Workers' Compensation

Published on: December 11, 2014

Wrongful Death on the Job in Texas

Most 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 →

Published on: July 25, 2014

Texas Workers Compensation System Too Often Fails to Perform Its Duty to Injured Workers

By Carabin Shaw

While 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.

Continue reading →

Published on: June 12, 2014

Commissioner of Texas Division of Workers’ Compensation Resigns

By Carabin Shaw

Rod 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.

Continue reading →

Published on: May 20, 2014

Texas Court of Appeals Upholds Lower Court Ruling Denying Injured Worker Lifetime Benefits

By Carabin Shaw

Recently, 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.

Continue reading →

Published on: April 11, 2014

Lubbock Recycling Company Cited For 24 OSHA Violations, 20 Serious

By Carabin Shaw

A 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.

Continue reading →

Published on: March 24, 2014

Texas Court of Appeals Upholds Jury Award of Over $300,000 in Injured Construction Worker Case

By Carabin Shaw

The 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.

Continue reading →

Published on: March 12, 2014

Texas Court of Appeals Rules That Third Party Hospital Can Sue Employer to Pay For Employee’s Medical Care

By Carabin Shaw

Recently, the Texas Court of Appeals overturned a trial court’s judgment against the medical center that provided care to an injured worker in Hand and Wrist Center of Houston v. Maintenance Supply Headquarters.

Daniel Contreras was an employee for Maintenance Supply when he injured his hand in June 2009. The assistant operations manager took him to one clinic for treatment before being directed to the Hand and Wrist Center. The assistant operations manager then signed a letter of guarantee, which stated that the employer agreed to pay the Center the “usual and customary fees” for medical care rendered to Contraras, and that payment would be made regardless of whether the injury occurred at work, or if the patient tested positive for drugs or alcohol at the time of injury.

Contraras had wrist surgery and the Hand and Wrist Center billed the employer $3,612.62 and $19,138.30 for his care. Soon after, Contraras received notice from his employer’s workers compensation insurance carrier that his claim had been denied due to the discovery that he had tested positive for drugs at the time of injury. The denial was later upheld by the Texas Department of Insurance Division of Workers Compensation.

Continue reading →

Published on: February 4, 2014

Texas Court of Appeals Rules Against Injured Worker For Failure to Exhaust Administrative Remedies in Holmes v. Zurich Insurance Company

By Carabin Shaw

One of the most difficult aspects of coping with a workplace injury can be dealing with the your employer’s insurance company. Most employers are required to carry workers compensation insurance so that ideally, when a worker is injured, he or she can receive payments until able to resume work. However, sometimes insurers will refuse to pay for injuries or procedures that they believe do not fall within their “scope,” which was the case with Holmes v. Zurich Insurance Company.

In Holmes, the case involved a tire lube technician, Aaron Holmes, who injured his back at work. After he applied for workers compensation, the company’s insurance carrier, Zurich, accepted that Holmes had a lower back sprain, but not any other injuries. In February 2008, Holmes and Zurich participated in a benefit review conference to resolve the dispute, but were unsuccessful. A benefit contested case hearing was then held so that it could be determined whether Zurich had to compensate for a two-millimeter disc protrusion and two other injuries. In May 2008, the Division of Workers Compensation hearing officer found that the disc protrusion was a compensable injury, but not the others.

Holmes then sought pre-authorization for spinal surgery pursuant to the Texas Workers’ Compensation Act. After being denied once and having it overturned by the Independent Review Organization, Holmes had the procedure done. However, when Zurich received the bill, it refused to pay on the grounds that the surgery repaired non-compensable injuries in addition to the disc protrusion.

Continue reading →

Published on: November 24, 2013

Workers’ Compensation Update Part 2: No Bad Faith in Workers’ Compensation Context – Hopper v. Argonaut Insurance Company

By Carabin Shaw

Two recent Texas court decisions, including the October 18, 2013, decision in Hopper v. Argonaut Insurance Company, Inc., have established that there is no common law bad faith in Texas regarding workers’ compensation claims. First, last year, in Texas Mut. Ins. Co. v. Ruttiger, the Texas Supreme Court, finding that the reforms to the Texas workers’ compensation statutes in the 1990’s provided for adequate safeguards, abolished the common-law duty of good faith and fair dealing.

In Ruttiger, Texas Mutual disputed plaintiff Timothy Ruttiger’s claims for a workplace injury because his employers reported that the injury occurred at a non work-related softball game. Though the insurance carrier eventually agreed to pay workers’ compensation benefits, Ruttiger filed suit alleging both common law and statutory bad faith causes of action because his claim was initially denied. Initially, the trial court found that Texas Mutual’s insurance adjuster acted in bad faith when it believed the employer instead of the employee, Ruttiger. However, the Texas Supreme Court disagreed and held that an injured employee could not assert a common-law claim for breach of duty of good faith and fair dealing against a workers’ compensation insurance carrier. Notably, at the time, the court did not go as far as to hold that the Texas Workers’ Compensation Act was the exclusive remedy for all work-related injuries, meaning that following that decision, workers could still bring a bad faith claim against a workers’ compensation insurer under the Texas Insurance Code Section 541.061 for a misrepresentation of the policy.

More recently, however, in Hopper v. Argonaut Insurance Company, a decision by the Court of Appeals of Texas all but eliminated a claimant’s ability to bring a bad-faith claim of any kind. In Hopper, Mr. Hopper sustained a wrist injury on the job and received workers’ compensation benefits. Several years later, he died of a drug overdose of the pain medication he was prescribed following his injury. After the deceased’s family sought workers’ compensation death benefits, the workers’ compensation insurer denied the claim for two years, challenging whether Mr. Hopper’s death was work-related and his family’s status to bring the claim.

Continue reading →

Published on: November 17, 2013

Texas Workers’ Compensation Law Update

By Carabin Shaw

An August 2013 court decision by a federal appeals court brings attention to the impacts of Texas being one of two states in the country that allows companies to opt out of the state’s workers’ compensation system. In the case, Mary A, Ernewayn v. Home Depot U.S.A., Inc., Mary A. Ernewayn, a Home Depot employee in Texas filed sued against Home Depot in Texas state court, alleging that the company was negligent. Ernewayn claimed she suffered neck and back injuries while operating a lumber cart in a Home Depot store. Home Depot sought to remove the case to federal court based on the fact that the company had opted out of the Texas workers’ compensation system.

In August 2013, however, a federal appeals court panel denied the company’s request to defend itself from a workers’ compensation claim in federal court. More specifically, the federal court affirmed the lower court’s finding that even though Home Depot did not subscribe to the Texas state workers’ compensation system, the state’s workers’ compensation law still limited the number of common law defenses the company could assert.

The Opt-Out System in Texas

Most states require employers to carry a workers’ compensation insurance policy to cover any costs such as lost income or medical bills should an employee become injured while at work. This means that, in most states, if someone is injured on the job, he/she can file a claim. If the claim is approved, the employee is entitled to payment of his/her medical bills and compensation to cover lost wages and disability.

Continue reading →