WORKERS' COMPENSATION UPDATE
Where Do They Find the Time?
Claimant attorney Kim Wyatt and carrier attorney Dean Pappas were the hardest working comp attorneys in 2021, according to a report prepared by the Division of Workers’ Compensation (DWC) in response to an open records request for a list of Texas’s top billers.
Ms. Wyatt had approved fees for the year of $880,050.00 while Mr. Pappas had $811,747.50. Assuming billing at the Division’s maximum allowed hourly rate of $200.00, Ms. Wyatt put in 4,400 hours for the injured employees she represents, and Mr. Pappas was not far behind with 4,058 hours for his carrier clients. That’s 12 and 11 hours per day, respectively, every single day of the year, Saturdays, Sundays, and holidays included.
This is not the first time each has topped the list. Ms. Wyatt was also number one in 2017 and a close second in 2020. Mr. Pappas was number one in 2017 and 2018, slipped to number two in 2019, and was back on top again in 2020.
Equally impressive are Bill Abbott & Associates, whose claimant firm placed four attorneys in the Top Ten.
Number three on the list of top-billing claimant attorneys for 2021 is Adam Henderson, who was indicted for billing fraud last year. The indictment alleges Mr. Henderson submitted bills for work he did not do between January 1, 2012 and January 31, 2019. A DWC press release
stated that he and two other attorneys were charged with securing the execution of a document by deception, a first-degree felony and tampering with a government record, a second-degree felony.
According to DWC’s press release, “DWC adopted an attorney fee rule in January 2017 to allow DWC to monitor attorney billing more effectively.”
To view the amount of approved attorney’s fees for each of the top 100 Claimant and Carrier workers’ compensation attorneys for 2021, click the following link: Top 100 2021
Prior years can be viewed here: Top 100 2020
, Top 100 2019
, Top 100 2018
, Top 100 2017
"Once More Unto the Breach, Dear Friends"
On March 24, 2022, a Texas Department of Insurance news release notified system participants of a data security breach. Names, addresses, birth dates, phone numbers, whole or partial Social Security numbers, and specific information about work comp claims were compromised by a TDI web application that managed such information.
TDI became aware of the problem on January 4, 2022, removed the application, and commenced an investigation. Those with a new work comp claim between March 2019 and January 2022 will receive letters apprising them of the breach. Free credit monitoring for one year, including identity theft restoration and fraud consultation, will be offered to such individuals, as well as to those whose claims date back to 2006 and were affected.
Concerned participants may determine if their claim information has been compromised by calling 855-248-7100.
DDs: Distressing Developments
TDI posted an open invitation on its website on March 4, 2022, for system participants to share their thoughts on proposed changes to Chapter 127 and section 180.23 of 28 of Texas Administrative Code, the portions pertaining to the designated doctor program. Comments will be accepted until 5:00 p.m. on April 4, 2022, and can be emailed to RuleComments@tdi.texas.gov
, or mailed to Legal Services, MC-LS, Texas Department of Insurance, Division of Workers’ Compensation, P. O. Box 12050, Austin, TX 78711.
Some of the planned revisions are rather disconcerting. The DWC068 Designated Doctor Examination Data Report, which provides a simple summary of a designated doctor’s findings on extent of injury and disability, will no longer be mandated. A designated doctor will also be absolved of the need to undergo re-certification every two years if he or she passed the certification test after May 13, 2013.
DDs will also no longer be required to complete multiple impairment rating certifications taking into account each reasonable outcome for the extent of injury, per the suggested alterations to Rule 127.10(d). Only when directed to do so by the Division may a designated doctor provide multiple certifications. A sharp uptick in the number of bifurcated hearings and Presiding Officer Directives (PODs) should therefore be expected, as extent of injury issues seem destined to require adjudication first, followed by MMI/IR hearings later.
Curiously, a proposed change to Rule 127.1(b)(3) would obviate the need to list all accepted or administratively-determined conditions from the DWC032 Request for Designated Doctor Examination, virtually guaranteeing an increase in case management on the part of the presiding officer.
But here’s the one that will really have you scratching your head: changes to Rule 127.130 would permit examination for traumatic brain injuries to be performed by doctors with specialties in orthopedic surgery, thoracic and cardiac surgery, plastic surgery, anesthesiology, family medicine, and dermatology. You read that right: dermatologists would be permitted to examine claimants for traumatic brain injuries.
So, the next time you actually do scratch your head, remember to ask your dermatologist if you have suffered a TBI.
You Can't Judge a CCH Set Notice By Its Cover
Observant system participants may have noticed a conspicuous omission from Contested Case Hearing set notices lately: the name of the Administrative Law Judge assigned to the case. The Division recently halted the practice of announcing the appointed judge on the notification of hearing dates, times, and locations.
The decision would seem to have something to do with the increasingly common practice of shifting docket assignments among Division judges to distribute cases more evenly in the interim between the BRC and the CCH.
However, there is concern among system advocates that the change may result in pre-hearing motions sitting in limbo until a final determination on the presiding judge has been made, a selection that is often not finalized until the Friday before a CCH.
Moving Up & Stepping Down, Pt. 1
We are pleased to announce that Kara Squier, Administrative Law Judge in Fort Worth, has been promoted to Team Lead for the Division’s northern field offices, including those in Dallas, Fort Worth, and Denton. Judge Squier has been with the Division since 2013 and is widely regarded as one of the DWC’s best. We congratulate her on the promotion!
Simultaneously, we are saddened to bid farewell to Appeals Panel Judge Rafael Quintanilla, who is retiring at the end of March 2022. The Division has not announced a replacement and posted the job opening on its website on March 24. We certainly wish Judge Quintanilla well.
Moving Up & Stepping Down, Pt. 2
Following up on reporting from last month’s newsletter, turns out March is National Ladder Safety Month, according to the American Ladder Institute’s webpage. Yes, the American Ladder Institute is still real, and they still mean business. See for yourself: https://www.americanladderinstitute.org/
So, if you must operate a ladder, please do so safely. Until April. Then all bets are off.
Copyright 2022, Stone Loughlin & Swanson, LLP
Texas workers’ compensation doctor Clinton Battle of Arlington Occupational and Medical Clinic was sentenced to 12 years in federal prison for fraud and drug crimes on March 24, 2022. U.S. District Judge Mark Pittman further ordered Dr. Battle to pay $376,368.00 in restitution.
Attentive readers may recall our reporting in June 2020 of Dr. Battle’s federal indictments for conspiracy to distribute controlled substances, issuing prescriptions for hydrocodone, codeine, Xanax, phentermine, and tramadol, without performing the necessary medical examinations, and for receiving remuneration from his patients in return, sometimes in the form of money, sometimes in illegal drugs, specifically cocaine.
Dr. Battle was also indicted on two counts of conspiracy, one for distributing the drugs with his nurse practitioner, even going so far as to permit her to use his DEA registration number to issue prescriptions herself.
Finally, Dr. Battle and his medical assistant were accused of conspiring to commit mail fraud, specifically submitting fraudulent claims to insurance companies, including those in the Texas Workers’ Compensation system. Part of their tactics included coding for medical procedures at higher rates than are permitted and submitting claims for hours-long Functional Capacity Evaluations (FCEs) he administered.
In July 2021, Dr. Battle was convicted of conspiracy to distribute controlled substances and distribution of controlled substances. He pled guilty to conspiracy to commit mail fraud. Evidence adduced at trial revealed that Dr. Battle did not perform the FCEs at all (his unlicensed assistants did), and they took far less time than claimed in his billing to insurance carriers. Physical therapy sessions that were conducted by the same assistants, or sometimes not at all, were also billed as part of Dr. Battle’s treatment, much of which was incorrectly coded to permit higher reimbursement rates.
During the five years the scheme was in effect, Dr. Battle wrote over 50,000 fraudulent prescriptions. Of those, 17,000 were for hydrocodone, an opioid. Per the release from the U.S. Attorney’s Office for the Northern District of Texas, DEA Special Agent in Charge Eduardo A. Chavez stated: “Dealers of illegal drugs come in many forms. This is a case of the abuse of trust and position. Dr. Battle and his co-conspirators used their authority to push pills into our neighborhoods, disregarding the inherent harm they cause.”
Copyright 2022, Stone Loughlin & Swanson, LLP
Dr. Battle’s legal infractions pale in comparison to those of the Sackler family, owners of Purdue Pharma, the maker and distributor of the highly addictive opioid pain medication OxyContin. In March 2022, a U.S. bankruptcy judge approved a settlement in which Purdue and the Sacklers would pay $6 billion to states, individuals, and opioid abatement programs.
Following thousands of lawsuits alleging that the Sackler family misled the public about the addictive nature of OxyContin and thereby directly exacerbated the opioid crisis, Purdue filed for bankruptcy in 2019. In 2007 and 2020, Purdue pled guilty to misbranding and fraud charges related to the marketing of OxyContin, respectively, though the Sackler family steadfastly denies wrongdoing.
The settlement protects the Sacklers from present and future lawsuits regarding OxyContin, but it does not prohibit future criminal lawsuits.
The day after the settlement’s approval, members of the Sackler family were required to attend a Zoom hearing in which family members of OxyContin victims recounted the tragic effects the highly addictive pain medication have had on their lives, including fatal overdoses. Before the hearing, the Sacklers conveyed in a statement that they “sincerely regret that OxyContin, a prescription medicine that continues to help people suffering from chronic pain, unexpectedly became part of an opioid crisis…”
Copyright 2022, Stone Loughlin & Swanson, LLP
The Dope Show
Premiering in 2021, Hulu’s eight-part limited series, Dopesick
, chronicles the simultaneous rise of OxyContin and the opioid crisis, and the eventual downfall of Purdue Pharma and the Sackler family. Based on the book of the same name by Beth Macy, the series is an unflinching look at a medication marketed as a salvation for chronic pain sufferers but which became the ruination of so many. The title refers to the pain an addict feels while going through withdrawal from the drug.
The story begins with a work injury in a Virginia coal mine. Fearing collapse, the miners inside panic. In the confusion, one collides with another (Kaitlyn Dever), knocking her into a mine cart and resulting in immediate excruciating thoracic back pain. She is eventually given OxyContin by her primary care physician, played by Michael Keaton. Though Keaton’s physician registers his skepticism about OxyContin’s claims to result in addiction in less than 1% of users despite its designation as a Class 2 Narcotic, he prescribes OxyContin as a last resort, and is gratified to see that the effects are favorable…for a while.
The series details the deceptive practices Purdue Pharma deployed to convince medical professionals and the public at large of OxyContin’s safety, including a unique and wholly inaccurate label from the FDA, approved by an official who would later become a Purdue employee, and seminars touting OxyContin’s patented 12-hour time release of oxycodone, the ostensible basis for the assertion that the drug is non-habit-forming. The time delay is professed to result in fewer spikes and valleys in the delivery of the pain relief, thus reducing the likelihood of dependency and abuse.
But as the effectiveness of OxyContin wanes over time, the dosage levels and frequency increase proportionately, a consequence not only endorsed by Purdue Pharma but explicitly used to boost profits. To combat the contention that OxyContin’s 12-hour release does not work as advertised, Purdue simply invents a spurious new medical diagnosis to account for its failure, “breakthrough pain.” Promotional junkets for doctors and threats of lawsuits against pharmacists who resist carrying OxyContin ensure Purdue’s market dominance, and to counter accusations of the drug’s highly addictive qualities, another phony medical diagnosis is devised, “pseudo-addiction,” for which the recommended treatment is, astonishingly, an escalation in the patient’s dosage.
As dosage availability of OxyContin continually increases, from the original 10 mg tablet to the eventual 160 mg pill, so too do crime rates, overdoses, and deaths. Asked about the patients for whom he prescribed OxyContin via grand jury testimony against Purdue Pharma in the series’ opening moments, Keaton’s despondent physician delivers the most chilling line of dialogue you’ll hear all year: “I can’t believe how many of them are dead now.”