State News : Texas

Well-placed sources inform us that the powers that be within the Division have begun focusing on the number of dispute proceedings held each month, supposedly as a means of gauging the effectiveness and productivity of the Hearings section. The higher the number of proceedings held, the reasoning goes, the greater the number of disputes that have been resolved. 

However, as usual, a strict quantitative analysis (i.e., pure statistics and number-crunching) tells only part of the story and provides skewed results. In accumulating their data, the DWC makes no differentiation between Contested Case Hearings that result in a Decision & Order and those that are merely convened and continued at the outset. In other words, a hearing that continues at the scheduled start time is considered a “proceeding held,” while a hearing for which a motion to continue is granted before the proceeding will not count toward the tally.

There are two obvious results of this practice. First, the DWC can artificially inflate its total number of proceedings held per month by urging judges to postpone ruling on continuance requests until the day of the hearing. Second, the costs associated with preparing for and traveling to a Contested Case Hearing, only to find that is has been continued at the last minute, are passed along to system participants.

The Texas hiring freeze for state workers lapsed on September 1, 2017, and since then the Division of Workers’ Compensation has hired three new Administrative Law Judges. 

Ana Kirk Thornton will soon begin presiding over disputes in the new San Antonio Field Office.  Ms. Thornton is a graduate of Trinity University and The University of Texas School of Law. She has been licensed since 1991 and most recently worked with another state agency, the Texas Workforce Commission. 

Christopher Maisel is another graduate of The University of Texas School of Law but has recently returned to Texas after practicing in California. He brings with him decades of experience in bankruptcy, mergers & acquisitions, and insurance law. Mr. Maisel will become one of two new ALJ’s in the Houston West Field Office.

The other new Houston judge is Eric Robertson, a Baton Rouge native but longtime Texas resident. A degree in Business Administration brought him to Texas Wesleyan University School of Law, and he has been licensed in Texas since 2014. Mr. Robertson first practiced criminal law before moving into the realm of workers’ compensation in January 2017 at the firm of Bailey & Galyen. 

In its October 5, 2017 edition, the New York Times reported on an alarming development in some Japanese workplaces: “karoshi,” which translates to “death from overwork.” First emerging in the production boom of the 1980’s,karoshi initially affected blue-collar workers disproportionately, as employees in manufacturing industries pushed themselves to dangerous levels of fatigue by way of inordinately high overtime hours per month. Over the past three decades, the tendency to forego sleep, work on weekends, and bypass holiday leave in an effort to clock ever higher numbers of overtime hours has seeped into the white collar realm.

The reporting was based around the recent disclosure of the 2013 death of Miwa Sado, a journalist at NHK, Japan’s premiere broadcasting company. Sado clocked 159 hours of overtime in one month before passing away of congestive heart failure at age 31. Following a government investigation, it was determined that Ms. Sado’s death was directly attributable to her work schedule, which produced persistent fatigue and chronic sleep deprivation.

For many Japanese workers, especially those employed by prestigious companies, exhaustion by way of overwork is a sign of one’s commitment to an employer. Karoshi can sometimes require employees to continue working after the end of shift by entertaining business clients well into the evening. Workers under the age of 35 were found to be particularly susceptible to the alarming phenomenon, according to the Japan Institute for Labor Policy and Training.  

The new prosecution unit of the Texas Department of Insurance, Division of Workers’ Compensation, has obtained indictments against a Massachusetts company and three individuals for organized crime activity pertaining to workers’ compensation fraud. The indicted defendants are EME International Inc. and Christine Caldwell, both of Marblehead, Massachusetts, and Enrique Colon and Marcos Ricoy of Deer Park, Texas and Rancho Viejo, Texas, respectively. 

Charges include submitting false workers’ compensation health care claims to Texas Mutual Insurance Company pertaining to functional capacity evaluations of injured workers. The defendants are alleged to have submitted false medical claims for more time than the services required in order to defraud the insurance company in an amount between $20,000 and $100,000.

The indictment is the first step in the trial process. We will keep you posted as the cases develop.

It seems that every month we have something to relate about the ongoing national opioid epidemic, and, unfortunately, this month is no different. Recent reporting from Bloomberg news indicates that, while opioid dependence is a growing cause of unemployment, about two-thirds of those who abuse pain relievers are still employed. The impact of such a scenario should be obvious: opiate use in the workplace lowers attentiveness and increases the risk of injury to the affected worker and his or her colleagues. Additionally, according to Castlight Health, a San Francisco-based healthcare information company, the cost of healthcare expenses posed to an employer by an opioid-dependent worker is roughly twice as much as that of clean employee. 

Drug-testing among employers is on the rise, but synthetic opioids such as oxycodone are frequently omitted from testing, perhaps because of their basis in seemingly legitimate prescriptions from medical providers. 

The crisis was addressed at the 2017 Risk Management Summit in Las Vegas. Greater employer involvement, specifically through the use of nurse case managers, was touted as a particularly effective tool in preventing opioid dependence among injured employees, returning them to work quickly, and maintaining productivity upon their return. When a physician has prescribed narcotics, a nurse case manager can engage the prescribing physician in discussions about how best to wean an injured employee off the medication, stopping dependence before it begins.

Of special interest to this month’s newsletter author, the Bureau of Labor Statistics notes that nearly 20 percent of adults over 65 continue to work rather than retire.  The reasons are varied, but some folks stay on the job because they like the job they do and the people they work with.  This means that the workforce is aging, and along with that trend comes more medical treatment for ordinary degenerative diseases of life that may be aggravated by work activities – picture an old jalopy with loose fenders and cloudy headlamps.   It may be slow but it’ll get you there. The moniker  “Silver Tsunami” is being applied, but we wonder whatever happened to the “Golden Years?”

The First District Court of Appeals in Houston has upset the apple cart again.  In an opinion recently issued, it held that the 45-day deadline for filing judicial review lawsuits to overturn a final decision of the Division is a statute of limitations, not a jurisdictional requirement.  This decision is in contrast to the opinions of other courts of appeal.  What this means is that late-filed judicial review lawsuits would not be dismissed on the basis that the court lacked the power to hear the case – a jurisdictional argument which would be an absolute bar to bringing the case.  Instead, the Court held that the 45-day deadline is a statute of limitations, with the result that the party bringing the case could argue that the statute of limitations was tolled based on the particular circumstances of the case, such as where Section 16.064 of the Texas Civil Practices and Remedies Code provisions might apply. Chicas v. Texas Mutual Insurance Company, 522 S.W.3d 67 (1st Dist. Houston) 2017.

Governor Abbott appointed Kent Sullivan to be the new Texas Commissioner of Insurance for a term to expire February 1, 2019.  Commissioner Sullivan has impressive qualifications and experience, and we look forward to his 25 years of private practice experience, his prior service as a justice on the Fourteenth Court of Appeals and his practical experience as a state district court judge being a positive influence on the insurance industry in Texas.

DWC brought Tim Riley on as Deputy Commissioner of Compliance and Investigations.  We first met Tim – more years ago than we want to admit– when he represented the old TWCC  doing hearings on medical cases before he went over to Texas Mutual to be vice president of Special Investigations.  We expect that the agency’s newly created Compliance and Investigations program area will benefit greatly from his vast and effective experience in enforcement efforts and criminal prosecutions.

Of note is that DWC closed the comment period on September 1st  for its informal working draft of new rules for the Designated Doctor Program.  The stated intent of DWC is to “improve  program transparency, more efficiently recruit and retain doctors, and help ensure that the most qualified doctors are selected for each Designated Doctor examination.” We await formal rule proposal to see what change it will bring to this cumbersome process.

Question: Will the DWC allow its Designated Doctors to evaluate injured workers through telemetrics?

Question: Will DWC bring telemetrics into the dispute resolution process?

The DWC intends to expand the use of telemedicine in Texas’ workers’ compensation system.  An informal rule proposal is being floated to system participants for comment.  The reasoning behind this change is that the agency wants to be proactive, and believes that this will make the system more efficient by saving employers and injured workers travel time and expense without sacrificing quality of care.  It used to be that under the Medicare reimbursement restrictions telemedicine could only be used in underserved areas.  DWC is using as its justification the 2017 bill passed by the Texas Legislature which addressed telemedicine in Texas to expand the use of telemedicine.   The Texas Medical Board is in the process of drafting rules to implement the legislative changes.  DWC’s rules are expected to be in line with those rules.

We found one company with sites in Texas – XstremeMD– that provides telemedicine services.  A visit to their website might be worth your while in order to see the facilities they currently maintain in Texas.  No doubt when this concept becomes widely accepted by insurance carriers and injured workers we will see a larger presence of these companies.  We are curious how existing workers’ compensation doctors will react to these changes.

The proposed DWC rule references the Texas Occupations Code Chapter 111, which allows the Texas Medical Board to adopt rules necessary to ensure the delivery of good care, prevent abuse and fraud, ensure adequate supervision of non-physician health care professionals who provide telemedicine medical services, and describe when an actual face-to-face consultation between a patient and his physician must take place.   A preliminary review of the Texas Medical Board rules shows that the services have to be performed at an “established medical site” and may be used for all patient visits, including initial evaluations, to establish a physician-patient relationship, regardless of whether the physician is physically present at the telemedicine site.  A “distant site provider” may delegate tasks and activities to a “patient site presenter.”  The patient site presenter must be licensed or certified in Texas to perform health care services  – we assume this would most likely be physician assistants or nurse practictioners, but that remains to be clarified.  The rule has other provisions, such as notice and privacy requirements, but the gist of the concept is that medical services will be provided by telemetric means.  We will be watching the rules closely to see what the DWC has in mind that is specific to workers’ comp.  Jane Stone, Stone Loughlin & Swanson, LLP