State News : Texas

NWCDN is a network of law firms dedicated to protecting employers in workers’ compensation claims.


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.


Texas

STONE LOUGHLIN & SWANSON, LLP

  512-343-1385

 

115 carriers participated in the 2016 PBO Audit.  42 were High Performers, 70 were Average Performers and 3 were designated as Poor Performers.  Performance measures included timely payment of initial TIBs, timely submission of initial payment data through EDI, timely processing of initial medical bills, timely processing of requests for reconsideration, and timely submission of medical bill processing data through EDI.  A detailed report of the PBO results is available on the DWC website athttp://www.tdi.texas.gov/wc/pbo/pboresults.html#icrslts.

 

Last month we reported that Travis County District Court Judge Stephen Yelenosky would hear the appeal of the State Office of Administrative Hearings’ (SOAH) decision in the lead group of air ambulance fee disputes between various workers’ compensation carriers and PHI Air Medical.  SLS’s own James Loughlin represents many of the insurers involved in this ground-breaking litigation.  

On December 15, 2016, Judge Yelenosky agreed with SOAH that the Airline Deregulation Act (ADA) does not preempt Texas workers’ compensation laws that govern the amount of reimbursement paid to air ambulance providers for transporting injured workers.  The judge also ruled that air ambulances are entitled to reimbursement of no amount greater than 125% of the Medicare fee schedule, which reversed the SOAH judge’s ruling that those companies could be reimbursed at 149% of the Medicare rate.  

PHI Air is expected to appeal Judge Yelenosky’s decision and the fee disputes at the DWC level have been abated pending the final outcome of this litigation.

 

On December 1, 2016, the United States Department of Justice (DOJ) announced the unsealing of an indictment returned in November of this year against founders and investors of Forest Park Medical Center (FPMC) in Dallas. FPMC was a chain of five high-end, doctor-owned hospitals in North Texas.  FPMC declared bankruptcy and its facilities were sold off earlier in 2016.

The indictment stemmed from a massive conspiracy involving $40 million dollars in bribes and kickbacks paid by FPMC in exchange for patient referrals over the four years between 2009 and 2013.  The victims named in the indictment included the Federal Employee Compensation Act, TRICARE, Medicare, Medicaid, Federal Employees Health Benefits Program, UnitedHealthcare, Aetna, and Cigna.

In the indictment, it is alleged that FPMC paid bribes to the defendants in exchange for referrals of patients who primarily were insured with high-reimbursing, out-of-network private insurance benefits or benefits under the federally-funded programs listed above.  By obtaining referrals of those patients, FPMC was able to essentially set its own fees and bill at much higher reimbursement rates than those allowed to network providers.  At the same time, however, FPMC attempted to sell patients with lower-reimbursing insurance coverage (Medicare and Medicaid beneficiaries) to other facilities in exchange for cash.  As a result of the bribes, kickbacks and billing practices, FPMC allegedly billed their patients’ insurance plans and programs over half-a-billion dollars and collected over $200 million dollars in paid claims.

Among the 21 people indicted were executives at the hospital, spine surgeons, bariatric surgeons, a pain management doctor, a West Texas chiropractor, a workers’ compensation pre-authorization specialist and a workers’ compensation lawyer.   Some of the physicians indicted were treating doctors in the Texas worker’s compensation system.  

In addition to the charges related to the payment and receipt of kickbacks, the five principal owners of FPMC were also indicted on money laundering charges.  All of the defendants face federal prison time, fines, potential forfeiture of property and restitution if found guilty of the charges stemming from this indictment.

Also, new DWC policy (coming, we’re told, from the Chief Docketing Clerk) is for Benefit Review Officers to set disputes for CCH within 60 days of the BRC regardless of whether the participants can be available on the selected date.  So, if there is only one slot available within two months of the BRC and one or both parties cannot attend, it will be set anyway. The conflicted party is advised to request a continuance. How this outcome differs substantively from just setting the thing outside of 60 days to begin with is anyone’s guess.  We chalk it up to DWC-logic. 

Larry Beckham, one of the Ft. Worth Benefit Review Officers, will be retiring effective November 30, 2016. 

John Bell, one of the Dallas Hearing Officers, has accepted employment with a carrier firm. He, too, will leave the Division on November 30. 

The DWC is apparently having trouble finding qualified applicants to take Mr. Bell’s place and to fill the vacancy left by David Northup in San Antonio last August. 

Chiropractor Garry Craighead, recipient of the aforementioned kickbacks, treated Texas injured workers until the Division got wise to him and denied him admission to the Division’s former approved doctors list on August 26, 2007. Thereafter, he was prohibited from providing healthcare services in the Texas Workers’ Compensation System. However, he continued to treat federal injured workers until being charged with federal crimes.

Craighead pleaded guilty in December 2015 to counts including solicitation and receipt of illegal remunerations in federal health programs. He was sentenced June 10, 2016 to 14 years in prison and ordered to repay more than $17 million to the U.S. Department of Labor.

Craighead treated mainly U.S. Postal Service workers at his Union Treatment Centers. In 2008, Craighead issued a notice to all AFL-CIO union members and postal employees stating:

Important Notice to all Branch 181 Letter Carriers in the Austin Area, our Union brothers and sisters were recently informed of the numerous advantages being offered by Garry Craighead, a physician and Director of Union Treatment Centers located at 8900 Shoal Creek Blvd. Building 200, in Austin, TX. 78757. . . . .

Dr. Craighead is providing assistance and treatment for all Federal and State Workers Compensation claims to benefit your "on the job injury needs" . . . .

The notice did not identify the specific "advantages" Craighead offered the Union brothers and sisters for treating with him over other providers.

Nermin Awad-El-Hadik, owner of the Hope Pharmacy in Houston, appeared before a U.S. Magistrate Judge in Austin on November 9, 2016 and pleaded guilty to one count of willful offer and payment of illegal remuneration in relation to a federal health care program.

El-Hadik admitted to paying more than $5 million in kickbacks to Austin chiropractor Garry Craighead, D.C. during a short period between March 2015 and December 2015. Craighead operated the Union Treatment Centers with eight clinics in Texas. El-Hadik paid kickbacks to Craighead to refer federally insured employees to her pharmacy to have their prescriptions filled and for influencing physicians to prescribe compounded drugs that would be filled at her pharmacy. She faces up to five years in prison when she appears before Judge Sam Sparks for sentencing.

The wife and children of a deceased claimant brought wrongful death and survival claims against the third-party administrator that adjusted his workers’ compensation claim. The claimant was a ventilator dependent quadriplegic. Attorneys for the wife and children alleged that repeated requests were made to the administrator for a specialized bed for the claimant; that these requests were either ignored or refused; and that the failure to provide the specialized bed resulted in the claimant’s death. The Texarkana Court of Appeals noted that it’s not clear from their allegations whether they received a denial or no response at all. The Court stated that either way though, the matter could and should have been submitted to the Division. Yet, there is no allegation that they even attempted to exhaust their administrative remedies prior to filing suit. The Court dismissed their suit on the grounds that their claims were barred by the exclusive remedy provision of the Texas Labor Code and the wife and children were required to exhaust their administrative remedies. Having failed to do so, the trial court lacked subject matter jurisdiction.

Freeman v. JI Specialty Services, Inc., No. 06-15-00106-CV, 2016 WL 6503847 (Tex. App.–Texarkana, Nov. 3, 2016).

Chiropractic is a form of alternative medicine founded by Daniel David ("D.D.") Palmer at the end of the 19th century. Palmer worked as a magnetic healer prior to founding chiropractic. In 1895, he met a man with severely impaired hearing. Palmer discovered a lump in his back and claimed that he restored the man’s hearing by adjusting his spine. This led Palmer to develop the theory of chiropractic which is that the underlying cause of all diseases of the body is misalignment of the bones, primarily of the spinal vertebrae. Palmer explained, "A subluxated vertebra ... is the cause of 95 percent of all diseases ... The other five percent is caused by displaced joints other than those of the vertebral column." These subluxations of the vertebrae are treated by manipulating the spinal joints to correct "nerve flow." Palmer opened the Palmer School of Chiropractic in 1897 to teach his techniques. The theory of chiropractic does not have a scientific basis yet it has managed to survive to the present. Today, Palmer’s adherents are heavily involved in the examination and treatment of Texas injured workers, with 365 chiropractors certified to perform designated doctor examinations as of September 2016.

On October 19, 2016, Travis County District Court Judge Rhonda Hurley signed a final judgment in favor of the Texas Medical Association (TMA) in its latest lawsuit against the Texas Board of Chiropractic Examiners (TBCE). Judge Hurley declared void TBCE rules that permit chiropractors to make medical diagnoses and to perform vestibular-ocular-nystagmus (VON) testing.

Judge Hurley determined that the TBCE rule authorizing certain chiropractors to perform VON testing exceeds the scope of chiropractic as defined by the Texas Legislature. She also determined that the TBCE’s definition of "musculoskeletal system" to include "nerves," its definition of "subluxation complex" as a "neuromusculoskeletal condition," and its use of the term "diagnosis" in its scope of practice rule, all exceed the scope of chiropractic, and are therefore void.

The TBCE’s website states that the Board voted to appeal Judge Hurley’s decision. If her decision is affirmed on appeal, it could have implications in workers’ compensation cases where a chiropractor diagnoses a condition outside their scope of practice to do so.

TMA previously brought another successful lawsuit against the TBCE challenging its rules that permitted chiropractors to perform needle EMG and manipulation under anesthesia. Travis County District Court Judge Stephen Yelenosky declared the rules void because they exceeded the statutory scope of chiropractic practice and, therefore, constituted the unlawful practice of medicine. The Austin Court of Appeals affirmed, in an opinion issued July 6, 2012.

The Texas Association of Acupuncture and Oriental Medicine has also brought suit against the TBCE. They seek a declaration that the TBCE rule authorizing chiropractors to perform acupuncture is invalid. That case is presently pending in Travis County District Court.