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

Case No. 3-15-00262-CV
Regular Panel Decision
Aug 10, 2015

Texas Association of Acupuncture and Oriental Medicine v. Texas Board of Chiropractic Examiners And Patricia Gilbert, Executive Director in Her Official Capacity

This is an Administrative Procedures Act challenge to the validity of Chiropractic Board rules that authorize chiropractors to engage in the unlicensed practice of acupuncture. The Association sought to invalidate these rules and alternatively sought a declaration that the statutory scheme allowing chiropractors to practice acupuncture is unconstitutional. The trial court granted the Chiropractic Board’s motion for summary judgment and denied the Association’s competing motion. The Association argues that the Chiropractic Board exceeded its statutory authority, and its interpretation of the Acupuncture Chapter is unreasonable and creates public health risks due to inadequate training. Alternatively, the statutory scheme violates the Texas Constitution by favoring one school of medicine and containing more than one subject. The Association also argues that the statute of limitations defense fails.

Administrative LawScope of PracticeChiropractic RegulationAcupuncture RegulationStatutory InterpretationConstitutional LawSeparation of PowersDelegation of AuthorityPublic Health and SafetyProfessional Licensing
References
97
Case No. ADJ12728611
Regular
Apr 09, 2020

MARTIN JACOBO vs. COKE FARM, RISICO CLAIMS MANAGEMENT

The Workers' Compensation Appeals Board granted the defendant's Petition for Removal because the WCJ exceeded their authority by invalidating a Qualified Medical Examiner (QME) solely based on the specialty of occupational medicine for a post-surgical knee evaluation. The Board determined that an occupational medicine physician is appropriately qualified to assess such injuries according to DWC guidelines. Therefore, the WCJ's decision was rescinded, and the case was returned for further proceedings, suspending action on the Compromise and Release agreement pending further development.

Petition for RemovalPanel Qualified Medical ExaminerPQMEOccupational MedicineToxicologyPost-surgical kneeLabor Code section 4062.2(b)Administrative Director Rule 35.5Scope of practiceClinical competence
References
6
Case No. 03-05-00620-CV
Regular Panel Decision
Mar 14, 2008

Texas Orthopaedic Association, Texas Medical Association and Andrew M. Kant, M.D. v. Texas State Board of Podiatric Medical Examiners Texas Podiatric Medical Association And Bruce A. Scudday, D.P.M.

The Texas Orthopaedic Association and others challenged a rule by the Texas State Board of Podiatric Medical Examiners that defined 'foot' to include portions of the ankle and soft tissues extending into the leg. Appellants argued this rule impermissibly expanded the scope of podiatry beyond its statutory definition and intruded into the practice of medicine. The district court initially found the rule valid. However, the Court of Appeals reversed this decision, holding that the Board exceeded its authority. The appellate court concluded that the rule's expansive definition authorized podiatrists to treat anatomical features located well above the traditional foot and ankle, which is inconsistent with the occupations code and constitutes an unauthorized practice of medicine.

Podiatry ScopeRegulatory AuthorityStatutory InterpretationAdministrative Rule ValidityMedical Practice ActTexas Occupations CodeDeclaratory JudgmentAnkle TreatmentFoot DefinitionMedical Licensing Board
References
29
Case No. MISSING
Regular Panel Decision
May 14, 2014

Forest Rehabilitation Medicine PC v. Allstate Insurance

Plaintiff Forest Rehabilitation Medicine PC sued defendant Allstate to recover $3,490 for no-fault medical benefits provided to assignor Tracy Fertitta. The core issue was the medical necessity of "Calmare pain therapy" (scrambler therapy), a novel treatment. The court conducted a bench trial, hearing expert testimony from both sides. Dr. Ayman Hadhoud, for the defense, argued the treatment was not medically necessary, not cost-effective, and essentially a form of physical therapy. Dr. Jack D’Angelo, for the plaintiff, countered that the therapy, though new, had FDA approval, was used by the military, and reduced the assignor's pain levels. Applying the Frye standard, the court found the evidence regarding Calmare scrambler therapy reliable and ruled it was medically necessary for Ms. Fertitta's pain management. Consequently, judgment was awarded to the plaintiff, Forest Rehabilitation Medicine PC, for $3,490 plus attorney's fees and interest.

No-Fault InsuranceMedical NecessityCalmare Pain TherapyScrambler TherapyNovel TreatmentFrye StandardExpert TestimonyPain ManagementFDA ApprovalCervical Radiculopathy
References
14
Case No. MISSING
Regular Panel Decision

Diaz v. New York Downtown Hospital

The dissenting opinion by Mazzarelli, J., joined by Saxe, J., argues against granting summary judgment to New York Downtown Hospital in a case involving alleged sexual misconduct during a vaginal sonogram. The dissent asserts that the plaintiff's expert radiologist provided sufficient evidence, based on 1995 American College of Radiology (ACR) and American Institute of Ultrasound in Medicine (AIUM) guidelines, indicating the hospital's deviation from the standard of care by not ensuring a female chaperone was present. Mazzarelli, J., contends that these national guidelines explicitly recognized the risk of such misconduct and constitute generally accepted industry standards. The dissent also distinguishes the present case from precedents cited by the majority, emphasizing the probative value of expert testimony regarding custom and practice. Furthermore, it challenges the majority's unforeseeability argument, concluding that the guidelines delineated a foreseeable risk, thus necessitating the denial of the defendant's motion for summary dismissal.

Medical MalpracticeStandard of CareExpert TestimonySummary JudgmentDissenting OpinionRadiologySonogramHospital NegligenceProfessional GuidelinesSexual Misconduct
References
15
Case No. 03-13-00077-CV
Regular Panel Decision
Feb 25, 2015

Texas State Board of Examiners of Marriage and Family Therapists Charles Horton in His Official Capacity Sandra DeSobe in Her Official Capacity, and Texas Association of Marriage // Cross-Appellant,Texas Medical Association v. Texas Medical Association// Texas State Board of Examiners of Marriage and Family Therapists Charles Horton in His Official Capacity Sandra DeSobe in Her Official Capacity, and Texas Association of Marriage

The amicus brief, submitted by The Association of Marital and Family Therapy Regulatory Boards (AMFTRB), urges the Third Court of Appeals to grant en banc reconsideration and reverse a panel's decision that found 22 TEX. ADMIN CODE §801.42(13) invalid. The brief argues that Licensed Marriage and Family Therapists (LMFTs) are fully qualified, trained, and tested to perform diagnostic assessments within their therapeutic role. It asserts that diagnosis alone, in the context of marriage and family therapy, does not constitute the practice of medicine under the Texas Medical Practice Act, and preventing LMFTs from performing these assessments would effectively prohibit their professional practice and create a shortage of mental health professionals in Texas. The AMFTRB also highlights that the legislature did not intend for LMFTs to be supervised by physicians and that the structure of the Occupations Code supports marriage and family therapy as a stand-alone profession. Additionally, the brief questions the qualification of the Texas Medical Association's expert witness due to prior ethical lapses.

Marriage and Family TherapyDiagnostic AssessmentMedical Practice ActOccupations CodeRegulatory BoardsLicensureScope of PracticeMental Health ServicesTexasAccreditation
References
9
Case No. 2024 NY Slip Op 00599 [224 AD3d 428]
Regular Panel Decision
Feb 06, 2024

Matter of New Millennium Pain & Spine Medicine, P.C. v. Garrison Prop. & Cas. Ins. Co.

This case involves two appeals by New Millennium Pain & Spine Medicine, P.C. against Garrison Property & Casualty Insurance Company and GEICO Casualty Company. New Millennium sought to vacate master arbitration awards that denied its claims for no-fault benefits for medical services. The Supreme Court denied these applications. The Appellate Division, First Department, affirmed the Supreme Court's decisions, stating that an arbitrator's award will not be set aside unless it is irrational. The court also addressed the argument regarding a 20% wage offset in no-fault benefits, finding it unavailing under Insurance Law § 5102 (b). Ultimately, New Millennium was not entitled to attorneys' fees as it was not the prevailing party.

No-fault benefitsarbitration awardvacaturinsurance lawwage offsetappellate reviewmedical servicesno-fault policy exhaustionattorneys' feesCPLR Article 75
References
8
Case No. MISSING
Regular Panel Decision

Hartman v. Bell

This case involves an appeal concerning a contract for the sale of a medical practice. A plaintiff physician agreed to sell his practice to defendant physicians, with payment contingent on a percentage of industrial medicine income over three years, including a minimum payment, and further payments for six months thereafter. The Supreme Court, Queens County, granted the defendants' cross motion for summary judgment, dismissing the complaint against them. The appellate court affirmed this decision, finding the agreement constituted an illegal fee-splitting arrangement under Education Law § 6509-a. The court emphasized that the law would not provide relief to parties involved in illegal arrangements, upholding public policy.

Fee-splittingMedical Practice SaleBreach of ContractSummary JudgmentUnjust EnrichmentPublic PolicyIllegal ContractProfessional Medical GroupAppellate DecisionContract Law
References
3
Case No. ADJ1798944 (LBO 0326931)
Regular
Jun 13, 2018

MARIA FIGUEROA vs. HELP NET, INC., STATE COMPENSATION INSURANCE FUND

This case concerns a lien claimant's petition for reconsideration of a WCJ's decision disallowing his lien for chiropractic services provided between 2001 and 2005. The Appeals Board rescinded the WCJ's decision, finding the claimant's petition timely due to defective service. Crucially, the Board determined that the Medical Treatment Utilization Schedule (MTUS) was improperly applied; instead, the American College of Occupational and Environmental Medicine (ACOEM) guidelines, in effect during the treatment period, should govern the determination of reasonable and necessary care. The matter is remanded to the WCJ for further proceedings consistent with the ACOEM guidelines.

Workers' Compensation Appeals BoardLien ClaimantPetition for ReconsiderationFindings and OrderMedical Treatment Utilization Schedule (MTUS)American College of Occupational and Environmental Medicine (ACOEM)Labor Code Section 4600(b)SB 899Compromise and ReleaseAgreed Medical Examiner (AME)
References
3
Case No. 2020 NY Slip Op 04896 [186 AD3d 1770]
Regular Panel Decision
Sep 03, 2020

Matter of Wen Liu v. Division of Gen. Internal Medicine, Mount Sinai Sch. of Medicine

Wen Liu, a data programming analyst, filed for workers' compensation benefits in May 2010, claiming a neck injury from a June 5, 2008 fall at work due to dizziness. The employer failed to timely file a notice of controversy, but a Workers' Compensation Law Judge (WCLJ) disallowed the claim, finding no causal connection between the injuries and employment. The Workers' Compensation Board upheld this decision, which the claimant appealed. The Appellate Division affirmed the Board's decision, emphasizing that the employer's procedural failure did not absolve the claimant of proving a causal relationship. Substantial evidence supported the Board's rejection of the claimant's medical proof, as emergency room records contradicted her later descriptions of the incident and indicated pre-existing conditions.

Workers' CompensationCausationMedical EvidenceTimely NoticeBurden of ProofInjuryFallDizzinessNeck InjuryCarpal Tunnel Syndrome
References
7
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