Articles Posted in Workers’ Compensation

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craneIn a recent Texas construction case, the court considered injuries arising from the collapse of a crane on a commercial construction site. The issue the appellate court examined was whether the plaintiff was prevented from obtaining damages under common law, due to the Texas Workers’ Compensation Act.

The case arose when the superintendent for the general contractor on a big construction project was injured in connection with the installation of pilings. To install pilings, the crew drilled a hole in the earth and then pumped grout into the hole. A steel rebar cage was dropped into the grout, which hardened around the cage to form a piling. Heavy machinery is used to build the piling. One of the subcontractors had adopted several policies to make sure the pilings were finished safely.

After a piling was completed, the crew had several cubic yards of grout left over, but the grout was insufficient to fully complete another hole. The superintendent of the subcontractor ordered the crew to start another piling. The foreman opposed this plan but agreed to follow it anyway. The superintendent of the subcontractor left, and grout was pumped into a new hole on the assumption that another shipment of grout would be arriving soon. That shipment was delayed, and the grout started to harden. When the grout finally arrived and was mixed into the old grout, the pressure under the old grout built up and caused the augur to shoot up. The cable backlashed, and the augur got stuck.

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construction-1-1193849-e1462297336122In Tractor Supply Co. of Texas, LP v. McGowan, the plaintiff sued a tractor supply distribution company and related parties for personal injuries. The case arose when a temporary staffing company assigned the plaintiff to work in the tractor supply distribution center. Employees of the center trained, supervised, and instructed him on his job duties.

The plaintiff was working as a picker on the date of the accident. Another employee was loading a pallet and pushed another pallet loaded with dog food off the rack. This landed on the plaintiff, causing serious injuries.

The plaintiff prevailed at trial. The defendant tractor supply distribution company appealed, arguing that the court had made a mistake in depriving it of the exclusive remedy defense provided by the Texas Workers’ Compensation Act.

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scaffolding-silhouette-1228347In Palmer v. Newtron Beaumont, the plaintiff appealed on the basis that the trial court shouldn’t have granted summary judgment in favor of the defendant. The plaintiff was an employee of Motiva who sued the defendant (Newtron Beaumont) when a Newtron employee stepped on him at the Motiva plant while getting down from scaffolding. The plaintiff argued that it was Newtron’s negligence that caused his injuries.

Newtron filed a summary judgment motion, claiming that it and Motiva had entered into an agreement whereby Motiva was to provide workers’ compensation insurance and employer’s liability insurance for Newtron and its employees when they worked for Motiva. The Motiva policy covered all of Motiva’s employees, including the plaintiff. Newtron argued that Texas law made Newtron Motiva’s deemed employee, and therefore it was the plaintiff’s fellow employee under the Texas Workers’ Compensation Act. This would make it immune from the plaintiff’s effort to recover workers’ compensation benefits.

In its summary judgment motion, the defendant argued that Motiva kept the right to implement and maintain its workers’ compensation and employer’s liability insurance. The motion further argued that the plaintiff was acting in the course and scope of his employment with Motiva at the time of the injury, and his exclusive remedy under the Texas Workers’ Compensation Act barred him from filing a civil suit for work-related injuries against any of his fellow employees (such as Newtron).

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cleaver-1560447In Kroger Company v. Milanes, an employer that didn’t subscribe to workers’ compensation appealed from a final judgment in favor of its employee. The employee suffered serious injuries while cutting meat. On appeal, the employer raised multiple arguments, including the argument that the trial court had erred in submitting the plaintiff’s claim to the jury on a theory of general negligence rather than premises liability.

The plaintiff went through a one-day orientation before starting work in 2007. It didn’t include safety training, focusing instead on joining the union. He started out as a clerk in the meat department and was then promoted to apprentice meat cutter. As an apprentice, journeymen—more experienced meat cutters—trained him on how to use the meat cutters, including a bone-in band saw.

The plaintiff was trained a great deal by one particular journeyman, who he thought did a good job training him, but he never taught him to use a band saw blade guard as required by OSHA. He didn’t even know that the bone-in band saw had a blade guard for safety and was never given the operation manuals or warning labels. He thought it was used to line up the meat. The plaintiff eventually became a journeyman himself.

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concrete-wall-texture-1438658-mMost of the time, the only recourse for survivors of a family member who dies because of a job are workers’ compensation benefits. However, when an employer shows gross negligence and an employee dies, the rules are different. In Garay v. GR Birdwell, the decedent’s surviving spouse and a representative of the decedent’s minor child sued the decedent’s employer for wrongful death after the decedent died while operating a trench roller. The accident happened while the decedent was working on his employer’s behalf at a construction site.

The employer was completing construction of a concrete wall, and the decedent operated a trench compactor on the employer’s behalf. He had worked for the employer for five years without any accidents. Usually, workers used a remote control with the trench roller, but according to another employee, the decedent said the remote control wasn’t working, even though he was able to use it earlier in the day. Therefore, the decedent manually operated the roller. Another employee had manually operated it the same way many times before.

While operating the roller, the decedent stood at a pinch point between the roller and the wall. The roller pinned him there. His coworkers tried to get him out, but he already had suffered serious injuries and died there. Continue reading →

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worker-grinding-1219597-m.jpgWhile Texas has been fortunate to have sustained economic growth for several years, enough to be dubbed the “Texas miracle,” some argue that this growth has come at a disturbing price, particularly higher worker fatalities and weak benefits for workers who are injured.

Texas is the only state in the country that does not require employers to carry workers compensation insurance. This means that as many as half a million workers may be risking their health every day at job sites that will not provide for them if they get injured. That is a real problem given that Texas has led the country in occupational fatalities for seven of the last 10 years.

Employers here do have the option of purchasing private occupational insurance. However, those plans come with several problems attached. Their benefits are often strictly limited, as are the workers’ legal rights and medical options, and they are generally not regulated by the state. Employers claim that employees get faster and better care under the private system, although there is little information to support or refute that view.

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worker-and-the-excavator-1170139-m.jpgRod Bordelon, the Commissioner of Texas’ Division of Workers’ Compensation, abruptly resigned from his position last week, possibly due to criticism that his division was too cozy with the insurers it was supposed to be regulating.

Bordelon’s resignation will officially take effect on August 1. In the meantime, both workers’ advocates and insurers alike have been buzzing about his reasons and how it could affect his division. Lawyers who represented the injured in disputes with insurance companies had claimed that Bordelon’s sympathies were tilted toward the insurers. Meanwhile, the insurers claimed that Bordelon treated them fairly.

Prior to the resignation, state lawmakers were in the process of studying the way Texas treated those who were injured or killed while working. Texas is the only state in the country that does not require all private employers to carry workers’ compensation insurance or a private equivalent. Although two-thirds of employers still carry workers’ compensation insurance, that leaves a substantial number of businesses that do not. With regard to the injured workers who are covered, the Division of Workers’ Compensation acts as a court-like system in order to determine whether injured workers are entitled to benefits. Bordelon recently acknowledged to members of the Business and Industry Committee that these injured workers lost a sizeable percentage of disputes in front of his agency.

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businessman-in-the-office-1-1287061-m.jpgRecently, the Texas Court of Appeals affirmed a lower court ruling that an injured worker could not receive lifetime workers compensation benefits.

In Menchaca v. Insurance Company of the State of Pennsylvania, Vincente Menchaca was injured on the job in 1994. Though he received workers compensation disability benefits, he was denied lifetime benefits despite claiming that he had total loss of use in both hands at or above the wrist. Menchaca went through the workers compensation administration review process before he brought a lawsuit against his employer’s workers compensation insurance carrier, the Insurance Company of the State of Pennsylvania (ICSP). In the lawsuit, he sought court review of the Texas Department of Insurance Division of Workers’ Compensation decision that he was not entitled to lifetime benefits. After the trial court sided with the Insurance Division, Menchaca appealed.

ICSP filed a motion for summary judgment, arguing that there was no genuine issue of material fact that Menchaca’s hands still possessed “substantial utlity,” and that his ability to gain and keep employment did not depend on the loss of use of his hands. ICSP offered previous testimony from Menchaca stating that he worked for two different attorneys since he left ICSP’s client, and that he stopped working for the second one due to “Army-related injuries” flaring up. Menchaca also allegedly admitted that he walked with a cane using both hands, could write, had a driver’s license, and lived alone, suggesting that whatever his injuries, he could still lead an independent life. Menchaca responded by objecting to the opinion testimony and medical report of ICSP’s medical expert, who evaluated him in May 2010. The trial court ruled in ICSP’s favor, and Menchaca again appealed.

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recycling-544501-m.jpgA Lubbock, Texas recycling company was recently cited by the federal Occupational Safety and Health Administration (OSHA) for numerous health and safety violations. Jarvis Metals Recycling, Inc. received 24 violations total, as well as a proposed penalty of $64,400.

The health and safety violations included exposing workers to unguarded machinery and electrical, noise, chemical, and fall hazards at the facility on Olive Avenue. Specifically, the violations consisted of failure to maintain electrical components with regard to standards for safe electrical installations; failure to guard industrial machinery; failure to install a completed guard rail system; failure to train workers about hazards posed by cadmium and lead; failure to train workers in how to avoid falling and being struck by hazards while operating powered industrial trucks; failure to prevent too much exposure to noise; failure to provide a program that would help workers retain their hearing; failure to properly store cylinders containing compressed gas; and failure to label propane that had been stored properly. Of the 24, 20 were considered to be “serious” violations, which meant that there was a substantial probability of death or serious physical harm that could have resulted from the hazard, and that the employer either knew or should have known.

Meanwhile, the four “not serious” violations consisted of failure to remove damaged slings so that they would not be used; failure to issue approved respirators; failure to establish a program that aided people’s respiration; and failure to repair stairs that had been damaged. Less serious violations were those that had an effect on the worker’s job or health, but would likely not result in death or serious harm.

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boom-forklift-240351-m.jpgThe Texas Court of Appeals recently found an employer liable for an employee’s injuries due to its failure to maintain workers compensation insurance. As a result, the employer was required to pay the injured employee the amount of $310,607.48 for injuries sustained from a forklift accident on the job site.

In JC General Contractors v. Chavez, Teodoro Chavez worked as a laborer on a construction site for J.C. General Contractors in May 2006. Equipment for the site included a forklift with a basket attached that was used to lift workers to higher parts of the structure. On the day of the accident, the construction superintendent told Chavez to get into the basket to be listed up to take measurements. Chavez was unable to secure the basket, which was attached to the forklift by chains, because the superintendent had forgotten the key to the chain locks. While Chavez was wearing a safety harness, it was attached to the basket, not the forklift. When the basket was raised to a height between 10 and 20 feet, it fell forward and as a result, Chavez suffered a broken collarbone, bruised lungs, internal bleeding in his liver, two fractured ribs, a broken wrist that required surgery, a fractured skull, and a traumatic brain injury that resulted in memory loss and other mental issues.

Because J.C. General Contractors did not have workers compensation insurance, Chavez was not barred from filing a lawsuit. At trial, it was established that the forklift was not designed to lift laborers. However, J.C. General Contractors argued that Chavez was responsible for the accident due to his taking cocaine earlier that day. One of his coworkers testified that he saw Chavez snorting cocaine that morning, and that he was acting hyper, jumping up and down in the basket right before it fell. A blood test confirmed that Chavez tested positive for cocaine, and Chavez admitted to using it, but claimed he had done so four days prior. The trial concluded with the jury determining that Chavez’s intoxication was not the cause of the injury, but rather the superintendent’s misuse of the forklift. The jury awarded $100,000 for physical pain and mental anguish sustained in the past and to be sustained in the future, more than $135,000 for medical care, $50,000 for physical impairment, and $25,000 for lost earning capacity. J.C. General Contractors appealed.

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