The Compendium - February 2023 Newsletter

“No shot, no money”

Judging by those annoying television commercials from personal injury attorneys – especially during Sunday afternoon NFL football games – a car wreck In Texas can mean a BIG payday. Now we may know why.

Two insurance companies have filed suit against a San Antonio doctor for allegedly prescribing unnecessary and expensive spinal procedures for the sole purpose of artificially inflating the value of his patients’ personal injury claims. The complaint, first filed in San Antonio federal court last July, alleges that San Antonio orthopedic surgeon Sanjay Misra, M.D. falsely purported to legitimately examine patients reporting neck or back pain and prescribed medically unnecessary epidural steroid injections for nearly all of them.

The complaint describes one 16-year-old patient who told Dr. Misra that she was not comfortable with his recommendation that she receive an injection. He allegedly told her “Well, no shot, no money” -- or words to that effect.

In the latest twist to the case, the San Antonio Express News reports this month that the insurers have subpoenaed communications between Dr. Misra and two personal injury attorneys that football fans know all too well – Jim Adler, who bills himself as the “Texas Hammer” and appears in television ads wielding a sledgehammer, and Jeff Davis, who appears in ads repeating his telephone number “444-4444!” ad nauseum. The subpoenas reportedly seek records of more than 185 of Dr. Misra’s patients, including documents reflecting the referral of those patients to Dr. Misra by Adler and Davis. The “Texas Hammer” is balking at turning over those records and has filed a motion to quash the subpoenas.

In the Texas workers’ compensation system, the Official Disability Guidelines – Treatment in Workers’ Comp has gone a long way toward curbing unnecessary treatment. But the ODG does not govern treatment in personal injury cases.

Treating victims of car wrecks appears to be treating Dr. Misra well. Bexar County Appraisal District records show that he owns a mansion in San Antonio which Redfin describes as being “built specifically for a high-profile NBA star” with 9 bedrooms, 9 bathrooms, a pool, a tennis court, and an estimated value of $4,163,165.

We’ve got a new BRO on the way

We’ve learned that the Division has selected Louis Sanchez to be a Benefit Review Officer in Houston. Louis currently serves as an Ombudsman with the Office of Employee Counsel. It has been our pleasure to work with him in that capacity, and we look forward to working with him in his new role.

Congratulations, Louis!

Copyright 2023, Stone Loughlin & Swanson, LLP

Dirk Johnson appointed as Injured Employee Public Counsel

This month Governor Greg Abbott appointed Dirk Johnson to serve as Injured Employee Public Counsel. In that role, he will oversee the Office of Injured Employee Counsel which, among other things, provides ombudsmen to assist injured employees at Benefit Review Conferences and Contested Case Hearings. Dirk has a wealth of experience in the industry and has previously served as general counsel to the Texas Department of Insurance, Division of Workers’ Compensation.

His newest appointment is subject to Senate confirmation. Congratulations, Dirk!

To interpret the current LIBs statute, appeals court approves definition of “imbecility” from dictionary published when William Howard Taft was President

The El Paso court of appeals has provided new guidance for interpreting the term “incurable imbecility” in Texas Labor Code section 408.161 pertaining to eligibility for Lifetime Income Benefits. In El Paso Independent School District v. Portillo, the court approved of a definition of imbecility from a 1910 edition of Black’s Law Dictionary.

The dispute arose when Alejandro Portillo, who worked for EPISD as a heating and air conditioning technician, climbed a ladder to assist a coworker and the coworker fell on top of him, causing Portillo to suffer a head injury. He received medical treatment at a rehabilitation facility for five months and thereafter experienced continuing headaches and dizziness which caused him to lose his balance and fall. Although he was eventually released to return to work in a semi-sedentary position at EPISD, he was not able to return to his prior job as an HVAC technician and subsequently chose to retire from the school district. He applied for LIBs on the ground that the injury left him with incurable imbecility. He lost at the Division but appealed to district court where a jury agreed that he was entitled to LIBs and the trial court entered judgment in his favor.

On appeal, EPISD argued (among other things) that the jury charge contained an erroneous definition of “imbecility” because (1) it was based on an excerpt of the definition of that term in the dictionary from 1910 and (2) it was different than the definition used by the Administrative Law Judge at the Division, thereby changing the issue to be decided by the jury and “moving the goalposts” in Portillo’s favor. The court of appeals rejected both arguments and affirmed the trial court’s judgment that he suffers from “incurable imbecility.”

In doing so, the court of appeals explained why it approved of a definition from 1910. It noted that words can change meaning over time – a concept known as “semantic drift” – so to construe the Legislature’s intent in using a statutorily undefined term it is appropriate to consider how the term was defined in dictionaries published as close in time to the enactment of the statute as possible. Since the Legislature added the term “imbecility” to the statute in 1917, the use of a dictionary from 1910, it said, is appropriate.

The definition of “imbecility” given by the trial court and approved by the court of appeals is the following:

A more or less advanced decay and feebleness of the intellectual faculties; that weakness of mind which, without depriving the person entirely of the use of his reason, leaves only the faculty of conceiving the most common and ordinary ideas and such as relate almost always to physical wants and habits.

Ahem . . . apparently, people talked differently in 1910. It was, after all, a different time. William Howard Taft was President and the maximum speed limit in most cities was 10 – 12 mph.

It may be time for the Legislature to update the statute.

Right on cue: Bill proposes to remove the term “incurable imbecility” from LIBs statute

The El Paso court of appeals released its decision in Portillo on January 31, 2023, and nine days later, Texas Senator Drew Springer (R – Weatherford) filed a bill to delete the term “incurable insanity or imbecility” from the LIBs statute. Springer’s bill, SB 799, proposes to replace that archaic term with the phrase “a permanent major neurocognitive disorder or a psychotic disorder.”

SB 799 would make other changes to the LIB statute as well. Of significance, the bill also would permit first responders to receive LIBs when they suffer a “serious bodily injury . . . that permanently prevents [them] from performing any gainful work.”

Bill proposes to create new cause of action for unfair settlement practices of a workers’ compensation claim

In what may turn out to be a case of deja vu all over again, another newly-filed bill proposes to turn back the clock on enforcement of the Texas workers’ compensation scheme. HB 1702, filed by Representative Nicole Collier (D – Dallas), would amend Insurance Code section 541.060 to permit an injured worker or his beneficiary to bring a private cause of action against the workers’ compensation insurer for unfair settlement practices.

The bill would undo the law that has existed since 2012 when the Supreme Court of Texas decided Texas Mutual Insurance Company v. Ruttiger. In that case, the court held that a workers’ compensation claimant could not bring a cause of action under section 541.060. The court observed that the Texas Workers’ Compensation Act requires the Texas Department of Insurance, Division of Workers’ Compensation to monitor the actions of insurance carriers for compliance with the Act and myriad Division rules, and the Division has authority to assess administrative penalties of up to $25,000 per day for violations. It concluded that permitting a workers’ compensation claimant to recover damages by simply suing under the general provisions of section 541.060 “would be inconsistent with the structure and detailed processes of the Act.”

Before the Court issued the decision in Ruttiger, attorneys representing injured workers’ regularly sued insurance carriers for unfair settlement practices under section 541.060. In those days, such suits presented the chance for a big payday – similar to the way car wrecks do now. If Representative Collier’s bill becomes law, we may be headed back to those days.

We’ll continue to monitor HB 1702 and report on its status.

This coming May, there’s no place finer than North Carolina

Registration is now open for the 2023 Southeastern Regional Conference of the National Workers’ Compensation Defense Network to be held in Charlotte, North Carolina on May 4 and 5, 2023. The conference is an invitation-only seminar covering cutting-edge legal and claims management issues and featuring presenters who are rock stars in their fields of expertise. Best of all? It’s free for clients and invited guests of SLS.

The conference will kick off with a welcome reception on the evening of Thursday, May 4 followed by the educational portion on Friday, May 5. That frees up the weekend for exploring the Queen City, home of the NASCAR Hall of Fame.

Not familiar with NWCDN? You should be. It’s a nationwide network of AV-rated law firms organized to network for their clients’ benefit and dedicated to protecting employers and carriers in workers’ compensation claims, and it’s an invaluable resource for employers and carriers. The network selects one law firm from every state, and SLS is the member for the great state of Texas.

You can learn more about NWCDN and the seminar at the NWCDN website. If you’d like to attend the seminar as our guest, let us know!

Hit the links for a good cause in October

Save the date for the annual Kids’ Chance of Texas golf tournament in Dallas on Monday, October 23rd. More information will come as the date approaches. In the meantime, if you know of a child of a catastrophically injured worker who may qualify for a Kids’ Chance scholarship, please contact Jane Stone at jstone@slsaustin.com. She can help!

WORKERS' COMPENSATION UPDATE

February 2023