State News : Texas

The US National Toxicology Program, a federal interagency group under the NIH, is said to have

linked radiation from cell phone exposure to cancer in rats in a new study. The researchers exposed

rodents for two years (apparently, a rodents’s life span) to radiation levels designed to roughly match

what a human with heavy cell phone use or exposure might experience. The study results are a long

way from determining if the results of the experiments would be the same if the subjects were

humans. We wonder if the danger to humans will be more or less than the dangers of using a cell

phone while driving (or walking). In any event, if cell phone usage is a work requirement for a

particular injured worker who develops cancer, or gets hit by a bus while distracted by his phone,

there may be some workers’ compensation claims filed.

As many of you know, a broad-based conference was recently held in Dallas by invitation only to

discuss common national issues in workers’ compensation in light of a perceived trend to “opt-out”

plans and the specter of nationalization or doing away with a workers’ compensation system altogether. SLS partner Jane Stone was invited to the Summit as a representative of the National

Workers’ Compensation Defense Network. You may have been following the progress of the

Summit on Bob Wilson’s website. The purpose was to open a dialogue as to what is right in

worker’s compensation programs, and what can be improved. The discussions were lively to say

the least, given that the attendees were so diverse in their views and experiences. The conversations

lasted for 2 days among regulators, judges, insurance professionals, physicians, academics, union

representatives, lawyers (from all sides), and injured workers (both satisfied with the system and

unhappy with it). After the initial conference, the attendees responded to a survey to determine the

priority of topics that were most important. The results of the survey will be published sometime

after July 4th.

Treatment for opioid dependence has long been an issue in workers’ compensation. Now that the

FDA has approved implants which will provide a constant, low dose of the drug buprenorphine to

a patient who is already stable on other forms of the drug, such as pills or sublingual films, requests

for the implant should begin to show up in preauthorization requests, given that buprenorphine is

an “N” drug.

The State Office of Administrative Hearings recently decided to deny payment for compounded

medications which are usually various topical creams which are touted as relieving pain or healing

scars. Texas insurance carriers have been seeing bills of more than $12,000 for a one month

prescription. It was thought by some that so long as the compound didn’t contain an “N” drug from

the DWC’s closed formulary, preauthorization under DWC Rule 134.600 was not required. But the

insurance carrier in this case decided to deny payment based on the defense that Rule 134.600

requires that investigational or experimental drugs be preauthorized. SOAH determined, based on

expert testimony from Dr. Suzanne Novak and her expertise in the application of the ODG treatment

guidelines, that compounded drugs are by their very nature investigational and experimental. That

being the case, the creams would require preauthorization. Many in the pharmacy and treatment

industries disagree, but for now, at least we know which way the wind is blowing.

The Texas Supreme Court issued a decision blowing apart an attempt at settlement of a partial SIBs

quarter. Bonnie Jones and the workers’ comp carrier had taken a dispute over the 14th quarter of

SIBs through the agency and into district court. The DWC had determined that Ms. Jones was not entitled to benefits for that quarter and Ms. Jones took the case up. In the district court proceedings,

Ms. Jones agreed to a partial payment for the quarter and the proposed judgment incorporating the

settlement was sent to the DWC. The Labor Code requires that all proposed judgments be submitted

to the DWC so the agency can decide if there is a reason to intervene in the case. After reviewing

the proposed judgment, the DWC exercised its right to intervene and oppose the judgment on the

basis that the agency had already found that Jones had not fulfilled the mandatory work search

requirements for the 14th quarter, and that a partial SIBs award, even if both parties agreed, “flouts

the statutory formula’s edict to calculate the monetary entitlement in a precise way.” The trial court

went ahead and granted the judgment anyway, and the court of appeals affirmed, citing the longstanding

general policy of encouraging settlement. But, as stated in the Supreme Court’s opinion,

the trial court and court of appeals“ignor[ed] the particularities that the revamped workers’ comp

scheme provides.” Bottom line: SIBs entitlement is all or nothing for each quarter – no partial

settlements allowed. One wonders whether the parties attempted the same settlement at the agency

level. It seems an odd case for the agency to spend resources to pursue what seems to be an issue

of minor significance. Texas Dept. of Ins., Division of Workers’ Compensation v. Bonnie Jones and

American Home Assurance Company, (Tex. 2016) No. 15-0025, opinion issued June 24, 2016.

So far, all we know is that the scam involved Federal workers’ compensation claims, but it is hard

to believe that Texas workers’ comp was not hit as well. More to come on that, but in the meantime,

spread the word. Attorney Tshombe Anderson was arrested last Friday, and his wife Brenda

Anderson and sister Lydia Bankhead are in federal custody. The fronts they are alleged to have used

were Best First Administration Durable Medical Equipment of Austin, Union Medical Supplies &

Equipment LLC, Sky-Care Medical Supplies & Equipment LLC, and American Federal Union

Claims Advocates LLC. This story ran in the Dallas Morning News, and here’s the link:

http://crimeblog.dallasnews.com/2015/08/dallas-attorney-and-family-members-charged-with-defraudingworkers-

comp-out-of-22-million.html/ .

A national conversation on workers’ compensation took place this month. It was a two day event
where regulators, judges, insurance professionals, academics, union reps, lawyers, and medical
professionals met to correct flaws in the worker’s compensation system. It was so productive, that
a follow up meeting is planned for some time in June or July to take place via telephone. While
there were some complaints that the meeting was secretive, a list of attendees and notes from the
event will be published soon.

An investigation by the Bureau of Alcohol, Tobacco, Firearms and Explosives and the Texas State
Fire Marshal’s Office revealed that the April 2013 explosion at a fertilizer plant in West, Texas was
intentionally set. This tragic fire claimed 15 lives and injured hundreds more. The operator of the
plant did not carry workers’ compensation insurance; however, because the fire was the result of an
intentional act of a third party, the carrier would not have been liable even if the operator had
coverage.

After receiving comments from system participants, Commissioner Brannan approved a revised
Compound Medications Plan-Based Audit on April 28, 2016. The audit will look at prescribed
compounds that were filled from September 1, 2014 through August 31, 2015. The goal of the audit
is to: (1) promote the delivery of quality health care in a cost-effective manner; (2) ensure that
doctors adhere to the ODG and medically accepted standards of care when prescribing compound drugs; and (3) determine the appropriateness of medical decision making regarding prescription of
compound drugs.

Our little birds tell us that Hearing Officer Tom Hight has replaced Cheryl Dean as the North Texas
Team Lead. Congratulations, Judge Hight!
We’ve also heard a rumor that Brenna Arredondo, who rose to prominence as a Customer Service
Representative, is currently training to be the new permanent Benefit Review Officer in the Austin
Field Office. We’re saddened to lose Ms. Arredondo in the customer service role, but we look
forward to working with her as a Benefit Review Officer.