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.
On 8/18/17, DWC posted changes to the Designated Doctor Rules and asked system participants for informal comments. The stated reason for the changes is to “simplify certain DD processes, retain and recruit doctors to continue to ensure the most optimally qualified doctor is selected for an examination, provide transparency, and allow for better monitoring of designated doctors.
The DWC Designated Doctor List (DDL) has undergone significant demographic changes since Rule 127 was adopted in September of 2012. Specifically, there are half as many doctors on the DDL and there has been a dramatic decrease in the number of medical doctors on the DDL, while the number of chiropractors has steadily increased. Of the 540 total doctors on the DDL, 167 of them are medical doctors and 352 are chiropractors. When Rule 127 was adopted, there were 1247 doctors on the DDL, 929 of whom were medical doctors and 203 were chiropractors.
In an effort to keep designated doctors in the program, and ostensibly to lure more medical doctors back to the fold, the DWC is proposing changes to the selection and qualification criteria that would allow more examinations per appointment and more specialization (in other words, more exams for medical doctors and doctors of osteopathy) for more complex injuries, which have been further defined by the proposed rules. The current selection process “penalizes” the more specialized doctors by moving them to the bottom of the appointment list when appointed to complex cases.
Of interest is the fact that the DWC has not addressed any increase in the fee schedule to take into account changes in the complexity of the system, the Designated Doctor rules and the kinds of examinations designated doctors are appointed to address.
The informal comment period closes on 9/1/17, but the rules will be posted for formal comment.
On August 29, 2017, Commissioner Brannan issued a bulletin, which can be read in its entirety at the following:http://www.tdi.texas.gov/bulletins/2017/b-0020-17.html. The bulletin refers to the Governor’s disaster proclamation and directs that, for the duration of that proclamation, Carriers must provide or continue to provide: (1) processing and delivery of benefits checks and medical care, services, supplies and equipment; (2) waiver of penalties and restrictions related to necessary and non-emergency health care provided out of network; (3) coverage of payment for necessary emergency and non-emergency health care services obtained out of network; (4) extended deadlines for medical examinations; authorization of payment to pharmacies for up to a 90 day supply of prescription medications (subject to the number of days authorized by the provider) regardless of the date on which the prescription had most recently been filed; and (5) expedited change of address processing.
In addition to the direction to carriers, the bulletin informs system participants of a tolling of deadlines for participants who reside in the counties listed in the Governor’s disaster proclamation. For the duration of the proclamation, deadlines are tolled for: (1) workers’ compensation claim notification and filing deadlines; (2) medical billing deadlines; (3) medical and income benefits payment deadlines; (4) electronic data reporting deadlines; and, (5) medical and income benefit dispute deadlines.
The DWC also reminded political subdivisions that first responders are on the front lines of the disaster and DWC and those subdivisions shall accelerate and give first priority to an injured first responder’s claim for workers’ compensation medical benefits if that first responder sustains a serious bodily injury in the course and scope of employment. OIEC has designated a First Responder Liaison, Yolanda Garcia, who can be reached at 512-804-4173 orFirstResponderHelp@oiec.texas.gov.
Governor Abbott issued a disaster proclamation on 8/23/17, certifying that Hurricane Harvey posed a threat of imminent disaster, including severe flooding, storm surge and damaging winds for the following counties: Aransas, Atascosa, Austin, Bastrop, Bee, Bexar, Brazoria, Brazos, Burleson, Caldwell, Calhoun, Cameron, Chambers, Colorado, Comal, DeWitt, Fayette, Fort Bend, Galveston, Goliad, Gonzales, Grimes, Guadalupe, Hardin, Harris, Jackson, Jasper, Jefferson, Jim Wells, Karnes, Kerr, Kleberg, Lavaca, Lee, Leon, Liberty, Live Oak, Madison, Matagorda, Montgomery, Newton, Nueces, Polk, Refugio, San Jacinto, San Patricio, Tyler, Victoria, Walker, Waller, Washington, Wharton, Willacy and Wilson counties. On 8/28/17, the Governor added Angelina, Orange, Sabine and Trinity counties to the proclamation.
Last week Hurricane Harvey was predicted to cause significant damage to South Texas. What we know now is that no one was prepared for the catastrophic devastation Harvey would leave in its wake. It will, no doubt, be several months before we know the full extent of the damage. We at SLS send our thoughts and prayers to our friends and colleagues impacted by the hurricane.
To speed healing and improve return to work times, the Division has proposed a rule requiring that every claimant be given a magnetic copper bracelet and compression wraps infused with magnets and copper. The chiropractic lobby is strongly in support of the proposal stating that the “science” is sound. On a somewhat related note, if you’d like to purchase a magnetic copper bracelet, James Loughlin will sell you one for 4 easy payments of $24.95.
Jacqueline Harrison, a Hearing Officer in the Houston West Field Office, has moved on from the Division. No word yet on whether she’s left the world of workers’ compensation.
The claimant was injured on a large construction project. As a result, his left leg had to be amputated above the knee. He recovered workers’ compensation benefits through his employer. He also sued one of the subcontractors on the job for his injuries. The jury awarded a total of $43 million in damages. However, the Fourteenth District Court of Appeals in Houston reversed and rendered judgment that the claimant take nothing from the subcontractor.Berkel & Company Contractors, Inc. v. Lee.
The court held that the subcontractor was entitled to claim the exclusive remedy defense because the subcontractor and claimant were co-employees. This determination was based on a provision in the Workers’ Compensation Act that deems the general contractor to be the employer of the subcontractor and the subcontractor’s employees if the general contractor enters into a written agreement with the subcontractor to provide workers’ compensation insurance coverage to the subcontractor and the subcontractor’s employees. It was undisputed that the general contractor agreed to provide workers’ compensation insurance to all its subcontractors.
The court also clarified the application of the intentional-injury exception to the exclusive remedy defense. The court held that the evidence was insufficient to show that a vice-principal of the subcontractor knew to a substantial certainty that his conduct would bring about harm to a particular victim, or to someone within a small class of potential victims within a localized area. --James Loughlin, Stone Loughlin & Swanson, LLP
On July 6, 2017, Howard Gregg Diamond, M.D. was indicted on federal criminal charges including conspiracy to distribute controlled substances, possession with intent to distribute controlled substances, health care fraud, aiding and abetting, and money laundering.
The indictment alleges that Dr. Diamond conspired with others to write prescriptions for drugs including hydrocodone, oxymorphine, methadone, fentanyl, morphine, oxycodone, alprazolam, and zolpidem, without a legitimate medical purpose. The conspiracy is alleged to have resulted in the overdose deaths of at least seven individuals. At the time of his arrest, Dr. Diamond was reported to have on or about him a firearm, possible marijuana, and expired passports.
On July 20, 2017, the Texas Medical Board issued an order temporarily suspending Dr. Diamond’s medical license based on their determination that his continuation in the practice of medicine would constitute a continuing threat to the public welfare. --James Loughlin, Stone Loughlin & Swanson, LLP
On July 19, 2017, Sentrix Pharmacy filed Chapter 11 bankruptcy in the United States Bankruptcy Court for the Southern District of Florida. How does that apply to Texas, you ask?
Sentrix Pharmacy is located in Pompano Beach, Florida but mails compound pain creams and scar creams to injured workers in Texas. Past charges include $2,488.99 for a one month supply of pain cream and $12,050.06 for a one month supply of scar cream.
On July 7, 2017, Sentrix Pharmacy filed comments to the Division’s informal compound drug rule proposal we reported on last month. The proposed amendments would require preauthorization for compound drugs. Not surprisingly, Sentrix opposed the amendments.
In its comments, Sentrix argues with a straight face that compound pain creams are a valuable tool in the fight against the opioid epidemic and that if preauthorization is required for compound pain creams, it could contribute to the opioid epidemic. No mention is made of all of the other more effective, less expensive treatments for pain than a $2,500 jar of compound pain cream.
We commend the Division's efforts to require preauthorization for compound drugs. Preauthorization is typically required for treatments and services that are costly, medically questionable, or subject to abuse. Compound drugs fit the bill on all three counts. --James Loughlin, Stone Loughlin & Swanson, LLP
The Medicare Secondary Payer Act requires primary payers, including workers’ compensation carriers, to reimburse Medicare for payments it made for healthcare for which the primary payer was responsible. Many carriers have reported seeing an increase in secondary payer recovery activity by Medicare, particularly with regard to demands for reimbursement of services that bear no relation to the compensable injury.
For example, on a low back sprain/strain claim, the carrier may receive a demand for reimbursement of services for treatment of COPD, diabetes, or other ordinary diseases of life. In other cases, the provider’s bill may list a compensable diagnosis code but no treatment was actually provided for that condition. Finally, in some instances treatment may have been provided for both related and non-related conditions, yet the carrier receives a demand for the full amount.
It appears that in many instances Medicare is not making an initial determination about whether and to what extent the services it paid for were actually for the compensable injury. If the beneficiary has a prior workers’ compensation claim, Medicare simply sends a demand letter. InCIGA v. Burwell, a federal district court case out of California, decided January 5, 2017, the court rejected Medicare’s argument that the primary payer is responsible for both the related and unrelated conditions when the provider combines the services into a single charge. According to the court, Medicare must attempt to apportion the charges between related and non-related services.
The court also held that Medicare is bound by state law in determining whether the insurance carrier is required to reimburse Medicare. The Fifth Circuit Court of Appeals reached the same conclusion inCaldera v. Ins. Co. of the State of Pa., decided in 2013. Therefore, if Medicare contends that a disputed condition for which it paid for treatment is related to the compensable injury, the proper forum for resolving that dispute would be the administrative dispute resolution process provided by the Texas Workers’ Compensation Act. So far, however, it does not appear that Medicare has attempted to invoke the Division’s dispute resolution process.
The Division’s involvement would be welcomed to help address the problems carriers are having with Medicare reimbursement claims. In 2014, then Commissioner Rod Bordelon wrote a letter to Medicare to address a related problem in which Medicare would not pay for medical services because the Medicare beneficiary had a previous workers’ compensation claim. Topics to be addressed in a new letter may include facilitating a process to better identify the compensable injury and related services before a blanket demand letter is sent, and, in the event of a disagreement, clarifying the process for resolving that dispute. For example, do Medicare or Medicare/Medicaid managed care providers meet the definition of a “health care insurer” under section 409.0091 such that they are required to follow Labor Code section 409.0091 and submit a DWC-026 healthcare insurer reimbursement form? --James Loughlin, Stone Loughlin & Swanson, LLP