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

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  512-343-1300

  512-343-1385

New Year – New Form


The Division has revised the DWC-42 and PLN12 in connection with amendments to the death benefits legislation out of the 88th Legislative Session.  The forms are designed to help eligible beneficiaries file claims for death benefits with the Division or the Carrier.  The new rule was effective December 11, 2023 and the forms are available on the Division’s website here.

 

Copyright 2024, Stone Loughlin & Swanson, LLP 

If You Pay Them, They Will Come: DWC Proposes DD Billing and Reimbursement Changes

 

The moment many designated doctors have long awaited and lobbied (dare we say begged) for has finally arrived.  The Division has proposed changes to the billing and reimbursement structure for certain workers’ compensation services that will also benefit RME providers as well as treating and referral doctors.  Who knows, maybe the promise of greater financial incentive is responsible for the recent bump in the number of designated doctors on the Division’s list that has swollen from the 238 reported in March to a whopping 288 in November (all but 12 of the 50 being chiropractors). 

The proposal includes adjusting fees once by applying the Medicare Economic Index (MEI) adjustment factor for examinations performed 2009-2024; adjusting the fees annually on January 1st by applying that factor in Section 134.203(c)(2); rounding the fees to whole dollars; creating a specialist fee of $300.00 and including the much longed for $100.00 missed appointment fee.  The proposal also eliminates the current tiering structure so that for DD and RME examinations, all issues addressed in one exam are paid at the established fee and not reduced.  An assignment number in the prior authorization field of medical billing forms will be required to identify DD-associated billing.   

For more information about the proposed rule amendments, click here.

You can view the proposed changes here: Chapter 133 and Chapter 134.

A public hearing on the rules is scheduled for 11:00 a.m. on January 23, 2024. 


Copyright 2024, Stone Loughlin & Swanson, LLP


AP “Decisions” in December


The Merriam-Webster Dictionary defines “decision” as an authoritative determination (as a decree or judgment) made after consideration of facts or law.  Each month, the Division posts to its website a comprehensive list of “decisions” made by the Division’s Appeals Panel and lists them by date filed and issue addressed. In December, you will find two such decisions on the issues of SIBs-Permanent Loss of Entitlement and Extent of Injury.  If you are hoping to find any insight or guidance on either of those topics, alas, you will have to look elsewhere.  Further investigation will reveal those decisions to be of the “affirmed as reformed” variety. In other words, the ALJ made a typographical error that was corrected by the Appeals Panel and no substantive change was made.  In AP No. 231626, the Appeals Panel corrected the name of the claimant’s county of residence and in AP No. 231546, the Appeals Panel corrected the name of the carrier’s registered agent. Perhaps a separate column entitled “clerical correction” or “oops I did it again” would save participants valuable legal research time.


Copyright 2024, Stone Loughlin & Swanson, LLP


Ten Year Health Care and Utilization Report – Costs are Looking . . . Down!

 

The Workers’ Compensation Research and Evaluation Group (REG) released a new report on health care cost and utilization in the Texas workers’ compensation system between 2012 and 2022 that shows total health care declined 30% during that period.  Key findings include claims are down 20%, professional service costs down 26%, hospital costs down 20%, and pharmacy service costs down 71%.  Click here for a drill-down analysis of the claim, provider, service and drug types, among other categories.
 

Copyright 2024, Stone Loughlin & Swanson, LLP

Carrier Quarterly Meeting


The Division will hold the first Carrier Quarterly Meeting of 2024 on January 10, 2024 from 2 to 3:30 p.m.  Updates will be provided from the usual departments including Claims and Customer Service, Health and Safety, Business Process and Operations and External Relations as well as a chance to hear from the new Deputy Commissioner of Compliance & Investigations.  For Zoom Info and Agenda, click here.

 

Copyright 2024, Stone Loughlin & Swanson, LLP 

Claimant Attorney Leslie Causabon Found Not Guilty

 
On October 31, 2023, a Travis County jury found attorney Leslie Casaubon not guilty of the offenses of Securing Document by Deception and Insurance Fraud. You can view the Jury Verdict here.

DWC announced Ms. Casaubon’s indictment in a News Release issued on March 26, 2021. The indictments alleged that from July 1, 2017 to August 31, 2019, Ms. Casaubon and her staff submitted billing to DWC’s attorney fee processing system for work they did not do.

In January, we reported that attorney Roger Farahmand, who was indicted along with Ms. Casaubon, had entered into a consent order with the Division which required him to testify in Ms. Casaubon’s trial.  The criminal case against Mr. Farahmand was dismissed on December 29, 2022 because “[t]he defendant has been granted immunity in light of his testimony.”  It is not known whether Mr. Farahmand was called to testify in Ms. Casaubon’s trial.    

Claimant attorney Adam Henderson was also indicted at the same time as Ms. Casaubon and Mr. Farahmand for allegedly submitting bills for work he did not do.  The case against Mr. Henderson is still pending. There is a pre-trial hearing currently set in his case for December 21, 2023.  

Intergovernmental Risk Pool Not Immune from Being Fined by DWC

 
The Texas Third Court of Appeals in Austin rejected arguments by the Texas Political Subdivisions Joint Self-Insurance Fund (TPS Fund) that DWC could not fine it for violating the Workers’ Compensation Act.  The TPS Fund describes itself as a political subdivision of the State that operates as a risk-management pool and workers’ compensation claims administrator for its members, which are public-school districts, counties, cities, and other units of local government.

DWC issued orders fining the TPS Fund a total of $132,500 for nonpayment or late payment of benefits to injured employees. The TPS Fund argued that as a political subdivision of the State, governmental immunity protects it from fines by DWC unless the legislature waives its immunity, which it says the legislature had not done for these violations, which were committed prior to a change in the law.

The gist of the TPS Fund’s argument was that prior to June 10, 2019, the legislature had not waived political subdivisions’ immunity for fines by DWC.  Effective June 10, 2019, the legislature added language to section 504.053(e) of the Act expressly waiving political subdivisions’ governmental immunity “for sanctions, administrative penalties, and other remedies authorized by Chapter 415 [the section of the Workers’ Compensation Act governing administrative violations].”

The TPS Fund argued that this newly added statute represented a change in existing law while DWC argued that the statute merely codified or clarified existing law and that there was already a waiver of governmental immunity prior to this statute.  The Austin Court of Appeals agreed with DWC citing its own prior holding in a case from 2000 holding that political subdivisions that self-insure under the Workers’ Compensation Act are subject to fines by DWC.
  
Part of the court’s rationale in that case was that “If a subdivision chooses to provide [workers’ compensation] benefits through self-insurance, then the subdivision falls under the Act’s definition of insurance carrier,’ which expressly includes ‘a governmental entity that self-insures, either individually or collectively.’”  In other words, the legislature made it clear that if a subdivision elects to self-insure, they are also subject to DWC’s regulations.  They have to take the bitter with the sweet.

You can read the Court’s decision here: TPS Fund v. TDI-DWC.
 

DWC Has a New Deputy Commissioner for Compliance and Investigations



Dan LaBruyere has been named by Commissioner Jeff Nelson as the new Deputy Commissioner for Compliance and Investigations to replace Debra Knight, who was appointed State Fire Marshal in August. Here is DWC’s current organizational chart showing its executive staff including Dan:  
 

As the Deputy Commissioner of Compliance and Investigations, Dan will be responsible for overseeing DWC’s investigation of administrative and criminal violations. Compliance and Investigations includes Audits and Investigations, Enforcement, the Fraud Unit, and the Fraud Prosecution Unit. Dan previously served as a prosecutor in Travis, Hays, and Wharton Counties. 

Dan has been licensed to practice law since 2012. He is a UT grad and obtained his law degree from Baylor University. We look forward to working with Dan and getting to know him better.

Copyright 2023, Stone Loughlin & Swanson, LLP 


Designated Doctor Fined $5k and Must Complete Professional Standards Essay


DWC investigated Designated Doctor Michael Martin Leonard, M.D. in five separate claims and found that he made an unnecessary referral for additional testing, failed to attend or reschedule a DD exam, failed to review medical records before the DD exam, failed to conduct a DD exam in a professional and courteous manner, and failed to timely submit DD and work status reports.
  
In one claim, Dr. Leonard referred the employee for a neuropsychological evaluation but acknowledged in his report that a strain was the only compensable injury. He did not refer to the evaluation in his report or explain the reason for the referral. In another claim, Dr. Leonard was found to have treated the employee in an unprofessional manner when he told her he was referring her to another provider so she could “get an A on it this time.” (We’re not sure exactly what that means either).  
 
In addition to being fined $5,000, Dr. Leonard was ordered to complete the Professional Standards essay offered by Ethics and Boundaries Assessment Services, LLC (EBAS). This prompted us to ask what is EBAS and what is a Professional Standards Essay?  

According to EBAS’s website, “EBAS partners with the regulatory community, offering an exam that assesses a licensee’s understanding of ethics and boundaries in a professional setting.”  Its motto is “protecting the public through effective ethics and boundaries assessments of regulated professionals.”  EBAS’s website also includes a sample Professional Essay about a physician engaged in a personal relationship with a patient followed by questions about the essay.  

EBAS says that its essay exam is “a tool used by regulatory boards in determining if an individual is safe to return to the professional workplace.”  Test takers are required to take the essay exam at a Prometric Testing Center, presumably to reduce the likelihood of cheating.

The essay is graded by EBAS graders.  It has a maximum score of 16 points with 12 being a passing score.  Interestingly, DWC’s order just states that Dr. Leonard has to complete the essay exam, not that he has to pass it, although that was surely intended.  

You can read DWC’s Consent Order here: Order Number 20238317.


Yet Another Compound Cream Conviction


Orthopedic surgeon Michael Taba, M.D. of McKinney, along with two pharmacy owners, was convicted by a federal jury of conspiring to defraud the federal Department of Labor of more than $145 million dollars through the submission of fraudulent claims for prescription compound creams.

Federal prosecutors presented evidence at trial that pharmacy owners Dehshid “David” Nourian and Christopher Rydberg paid Dr. Taba to write prescriptions for expensive compound creams to be filled at their pharmacies and that in less than three years, they billed the Department of Labor Office of Workers’ Compensation Programs more than $145 million for those creams.  

For years, we have reported on compound cream scams in state and federal workers’ compensation systems.  Most recently, we reported that on October 11, 2022, Ms. Khyati Undavia, owner of Memorial Compounding Pharmacy, was sentenced to 27 months in prison by U.S. District Judge Andrew Hanen. This is hopefully the last time we have to report on a compound cream conviction.

Fortunately, the compound cream scam seems to have largely gone away in the Texas workers’ compensation system since DWC changed the rule to require preauthorization for all compound drugs.

You can read the Justice Department’s press release here. 
 

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