State News : Texas

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.

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.