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Access over workers' compensation decisions, including En Banc, Significant Panel Decisions, and writ-denied cases.

Case No. 03-19-00770-CV
Regular Panel Decision
Jun 11, 2021

Robert Charles Lowry, M.D.// Cross Texas Medical Board v. Texas Medical Board// Cross-Appellee, Robert Charles Lowry, M.D.

This Texas Court of Appeals memorandum opinion concerns a disciplinary action by the Texas Medical Board against Dr. Robert C. Lowry. Dr. Lowry appealed the trial court's judgment affirming in part and reversing in part the Board's order, while the Board cross-appealed portions of the reversal. The core issues involved whether Dr. Lowry unlawfully associated with and employed a physician, Dr. Dennis Barson, whose license was suspended, for EEG interpretations, and alleged violations of professional medical standards and recordkeeping. The Court found substantial evidence supported that Dr. Barson was practicing medicine, and that Dr. Lowry associated with and employed him. It also found substantial evidence for Dr. Lowry's failure to maintain professional standards regarding a patient's pain management and an unsigned EEG report, and for a recordkeeping violation concerning a missing plan of care. However, the court affirmed the trial court's reversal of findings related to a missing medication list, requiring expert testimony not presented. The judgment was affirmed in part, reversed in part, and remanded to the Board for further proceedings consistent with the opinion.

Medical MalpracticeProfessional DisciplineTexas Medical BoardPhysician License SuspensionEEG InterpretationMedical Practice ActStandard of CareRecordkeeping ViolationsAppellate ReviewAdministrative Law
References
35
Case No. ADJ2709955 (MON 0356320)
Regular
Jun 21, 2017

Mario Cocola vs. California Hospital Medical Center

The Workers' Compensation Appeals Board denied Mario Cocola's petition for reconsideration, upholding the finding that he sustained $69\%$ permanent disability from industrial injuries. Cocola argued the administrative judge erred by disregarding the Agreed Medical Examiner's opinion that he was totally disabled from the open labor market due to orthopedic injuries. The Board agreed with the judge's report that the physician's opinion lacked sufficient objective basis for the change in work restrictions. A dissenting opinion argued the medical and vocational evidence supported a $100\%$ permanent disability finding and requested clarification from the medical examiner.

Petition for ReconsiderationFindings of Fact and Awardpermanent disabilitycumulative traumalumbar spinecervical spinepsychecervicogenic headachesEmergency Unit CoordinatorAgreed Medical Examiner
References
1
Case No. 2016-02-0027
Regular Panel Decision
Mar 09, 2016

Gray, Kimberly v. Fresenius Medical Care

Kimberly Gray, an employee, sought an expedited hearing regarding her entitlement to medical treatment and a second opinion for her right elbow injury sustained while working for Fresenius Medical Care. She had been treating with Dr. Michael Bratton, who placed her at maximum medical improvement (MMI) on August 17, 2015, and determined a 1% permanent partial impairment. Ms. Gray requested a second opinion due to continued pain, but Fresenius Medical Care refused, stating there was no statutory basis requiring them to provide it without a physician's referral. The Court found that Ms. Gray was not entitled to the requested relief as she did not present sufficient evidence to likely prevail at a hearing on the merits, and her request for additional medical benefits was denied.

Workers' CompensationExpedited HearingMedical BenefitsSecond OpinionMMIPermanent Partial ImpairmentRight Elbow InjuryOrthopedic SurgeonStatutory InterpretationBurden of Proof
References
3
Case No. ADJ11255525
Regular
Dec 02, 2019

GWENDOLYN JOHNIGAN vs. UC DAVIS MEDICAL CENTER

This case involves an applicant denied workers' compensation benefits for industrial injury to her right leg and knee, with the Workers' Compensation Appeals Board (WCAB) denying her petition for reconsideration. The WCAB adopted the administrative law judge's finding that the applicant did not sustain industrial injury, relying on a panel qualified medical evaluator's opinion that the work duties were insufficient to cause an injury. The applicant argued the medical evidence was not substantial and sought further development of the record. However, the WCAB found the applicant failed to meet her burden of proof with substantial medical evidence. A dissenting opinion argued the medical evidence was insubstantial and required further development.

Petition for ReconsiderationPanel Qualified Medical EvaluatorOrthopedistSubstantial Medical EvidenceFurther DevelopmentSupplemental ReportingDeposition TestimonyIndustrial InjuryRight LegRight Knee
References
4
Case No. MISSING
Regular Panel Decision

Morris v. Blanchette

Dr. A.J. Morris sued Dr. Katherine Blanchette for libel per se following a peer review report Blanchette issued to a worker’s compensation carrier. The report was critical of Morris’s treatment of patient Lawrence Davis, specifically stating that further physical therapy and prescription medications were not medically necessary after Davis reached maximum medical improvement. Morris contended that the report was defamatory, accusing him of a felony offense by prescribing medicine without a valid medical purpose. The trial court granted Blanchette's motion for summary judgment. Morris appealed, arguing that genuine issues of material fact remained regarding whether the statements were constitutionally protected opinions, libelous per se, and if they were privileged. The appellate court affirmed the summary judgment, ruling that Blanchette’s report contained a constitutionally protected expression of opinion and was not defamatory, thereby upholding the integrity of the independent medical review system in worker's compensation.

Libel Per SeDefamationPeer ReviewMedical NecessityWorker's Compensation SystemSummary JudgmentFact vs. OpinionConstitutional ProtectionMedical Treatment DisputeAppellate Review
References
9
Case No. 03-17-00352-CV
Regular Panel Decision
Aug 22, 2018

Vista Medical Center Hospital Vista Healthcare, Inc. And Surgery Specialty Hospital, Inc.// State Office of Risk Management v. State Office of Risk Management// Vista Medical Center Hospital Vista Healthcare, Inc. And Surgery Specialty Hospital, Inc.

This case involves cross-appeals stemming from a dispute over the appropriate reimbursement for medical services provided by Vista Medical Center Hospital and its affiliates to injured employees covered by the State Office of Risk Management (SORM) under Texas workers’ compensation statutes. The district court had affirmed 23 administrative orders that required SORM to make additional payments to Vista, a decision which SORM challenged on appeal citing insufficient evidence. Vista, in turn, cross-appealed the district court's denial of prejudgment interest. The appellate court found substantial evidence supported the administrative law judges' conclusion that SORM's original reimbursement model was unfair and unreasonable, and that Vista's proposed methodology was valid. Consequently, the court affirmed the district court's judgment but modified it to include the prejudgment interest that Vista was statutorily entitled to.

Workers' CompensationMedical ReimbursementAdministrative LawAppellate ReviewSubstantial EvidencePrejudgment InterestTexas LawHealthcare ProvidersInsurance DisputesFee Guidelines
References
23
Case No. MISSING
Regular Panel Decision
Dec 19, 2014

Teladoc, Inc. v. Texas Medical Board and Nancy Leshikar, in Her Official Capacity as General Counsel of the Texas Medical Board

Teladoc, Inc., a telehealth provider, sued the Texas Medical Board (TMB) after TMB sent a letter to the Texas Medical Association. In this letter, TMB warned that Teladoc's practice of providing medical services over the phone without a 'face-to-face' examination violated Board Rule 190.8(1)(L)(i)(II) and could lead to disciplinary action against participating physicians. Teladoc contended that TMB's letter constituted an unpublished 'rule' under the Administrative Procedure Act (APA) because it effectively amended existing regulations without following proper notice-and-comment procedures. The district court sided with TMB, but the appellate court reversed, finding that TMB's pronouncements in the letter indeed qualified as a 'rule' under the APA. Consequently, the court declared TMB's 'rule' invalid due to the lack of compliance with APA rulemaking requirements.

Administrative LawRulemakingDeclaratory JudgmentAdministrative Procedure Act (APA)Texas Medical Board (TMB)TelemedicinePhysician-Patient RelationshipMedical Practice ActInformal Agency ActionAgency Interpretation
References
32
Case No. MISSING
Regular Panel Decision

Packer v. Travelers Indemnity Co. of Rhode Island

John Packer, the appellant, suffered a job-related back injury and sued The Travelers Indemnity Company of Rhode Island for bad faith delay in authorizing his back surgery. While medical costs were covered by a workman's compensation policy, Packer alleged that Travelers' delay in approving the surgery constituted bad faith. Medical reports from various physicians presented conflicting opinions regarding the necessity of surgery; some recommended conservative treatment, while Dr. Donald Lazarz eventually recommended surgery. Travelers ultimately approved the surgery in April 1992, around the time the compensation case settled. The trial court granted summary judgment in favor of Travelers, concluding that a reasonable basis for the delay existed due to the conflicting medical opinions. On appeal, the judgment was affirmed, with the court finding no evidence that Travelers acted in bad faith by relying on the expert medical reports.

Bad Faith ClaimInsurance PracticesSummary Judgment AppealConflicting Medical OpinionsDelay in AuthorizationDuty of Good Faith and Fair DealingAppellate Court DecisionReasonable Basis for DelayBurden of ProofClaim Adjuster Affidavit
References
14
Case No. 2-06-016-CV
Regular Panel Decision
Mar 15, 2007

Shioleno Industries, Inc. AND Columbia Medical Center of Arlington Subsidiary, L.P. and Columbia North Texas Subsidiary, GP, LLC D/B/A Medical Center of Arlington v. Columbia Medical Center of Arlington Subsidiary, L.P. and Columbia North Texas Subsidiary, GP, LLC D/B/A Medical Center of Arlington AND Shioleno Industries, Inc.

Shioleno Industries, Inc. appealed a summary judgment granted in favor of Columbia Medical Center of Arlington Subsidiary, L.P. and Columbia North Texas Subsidiary, GP, LLC d/b/a Medical Center of Arlington (the Hospital). The case originated from the Hospital's alleged failure to disclose an employee's positive drug and alcohol test results to Shioleno after an on-the-job injury. Shioleno contended that this omission led to increased workers' compensation premiums and expenses in unemployment benefit disputes. The appellate court affirmed the trial court's judgment, ruling that Shioleno failed to provide a valid authorization for the disclosure of medical information. Consequently, the Hospital had no legal duty to disclose the results and could not be held liable for negligence, breach of contract, or Deceptive Trade Practices Act (DTPA) violations.

Summary JudgmentMedical RecordsDisclosure AuthorizationHealth & Safety CodeNegligenceBreach of ContractDTPADrug TestingAlcohol TestingEmployer Liability
References
13
Case No. 03-17-00357-CV
Regular Panel Decision
Nov 21, 2017

George Allibone, M.D. v. Scott Freshour, in His Official Capacity as the Interim Executive Director of the Texas Medical Board Juanita Garner, Investigator of the Texas Medical Board And the Texas Medical Board

George Allibone, M.D., appealed the denial of his petition for a protective order against an administrative subpoena issued by the Texas Medical Board. The subpoena sought patient medical and billing records for an investigation into complaints against Allibone. He contended the trial court erred by failing to issue findings of fact and conclusions of law and by abusing its discretion in finding the subpoena reasonable and relevant. The appellate court found Allibone waived his complaint regarding missing findings. It also concluded the trial court did not abuse its discretion, citing the Board's need for complete records for investigation and Allibone's failure to prove the unconstitutionality of the statute requiring compliance. The trial court's order was affirmed.

Medical Board InvestigationAdministrative SubpoenaPhysician RecordsConstitutional RightsDue ProcessJudicial Review of Agency ActionAbuse of DiscretionFourth AmendmentTexas LawProfessional Licensing
References
50
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