State News : Texas

A federal court has reigned in Medicare’s overambitious reimbursement demands.  Medicare sought reimbursement of entire medical bills where there were mixed diagnosis codes, some for the workers’ compensation injury and some which were unrelated.  The court held that once non-work related diagnoses were identified, it became Medicare’s burden to show that the charges were related to the workers’ compensation injury. The case was decided under California law after the court held that Medicare Secondary Payer Act does not preempt state law.  While the court’s holding is not binding in Texas, it relied on a decision that is. CIGA v. Burnwell, 2017 U.S. Dist. Ct. LEXIS 1681. 

An attorney was denied coverage under their professional liability (PL) policy for failing to provide notice to the carrier.  The attorney was sued after he failed to timely appeal a workers’ compensation claim (despite being instructed to appeal by the client), and he sought defense under the PL policy.  The attorney had answered ‘no’ in the application and subsequent renewal applications for the PL policy as to whether he had knowledge of any circumstances that could result in a professional liability claim (ignoring the potential suit for his failure to timely appeal).  The court found that his answers were material misrepresentations and declared the policy rescinded. Liberty Mut. Underwriters, Inc. v. Wolfe, 2017 WL 481468.

David Mattox has been appointed by Governor Abbott to continue serving as Commissioner of Insurance through February 1, 2019.  He has been serving in that role since January 12, 2015.  Before the Texas Department of Insurance, Mr. Mattox was with the Office of the Attorney General.    

The 85^th Texas Legislature is in session, and many of our representatives have an eye on issues affecting the world of workers’ compensation. 

Commissioner Brannon has recommended that the Division’s Fraud Unit be granted authority similar to that of the TDI’s Fraud Unit.  There are two broad proposals: (1) an assistant district attorney employed and funded by the Division that local district attorneys would be able to authorize to operate in their county; or (2) establishing a special prosecutor in Travis County.  The Commissioner also seeks authority to investigate workers’ compensation fraud and to share the results with other agencies without the fraud investigation being subject to open records requests. 

It is also recommended that the Legislature clarify a party’s duty to file any proposed judgment or settlement with the Division in judicial review actions.  Specifically, the Commissioner seeks clarification that agreed judgments, voluntary dismissals, summary judgments, and judgments on the merits must all be filed with the Division for approval.  The Division would also like a description of the terms of any settlement or agreement to be filed, including any anticipated payments and how the Division’s decision would be reversed, affirmed, or modified.

Not to be left out of the action, the Office of Injured Employee Counsel would like to eliminate the requirement that ombudsmen have at least 1 year of workers' compensation experience.  They would also like the authority to request causation opinions from physicians for which the insurance carrier would be obligated to pay, and Senate Bill 1035 would amend section 408.0273 of the Labor Code to provide for the causation reports.

New back pain guidelines from the American Academy of Physicians counsel against prescribing pain medications.  Chronic back pain should be treated with OTC medication and regular activity, not prescription pain meds.  This is refreshing news for those of us on the front lines of the opioid epidemic.  The study also confirmed what many of us already suspected . . . steroid injections provide little, if any, therapeutic help, and diagnostic MRIs are virtually useless to identify disc pathology caused by a work injury. The new guidelines have yet to be adopted.

Dallas-area surgeon Christopher Duntsch, a/k/a Dr. Death, was sentenced to life in prison for injury to an elderly individual, a first degree felony.  The victim lost a third of her blood and the use of both legs.  Dozens of surgery patients testified at the sentencing phase of his trial as to how he maimed them.  Patients presented to Duntsch to address back problems and instead left his care disfigured or unable to move.  Many patients are now left with chronic, debilitating pain.  At least two patients died as a result of Duntsch’s actions.  The lawyer representing Duntsch argued his client was merely incompetent, but in a chilling e-mail, Duntsch stated that he wanted to “become a cold blooded killer.”

Forest Park Medical Center was caught looking to put “more bodies on the table,” and they were willing to pay for those bodies.  Payments were issued to doctors based on the number of surgeries that the doctor would steer to or perform at the medical center.  Twenty-one individuals have been charged in the scheme, and 3 of those have already pled guilty.  The medical center’s former owners allegedly paid approximately $40 million in payments and gifts in exchange for patient referrals.  The scheme was allegedly hatched by two of the co-conspirators while they worked together at the now defunct Vista Hospital. 

Dr. Gerald Foox, whose name many of you may recognize from workers’ comp claims, received approximately half a million dollars in the scheme.  He is free on bail after attempting to flee to Panama.  Dr. Foox was vacationing in Canada when he was indicted, and flew to Panama to avoid arrest.  However, the good doctor was on a watch-list. He was deported to the US and was arrested by the FBI upon landing.  After fleeing the indictment, guess how much did Dr. Foox had to put up for bail?  $15,000,000!

SLS is proud to announce the unveiling of our new website!  While the website is brand new, it can still be found atwww.slsaustin.com.  We have been updating our look, and you may have noticed a new format to the newsletter and our new signature blocks.  Our new website completes the transition to this new brand for SLS. 

Deputy Chief Judge David Langham of Compensation Claims for the Florida Office of Judges of Compensation Claims and Division of Administrative Hearings posed  interesting questions in his recent blog,http://flojcc.blogspot.com.  If you think Texas is bad, just consider the length of his title!  His questions are,  “Would we be better off without workers’ compensation in any form?  Would we be better off with a federal bureaucracy to replace state programs, boards and bureaucracies?  Would we be better serviced with courts that stuck to the law and avoided equity?  Would we be better off if regulators refrained from new rules for every perceived abuse or shortfall?”  Judge Langham also posed the possibility that the human failings of anger, envy, gluttony, greed, lust, pride and sloth might play a part.  What do you think?

There is a new blog post called “The WorkComp Millennial.”  The post addresses a concern about the need in the workers’ compensation industry for young talent.  We have to admit that the old talent is . . . well, old!  The blog respectfully addresses workers’ compensation “elders” as “very talented and accomplished statesmen.”  There are some us in the firm who are flattered by the compliment.  Others of us are annoyed.  But we support the purpose of the blog insofar as it is intended to help the industry develop interest in those men and women beginning their professional careers who might not otherwise consider workers’ compensation as a career. For the Millennial, it could make what  many of us in the industry know, especially workers’ compensation insurance adjusters and attorneys, that workers’ compensation is a rewarding field if you are willing to work hard.