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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. 18-1223
Regular Panel Decision
Jan 29, 2021

Texas Board of Chiropractic Examiners Patrick Fortner, in His Official Capacity as the Board's Executive Director And Texas Chiropractic Association v. Texas Medical Association

This decade-long case addresses the legal boundary between chiropractic and medical practices in Texas. The Texas Board of Chiropractic Examiners (the Board) issued rules defining the musculoskeletal system and subluxation complex to include nerves, and also authorized chiropractors to perform Vestibular-Ocular-Nystagmus Testing (VONT). The Texas Medical Association (TMA) challenged these rules, arguing they allowed chiropractors to engage in the unlicensed practice of medicine. The Supreme Court of Texas reversed the court of appeals' judgment, holding that the Board's rules are valid. The Court concluded that the rules, read in context with other referral requirements, appropriately clarify the scope of chiropractic practice without infringing upon medical neurology, and that VONT can be used by chiropractors for diagnostic purposes within their defined scope.

Chiropractic PracticeMedical RegulationScope of PracticeAdministrative LawAgency RulemakingTexas Supreme CourtMusculoskeletal SystemSubluxation ComplexVONT TestingStatutory Interpretation
References
31
Case No. 03-10-00673-CV
Regular Panel Decision
Jul 06, 2012

Texas Board of Chiropractic Examiners, Glenn Parker, Executive Director, and Texas Chiropractic Association v. Texas Medical Association, Texas Medical Board, and the State of Texas

This case concerns an appeal by the Texas Board of Chiropractic Examiners (TBCE) and the Texas Chiropractic Association (TCA) challenging a district court's judgment. The district court invalidated portions of TBCE's administrative rule defining the scope of chiropractic practice, specifically regarding manipulation under anesthesia (MUA), needle electromyography (needle EMG), and certain diagnostic activities. The Court of Appeals affirmed the invalidation of rules permitting needle EMG and MUA, finding them to be "incisive" and "surgical" procedures respectively, and thus exceeding the statutory scope of chiropractic. However, the appellate court reversed the invalidation of rules allowing chiropractors to make certain diagnoses concerning the biomechanical condition of the spine or musculoskeletal system and subluxation complex, concluding these were within the statutory scope. The case was remanded for further proceedings regarding alternative constitutional challenges.

Chiropractic regulationMedical scope of practiceAdministrative rulesStatutory interpretationNeedle EMGManipulation Under AnesthesiaChiropractic diagnosisTexas lawHealth professional licensingJudicial review
References
98
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. 03-00-00513-CV
Regular Panel Decision
Apr 12, 2001

Continental Casualty Company v. the Texas Board of Chiropractic Examiners

Continental Casualty Company (insurer) sued the Texas Board of Chiropractic Examiners (Board) seeking a declaratory judgment regarding the validity of the Board's opinion that manipulation under anesthesia and needle electromyography are within the scope of chiropractic practice. Continental, a workers' compensation insurer, argued it would be forced to pay chiropractors for services they cannot legally perform. The Board filed a plea to the jurisdiction, which the trial court granted, dismissing the suit for want of jurisdiction. On appeal, the Third District Court of Appeals affirmed the trial court's judgment, concluding that assuming jurisdiction would result in an impermissible advisory opinion as there was no justiciable controversy between Continental and the Board, and Continental's complaint was arguably against the Workers' Compensation Commission.

Declaratory JudgmentWorkers' CompensationChiropractic PracticeScope of PracticeAdvisory OpinionJurisdictionSovereign ImmunityAdministrative Procedure ActJusticiable ControversyTexas Law
References
16
Case No. 03-03-00270-CV
Regular Panel Decision
Sep 10, 2004

Robert O'Neal, D.C. v. Texas Board of Chiropractic Examiners

Robert O’Neal, a licensed chiropractor, appealed the district court's dismissal of his declaratory judgment action against the Texas Board of Chiropractic Examiners. O'Neal sought a declaration that needle electromyography (needle EMG) is within the scope of chiropractic practice, a stance the Board already maintained. The Attorney General, however, had issued an opinion stating needle EMG was outside this scope. The district court granted the Board's plea to the jurisdiction, concluding no justiciable controversy existed between O'Neal and the Board. The Court of Appeals affirmed, finding no real dispute as O'Neal and the Board agree on the interpretation, thus lacking subject matter jurisdiction.

Chiropractic PracticeNeedle ElectromyographyScope of PracticeDeclaratory JudgmentJusticiable ControversyPlea to the JurisdictionAdministrative LawAttorney General OpinionTexas Court of AppealsMedical Diagnostic Techniques
References
17
Case No. M2010-01473-COA-R3-CV
Regular Panel Decision
Aug 11, 2011

Roger William Byrd, D.C. v. Tennessee Board of Chiropractic Examiners

This case involves disciplinary proceedings against Dr. Roger William Byrd, a chiropractor, by the Tennessee Board of Chiropractic Examiners. The allegations stemmed from a 2000 incident of telephonic solicitation of a car accident victim within two days of her accident, violating the Board's rules. Later, additional allegations were added concerning Dr. Byrd's use of a Florida office to telemarket Tennessee accident victims. Dr. Byrd admitted telemarketing was conducted but argued a corporation, Memphis Accident and Injury Center (MAIC), was responsible, not himself. The Board found Dr. Byrd guilty of multiple violations and revoked his chiropractic license. The chancery court affirmed this decision, and the Court of Appeals of Tennessee also affirmed, concluding that substantial and material evidence supported the Board's findings that Dr. Byrd operated and controlled MAIC's telemarketing activities.

Chiropractic DisciplineTelemarketing ViolationsProfessional EthicsLicense RevocationAdministrative Law JudgeChancery Court ReviewCorporate Veil PiercingAgency InterpretationSubstantial EvidenceDue Process
References
15
Case No. 03-12-00711-CV
Regular Panel Decision
Dec 18, 2014

Dr. Eric A. VanderWerff, D.C. v. Texas Board of Chiropractic Examiners

Dr. Eric A. VanderWerff, D.C. appealed a trial court's judgment granting a plea to the jurisdiction and dismissing his lawsuit against the Texas Board of Chiropractic Examiners. The Board had previously issued an order finding Dr. VanderWerff violated the Chiropractic Act by engaging in grossly unprofessional conduct and assessed a $1,500 penalty. His motion for rehearing to the Board was untimely, making the Board's order final. Dr. VanderWerff then filed a lawsuit seeking declaratory and injunctive relief, challenging the Board's interpretation and application of certain statutes and regulations. The appellate court affirmed the trial court's dismissal, holding that neither the Administrative Procedure Act nor the Uniform Declaratory Judgments Act waived the Board's sovereign immunity, and that the claims did not present a justiciable controversy or fall under the collateral-attack exception.

Appellate LawAdministrative LawSovereign ImmunityPlea to JurisdictionDeclaratory Judgment ActInjunctive ReliefChiropractic ActProfessional MisconductContested CaseAdministrative Remedies
References
12
Case No. MISSING
Regular Panel Decision

Texas State Board of Chiropractic Examiners v. Greg Abbott, Attorney General of the State of Texas

The Texas State Board of Chiropractic Examiners (the Board) sued the Attorney General seeking a declaration that certain chiropractic records were exempt from disclosure under the Texas Public Information Act (PIA). The records were part of the Board's investigation file concerning a complaint, which the Board considered confidential under Occupations Code section 201.206(a). The Attorney General's Open Records Division (ORD) initially opined that patient access provisions (sections 201.404 and 201.405) created an exception, requiring disclosure with proper consent. The trial court granted summary judgment for the Attorney General, mandating disclosure. On appeal, the court reversed, holding that the patient access provisions did not create an exception to the confidentiality afforded the Board's investigation files, thus the documents were exempt from mandatory disclosure.

Public Information ActConfidentialityChiropractic RecordsInvestigation FilesStatutory ConstructionSummary JudgmentPatient AccessGovernmental BodyAttorney General OpinionAppellate Review
References
48
Case No. 03-11-00736-CV
Regular Panel Decision
Jan 16, 2013

Texas State Board of Chiropractic Examiners v. Greg Abbott, Attorney General of the State of Texas

The Texas State Board of Chiropractic Examiners appealed a summary judgment that mandated the disclosure of certain documents under the Texas Public Information Act. The Board had withheld information from an investigation file, citing confidentiality under the occupations code. The Attorney General argued for disclosure based on special patient access rights to medical and chiropractic records. The appellate court reversed the trial court's decision, ruling that the Board's investigation files are exempt from disclosure, as the confidentiality privilege serves to protect the integrity of the Board's regulatory process, outweighing individual access rights to personal records within those files.

Texas Public Information ActConfidentiality ExceptionInvestigation FilesMedical RecordsChiropractic RecordsStatutory ConstructionSummary JudgmentDe Novo ReviewGovernmental BodyAttorney General
References
13
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