State News : Texas

Matt Zurek, Deputy Commissioner for Health Care Management and System Monitoring, urges
insurance carriers to identify all injured employees who have been prescribed Fentanyl Transdermal
Patches and/or MS-Contin, which will both require preauthorization beginning on February 1, 2016.
Mr. Zurek advises sending written notification to the injured employee, prescribing doctor, and
pharmacy informing them of the need for preauthorization to allow adequate time to discuss ongoing
treatment if Fentanyl Transdermal Patches or MS-Contin are currently being prescribed. Sample
notification letters for use by insurance carriers are available through the TDI-DWC website at
https://www.tdi.state.tx.us/WC/pharmacy/index.html.

The Division has hired Mayson Pearson as the new traveling Hearing Officer in the central Austin
office. Her employment with the Division commenced in November. Ms. Pearson graduated from
the University of Texas School of Law and has been licensed to practice law in Texas since
November of 2012.

On November 17, 2015, the Division announced that its Hearings section staff had been divided into
two regional docketing workgroups, North Western , comprising field offices located north and west
of Austin, and South Coastal, which includes the Austin Field Office and all points south and east.
The stated goal for the divide is to improve formal and informal dispute proceedings, docket
scheduling, and management. The staff assigned to the new workgroups schedule or reschedule
dispute proceedings, assist with docket management, and communicate scheduled proceedings and
pending actions to system participants. The reorganization establishes a single point of contact for
proceedings management in each field office. Rebecca Allen and Misty Haygood have been
designated as Program Specialists, who act as docketing team leads and oversee the staff for the
North Western and South Coastal regions, respectively.

In May 2015, Deputy Commissioner of Hearings Kerry Sullivan initiated a limited and voluntary
pilot project that introduced a bifurcated approach to resolving cases where the resolution of an
MMI/IR issue is dependent on an active extent of injury dispute. Upon agreement of the parties
during a BRC, the issues could be split between two hearings, the first addressing extent of injury
and then, following an interlocutory alerting the parties to the expected outcome of that issue, a
second hearing to resolve MMI and IR in light of the Hearing Officer’s findings. At the time it was
announced, the pilot project was limited to proceedings conducted in the Division’s Weslaco field
office, and the success of the program was to be monitored before expanding statewide. The
Division appears to be satisfied with the results of the pilot project; in November, the Division
broadened their bifurcation project to include the Dallas Field Office. As of November 5, 2015, the
option to split the extent and MMI/IR issues between two hearings became available at the BRC
level.

The Appeals Panel has set a very high bar for relief from a benefit dispute agreement. A day before
a CCH, the claimant and the carrier, both represented by attorneys, entered a benefit dispute
agreement to resolve extent of injury, disability, and bona fide offer of employment issues. An
earlier CCH had already been continued to allow time for an RME to take place. The RME had
occurred, but subpoenas for medical records were still outstanding. After the benefit dispute
agreement was finalized, the carrier received the subpoenaed medical records that revealed extensive
preexisting conditions that had not been disclosed by the claimant.
The carrier sought relief from the benefit dispute agreement based on the claimant’s fraud in lying
to the DD and RME doctor regarding his prior history of injury. The Hearing Officer agreed, and
found that newly-discovered evidence constituted good cause for relieving the carrier from the
effects of the benefit dispute agreement. The RME doctor testified that she would have reached a
very different conclusion had she reviewed the records showing extensive preexisting injury.
The Appeals Panel disagreed and reversed the Hearing Officer. The Appeals Panel held that the
evidence was not “newly-discovered,” because the carrier knew that there were additional medical
records before entering the benefit dispute agreement. That is, the carrier had subpoenaed records
before entering the agreement, and thus, the carrier was aware that there was additional evidence
in existence. The Appeals Panel did not address the claimant’s fraud in lying to the DD and RME
doctors, but noted that the carrier’s allegation of fraud was also based on the “newly-discovered
evidence,” and was apparently excused by the carrier’s lack of diligence in obtaining those records.
Appeal No. 151634, decided October 6, 2015.

“Emoticons” (the little happy and sad faces made of punctuation) and “emojis” (a picture version
of emoticons) that we use in text messages and Facebook posts from time to time, are now being
used as evidence in court. Does something make you happy or sad? This could be relevant to
determining if you’re liable under the law.
In the criminal context, a Kentucky woman was accused of harming her child and attempted to show
that she loved her child (and thus could not be guilty) by showing the jury tweets about her child’s
condition with a crying face emoji. In the civil litigation context, use of emoji has been used to
show intent in contract disputes. A “:P” was a successful defense in a defamation suit to show that
the comments were clearly a joke.
Courts in various jurisdictions have allowed introduction of emojis as evidence. However, just
because emojis are admissible does not mean they necessarily prove anything. Remember the
Kentucky mother? She’s now sending her crying faces from a jail cell.

Effective February 1, 2016, Fentanyl transdermal patches and MS-Contin will have their status
changed to “N.” Beginning February 1, 2016, prescriptions for either of these drugs will require
preauthorization.

Many companies in Texas elect to opt out of workers’ compensation. Oklahoma recently allowed
companies to do the same, and both South Carolina and Tennessee are considering similar statutory
changes. A Dallas attorney, along with a coalition of executives from some of the country’s biggest
employers, is campaigning for similar changes in a dozen states.
An investigation by NPR and ProPublica found that the employee benefit plans of the opting-out
employers lower worker benefits, with little to no oversight. Gone is the lifetime medical care
promised by the workers’ compensation system. Many injuries that are covered under workers’
compensation, such as infections and carpal tunnel syndrome, would receive no benefits under the
employee benefit plans. Under these plans, employers are able to direct medical care by selecting
the treating doctor, and in some cases, accompany the injured worker to all treatment appointments.
Reporting deadlines can be shortened to as little as end-of-shift or 24 hours, versus the 30-day
reporting window under workers’ compensation.
If any of this sounds familiar, it should; this is the broken system that worker’s compensation was
created to fix.

The Division of Workers Compensation has brought on a few new Hearing Officers. Travis Dupree
has joined the Midland Field Office, and will be covering Abiline and San Angelo as well. Mr.
Dupree is a 2007 graduate of the Mississippi College School of Law and has been licensed to
practice law in Texas since November of 2008. Amanda Barlow has joined the Dallas and Fort
Worth Field Offices. Ms. Burgess earned her J.D. in 2007 from Texas Wesleyan University. Three
new Hearing Officers will be joining the Houston West Field Office and assisting with the
Beaumont Field Office. Robin Burgess, a 2004 graduate of the City University of New York School
of Law, has been licensed in Texas since April of 2012. Early Moye finished law school in 1987
at the University of Houston. Francisca Okonkwo attended Texas Southern University and comes
to the Division from the Texas Attorney General.

A Houston area practitioner, Dr. Rezik Saqer, has been charged with operating illegal pill mills. Dr.
Saqer runs two pain management clinics in the Houston area. One of Dr. Saqer’s patients was
charged with intoxication manslaughter for a fatal crash that killed a family of four in Montgomery
County, Texas. An investigation into the crash, where oxycodone and valium were found, led
investigators to Dr. Saqer.
When searching Dr. Saqer’s clinic, Integra Medical Clinic, they found illegal quantities of opiates.
Investigators also found evidence that he would pre-sign prescriptions and treatment notes, allowing
his patients to be seen by unlicensed individuals. Dr. Saqer’s license to practice medicine has been
suspended due to this continued practice, on the basis that it poses a risk to public welfare.