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 December 2, 2016, Travis County District Court Judge Stephen Yelenosky will hear the appeal of the decision from the State Office of Administrative Hearings (SOAH) in the lead group of air ambulance fee disputes between various workers’ compensation carriers and PHI Air Medical. SOAH Judge Craig Bennett ruled in favor of the carriers in 2015 when he held that the federal Airline Deregulation Act does not preempt Texas workers’ compensation laws that govern the amount of reimbursement paid to air ambulance providers for transporting injured workers. Judge Yelenosky will decide whether that decision is correct. The Division has intervened in support of the carriers’ position on preemption. Judge Yelenosky is retiring at the end of the year so his decision is expected before then.
On December 7, 2016, the United States Court of Appeals for the Fifth Circuit in New Orleans will hear oral argument inAir Evac EMS, Inc. v. State of Texas, Department of Insurance, Division of Workers’ Compensation. Air Evac, another large for-profit air ambulance provider, filed a declaratory judgment lawsuit against the Division based on the SOAH decision in the lead group of fee disputes with PHI Air Medical. The suit was filed in federal district court in Austin, Texas. Air Evac sought a declaration that the ADA preempts Texas workers’ compensation laws that govern the amount of reimbursement paid to air ambulance providers for services provided to injured workers and therefore, the Division must order carriers to pay its unregulated billed charges.
The carriers in the PHI Air Medical case intervened in Air Evac’s lawsuit. The carriers and Division moved to dismiss on the grounds that Air Evac has no right to bring suit in federal court but that even if it did, Air Evac’s lawsuit should still be dismissed to allow the preemption issue to be decided in the state proceedings where that issue was litigated for the last three years. Federal District Court Judge Sam Sparks granted the motions and dismissed Air Evac’s lawsuit. Air Evac appealed the dismissal to the United States Court of Appeals for the Fifth Circuit to determine whether Judge Sparks was correct to dismiss the case. If it rules he was not, the case will go back to Judge Sparks for further proceedings consistent with the court’s ruling. Oral argument is set in the case on December 7, 2016.
There were 643 air ambulance disputes pending at the Division as of October 21, 2016, by far the single largest category of medical fee disputes. Additionally, there are around 130 more cases pending at SOAH. In April, Commissioner Brannan announced that he directed Division staff to abate all air ambulance disputes until the final outcome of the litigation regarding federal preemption. The number of disputes pending at the Division will continue to grow as more disputes are filed at a rate of about 30 per month.
This month US Labor Secretary Thomas Perez released the highly anticipated report on workers’ compensation entitledDoes The Workers’ Compensation System Fulfill Its Obligations to Injured Workers?The report’s answer to that question is “no,” and it cites deficiencies in the workers’ compensation system and ominously recommends that legislators consider “whether to increase the federal role in oversight of workers’ compensation programs.”
We note with interest that the report commented on the recent Workers’ Compensation Summit, stating that “a gathering of diverse workers’ compensation experts in a self-styled summit concluded that benefit adequacy, system failures, and delays in medical treatment were the three foremost issues requiring action.” Our own Jane Stone was one of those “diverse workers compensation experts” that participated in the Summit.
More information regarding the Summit is available at
Workerscompensationcentral.com.
The owner of a health clinic has pleaded guilty to insurance fraud after billing comp carriers for medical services even though the clinic had no licensed doctor on its staff. Rosemary Phelan, owner of Houston Healthcare Clinic, was sentenced to seven years deferred adjudication and ordered to pay $88,000 in restitution.
A joint investigation by the TDI-DWC and Texas Mutual Insurance Company led to the guilty plea. According to DWC, the clinic had a licensed doctor on staff at one time, but when that doctor left in 2012 the clinic began hiring unlicensed, foreign medical students to act as doctors and treat patients. Phelan reportedly submitted $166,843 in fraudulent workers’ compensation claims, involving more than 50 workers, claiming they had been treated by the clinic’s previous doctor.
This month the TDI published its 2016 Workers’ Compensation Network Report Card. The report card assesses health care costs and utilization, employee access and satisfaction of care, and return-to-work outcomes. According to TDI, the report card results show that “networks continue to experience improvements in average claim costs and outcomes when compared to non-network claims and to previous years.”
Compound cream fraud isn’t just a comp problem. It’s everywhere. The U.S. Attorney’s office for the Northern District of Texas announced this month the arrest of nine defendants in connection with their roles in a $100 million health care fraud conspiracy perpetrated against TRICARE, the health insurance program for members of the military and their families. The defendants allegedly defrauded TRICARE in connection with the prescription of compounded pain and scar creams by, among other things, paying kickbacks to prescribing physicians.
One doctor in El Paso allegedly wrote thousands of prescriptions for compounded drugs to TRICARE beneficiaries whom he had never met in person and for whom he conducted only a cursory consultation via telephone. In the nine-month period from October 2014 to June 2015 TRICARE reportedly paid more than $102 million for compounded drug prescriptions generated by some of the defendants.
Did you catch that? $102million in a nine month period. These are taxpayer dollars we’re talking about. Think about that the next time you look at the "Federal Withholding" deduction on your paycheck stub.
This month the Occupational Safety and Health Administration issued a memorandum which seeks to clarify the extent to which OSHA will consider post-accident drug and alcohol testing to be a violation of federal regulations.
The memorandum addresses questions that have arisen about a rule that OSHA published in May. That rule, theElectronic Recordkeeping Rule, prohibits retaliation against employees who report workplace injuries and illnesses. In comments to that rule OSHA previously stated that the rule “does prohibit employers from using drug testing (or the threat of drug testing) as a form of adverse action against employees who report injuries or illnesses.” Those comments ignited a firestorm, and since then there has been debate as to whether all post-accident drug or alcohol testing is now prohibited.
In the new memorandum, dated October 19, 2016, OSHA’s answer to that question is “no.” It explains that the rule does not prohibit employers from drug testing employees who report work-related injuries “so long as they have an objectively reasonable basis for testing.” According to OSHA, when assessing whether the basis for testing is objectively reasonable, “the central inquiry will be whether the employer had a reasonable basis for believing that drug use by the reporting employee could have contributed to the injury.” If so, says OSHA, it would be objectively reasonable to subject the employee to a drug test. Conversely, says OSHA, “drug testing an employee whose injury could not possibly have been caused by drug use would likely violate” the rule.
Enforcement of the rule originally was scheduled to begin in August 2016 but OSHA has delayed it to December 1, 2016.
The Division of Workers' Compensation has expanded to all 20 of its field offices the availability of a two-step dispute resolution process for certain types of disputes. The process started as a pilot program available only in Weslaco and Dallas and it has proven successful.
The two-step process is voluntary and is available when a dispute includes the trifecta issues of extent of the injury, the date of Maximum Medical Improvement, and the correct impairment rating. Under the bifurcated process, the parties can elect to have the hearing officer resolve the extent of injury issues first and then they can assess whether another hearing is needed to resolve the issues of MMI and IR.
The National Workers’ Compensation Defense Network (NWCDN) put on another great seminar
this month. The seminar was held at the Intercontinental Hotel on the Magnificent Mile in Chicago.
Seminar topics included traumatic brain injury, reducing/avoiding narcotics abuse, and negotiation
skills. Additionally, there was a regional break-out session to discuss medical issues specific to
different states. The seminar was sandwiched between two lively and engaging cocktail receptions,
and many attendees took the opportunity to see Chicago’s many sights, such as the John Hancock
Tower, museums, and the architecture boat tour.
The Division started work in September to convert a backlog of hard copy records to digital format.
The project apparently involves scanning 21,000 boxes of files– specifically, “millions of claim
files”. Once the project is complete, the Division hopes to see an improvement in data security, as
well as quicker and easier fulfillment of records requests.
The Division has extended the comment period for the rule proposing modification of the cap on
attorneys’ fees and withdrawal of representation, as well as the proposed modifications to forms
relating to attorneys’ fees, attorney representation, and attorney withdrawal from representation.
If you’d like to comment on the rule proposals or proposed form revisions, please submit your
written comments by 5:00 p.m. Central time on October 4, 2016. Written comments may be
emailed (Rulecomments@tdi.texas.gov) or physically mailed to: Texas Department of Insurance,
Division of Workers’ Compensation, Maria Jimenez, Workers’ Compensation Counsel MS - 4D,
7551 Metro Center Drive, Suite 100, Austin, Texas 78744-1645.
The Division has also issued a notice that comments that were submitted via email between 8/01/16
and 9/19/16 may not have been received, and is encouraging you to resubmit your comment if it was
submitted via email during that time-frame.