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Texas Workers’ Compensation Defense Attorneys–Medical Evidence Required To Show The Work Was A Greater Factor Than Pre-Existing Condition

Medical Evidence Required To Show The Work Was A Greater Factor Than Pre-Existing Condition
Transcontinental Ins. Co. v. Smith, 2004 Tex.App. LEXIS 1228 (Tex.App.-San Antonio 2004)

Plaintiff was engaged in heavy labor and developed profuse sweating, pain in his elbow, and chest discomfort. After going home for the day, his wife took him to the hospital where it was determined that he had suffered a heart attack. After prevailing on a workers’ compensation claim at a contested case hearing, the TWCC Appeals Panel reversed that finding and Smith filed suit.
The court noted that for a heart attack to be compensable it must occur at a definite time and place, caused by a specific event in the course and scope of employment, and medical evidence must show that the employee’s work, rather than a natural progression of a pre-existing heart condition or disease was a substantial contributing factor of the attack.

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

Jul 28th, 2015 Workers' Compensation Defense

Where Men Cannot Freely Convey Their Thoughts to One Another, No Other Liberty is Secure

QUOTES ON LIBERTY AND JUSTICE, TRUTH AND DUTY:

“Among the many objects to which a wise and free people find it necessary to direct their attention, that of providing for their safety seems to be first . . . . At present I mean only to consider it as it respects security for the preservation of peace and tranquility, as well as against dangers from foreign arms and influence, as from dangers of like kind arising from domestic causes.” The Federalist Papers Federalist No. 3, November 3, 1787

-John Jay

“Let us not commit ourselves to the absurd and senseless dogma that the color of the skin shall be the basis of suffrage, the talisman of liberty.” Oration delivered at Ravenna, Ohio (4 July 1865)

-James A. Garfield

“We view ourselves on the eve of battle. We are nerved for the contest, and must conquer or perish. It is vain to look for present aid: none is at hand. We must now act or abandon all hope! Rally to the standard, and be no longer the scoff of mercenary tongues! Be men, be free men, that your children may bless their father’s name.”

-Sam Houston

“Talk is cheap – except when Congress does it.”

-Cullen Hightower

“This country, with its institutions, belongs to the people who inhabit it. Whenever they shall grow weary of the existing government, they can exercise their constitutional right of amending it, or their revolutionary right to dismember it or overthrow it.” First Inaugural Address, March 4, 1861

-Abraham Lincoln

“Experience should teach us to be most on our guard to protect liberty when the government’s purposes are beneficial … the greatest dangers to liberty lurk in insidious encroachment by men of zeal, well meaning but without understanding.” 1928

-Supreme Court Justice Louis D. Brandeis

“My heart fails when I look around, but “Spit fire!” and have an end to this at once! Liberty forever, though death be the penalty.”

-Sarah Morgan

“One and God make a majority.”

-Frederick Douglass

“The American experiment has come and gone. Whatever freedoms the people still might have as their own, are monitored and registered and taxed at virtually every turn.”

-Jeff Baxter

“It is better to die on your feet than live on your knees.”

-Emiliano Zapta, Mexican revolutionary

“I hope that everyone will try to gain some insights into the plight of a soldier who was defending his home, family and the ideals of the U.S. Constitution.”

-Margaret W. Hollingsworth

“Justice is the means by which established injustices are sanctioned.” Crainquebille

-Anatole France

“He that takes truth for his guide, and duty for his end, may safely trust to God’s providence to lead him aright”

-Blaise Pascal

“Government is a trust, and the officers of the government are trustees. And both the trust and the trustees are created for the benefit of the people.”

-Henry Clay

“Look not to the politicians; look to yourselves.” 1850’s

-Richard Cobden, Member of British Parliament

“All power is inherent in the people, and all free governments are founded on their authority and instituted for their peace, safety, happiness and the protection of property. For the advancement of these ends, they have at all times the inalienable and indefeasible right to alter, reform or abolish their government in such manner as they may deem proper.”

-Kentucky Constitution

“The true remedy for most evils is none other than liberty, unlimited and complete liberty, liberty in every field of human endeavor.”

-Gustave de Molinari, 19th Century Belgian Economist and Philosopher

“The strength and beauty of a Federal system of government, its value and completeness as a government, its harmonious and energetic action, absolutely require in both the general and local authorities, a rigid observance of the boundaries of power lying between them and marking out their appropriate spheres of action. This simple rule forbids alike the usurpation of authority upon the part of the general government, the infringement upon local authority, and the denial on part of the State to the general government the exercise of authority clearly granted in the Constitution.”

-Pendleton Murrah

“Liberty the essence of life. Whatever is done without it is imperfect.” My Race (1893), “Mi Raza”, first published in Patria (16 April 1893)

-José Martí

“For my part, when the time comes to cross the river like the others, I shall be found asking at the gates above, ‘Where are my comrades? For there I make my camp.’”

-Moxley Sorrel

“Do not separate text from historical background. If you do, you will have perverted and subverted the Constitution, which can only end in a distorted, bastardized form of illegitimate government.”

– James Madison

“You say, “Williams, you’re just old-fashioned and out of touch with modern society.” Maybe so, but I think that a society’s first line of defense is not the law but customs, traditions and moral values. These behavioral norms — transmitted by example, word of mouth, religious teachings, rules of etiquette and manners — represent a body of wisdom distilled over the ages through experience and trial and error. They include important legal thou-shalt-nots — such as shalt not murder, steal, lie or cheat — but they also include all those civilities one might call ladylike or gentlemanly behavior. Police officers and courts can never replace these social restraints on personal conduct. At best, laws, police and the criminal justice system are a society’s last desperate line of defense.”

-Walter Williams

“Government cannot make us equal; it can only recognize, respect, and protect us as equal before the law.:

-Clarence Thomas, U.S. Supreme Court Justice

“Never forget that everything Hitler did in Germany was legal.”

-Martin Luther King Jr.

“Where men cannot freely convey their thoughts to one another, no other liberty is secure.” Freedom of the Press, 1947

-William E. Hocking

Jul 28th, 2015 Interesting Quotes in History

McLane Foodservice to Pay $40,000 to Settle EEOC Disability Discrimination Lawsuit

Food Supplier Refused to Hire Applicant on the Basis of Disability, Federal Agency Charged

MEMPHIS, Tenn. – McLane Foodservice, Inc., which supplies foodservice deliveries to fast-food chain restaurants, has agreed to pay $40,000 to settle a disability discrimination lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced today.

According to EEOC’s suit, McLane violated the Americans with Disabilities Act (ADA) by refusing to hire an applicant because it regarded him as disabled and because the applicant had a record of a disability, having had heatstroke and renal failure.

Such alleged conduct violates Title I of the ADA. EEOC filed suit (EEOC v. McLane Foodservice, Inc., Civil Action No. 2:15-cv-02261) in U.S. District Court for the Western District of Tennessee, Western Division, after first attempting to reach a pre-litigation settlement through its conciliation process.

Besides the $40,000 in monetary relief, the two-year consent decree settling the lawsuit enjoins McLane from refusing to hire applicants because of a disability in the future. The decree also requires McLane to provide training on disability discrimination in the workplace, maintain records of any complaints of disability discrimination, and provide annual reports to EEOC.

“Refusing to hire someone simply because the employer perceives a disability or because the individual has a record of a disability is a violation of federal law,” said Faye A. Williams, regional attorney of EEOC’s Memphis District Office, which has jurisdiction over Arkansas, Tennessee and portions of Mississippi. “EEOC remains committed to vigilantly enforcing the ADA.”

According to company information, McLane is a large-scale supplier to fast-food restaurant chains. Headquartered in Carrollton, Texas, McLane has over 18 distribution centers nationwide.

EEOC enforces federal laws prohibiting employment discrimination. Further information about EEOC is available on its web site at www.eeoc.gov

Jul 27th, 2015 Employment Law Defense

Election Of Employee Benefit Plan Waived And Released Right To Recovery From Employer For Negligence–Texas Nonsubscriber Lawyers

TEXAS NONSUBSCRIBER LAW
Election Of Employee Benefit Plan Waived And Released Right To Recovery From Employer For Negligence
Lawrence v. CDB Services, 1999 WL 807626 (Tex. App. – Amarillo) October 11, 1999
Lawrence sued CDB, his employer, for injury allegedly caused by CDB negligence.
The Amarillo Court of Appeals affirmed summary judgment in CDB’s favor. Lawrence had elected to participate in an employee benefit plan prior to his injury, and his written election waived and released his right to sue.

Jul 27th, 2015 Nonsubscriber Law

Claimant Waived His Right To Litigate A Timely Controversion Issue–Texas Workers’ Compensation Defense Attorneys

Claimant Waived His Right To Litigate A Timely Controversion Issue
APPEAL 950140 – MARCH 9, 1995
The Claimant litigated a course and scope issue relating to a 1991 injury through the dispute resolution procedure and lost. Thereafter, he raised the issue of whether there had been a timely controversion. The AP stated that the TWCC had jurisdiction to make a determination on the timeliness and sufficiency of the Carrier’s contest of compensability even though the AP had already decided that the claim was not compensable. The AP also stated, however, that the Claimant had waived his right to raise the issue.
The AP referred to Appeal 941333 in which it held that an issue of extent of injury was waived when the issue of impairment rating had already been determined. The AP stated that an issue of timely dispute of compensability may not be raised later without the consent of the parties if it was not raised at the BRC. Because of this, it would be incongruous to hold that the issue may be revived at a later proceeding. An issue of timely contest is closely linked with the issue of compensability. It is a threshold issue that should be determined at the same time as a compensability issue so that the claim can be processed in an orderly fashion. Different issues in the same case should not go separately through the dispute resolution process because the result might be conflicting determinations as to whether the Claimant is entitled to benefits.

Jul 27th, 2015 Workers' Compensation Defense

Employer Negligence In Lifting Injury/ Duty/ Forseeability/ Damages–Texas Nonsubscriber Lawyers

Employer Negligence In Lifting Injury/Duty/Forseeability/Damages
Brookshsire Brothers v. Lewis, 1999 WL 650786 (Tex. App. – Beaumont)
August 16, 1999

Plaintiff injured his back while working in a Brookshire Brothers Meat Department. The Beaumont Court of Appeals affirmed a damages award of $300,000 and stated:
1. The employer is not an insurer of its employee’s safety but does have a duty of ordinary care to provide a safe workplace.
2. The employer’s duty encompasses a duty to provide rules and regulations for safety, to furnish safe instrumentalities, and to select competent fellow servants.
3. These duties are non-delegable.
4. Proximate cause includes cause in fact and forseeability.
5. The test for cause in fact is whether the negligent act was a substantial factor in bringing about the injury and without which, the injury would not have occurred.
6. Cause in fact is not shown if the negligence only furnished a condition that made the injury possible.
7. An employer has an obligation to provide adequate help to do a task.
8. An employer is not liable if it provides adequate help but the employee proceeds with a task voluntarily when help is temporarily unavailable.
9. Comparative negligence not available to Employer.
10. No offset due the employer for other recovery by employee.

Jul 27th, 2015 Nonsubscriber Law

Even If Work Activities Caused The Injury, Plaintiff Must Show Injury Resulted From Employer Negligence To Recover–Texas Nonsubscriber Lawyers

TEXAS NON-SUBSCRIBER LAW
Even If Work Activities Caused The Injury, Plaintiff Must Show Injury Resulted From Employer Negligence To Recover
Excel Corp. v. Apodaca, 2002 WL 1379009 (Tex. 2002)
June 27, 2002
Apodaca filed suit against his employer for injuries he sustained in the course and scope of his employment. The jury ruled in Apodaca’s favor, and the court of appeals affirmed.
Apodaca offered evidence that Excel could have set up the machine he operated in a better manner that would have limited the chance of injury and instituted measures to diagnose cumulative trauma injuries early enough to reverse them with conservative care. This was supported by an OSHA study. The Supreme Court noted that Apodaca’s injuries did result from his work, bur ruled that there was no evidence that the injury resulted from the employer’s negligence. There was no medical evidence that established that Apodaca would not have been injured but for any negligent act by Excel. The court stated that the evidence does not show that had Excel modified the worksite or job requirements, or had it conducted symptoms surveys, Apodaca would not have suffered his injuries or they would have been diagnosed sooner and reversed using other treatments.

Jul 27th, 2015 Nonsubscriber Law

Employer May Not Assert Contributory Negligence But May Assert A Sole Cause Defense–Texas Nonsubscriber Lawyers

TEXAS NONSUBSCRIBER LAW
Employer May Not Assert Contributory Negligence But May Assert A Sole Cause Defense
Skiles v. Jack In The Box, Inc., 2005 Tex.App.Lexis 5305 (Tex.App.-Dallas 2005)
July 7, 2005
Skiles appealed a finding that his own negligence was the sole proximate cause of his injuries. The court stated that although a nonsubscriber may not assert a defense of contributory negligence, it may offer evidence establishing that the employee’s conduct was the sole proximate cause of the injury.

Jul 27th, 2015 Nonsubscriber Law

Proximate Cause And Foreseeability in Texas Nonsubscriber Law

TEXAS NON-SUBSCRIBER LAW
Proximate Cause And Foreseeability in Texas Nonsubscriber Law
Allsups Convenience Stores v. Warren, 934 S.W.2d 433 (Tex.App-Amarillo 1996, no writ)
A store manager injured her back while unloading a truck. She had arranged to have another employee unload the truck, but that employee failed to show up for work and the manager could not find another employee to assist her in unloading the truck. The manager alleged that the nonsubscriber was negligent in failing to provide her with assistance, failing to properly train her on lifting, and failure to provide her with a back brace or belt. The Court of Appeals reversed the jury’s finding of negligence.
The Court held that the employee failed to present evidence that the employer was negligent. The Court stated that the employer had no duty to make sure that an employee appeared for work as scheduled. The Court further stated that the employee did not provide any evidence that the employer did not provide proper training. The employee’s “bald conclusions” that the employer did not properly train her in lifting heavy items did not, without more, satisfy the employee’s burden to provide factual proof of the training the employer negligently failed to provide.
The Court noted that the employee had unloaded trucks in the past, that the employee never requested a back brace or belt and never complained that the unloading of the truck on past occasions was unsafe. The Court also noted that the employee failed to show that use of a back brace was common in the industry or was industry standard or that a reasonably prudent employer would have provided a back brace. The Court concluded that because the evidence showed that unloading of the trucks could be performed in the usual and proper way in safety without a protective back brace or safety belt, there was no evidence that the employer was under a duty to provide the employee with a back brace, and the employee failed to present any medical evidence that a back brace would have prevented the employee’s injury.

Jul 27th, 2015 Nonsubscriber Law

Employee Phone Calls and Personal Comfort Doctrine–Texas Workers’ Compensation Defense Attorneys

PERSONAL COMFORT AND CONVENIENCE
Does It Apply When An Employee Makes A Personal Phone Call?
Yeldell v. Holiday Hills Retirement And Nursing Center, Inc., 701 S.W.2d 243 (Tex. 1985), December 11, 1985
During Yeldell’s regular shift and while at her duty station, she called her daughter. As she hung up the telephone, the cord became entangled with a coffee urn that overturned and spilled on her, resulting in serious burns.
Holiday Hills contended that the personal telephone call was a deviation which took Yeldell out of the course and scope of her employment.
The court found that an employee need not have been engaged in the discharge of any specific duty incident to his employment; rather, an employee in the course of his employment may perform acts of a personal nature that a person might reasonably do for his health and comfort, such as quenching thirst or relieving hunger; such acts are considered incidental to the employee’s service and the injuries sustained while doing so arise in the course and scope of his employment and are compensable. Making a personal telephone call during working hours may be as essential as a rest period or a refreshment break. In particular, a parent’s telephone call to a minor child at bedtime is as reasonably necessary to a workers’ well-being as quenching one’s thirst or relieving hunger.

Jul 27th, 2015 Workers' Compensation Defense