Prompt Notice Provisions in Texas Insurance Policies– Fort Worth, Texas Insurance Defense Attorneys

In PAJ,  Inc. vs. The Hanover Ins. Co. 243 S.W.3d 630 (Tex. 2008)  the Texas Supreme Court held that an insured’s failure to comply with a prompt notice provision in a CGL policy does not defeat coverage unless the insurer was prejudiced by the delay.

There, the insurance carrier, Hanover, provided commercial general liability insurance (CGL) coverage to PAJ, a jewelry manufacturer, who was sued for copyright infringement by a third party.  While the CGL policy covered certain advertising injury, the terms of the policy required PAJ to notify it’s insurer of any claim or suit brought against it “as soon as practicable.” PAJ claimed to be initially unaware that the Hanover CGL policy provided coverage for a dispute over copyright infringement. Consequently, PAJ did not notify Hanover until several (4 to 6) months after the lawsuit was filed. The parties stipulated that PAJ did not notify Hanover “as soon as practicable” and that Hanover was not prejudiced by the delay. The trial court granted summary judgment in favor of Hanover, and the court of appeals affirmed, holding that Hanover was not required to show prejudice before it could deny coverage.

The insurer took the position that the prompt notice provision was a condition precedent to providing insurance coverage under the CGL policy. The court saw the case otherwise, noting that “when a condition would impose an absurd or impossible result, the agreement will be interpreted as creating a covenant rather than a condition.” The court concluded that a denial of coverage without a showing of prejudice would be such a result. The court stated that imposing “draconian consequences for even de minimis deviations from the duties the policy places on the insureds.” was unreasonable.

The court stated that “an insured’s failure to timely notify its insurer of a claim or suit does not defeat coverage if the insurer was not prejudiced by the delay.” The court distinguished a 1972 case (Members Mutual Insurance Co. v. Cutaia, 476, S.W. 2d 278 (Tex.1972) which held that prejudice was not required, by stating that the Department of Insurance changed the provision in CGL policies in Board Order 23080, which mandates an endorsement to all CGL policies that requires a prejudice showing when the insured does not comply with the prompt notice provision.

The Court stated that that an insured’s failure to timely notify its insurer of a
claim or suit does not defeat coverage if the insurer was not prejudiced by the delay. The Court felt that the failure to give notice of a claim poses a lesser risk of prejudice than the failure to obtain consent to a settlement. The Court rendered judgment that the insurer could not deny coverage because of untimely notice, and remanded the remaining issues to the trial court.

The sequelae of the Supreme Court’s PAJ decision is that PAJ has consistently made it more difficult for insurers to deny insurance coverage based on late notice in the absence of substantially convincing indications of prejudice.  This interpretation has had a fairly profound impact on coverage determinations, particularly as may have related to occurrence-based policies.  While the prejudice implicit in delay is not completely gone, it may well have been forgotten.

Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Fort Worth, Texas insurance defense attorneys in Tarrant County who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.

Martindale AVtexas[2]

Insurance Defense Litigation

Subrogation Insurer’s Rights Limited By New Texas Law–Fort Worth, Texas Subrogation Attorneys

Governor Rick Perry signed Texas House Bill 1869 back on May 25, 2013.   This ground shaking bill, which took effect on January 1, 2014, affects the contractual subrogation rights of certain health and disability insurers.  It is known as the Subrogation Reform Bill.  It places a limit on the amount a health insurer (such as Blue Cross Blue Shield, Aetna, Humana, etc.) can recover out of a personal injury settlement in Texas.

A subrogated insurer’s recovery is now significantly more limited under the new law.

Under the new legislation, a health or disability carrier cannot generally recover from a first party (Uninsured/Underinsured Motorist and/or Medical Payments) coverage.

Additionally, when a covered individual (an insured) is not represented by an attorney, a carrier shall recover the lesser of (1) 50 percent of the gross recovery or (2) the total amount of benefits paid.  When an insured is represented by an attorney, a carrier shall recover the lesser of (1) 50 percent  of the gross recovery minus attorney’s fees and costs or (2) the total amount of benefits paid minus attorney’s fees and costs.

The Made Whole Doctrine does not apply to a recovery secured under this new law.

When the carrier is not actively represented by counsel, an attorney’s fees shall be apportioned by agreement between the carrier and the insured.  The carrier is also to be held responsible for a pro rata share of expenses.  If an agreement does not exist, the court shall award fees, not to exceed one third of the carrier’s recovery.

Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Fort Worth, Texas subrogation attorneys in Tarrant County who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.

Martindale AVtexas[2]

 

Insurance Defense Litigation

The 30 Day Notice of Injury Requirement in Texas Workers’ Compensation Law–Fort Worth, Texas Workers’ Compensation Attorneys

In Texas Workers’ Compensation Law, an employee or a person acting on the employee’s behalf must notify the employer of an injury not later than the 30th day after the date on which the injury occurs.  This is commonly referred to as the 30 Day Notice Rule.  If an injury is an occupational disease, the employee or person acting on the employee’s behalf must notify the employer of the injury no later than the 30th day after the date on which the employee knew or should have known that the injury might be related to the employment.

The requirements of notice of injury to employer are spelled out in § 409.001 as follows:

“Sec.  409.001.  NOTICE OF INJURY TO EMPLOYER.

            (a)       An employee or person acting on the employee’s behalf shall notify the employer of the employee of an injury not later than the 30th day after the date on which:

(1)       the injury occurs; or

(2)       if the injury is an occupational disease, the employee knew or should have known that the injury may be related to the employment.

(b)       The notice required under Subsection (a) may be given to:

(1)       the employer; or

(2)       an employee of the employer who holds a supervisory or management position.

            (c)       If the injury is an occupational disease, for purposes of this section, the employer is the person who employed the employee on the date of last injurious exposure to the hazards of the disease.

The requirement that an employee give notice to the employer does not mean that the employee can simply give notice of the condition itself.  Section 409.001 has been interpreted to require an employee to also give notice of the fact that the condition is or may be work related.

Under section 409.002 if an employee fails to notify his or her employer as required by section 409.001, then the employer and the carrier are relieved of liability unless one of the following three exceptions applies: 1) if the employer, a person eligible to receive notice, or the employer’s carrier has actual knowledge of the employee’s injury; 2)  if the Commission determines that good cause exists for failure to provide notice; or 3) if the employer or the employer’s insurance carrier does not contest the claim.

Under Texas Workers’ Compensation Appeals Decision No. 961562, the good cause standard for an employee is whether the employee prosecutes his claim with that degree of diligence that an ordinarily prudent person would have exercised under the same or similar circumstances.

Good cause is something of a subjective area that lends itself to a fair amount of dispute and litigation.  These often become very fact specific cases where the fact findings of hearing officers are not disturbed by the Appeals Panel.

Whether good cause exists is a question of fact to be determined by the hearing officer.  Good cause must exist continuously up to the time the otherwise untimely report of injury is made.  This does not mean that a report of injury must be made immediately upon determination of good cause.  The hearing officer must consider the totality of claimant’s conduct in determining ordinary prudence.  Texas Workers’ Compensation Commission Appeals Panel Decision No. 93815.  The question is whether a reasonable person would recognize the nature and seriousness of the injury and that it may be work related.  Texas Workers’ Compensation Appeals Panel Decision No. 94894.

Although ignorance of the law in and of itself is not good cause for failure to file a claim, reliance on representations by the employer that it has indeed filed a claim, along with furnishing of medical and income benefits, may be possibly considered good cause.  Texas Workers’ Compensation Appeals Panel Decision No. 94274.

A belief that an injury was trivial can constitute good cause for failure to timely notify an employer.  Texas Workers’ Compensation Appeals Panel Decision No. 91123.

There is no requirement in the Workers’ Compensation Act that an individual receiving the report of an injury be a supervisor over the claimant.  The only requirement is that the person be in a supervisory capacity.  Texas Workers Compensation Appeals Panel Decision No. 92271.

The purpose of the notice requirement has historically been to give the insurance carrier an opportunity to timely investigate the facts surrounding an injury.  This is why the Appeals Panel has required that the employer must receive notice, not only of the condition, but also of the fact that there is an allegation that the injury is work related.  This was demonstrated in Appeals Panel Decision No. 92357, where the claimant complained of back pain similar to complaints she had  in the past to her employer, but did not provide her employer with notice that she had sustained a work related back injury.  This was held to be insufficient notice of a new injury .

In Appeals Panel Decision No. 002549, the Appeals Panel reiterated that the 30 day notice period can be extended by the weekend.  If the 30th day after the date of injury is a Sunday, Rule 102.3(a)(3) provides that the period in which to report an injury is extended to the next day that is not a Saturday, Sunday, or legal holiday.

To be effective, notice of injury needs to inform the employer of the general nature of the injury and the fact that it is job related.  Texas Workers’ Compensation Appeals Panel Decision No. 001479, citing DeAnda v. Home Insurance Company, 618 S.W.2d 529 (Tex. 1980).

It has also been held and reiterated by the Appeals Panel in Decision No. 00283 that the carrier is not relieved of liability for a so called “follow on injury” based on the claimant’s failure to give timely notice to the employer.  In that decision the Appeals Panel affirmed and cited Appeals Panel Decision No. 971706 and DeAnda v. Home Insurance Company, supra, as stating that the employer need only know the general nature of the injury and the fact that it is work related.  The claimant had no duty, in that case, to advise her employer of complications arising out of the original injury that she had already timely reported.

In the case of Safford v. Cigna Insurance Company of Texas, 983 S.W.2d 317 (Tex. App. – Fort Worth 1998, pet. denied), the thirty day notice provision in a “latent” disease or injury situation, was interpreted to mean that  thirty day notice begins to run when an employee’s symptoms manifest themselves to a degree or for a duration that would put a reasonable person on notice that he or she suffers from some injury and knows, or in the exercise of reasonable diligence should have known, that the injury is likely work related.

Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Fort Worth, Texas workers’ compensation defense lawyers in Tarrant County who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.

Martindale AVtexas[2]

Workers' Compensation Defense

The Abstract of Judgment: A Debtor’s Lingering Nightmare–Fort Worth, Texas Collections Attorneys

The filing of an Abstract of Judgment is often the best method that a judgment creditor has to collect a money judgment. The abstract will frequently linger over the debtor for years, and will sometimes follow that debtor to the grave, leaving the debtor’s heirs to deal with the mess. We have observed the frequent occurrence that, many years down the road, a valid judgment will be collected due to the dogged persistence of the loyal and dutiful abstract of judgment.

An abstract of judgment that has been properly indexed and recorded can be a powerful tool in the tool belt during the sometimes difficult task of collecting a judgment. The Abstract creates a lien against the debtor’s nonexempt real property in the county in which the abstract is recorded, pursuant to

Tex. Prop. Code § 52.001.  The lien continues for ten years from the date of recording and indexing, as long as the judgment does not become dormant, and the judgment may be renewed. Tex. Prop.Code § 52.006.

The judgment by itself creates no lien, it is the proper filing and indexing of the Abstract which creates the lien..C.I.T. Corp. v. Haynie, 135 S.W.2d 618, 622 (Tex. Civ. App.—Eastland 1939, no writ).

While the judgment lien does not attach to the debtor’s personal property, it can create a genuine problem for the debtor with respect to any real property the debtor may own or come into ownership of later. The judgment lien also attaches to after-acquired real property of the defendant. Tex. Prop. Code § 52.001.

And while the debtor’s homestead is exempt, a recorded judgment lien against the owner of homestead property will nonetheless attach to the property when it ceases to be his homestead, if it is still owned by him. Walton v. Stinson, 140 S.W.2d 497, 499 (Tex. Civ. App.—Dallas 1940, writ ref’d). So then, the Abstract and lien can still create a cloud on the title which may have an impact on the  debtor’s ability to sell the property. A debtor may request removal of the lien as to the homestead, and the Texas Property Code sets out requirements for a release of record of lien on homestead property in Tex. Prop. Code § 52.0012.

When the debtor dies, his or her property will vest immediately in the heirs. Any such property, including real property, is subject to payment of his or her debts. Tex. Prob. Code § 37.  A properly filed and indexed abstract of judgment creates a lien against the inherited real property. An executor or administrator can sell the property free of the lien, however, to satisfy debts of the estate. Woodward v. Jaster, 933 S.W.2d 777, 780–82 (Tex. App.—Austin 1996, no writ).

The filing of an abstract of judgment is a great way of putting the public on notice that the judgment is in existence. It will let the whole world know that the property attaches to any non-exempt real property of the debtor. While debtors would often like to ignore the fact that an abstract has been filed against them, they overlook the practical implications to title companies who want to see a clear title. Title companies search for abstracts of judgment precisely to determine if they should collect from the proceeds of sale to satisfy the debt. This creates a huge dilemma for debtors who are trying to sell any such encumbered property. And, even though a judgment lien does not attach to, and does not constitute a lien on, a judgment debtor’s homestead, it is usually difficult for the debtor to persuade the title company to disregard the existence of the judgment. Rarely if ever do closings go forward under such circumstances. Title companies are in the business of risk management and will not like it if the liens are not cleared.

We are Debt Collections lawyers in Fort Worth, Texas, skilled in business litigation, and we represent companies who need to secure payment on their commercial accounts.  The Abstract of Judgment will be one of several tools we will employ to collect these debts for you.

Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Fort Worth, Texas collections attorneys in Tarrant County who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.

Martindale AVtexas[2]

 

Collections and Foreign Judgments, Construction Law, Contracts and Commercial Litigation

The Alcohol Intoxication Defense to Workers’ Compensation Claims in Texas–Fort Worth, Texas Workers’ Compensation Attorneys

Alcohol intoxication is defined two different ways under the 1989 Texas Workers’ Compensation Act. Under the first definition, it is defined as having an alcohol concentration to qualify as intoxicated under Section 49.01, Penal Code. Section 401.013(a)(1). Under the second definition, intoxication is defined as the state of not having the normal use of mental or physical faculties resulting from the voluntary introduction into the body of an alcoholic beverage, as defined by Section 1.04 of the Texas Alcoholic Beverage Code. Section 401.013(a)(2)(A). A finding that the employee was intoxicated at the time of the claimed injury under either definition will relieve the insurance carrier from liability and make the injury non-compensable. The employee is presumed to be sober at the time of the injury. Bender v. Federal Underwriters Exchange, 133 S.W.2d 214, (Tex.Civ.App.—Eastland, 1939, writ dism’d judgm’t correct).

It is well established that an insurance carrier is not liable for payment of workers compensation benefits if the injury “occurred while the employee was in a state of intoxication.” Section 406.032(1)(A). The intoxication exception does not require a causal connection between the injury and the employee’s intoxication and serves as an absolute exception to liability, regardless of the cause of injury. Texas Indemnity Insurance Company v. Dill, 42 S.W.2d 1059 (Tex. App.—Eastland 1931), aff’d 63 S.W.2d 1016 (Tex. Comm’n App. 1933). Whether or not an employee was intoxicated due to the voluntary introduction into the body of an alcoholic beverage at the time of the injury is a question of fact for the Hearing Officer to decide. Appeals Panel Decision  002818.  The introduction of the alcohol does have to be voluntary, however, an employee may be  considered to be outside the course and scope of his or her  employment due to intoxication even when  the employee’s supervisors are  involved and present during  the intoxication.

As a matter of law, an employee who tests at or above the legal limit for alcohol concentration at the time of the claimed injury is intoxicated for purposes of the 1989 Act. Intoxication is defined in Section 401.013(a)(1)as having an alcohol concentration  of 0.08 or more as defined by Section 49.01 of the Texas Penal Code:

§ 49.01. DEFINITIONS. In this chapter:

(2) “Intoxicated” means:
(A) not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body; or
(B) having an alcohol concentration of 0.08 or more

Under Texas law “alcohol concentration” means the number of grams of alcohol per:

(A) 210 liters of breath;
(B) 100 milliliters of blood; or
(C) 67 milliliters of urine.

Blood Alcohol Content is referred to as “BAC”.

When a carrier properly raises the defense of alcohol intoxication, there is a shifting burden of the burden of proof. Since the employee is presumed to have been sober at the time the injury occurred, the initial burden is on the carrier to present evidence that the employee was in a state of intoxication due to the employee’s voluntary introduction into the body of an alcoholic beverage. When the carrier presents “probative evidence” of intoxication to rebut the presumption of sobriety, then the claimant has the burden to prove that he or she was not intoxicated at the time of the injury. March v. Victoria Lloyds Insurance Co., 773 S.W.2d 785 (Tex. Civ. App.—Fort Worth 1989, writ denied).

An extrapolation of a blood-alcohol concentration can be sufficient evidence to shift the burden of proof to the employee to prove that he was not intoxicated from the voluntary introduction into the body of alcohol.  Appeals Panel Decision 002818. Even a test revealing a blood alcohol concentration which is less than that provided for in Penal Code Section 49.01(2), along with other evidence, may possibly be sufficient to shift the burden of proof regarding sobriety to the employee.  Appeals Panel Decision 982483.

While an employee’s refusal to submit to a drug or alcohol test does not shift the burden of proof on the issue of intoxication as a matter of law,  the hearing officer may find that the burden shifts through introduction of other evidence.

Although, scientific or medical evidence is not required to establish sobriety, a one line statement that an employee was not intoxicated does not do enough to overcome the presumption of intoxication, once the burden of proof shifts. Appeal Panel Decision 062507-S.

Typically, whether or not an employee had the normal use of his or her mental and physical faculties at the time of the injury is a question of fact for the Hearing Officer or court to decide.

Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Fort Worth, Texas workers’ compensation lawyers in Tarrant County who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.

Martindale AVtexas[2]

 

Workers' Compensation Defense

The Horseplay Defense in Texas Workers’ Compensation cases–Fort Worth, Texas Workers’ Compensation Defense Attorneys

Pursuant to Texas Labor Code Section 406.032(2), a carrier is not liable if the employee’s horseplay was a producing cause of the injury.  Thus, when an employee willfully engages in horseplay and suffers an injury as a result, that injury is not compensable.  It is important to note that unlike the intoxication defense, for instance, in order for a carrier to escape liability for compensation based on a horseplay defense, it must be demonstrated that the act constituting horseplay resulted in the injury.   And if the injury results from horseplay engaged in by fellow employees in which the claimant did not participate, the injury is compensable if it meets other requirements for compensability.  It is also significant that the statute says specifically that the horseplay only has to be “a” producing cause of injury and not “the” producing cause.

In the infamous “Black Foot Salute” case, the claimant and his co-employee were of Black Foot Indian descent and developed the “Black Foot Salute” which included the act of lifting one foot.  The hearing officer in that case found that the claimant was engaged in the salute when he slipped and fell and that he was therefore engaged in horseplay.  The Appeals Panel affirmed the denial of benefits, stating that the carrier was not liable because the employee’s horseplay was a producing cause of the injury.  Texas Workers’ Compensation Appeals Panel Decision No. 94779.

In Appeals Panel Decision No. 9512725, the claimant was a bus boy in a restaurant who slipped and fell after dropping off some dishes in the dishwashing area.  It was determined that he was involved in horseplay at the time of his accident based on evidence that he was dancing or moving to music at the time of his fall.

Typically, when the carrier introduces evidence of horseplay, the burden of proof then shifts to the claimant to prove that he or she was not engaged in horseplay.  Appeals Panel Decision No.92536.  This shifting of the burden of proof, however, does not occur if an injured worker is a victim of horseplay, as opposed to a voluntary participant in horseplay.  The carrier, in fact, has the burden of proving that a claimant is an active participant in horseplay rather than being a passive victim.  Texas Workers’ Compensation Appeals Panel Decision No. 000788.

Just because the claimant’s supervisor is present when the horseplay occurs, does not mean that a carrier cannot raise the horseplay defense.  In Appeals Panel Decision No. 002191, the claimant was injured during an arm wrestling contest clearly in the presence of his supervisor.  The hearing officer determined that the carrier was relieved of liability under the horseplay exception and the Appeals Panel affirmed.

The Appeals Panel has held that horseplay would be considered a producing cause of an injury where there was an unbroken chain of events showing that horseplay was a producing cause and where the horseplay did not cease before the injury, where the claimant participated in the horseplay, and where the horseplay was an active and not an outside force causing the injury.  Texas Workers’ Compensation Appeals Panel Decision No. 91029.

Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Fort Worth, Texas workers’ compensation attorneys in Tarrant County who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.

Martindale AVtexas[2]

 

Workers' Compensation Defense

The Intentional Injury Defense in Texas Workers’ Compensation Cases–Texas Workers’ Compensation Attorneys

Under Section 406.032 of the Labor Code, a carrier is not liable for compensation if the injury was caused by the employee’s willful attempt to injure himself or to unlawfully injure another person.  An insurance carrier is also not liable if the injury arose out of an act of a third person intended to injure the employee because of a personal reason and not directed at the employee as an employee or because of the employment.

Intentional/willful injuries are often difficult for a carrier to prove because, by their very nature, they require a heavy focus on the state of mind of the claimant or of the third party who supposedly committed the intentional action.  Once a carrier raises a willful intent to injure defense, the burden of proof is shifted to the claimant to prove by a preponderance of evidence that the defense does not apply.

The so called “personal animosity doctrine” is the exception contained in section 406.032(1)(C).  It states that the carrier is not liable if the injury arose out an act of a third person intended to injure the employee because of a personal reason.

Although an employee’s employment may be an opportunity for the wrongful act to occur or may give a convenient occasion for the commission of the wrongful act, an injury does not necessarily arise out of the employment if an intentional assault by a third party is not connected with the employment, or is for reasons personal to the victim as well as to the assailant.  The mere fact that the injury is caused by a co-employee is not controlling of the question of whether the injury is compensable.  Mackey v. UP Enterprises, Inc., 935 S.W.2d 446 (Tex. App. – Tyler 1996, no writ).

For a sexual harassment case to be compensable, the assault may not be personal to the victim or committed for reasons personal to the victim or assailant Bomar v. Walls Regional Hospital, 983 S.W.2d 834 (Tex. App. – Waco 1998), reversed 9 S.W.3d 805 (Tex. 2000).

Where the carrier introduces evidence that the claimant was injured while willfully attempting to injure another person, the claimant then has the burden of proving that he was not injured while willfully attempting to injure another.  Texas Workers’ Compensation Appeals Panel Decision No. 91032.

The claimant is not necessarily precluded from having a compensable injury if he is engaging in self defense.  In Appeals Panel Decision No. 91047, the claimant was injured during a fight that he entered into at work in order to protect his nephew who was also a coworker.  The Appeals Panel held that after evidence of the fight was introduced, the claimant had the burden of proving that the exception to coverage did not apply.  The Appeals Panel stated that there would be coverage where the employee’s injury resulted from a dispute arising out of the employee’s work or manner of performing it and the employee’s acts growing out of the dispute where done in a reasonable attempt to prevent interference with the work or in reasonable self defense.

Another factor that the Appeals Panel may look at is whether the claimant had an opportunity to withdraw from a dispute or altercation, yet fails to do so.  In Appeals Panel Decision No. 91070, the Appeals Panel decided that a claimant was not covered for injuries that he had sustained after he attacked another worker where the fight started because of a non-work related name calling incident and where the claimant had the opportunity to withdraw from the altercation.

Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Fort Worth, Texas workers’ compensation defense attorneys in Tarrant County who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.

Martindale AVtexas[2]

Workers' Compensation Defense

The One Year Claim Filing Requirement in Texas Workers’ Compensation Claims–Fort Worth, Texas Workers’ Compensation Defense Attorneys

Under § 409.003 of the Labor Code, filing with the Texas Department of Insurance, Division of Worker’s Compensation (DWC), of a claim must occur not later than one year after the injury or, if the injury is an occupational disease, within one year after the date the employee knew or should have known that the occupational disease was related to the employment.

Section 409.003 reads as follows:

An employee or a person acting on the employee’s behalf shall file with the DWC a claim for compensation for an injury not later than one year after the date on which:

(1)                        the injury occurred; or

(2)                        if the injury is an occupational disease, the employee knew or should have known that the disease was related to the employee’s employment.

Moreover, failure of an employee to file a claim within one year will bar that claim unless good cause exists for failure to file a claim in a timely manner or the employer or the employer’s insurance carrier does not contest the claim.  (Section 409.004).

Another means by which the claimant can, if he fails to meet the one year filing deadline, circumvent that defense is if the carrier fails within eight days after the employee notifies the employer of an occupational disease or within eight days after an injury which results in the employee’s absence from work for one day or more. (Labor Code Section 409.005 and 409.008).  Under Section 409.008, if the employer or carrier fails, neglects, or refuses to file a report of injury (DWC- 1 or E1) then the period for filing of a claim for compensation does not even begin to run against the claim of the injured employee until the date on which the TWCC-1 has been filed.  Importantly, according to Texas Workers’ Compensation Appeals Panel Decision No. 94628, where a claimant does not lose time from work, the time for filing a notice of claim with the commission is told.  Section 409.005 only requires that the employer file a written report with the commission where an injury results in the absence of the employee from work “for more than one day”.

The purpose of the claim filing requirement is to provide enough information to serve as a basis for proper investigation and determination whether the claim comes under the Workers’ Compensation Act.  Where a carrier has agreed to accept liability for reasonable and necessary medical treatment and pays income benefits, the Appeals Panel has held that the failure of the claimant to file a claim within one year will not relieve the carrier of liability.  Appeals Panel Decision No. 970068.

A claim for compensation should be filed on a DWC-41 form and should include all of the information listed in Rule 122.2.  Rule 122.2 reads as follows:

Rule 122.2: Injured Employee’s Claim for Compensation

(a)             An injured employee, or a person acting in the injured employee’s behalf, shall file with the DWC a written claim for compensation within one year after the date of the injury’s occurrence, except as provided in subsection (b) of this rule.

(b)             An employee whose injury results from an occupational disease, or a person acting on that employee’s behalf, shall file with the DWC a written claim for compensation within one year after the date the employee know or should have known that the disease was related to the employment.

(c)          The claim should be on a form TWCC-41 prescribed by the DWC and should include the following:

(1)          the name, address, telephone number (if any), occupation, wage, and social security number of the injured employee;

(2)          the length of time the employee worked for the employer prior to the date of injury;

(3)          the date, time, and location the injury occurred (or the date the employee knew or should have known that the occupational disease was related to the employment.

(4)          a description of the circumstances and nature of the injury;

(5)          the names of witnesses (if any);

(6)          the name and location of the employer at the time of the injury (or at the time of the last injurious exposure to the hazards of the occupational disease);

(7)          the name of the employee’s immediate supervisor;

(8)          the name and address of at least one health care provider that has treated the employee for the injury; and

(9)          the identity of the person (if any) acting on behalf of the injured employee.

(d)          If the injury claimed is an occupational disease, the claim shall list the name and location of the employer at the time of the last injurious exposure to the hazards of the disease if known.

(e)          The prescribed form TWCC -41 or other written claim for compensation must be signed by the person filing it.

(f)           Failure to file a claim for compensation with the commission no later than one year from the incident shall relieve the employer and the employer’s insurance carrier from liability under the Act unless:

  1. good cause exists for failure to file a claim in a timely manner; or
  2. the employer or insurance carrier does not contest the claim.

Texas DWC’s Appeals Panel Decision No. 992486 has stated that although a claim for compensation should be filed on a TWCC-41 and should include all the information listed in Rule 122.2, other documents may constitute a claim.  For instance, a TWCC-61 that is signed by a doctor, may be sufficient.

Under Appeals Panel Decision No. 010003, bad advice from an attorney as to the time to file a claim does not constitute good cause on the claimant’s behalf.  In that case the claimant pursued his claim in Oklahoma based on the advice of an attorney.  The Appeals Panel affirmed findings that good cause did not exist even where the employer failed to advise the claimant of his rights and responsibilities.

Under Appeals Panel Decision No. 000444, in order the tolling provision to apply, knowledge of a specific injury and knowledge that time was lost due to the injury are required.  Tolling provision in Rule 409.008 does not apply until the duty to file a TWCC-1 has been met. (See Appeals Panel Decision No. 002758).

Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Fort Worth, Texas workers’ compensation attorneys in Tarrant County who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.

Martindale AVtexas[2]

 

Workers' Compensation Defense

ERISA Does Not Preempt State Law Negligence in Texas Nonsubscriber Cases–Fort Worth, Texas Non Subscriber Defense Attorneys

In McAteer v. Silverleaf Resorts, Inc., 514 F.3d 411 (5th Cir. 2008) the United States Court of Appeals, 5th Circuit , rejected arguments by a Nonsubscriber to Texas workers’ compensation that the Employee Retirement Income Security Act (ERISA) preempts state law on the issue of liability in a negligence claim.

The Plaintiff in that case alleged that she suffered a job-related injury when she tripped over a parking block while using a landscape trimmer in July 2005.  She fell on her back and was later diagnosed with a herniated disc that required surgery. She allegedly did not report the on the job injury to her employer and left employment with the company in August 2005. She did not notify the employer of the injury until September 2005, some two months after the alleged injury.

The Plaintiff’s claim was denied by her employer. The reasons offered by the employer for the denial included the following:  because she did not report the injury in a timely manner, because did not she seek advance approval for her medical treatment and because she did not use a plan-approved medical provider.

Plaintiff filed suit against her employer in Texas state court alleging that the employer’s failure to provide a safe place to work caused her injuries. Her employer was a Nonsubscriber under Texas workers’ compensation law. The employer removed the suit to federal court asserting that federal subject matter jurisdiction existed because ERISA preempted Plaintiff’s causes of action. Plaintiff filed a motion to remand. Plaintiff put forth the argument that ERISA did not preempt her causes of action because she was alleging state law negligence claims only.

The district court ruled that ERISA barred Plaintiff’s injury claims and dismissed her case.

On appeal, the U.S. Circuit Judge’s opinion stated that state law negligence claims for failing to maintain a safe workplace are independent of ERISA.

In the court’s opinion, the judge stated that Plaintiff’s claim under Texas law was preserved despite the fact that she added an ERISA claim to her action after it was dismissed by the district court. The judge ruled that Plaintiff’s “state law negligence claims in this case are not pre-empted by ERISA and must be remanded,” and that “she did not make her argument moot by adding an ERISA claim,” thereby reversing and remanding the district court decision.

The long range impact of McAteer will likely include keeping nonsubscriber cases in Texas, based in allegations of negligence, largely within the purview of our Texas state courts.

Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Fort Worth, Texas nonsubscriber attorneys in Tarrant County who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.

Martindale AVtexas[2]

 

Employment Law Defense, Nonsubscriber Law

Amendments to Rule 130.1 Require Impairment Rating and MMI Date to be Tied Together–Fort Worth, Texas Workers’ Compensation Attorneys

The Texas Department of Insurance (Department), Division of Workers’ Compensation (Division) has adopted amendments to Rule §130.1, concerning Certification of Maximum Medical Improvement (MMI) and Evaluation of Permanent Impairment.

The purpose of these adopted amendments is to clarify the consequence of noncompliance with 28 Texas Administrative Code (TAC) §130.1(c)(3).  The adopted amendments to §130.1(c)(3) clarify that an impairment rating is invalid if it is based on the injured employee’s condition on a date that is not the maximum medical improvement (MMI) date.  The adopted amendments reiterate the Division’s interpretation of §130.1(c)(3) since 2004.  These adopted amendments further clarify that an impairment rating and its corresponding MMI date must be on a Report of Medical Evaluation to be valid.

The Division contends that these amendments are necessary to implement Labor Code §408.123, concerning Certification of Maximum Medical Improvement; Evaluation of Impairment Rating.  The Division interprets §130.1(c)(3) to require an impairment rating to be based on the MMI date for the impairment rating to be adoptable, as found in Appeal No. 040514 (4/28/2004), Appeal No. 070867 (7/6/2007), and Appeal No. 071398 (9/28/2007 These amendments reiterate the Division’s longstanding position that in accordance with the Act, an impairment rating is valid only when it is assigned and tied directly to an injured employee’s certified date of MMI.  Division rules implementing the Act do not allow matching one doctor’s certified MMI date on a report and an assigned impairment rating from another report.  Consequently, the finder of fact cannot match a doctor’s certified MMI date from one report with an assigned impairment rating from another report.

The amendments provide that an impairment rating based on a date other than the MMI date is invalid and cannot be adopted for settlement, at hearing, or at trial.

Statutory objectives require that the impairment rating be based upon an injured employee’s condition on the date of MMI.

 James L. Williams, Jr.
Williams, Lacy, McClure & Parmelee
December, 2013

Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Fort Worth, Texas workers’ compensation attorneys in Tarrant County who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.

Martindale AVtexas[2]

Workers' Compensation Defense