INJURY IN TEXAS WORKERS’ COMPENSATION DEFENSE CASE
Employer Takes Claimant As He Is When He Enters Employment / Aggravation Of Pre-existing Condition Is Compensable
Gill v. Transamerica Ins. Co., 417 S.W.2d 720 (Tex.App.-Dallas) June 23, 1967
Claimant with a prior spinal injury alleged a new injury while at work. The Carrier argued that he had an ordinary disease of life, spondylolisthesis, or that his injury was a continuation of a prior compensable injury. The trial court found for the claimant but awarded only about $700 total for disability and medical benefits, prompting the appeal on grounds of inadequacy and that the trial court failed to present instructions to jury regarding aggravation of a congenital defect or infirmity.
The appellate court found this was error and remanded because the failure to give proper instruction confused the jury and resulted in the inadequate award. The court stated that liability for a workers’ compensation claim cannot be defeated by showing that the employee was not a well person at the time of the injury. The employer accepts the employee as he is at the time he enters employment. In the event an injury aggravates or accelerates the effect of a pre-existing injury, disease or condition that made the worker more susceptible to such an injury, coverage may not be denied.
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.
TEXAS ATTORNEY FEES –WORKERS COMPENSATION LAW
Prevailing Party Is One Who Is Vindicated By The Trial Court’s Judgment
Insurance Company of the State of Pennsylvania v. Orosco, 2005 Tex.App.Lexis 3958 (Tex.App.-San Antonio 2005)
At issue in this case was whether the claimant sustained an injury in the course and scope of employment and whether the claimant timely reported his injury to his employer. The claimant alleged a repetitive trauma injury to his left hand due to typing. The TWCC HO and Appeals Panel determined that the claimant was injured in the course and scope of employment, but that he failed to timely report his injury to his employer. Therefore, he would not recover work comp benefits.
Following this decision, the claimant filed a new claim alleging repetitive trauma injury to the right hand. ICSP therefore filed suit in the original claim seeking a determination that the left hand injury was not work-related. This was done in part to protect itself against the new claim alleging a new injury out of the same cause as the underlying action. Presumably, a favorable finding in the trial court would preclude the new claim. ICSP was also concerned that failing to file suit would result in preclusion of its defenses to the new claim.
The appellate court determined that ICSP was not aggrieved by the decision of the Appeals Panel. ICSP had been relieved of liability by the Appeals Panel. Because it is not aggrieved, it has no standing to appeal the determination that the injury was sustained in the course and scope of employment.
Orosco was awarded attorney fees for prevailing in this action under Texas Labor Code §408.221. ICSP argued that Orosco did not “prevail.” The court noted that the Texas Labor Code does not define a “prevailing” party. However, case law indicates a prevailing party is one who is vindicated by the trial court’s judgment. Here, Claimant sought and obtained dismissal of the Insurance Carrier’s claim against him. Therefore, Claimant prevailed.
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.
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.
“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
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.
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
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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