amendments to Rules 134.530 and 134.540 would require preauthorization of compound prescription drugs for both network and non-network claims.
The proposed rule changes would not prohibit the use of compounded drugs, but those drugs would need to be determined to be medically necessary via preauthorization through utilization review prior to being dispensed to a workers’ compensation claimant.
According to the Division’s data on pharmacy billing and its ongoing audit of doctors’ practices, the cost of compounded drugs doubled from 2010 to 2014, increasing from $6 million to $12 million. Although the average cost per prescription was $829 in 2016, increasing from $356 in 2010, our firm saw multiple individual prescriptions topping $10K per 30-day supply in 2016. And a May 2017 report by the Division’s Research and Evaluation group found that the number of compounded drugs increased from 18,020 prescriptions in 2010 to 26,380 in 2014. Of that, almost a third of compounded drug prescriptions were to treat back injuries. The Division found these numbers concerning because compounded drugs aren’t recommended as first line medications in treatment guidelines for injured employees, and members of the House Committee on Business & Industry asked the Division to address the issues through a new rule. As a result, on June 16, 2017, the Division announced an informal draft rule to require that compounded drugs be preauthorized.
Compounded drugs are not FDA-approved, nor does the FDA verify their safety, quality, or effectiveness. In fact, the FDA has found that the labeling of compounded drugs often omits important information. Moreover, poor compounding practices can result in serious drug quality problems, such as contamination or medications that do not possess the purity, strength, and quality they are intended to have. Finally, the FDA has reported its concern that some compounding pharmacies and pharmacists produce drugs for patients even though an FDA-approved drug may have been medically appropriate for them.
Commissioner Ryan Brannan believes the preauthorization process will strike a balance against these concerns. “We want to make sure the use of these drugs is being reviewed and that physicians are considering efficacy and appropriateness of alternatives while still ensuring that patients who need compounded drugs will still be able to get them,” Brannan said.
The Division is accepting written comments to the proposed rule changes until 5:00 p.m. February 20, 2018, and will conduct a public hearing relating to the proposed changes on Thursday, February 15, 2018 at 10:00 a.m. in the Tippy Foster Room of the Texas Department of Insurance, Division of Workers’ Compensation, 7551 Metro Center Drive in Austin, Texas 78744. The hearing will also be audio streamed and the audio stream may be accessed via the DWC Calendar at www.tdi.texas.gov/wc/events/index.html.
~ This blog submission was prepared by Erin Shanley, an attorney with Stone Loughlin & Swanson, LLC, a law firm dedicated to representing self-insured employers, insurance carriers, and third party administrators in all matters related to workers’ compensation. Stone Loughlin & Swanson is a member of the National Workers’ Compensation Defense Network (NWCDN). If you have any questions about this submission or Texas workers’ compensation in general, please contact Erin by e-mailing her ateshanley@slsaustin.com or by calling her directly at (512) 343-1300.
We must bid a sad farewell to Judge Carolyn Cheu Mobley, who retired from the Division of Workers’ Compensation on December 22, 2017. As the sole Hearing Officer in Austin since 2010, Judge Mobley handled a heavy docket with courtesy and professionalism. No word yet on what endeavors she will undertake following her departure from the DWC, but we certainly wish her well. Judge Mobley’s replacement will be Judge Rabiat Ngbwa, heretofore one of three traveling Administrative Law Judges from the Division’s central office.
The 85th Legislature amended the Act to change the title of the Division’s “Hearing Officers” to “Administrative Law Judges.” To implement the change, the Division is updating its forms to now refer to “Administrative Law Judges.” We recommend our clients consult the Division’s website to confirm they are using the most recent version of the form.
Touting its efforts to reduce costs through workers’ compensation healthcare networks, a drug formulary, and by encouraging safe workplaces, the Division recently announced that Texas workers’ compensation premiums are down 63% since 2005. The reduced cost of coverage have encouraged more employers to join the system and provide workers’ compensation for their employees. The full press release is availablehere