State News : Texas

On July 5, 2016, the DWC’s Deputy Commissioner for Hearings and Appeals Panel Director issued a joint memorandum reminding system participants of the prohibition against improper contact with Division staff or management for the purpose of influencing the outcome of a decision while the case is still pending.  Citing 28 Texas Administrative Code 142.3(a), the memo reminds parties that direct or indirect communications with the Hearing Officer on any facts, issues, law, or rules pertaining to an active dispute are verboten until the decision has been issued and appeals remedies have been exhausted.  Although the memo omits specific instances of such infractions, the need for the reminder presumably arose by way of some attorneys seeking to alter Hearing Officer decisions through contact with DWC managers or the members of the Appeals Panel instead of through the appeals process itself. 

Beginning in June, Commissioner Brannan authorized contested case hearings to be held in the Metro Center Building, a.k.a., “Austin Central,” on a temporary basis.  Despite its population, Austin has but one official Hearing Officer.  The current field office lacks the space needed to accommodate a second hearing room and, by extension, a second Hearing Officer.  Due to a recent surge in the number of claims, hearings were often unavoidably set in excess of the statutorily-mandated 60-day deadline for want of space on the docket.  Hence, the Division decided to schedule CCH’s with attorney-represented claimants in the Tippy Foster Room in the Metro Center Building on Mondays and ombudsman-assisted claimants on Wednesdays.  The Division’s two traveling Hearing Officers, both of whom are based in Metro, will preside.  This secondary docket is set to last only through September, but if the number of Austin-based workers’ comp claims continues unabated, the temporary solution may become permanent.

San Antonio Hearing Officer David Northup has announced his retirement from the Division of Workers’ Compensation.  A decades-long employee of the Division, Judge Northup served as a Judge Advocate General in the United States Army and as a member of the Division’s Appeals Panel before becoming a Hearing Officer.  His retirement is effective August 13, 2016.  We wish him only the best in his future endeavors.

On July 27, 2016, the DWC released its updated list of health care providers in the workers’ comp system whose practice has been restricted, who have been removed from the designated doctor list, or who incurred some other form of disciplinary action.  The list of disciplinary actions and enforcement orders signifies what appears to be a welcome trend in combating unnecessary functional capacity evaluations, which have emerged recently as something of a ruse for extending disability and MMI dates.  Among the noteworthy admonished:

·         Ray Altamirano, M.D., of San Antonio was fined $1,000.00 and removed from the Texas workers’ compensation system as a health care provider for two years for providing improper, unreasonable, or unnecessary medical care, for failing to keep adequate medical records, and for failing to document aberrant drug test results.

·         Tuan Anh Trinh, D.O., of Dallas was fined $4,800.00 for improperly ordering a functional capacity evaluation that was not reasonable or medically necessary. 

·         Scott Neuberger, D.C., of Houston was fined $5,600.00 for failing to document or incorporate results of a functional capacity evaluation in medical records and for failing to document any reasonable medical necessity requiring said FCE. 

·         James Galbraith, M.D., of Dallas was fined $4,800.00 for improperly ordering functional capacity evaluations that were not reasonable or necessary. 

·         Stephen Esses, M.D., of Houston, was fined $35,000.00 for failure to maintain efficient utilization of health care and ordering tests that were improper, unreasonable, or unnecessary. 

For questions, contact Jane Stone at Stone Loughlin & Swanson, LLP.