State News : Texas

Technology affects jobs.  Currently, county and district clerks, as well as many Texas counties, are opposing a Texas Supreme Court program to create a publically accessible electronic system to make judicial records accessible to the public.  Several counties charge membership fees– which can be considerable– to obtain records.  This limits an attorney’s ability to access records, and costs clients money for the records to be retrieved.  Statewide electronic access to court records would be efficient for practitioners and the public, but would remove a court clerk’s job function–and  an income stream–from many county courts.  Blake Hawthorne, the Clerk of the Supreme Court of Texas, recently posted that “[i]f you want a statewide access system for Texas court records, I would encourage you to tell your representatives and local trial court clerks that you support the statewide system. . . . I think the real issue is money, control, and concerns about the impact of technology on their jobs.” (NOTE: Mr. Hawthorne’s opinions were posted in his individual capacity and do not represent the opinions of his office or of the Texas Supreme Court).

After decades, the DWC has finally allowed an increase in claimant’s attorney fees from $150/hour to $200/hour for attorneys, and from $50/hour to $65/hour for legal assistants.  For any service provided before January 30, 2017, the old rates apply.  For services after January 30, 2017, the new rates apply.  When applying for fees, separate applications must be submitted for services rendered before and after that date. In addition, billable time allowed for communications per month increased from two hours to three hours per month. For direct dispute resolution negotiation with the other party, allowable time increased from three to three and one-half hours, and for preparation and submission of an agreement or settlement, allowable time increased from one to two hours.

It will be interesting to see whether this increase attracts any additional qualified attorneys to represent claimants before the DWC.  Carrier attorney fees are not actually “capped” by the DWC’s rules – the requirement is only that the fees must be “reasonable.”  Other states’ attorneys are in the midst of challenging their regulatory agencies’ constitutional authority to regulate attorney fees at all!  More on that in later newsletters, but there has not been a constitutional challenge to Texas’ workers’ compensation statute since 1989 when the Texas Supreme Court held in Garcia v. Texas Workers’ Compensation Commission that the newly enacted workers’ compensation act did not violate provisions of the federal and state constitutions.

Those of us who attend hearings are often surprised by new procedures that are being implemented across the field offices, or old procedures that have been abandoned.  One new procedure we learned of is that the hearing officers are requiring in every hearing a stipulation as to the date of STAT MMI.  But, the Division of Hearings seems to have dropped the requirement that the parties put into evidence DWC Orders for DD and RME exams, or a print out of the certifying doctors’ credentials for performing MMI/IR examinations and certifying an IR.  

It could be that the opening of the new legislative session has our friends at the Division of Hearings all aflutter.  This is the time where DWC wants to present favorable statistics to the legislature, such as the length of time between the inception of a dispute and its resolution  – short time good, long time bad.  From a practitioner’s standpoint, it is frustrating when there is no consistent application of a policy on continuances in contested case proceedings, and little consideration given to the time it takes to prepare for what can be complex proceedings with multiple parties.  And we expect that the hearing officers might appreciate the DWC allowing them to be the judge of when a continuance will  be in the interests of a fair hearing for both parties, and when it will not. 

A hearing officer found that when the certifying doctor did not rate the entire compensable injury, the exception found in Labor Code Section 408.123(f)(1)(A) of the statute applied and the certification of MMI/IR did not become final.  That is the section that says compelling medical evidence of a significant error by the certifying doctor in applying the AMA Guides constitutes an exception to finality.  Presumably, the hearing officer conflated an extent issue with an improper application of the Guides.  However, it was not until after the 90 day finality period had expired that the hearing officer found in the claimant’s favor on the extent of the injury.  The Appeals Panel found that there is nothing in either Section 408.123 or Rule 130.12 that would allow an exception to finality under this circumstance.  Once the 90 day rule results in finality, a later determination on extent of injury cannot revive it.  But then the Appeals Panel remanded the case to the hearing officer to determine whether or not Section 408.123(f)(1)(C)’s exception to finality would apply— the provision that allows an exception where there is improper or inadequate treatment before the date of MMI/IR.  Finding that the parties had actually raised and litigated that exception, the Appeals Panel reversed the hearing officer’s decision that the certification had not become final under Section 408.123(f)(1)A), and remanded the case for the hearing officer to determine if there had been improper or inadequate treatment such that Section 408.123(f)(1) (c) might apply. DWC Appeals Panel Decision No. 135294-s

Dan Price was invited into the firm as a partner, effective January 1, 2017.  Those of you who have worked with Dan in his capacity as senior associate will not be surprised, and we invite you to congratulate him.  He is a terrific lawyer and can be counted on to serve our clients well. He now shares the burdens and joys of partnership with Jane Stone, James Loughlin, David Swanson and Erin Shanley.

 In  Drug Dealer, M.D., Anna Lembke, a psychiatrist and chief of addiction medicine at Stanford University’s medical school, points the finger at over prescribing physicians and a subculture of the addicted, in her view from the trenches in the war on opioid drug abuse in America.   While there is plenty of blame to go around in the medical community, from the physicians and the myriad problems in the American health care system to Big Pharma, Lembke steps into the often off-limits area of patient accountability.  Lembke writes of patients “who visit a doctor’s office not to recover from illness but to be validated in their identity as a person with an illness.”  She describes the patients’ drug-seeking behavior by user type.  “Senators” will “filibuster” the doctor for the length of the visit and then make a last-minute plea for narcotics, giving the doctor little time to object.  “Exhibitionists” writhe in pain and exhibits extreme pain behaviors.  The “Dynamic Duo” is the patient and crying mother/wife/girlfriend presenting a team too pitiful to refuse.    This short, 172 page book, offers an interesting perspective into a problem all too familiar to the workers’ compensation community.

PBMs are pharmacy benefit managers.  What do they do, you ask?  They negotiate drug prices, build networks of pharmacies and build formularies.  The largest, Express Scripts, Inc., reported $102 billion in revenue in 2015 (that’s almost more than Pfizer, Coca-Cola and McDonalds, combined!).   Formularies are the primary tool in the PBM arsenal.  Drug companies offer PBMs sizeable rebates to make sure their drugs can stay on the formularies.  Last year, AstraZeneca paid the government $7.9 million to settle allegations that it paid its PBM “kickbacks” in order to stay on the formulary (and ostensibly to keep competing drugs off the formulary).  The drug manufacturers, in order to keep up with the rebates and keep their profit margins up, pass the cost on to the consumer. The lack of transparency in the rebate negotiation process and drug pricing practices is a continuing frustration to insurance carriers and consumers alike.    Numerous factors combine to keep consumers in the dark as the pricing is derived from a combination of premiums, deductibles, formulary availability and pricing, network requirements, coverage and individual price points for a given drug.  Full transparency would allow consumers a bigger voice in the drug pricing equation.   Such transparency is unlikely, however, barring regulatory intervention.

A few Appeals Panel cases of interest in the past couple of months include:

Finality

APD 161628 (decided 10/4/16) - the Appeals Panel analyzed finality in the context of Rule 130.102(h), which provides that if there is no pending dispute regarding the date of MMI or the impairment rating prior to the expiration of the 1st quarter of SIBs, the date of MMI and IR shall be binding and final.  In that case, the first certification was rendered on 9/11/13.  A designated doctor was requested on 10/6/13.  On 10/18/13, a designated doctor was appointed, and saw the claimant on 11/7/13.  The designated doctor certified MMI on 9/4/13 with a 15% impairment rating.  Claimant subsequently applied for SIBs for the 2nd, 3rd and 4th quarters.    The Appeals Panel clarified that it is Rule 130.102(h) that controlled in this case, not Rule 130.12 (which the hearing officer cited).  The Appeals Panel explained that the preamble to the relevant portion of Rule 130.102 makes it clear that the finality provisions of that rule do not apply to any situation where a party has raised a dispute prior to the first quarter of SIBs, and the appointment of a designated doctor does not resolve a dispute of the MMI certification or assigned impairment rating.

APD 161503 (decided 11/7/16) - the hearing officer erred in holding the first certification of MMI/IR was not final based on compelling evidence of a previously undiagnosed condition.  A flight attendant injured her left wrist, hand and forearm when she was flung around the cabin during an episode of turbulence.   She was diagnosed with left wrist and hand contusions and ulnar radicular pain.  A left wrist sprain was accepted by the Carrier.  Her treating doctor determined that she reached MMI with no permanent impairment.  The hearing officer determined that the injury also included left ulnar nerve entrapment, and the Appeals Panel agreed.  The Appeals Panel disagreed, however, the left ulnar nerve entrapment was a previously undiagnosed medication condition that justified an exception to the finality rule.  The Appeals Panel cited evidence that the claimant was diagnosed with early with ulnar nerve radicular pain, and the treating doctor who rendered the first certification had continuously diagnosed her with a left ulnar injury.  Reversed and rendered on the issues of finality and MMI/IR.

Expert Medical Evidence Required - Causation 

APD 161780 (decided 10/18/16) - the Appeals Panel reversed a hearing officer decision that the compensable injury included lumbar radiculitis where there were no medical records that explained how the injury caused that condition, and requiring expert medical evidence to prove causation of lumbar radiculitis.
 
Treatment After MMI Can’t Be Considered in Impairment Rating

APD 161877 (decided 11/2/16) - the hearing officer erred in adopting the designated doctor’s certification of MMI/IR as the designated doctor included a rating for a surgical procedure that occurred after the statutory date of MMI, which was determined to be the proper MMI date by the Appeals Panel. 

Course and Scope - Deviation from Employment

APD 161985 (decided 11/7/16) - the hearing officer erred in holding the claimant was not in the course and scope of his employment when he was involved in a motor vehicle accident.   The claimant was driving to Discount Tire to repair the tires on his personal truck in preparation for a 10-hour drive to a location at the direction of his employer.  Claimant was paid $30.00 per day for the use of his truck and it was company policy to reimburse foremen and operators for use of their personal vehicles.  Claimant was reimbursed each months regardless of whether or not the truck needed maintenance.  The employer directed claimant to choose a crew to travel with him to Baytown for a safety meeting.  ON the date of injury he was driving to get his tires repaired before traveling to Baytown. 

DWC is losing two more Hearing Officers.  John Bell is leaving the Dallas Field Office and Marilyn Allen is leaving the Houston West Field Office.  Meanwhile, in Ft. Worth, long-time Benefit Review Officer, Larry Beckham has retired and in San Antonio, Mery-Margaret Cisneros has moved from BRO to OIEC to manage the ombudsmen in San Antonio and Corpus Christi.  The new year promises to be interesting.  

On 12/1/16, the DWC published its 2016 Biennial Report. The DWC reports significant improvements since the 2005 HB legislative reforms including lower claims costs and premiums, higher employer participation rates, better access to care and return to work outcomes and fewer disputes. While most of the signposts indicate improvement, according to DWC, designated doctor disputes remain high.  The DWC made several legislative recommendations including revising certain Labor Code provisions to allow for electronic transmission or information rather than requiring certified mail or personal deliver in certain circumstances.  The DWC will once again attempt to make changes to the LIBs statute and the archaic language of “incurable insanity” and “imbecility” currently used to describe the degree of a brain injury that qualifies an injured employee to be eligible for LIBs.  The entire 2016 Biennial Report can be found at:http://www.tdi.texas.gov/reports/dwc/documents/2016dwcbienlrpt.pdf.