TDI Information for Texas Workers’ Compensation Non-Subscribers–Fort Worth, Texas Non Subscriber Attorneys

 

Workers’ compensation is a state-regulated insurance system that ensures medical bills and some lost wages are paid for employees injured on the job. Texas does not require most private employers to have workers’ compensation insurance coverage. Employers not providing workers’ compensation insurance coverage are referred to as non-subscribers.
Non-subscribers lose important legal protections, including immunity from most lawsuits by injured employees. They could also be forced to pay high damage awards if an injured employee can prove in court that the employer was negligent in any way.

If an employer has workers’ compensation insurance coverage, Texas law limits the employer’s liability for work-related injuries. Injured employees may get medical and income benefits set by state law, but generally may not sue their employers.

Texas law requires all employers, with or without workers’ compensation insurance coverage, to comply with reporting and notification requirements under the Texas Workers’ Compensation Act.

Non-subscribers must report that they elect not to obtain workers’ compensation insurance coverage to the Division of Workers’ Compensation (DWC) each year by submitting a DWC Form-005, Employer Notice of No Coverage or Termination of Coverage.

Non-subscribers with five or more employees must report each work-related fatality, occupational disease, and injury that results in more than one day of lost time to the DWC by submitting a DWC Form-007,Employer’s Report of Non-covered Employee’s Occupational Injury or Disease.

Workers’ Compensation Insurance Coverage

When an employer purchases a workers’ compensation policy or is certified to self-insure, the insurance company (or a third-party administrator in the case of self-insurance) pays medical and income benefits. Employers who choose to provide workers’ compensation insurance coverage must do so in one of the following ways:

  • buy a workers’ compensation insurance policy from an insurance company licensed by the Texas Department of Insurance (TDI);
  • be certified by the DWC to self-insure workers’ compensation claims;
  • join a self-insurance group that has received a certificate of approval from TDI; or
  • be a self-insured governmental entity.

Liability Limits for Workers’ Compensation Subscribers

For employers that provide workers’ compensation insurance coverage, Texas law limits the employer’s liability for work-related injuries of employees. Non-subscribers are not given these legal protections. This means that if an injured employee files suit and is able to prove that the injury was due to the employer’s negligence, the non-subscriber could be subject to high damage awards, including punitive damages and damages for pain and suffering. The employer might also be required to pay defense-related legal expenses, such as attorneys’ fees.

Non-subscribers also lose certain common-law defenses, including:

  • the injured employee’s negligence caused the injury;
  • the negligence of fellow employees caused the injury; or
  • the injured employee knew of the danger and voluntarily accepted it.

Employee Benefits

Employees covered by workers’ compensation insurance coverage receive benefits based on the type and severity of their injuries. Benefits can include:

  • medical benefits for medically necessary treatment of work-related injuries and illnesses;
  • disability income benefits for a specified period of time up to a certain dollar limit set by law;
  • compensation for burial expenses for employees killed on the job;
  • death benefits for dependents of employees killed on the job.

If there is a workers’ compensation claim for benefits, an employee’s family may be entitled to additional benefits if the employee is killed and the death was caused by the employer’s gross negligence or intentional act or omission.

Alternative Coverages are Not Substitutes for Workers’ Compensation Insurance Coverage

Some employers buy accident and health insurance policies or disability policies or create employer indemnification agreements as less costly alternatives to workers’ compensation insurance coverage. Even though these policies may provide benefits to an injured employee, Texas law does not recognize them as substitutes for workers’ compensation insurance coverage. TDI rules prohibit insurance companies from representing that alternative coverages are substitutes for workers’ compensation insurance coverage.

Unlike workers’ compensation insurance coverage, alternative coverages typically have specific policy limits on medical benefits for each covered employee. In addition, alternative coverages usually have shorter maximum payment periods than those provided by Texas workers’ compensation laws.

Employers that buy alternative coverages do not have workers’ compensation liability protections. They may be sued by their injured employees and lose their right to use key common-law defenses in the suit. Moreover, many alternative coverages do not provide coverage for judgments for pain and suffering, punitive damages, and attorneys’ fees.

Unlicensed Companies Providing Workers’ Compensation Insurance

A company must be licensed to provide workers’ compensation insurance. Texas law does not recognize insurance policies sold by unlicensed companies, including those legally selling surplus lines insurance. Surplus lines insurance provides coverage for unusual risks that most licensed companies are unwilling to insure. Companies and agents that sell this kind of insurance must be licensed in their home state or country and authorized to sell surplus lines insurance in Texas.

Employers purchasing workers’ compensation insurance from unlicensed companies do not have the liability protections provided to employers purchasing policies from licensed companies. They may be sued by their injured employees and lose their right to use key common-law defenses in the suit. Moreover, unlicensed companies do not provide coverage for judgments for pain and suffering, punitive damages, and attorneys’ fees.

The Texas Property and Casualty Insurance Guaranty Association, which pays policyholder claims against licensed insurance companies that become insolvent, does not cover unlicensed companies. Claims against unlicensed companies will likely go unpaid if the company becomes insolvent. To find out if a company is licensed, call TDI’s Consumer Help Line at 1-800-252-3439 or 512-676-6282 in Austin between 8 a.m. and 5 p.m., or by viewing company profiles on our website at http://www.tdi.texas.gov.

Coverage Comparison
Workers´ Compensation “Alternative” Policy (Employee Retirement Income Security Act (ERISA) Plan) Unauthorized Insurance Policy/Surplus Lines No Coverage
What determines benefit levels? Texas law Court/Alternate dispute resolution Court/Alternate dispute resolution Court
Who pays medical and lost-income benefits? Insurance company Insurance company up to policy limits; employer pays rest Depends on the policy Employer
Who pays employer’s legal fees? Insurance company Governed by the policy terms Governed by the policy terms Employer
Are benefits protected by a guaranty association? Yes Limited No No
Can an injured employee win judgments for pain and suffering and punitive damages? No, except in certain circumstances Yes, up to certain limits Yes, up to certain limits Yes, up to certain limits

Note: Policy terms in unlicensed policies may be unenforceable.

For More Information or Assistance

For answers to general insurance questions, for information about filing an insurance-related complaint, or to report suspected insurance fraud, call the Consumer Help Line at 1-800-252-3439 or 512-676-6282 in Austin between 8 a.m. and 5 p.m., Central time, Monday through Friday, or visit our website athttp://www.tdi.texas.gov.

This publication is a summary and is presented for information purposes only. It is not a substitute for current Texas laws or DWC rules. For current information, view our website or call Customer Assistance at 1-800-252-7031. This publication is not an endorsement by DWC of any service, product, or company.

For more information contact: Public.Information@tdi.texas.gov

See https://www.tdi.state.tx.us/wc/employer/cb007.html

 

As always, it is important to contact a knowledgeable and experienced Texas non subscriber law defense attorney to help you understand your rights as an Employer. James L. Williams of Williams, McClure & Parmelee in Fort Worth, Texas is a veteran employment law and workers’ compensation defense attorney who protects the rights of businesses in Texas employment law and non subscriber cases.

 

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 office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.

Martindale AVtexas[2]

Wages and Hours Worked: Minimum Wage and Overtime Pay–Fort Worth, Texas Employment Attorneys

Employers and the Fair Labor Standards Act (FLSA)

Who is Covered
The Fair Labor Standards Act (FLSA) is administered by the Wage and Hour Division (WHD). The Act establishes standards for minimum wages, overtime pay, recordkeeping, and child labor. These standards affect more than 130 million workers, both full‑time and part‑time, in the private and public sectors.

The Act applies to enterprises with employees who engage in interstate commerce, produce goods for interstate commerce, or handle, sell, or work on goods or materials that have been moved in or produced for interstate commerce. For most firms, a test of not less than $500,000 in annual dollar volume of business applies (i.e., the Act does not cover enterprises with less than this amount of business).

However, the Act does cover the following regardless of their dollar volume of business: hospitals; institutions primarily engaged in the care of the sick, aged, mentally ill, or disabled who reside on the premises; schools for children who are mentally or physically disabled or gifted; preschools, elementary and secondary schools, and institutions of higher education; and federal, state, and local government agencies.

Employees of firms that do not meet the $500,000 annual dollar volume test may be covered in any workweek when they are individually engaged in interstate commerce, the production of goods for interstate commerce, or an activity that is closely related and directly essential to the production of such goods.

In addition, the Act covers domestic service workers, such as day workers, housekeepers, chauffeurs, cooks, or full‑time babysitters, if they receive at least $1,700 in 2009 in cash wages from one employer in a calendar year, or if they work a total of more than eight hours a week for one or more employers. (This calendar year threshold is adjusted by the Social Security Administration each year.) For additional coverage information, see the Wage and Hour Division Fact Sheet #14: Coverage Under the FLSA.

The Act exempts some employees from its overtime pay and minimum wage provisions, and it also exempts certain employees from the overtime pay provisions only. Because the exemptions are narrowly defined, employers should check the exact terms and conditions for each by contacting their local Wage and Hour Division office.

The following are examples of employees exempt from both the minimum wage and overtime pay requirements:

Executive, administrative, and professional employees (including teachers and academic administrative personnel in elementary and secondary schools), outside sales employees, and certain skilled computer professionals (as defined in the Department of Labor’s regulations) 1
Employees of certain seasonal amusement or recreational establishments
Employees of certain small newspapers and switchboard operators of small telephone companies
Seamen employed on foreign vessels
Employees engaged in fishing operations
Employees engaged in newspaper delivery
Farm workers employed on small farms (i.e., those that used less than 500 “man‑days” of farm labor in any calendar quarter of the preceding calendar year)
Casual babysitters and persons employed as companions to the elderly or infirm
The following are examples of employees exempt from the overtime pay requirements only:

Certain commissioned employees of retail or service establishments
Auto, truck, trailer, farm implement, boat, or aircraft salespersons employed by non‑manufacturing establishments primarily engaged in selling these items to ultimate purchasers
Auto, truck, or farm implement parts‑clerks and mechanics employed by non-manufacturing establishments primarily engaged in selling these items to ultimate purchasers
Railroad and air carrier employees, taxi drivers, certain employees of motor carriers, seamen on American vessels, and local delivery employees paid on approved trip rate plans
Announcers, news editors, and chief engineers of certain non‑metropolitan broadcasting stations
Domestic service workers who reside in their employers’ residences
Employees of motion picture theaters
Farmworkers
Certain employees may be partially exempt from the overtime pay requirements. These include:

Employees engaged in certain operations on agricultural commodities and employees of certain bulk petroleum distributors
Employees of hospitals and residential care establishments that have agreements with the employees that they will work 14‑day periods in lieu of 7‑day workweeks (if the employees are paid overtime premium pay within the requirements of the Act for all hours worked over eight in a day or 80 in the 14‑day work period, whichever is the greater number of overtime hours)
Employees who lack a high school diploma, or who have not completed the eighth grade, who spend part of their workweeks in remedial reading or training in other basic skills that are not job specific. Employers may require such employees to engage in these activities up to 10 hours in a workweek. Employers must pay normal wages for the hours spent in such training but need not pay overtime premium pay for training hours

Basic Provisions/Requirements
The Act requires employers of covered employees who are not otherwise exempt to pay these employees a minimum wage of not less than $7.25 per hour effective July 24, 2009. Youths under 20 years of age may be paid a minimum wage of not less than $4.25 an hour during the first 90 consecutive calendar days of employment with an employer. Employers may not displace any employee to hire someone at the youth minimum wage. For additional information regarding the use of the youth minimum wage provisions, see the Wage and Hour Division Fact Sheet #32: Youth Minimum Wage – FLSA.

Employers may pay employees on a piece‑rate basis, as long as they receive at least the equivalent of the required minimum hourly wage rate and overtime for hours worked in excess of 40 hours in a workweek. Employers of tipped employees (i.e., those who customarily and regularly receive more than $30 a month in tips) may consider such tips as part of their wages, but employers must pay a direct wage of at least $2.13 per hour if they claim a tip credit. They must also meet certain other requirements. For a full listing of the requirements an employer must meet to use the tip credit provision, see the Wage and Hour Division Fact Sheet #15: Tipped Employees Under the FLSA.
The Act also permits the employment of certain individuals at wage rates below the statutory minimum wage under certificates issued by the Department of Labor:

Student learners (vocational education students);
Full‑time students in retail or service establishments, agriculture, or institutions of higher education; and
Individuals whose earning or productive capacities for the work to be performed are impaired by physical or mental disabilities, including those related to age or injury.
The Act does not limit either the number of hours in a day or the number of days in a week that an employer may require an employee to work, as long as the employee is at least 16 years old. Similarly, the Act does not limit the number of hours of overtime that may be scheduled. However, the Act requires employers to pay covered employees not less than one and one‑half times their regular rate of pay for all hours worked in excess of 40 in a workweek, unless the employees are otherwise exempt. For additional information regarding overtime pay requirements, see the Wage and Hour Division Fact Sheet #23: Overtime Pay Requirements of the FLSA.
The Act prohibits performance of certain types of work in an employee’s home unless the employer has obtained prior certification from the Department of Labor. Restrictions apply in the manufacture of knitted outerwear, gloves and mittens, buttons and buckles, handkerchiefs, embroideries, and jewelry (where safety and health hazards are not involved). Employers wishing to employ homeworkers in these industries are required to provide written assurances to the Department of Labor that they will comply with the Act’s wage and hour requirements, among other things.

The Act generally prohibits manufacture of women’s apparel (and jewelry under hazardous conditions) in the home except under special certificates that may be issued when the employee cannot adjust to factory work because of age or disability (physical or mental), or must care for a disabled individual in the home.

Special wage and hour provisions apply to state and local government employment. For these special provisions, see the Wage and Hour Division Fact Sheet #7: State and Local Governments Under the FLSA.
Employee Rights
Employees may find out how to file a complaint by contacting the local Wage and Hour Division office, or by calling the program’s toll-free help line at 1-866-4USWAGE (1-866-487-9243). In addition, an employee may file a private suit, generally for the previous two years of back pay (three years in the case of a willful violation) and an equal amount as liquidated damages, plus attorney’s fees and court costs.

It is a violation of the Act to fire or in any other manner discriminate against an employee for filing a complaint or for participating in a legal proceeding under the Act.

Recordkeeping, Reporting, Notices and Posters

Notices and Posters

Every employer of employees subject to the FLSA’s minimum wage provisions must post, and keep posted, a notice explaining the Act in a conspicuous place in all of their establishments. Although there is no size requirement for the poster, employees must be able to readily read it. The FLSA poster is also available in Spanish, Chinese, Russian, Thai, Hmong, Vietnamese, and Korean. There is no requirement to post the poster in languages other than English.

Covered employers are required to post the general Fair Labor Standards Act poster; however, certain industries have posters designed specifically for them. Employers of Agricultural Employees (PDF) and State & Local Government Employees (PDF) can either post the general Fair Labor Standards Act poster or their specific industry poster. There are also posters for American Samoa (PDF) and Northern Mariana Islands (PDF).

Every employer who employs workers with disabilities under special minimum wage certificates is also required to post the Employee Rights for Workers with Disabilities/Special Minimum Wage Poster.

Recordkeeping

Every employer covered by the FLSA must keep certain records for each covered, nonexempt worker. Employers must keep records on wages, hours, and other information as set forth in the Department of Labor’s regulations. Most of this data is the type that employers generally maintain in ordinary business practice.

There is no required form for the records. However, the records must include accurate information about the employee and data about the hours worked and the wages earned. The following is a listing of the basic payroll records that an employer must maintain:

Employee’s full name, as used for Social Security purposes, and on the same record, the employee’s identifying symbol or number if such is used in place of name on any time, work, or payroll records
Address, including zip code
Birth date, if younger than 19
Sex and occupation
Time and day of week when employee’s workweek begins
Hours worked each day and total hours worked each workweek
Basis on which employee’s wages are paid (e.g., “$9 per hour”, “$440 a week”, “piecework”)
Regular hourly pay rate
Total daily or weekly straight-time earnings
Total overtime earnings for the workweek
All additions to or deductions from the employee’s wages
Total wages paid each pay period
Date of payment and the pay period covered by the payment
For a full listing of the basic records that an employer must maintain, see the Wage and Hour Division Fact Sheet #21: Recordkeeping Requirements Under the FLSA. Employers are required to preserve for at least three years payroll records, collective bargaining agreements, and sales and purchase records. Records on which wage computations are based should be retained for two years. These include time cards and piecework tickets, wage rate tables, work and time schedules, and records of additions to or deductions from wages.

Reporting

The FLSA does not contain any specific reporting requirements; however, the above referenced records must be open for inspection by the Wage and Hour Division’s representatives, who may ask the employer to make extensions, computations, or transcriptions. The records may be kept at the place of employment or in a central records office.

Penalties/Sanctions
The Department of Labor uses a variety of remedies to enforce compliance with the Act’s requirements. When Wage and Hour Division investigators encounter violations, they recommend changes in employment practices to bring the employer into compliance, and they request the payment of any back wages due to employees.

Willful violators may be prosecuted criminally and fined up to $10,000. A second conviction may result in imprisonment. Employers who willfully or repeatedly violate the minimum wage or overtime pay requirements are subject to civil money penalties of up to $1,100 per violation.

For child labor violations, employers are subject to a civil money penalty of up to $11,000 per worker for each violation of the child labor provisions. In addition, employers are subject to a civil money penalty of $50,000 for each violation occurring after May 21, 2008 that causes the death or serious injury of any minor employee – such penalty may be doubled, up to $100,000, when the violations are determined to be willful or repeated.

When the Department of Labor assesses a civil money penalty, the employer has the right to file an exception to the determination within 15 days of receipt of the notice. If an exception is filed, it is referred to an Administrative Law Judge for a hearing and determination as to whether the penalty is appropriate. If an exception is not filed, the penalty becomes final.

The Department of Labor may also bring suit for back pay and an equal amount in liquidated damages, and it may obtain injunctions to restrain persons from violating the Act.

The Act also prohibits the shipment of goods in interstate commerce that were produced in violation of the minimum wage, overtime pay, child labor, or special minimum wage provisions.

 

See http://www.dol.gov/compliance/guide/minwage.htm

As always, it is important to contact a knowledgeable and experienced Texas employment law defense attorney to help you understand your rights as an Employer. James L. Williams of Williams, McClure & Parmelee in Fort Worth, Texas is a veteran employment law defense attorney who protects the rights of businesses in Texas employment law cases, with respect to both state and federal law.

 

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 office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.

Martindale AVtexas[2]

 

How to Appeal an Unemployment Claim Decision – For Texas Employers–Fort Worth, Texas Employment Defense Attorneys

Establishing Appeal Rights for the Employer
You have the right to appeal a decision only if you have established yourself as an interested party.
If you were the last person or company for whom a claimant worked before applying for unemployment benefits, TWC will mail you a Notice of Application for Unemployment Benefits. You must respond to that notice within 14 days to become an interested party in the claim and preserve your right to appeal a determination. For more information, see the Introduction to Unemployment Benefits Appeals for Employers. To respond online, use Unemployment Benefits Employer Response to Notice of Application.

How to Appeal a Determination
These instructions are for the first step in the appeals process, which is an appeal to the Appeal Tribunal. The first step is to appeal in writing to TWC.
You must appeal in writing within 14 calendar days from the date that we mail you the Determination Notice. The date mailed is located on the top of the Determination Notice form, and the last day you can file an appeal is at the bottom of the form. If the fourteenth day falls on a federal or state holiday, you have until the next business day to file your appeal.
You can submit your written appeal online, in person at your Workforce Solutions office, or by mailing or faxing your appeal letter to the Appeals Department at the address or fax number on your Determination Notice. You cannot submit an appeal by email or over the telephone. If you choose to fax the information, keep the paperwork that indicates successful transmission of your appeal.
Include in your letter or appeal form:
The claimant’s name and Social Security number
Your name
Your TWC Tax account number
Your current address
The date TWC mailed you the Determination Notice
A copy of the Determination Notice, if possible
Any dates on which you will not be able to participate in a hearing
Keep a copy of your appeal for your records.

Accommodations for Your Hearing

Inform the TWC as early as possible if you need accommodations for the appeal hearing in any of the following areas:
If you or your witnesses need interpreters – include needed languages
If you or your witnesses have a hearing impairment
If you need access to a telephone or fax machine
Appeal Hearing Notification Details
It may take six to eight weeks to receive a hearing information packet with information about your appeal. TWC will mail you the packet five to 10 days before your hearing.
The hearing information packet includes:
The Notice of Telephone Hearing, which includes the date and time of hearing, the telephone number to call for the hearing, and the name and contact information of the Hearing Officer assigned to the hearing
Instructions on how to participate in the hearing
Instructions on how to submit any additional documents
The information TWC received in response to the claim
All fact-finding statements TWC gathered while investigating the issue(s) on appeal
Any protests to the claim
The claim issues up for discussion

Motion for Rehearing

You may request a rehearing within 14 days of the date TWC mailed you the Commission decision. TWC will grant the Motion for Rehearing only if you can show these three things:

Important new information about your case
A compelling reason why you did not present this information earlier
Why you think this information could change the outcome of your case
You can submit your written Motion for Rehearing online, in person at your Workforce Solutions office, or by mailing or faxing your letter to Commission Appeals at the address or fax number in the instructions included with your Commission decision. You cannot file a Motion for Rehearing by email or telephone. If you choose to fax the information, keep the paperwork that indicates successful transmission of your Motion for Rehearing.

Appeal to a Civil Court
You may appeal to a civil court between 15 and 28 days after the date TWC mailed you the Commission decision. You must have completed all the appeal steps available through TWC, except the optional Motion for Rehearing, before appealing to a civil court. The instructions for submitting an appeal to a civil court are included with the Commission decision.
If you ask for a rehearing and the Commissioners deny it, you can still appeal that decision to a civil court.

See http://www.twc.state.tx.us/businesses/how-appeal-decision-employers
As always, it is important to contact a knowledgeable and experienced Texas employment law defense attorney to help guide you through this process, and to help you understand your rights as an Employer.

 

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 office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.

Martindale AVtexas[2]

Jim Williams Receives Plaque Recognizing AV® Preeminent™ Rating by Martindale-Hubbell®

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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 office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.

Martindale AVtexas[2]

 

ATTORNEY JAMES L. WILLIAMS AWARDED AV® Preeminent™ Rating–Fort Worth, Texas Civil Litigation Attorneys

Williams, McClure & Parmelee
Press Release Fort Worth
April 21, 2015

Williams, McClure & Parmelee is pleased to announce that James L. Williams has been awarded the AV® Preeminent™ Rating by Martindale-Hubbell®, the country’s leading legal directory. He achieved the highest possible rating (5.0 out of 5.0). The rating is awarded to less than five percent of all attorneys across the United States. This designation is a widely respected mark of achievement. The Martindale-Hubbell® Peer Review Ratings™ are an objective indicator of an attorney’s high ethical standards and professional ability, generated from evaluations of attorneys by other members of the bar and the judiciary. The rating is the highest possible rating given by LexisNexis Martindale, and is established on a peer-review basis. It signifies that Mr. Williams has been rated as having the best possible scores for legal abilities and ethical standards. It is a nationally-recognized acknowledgment of an attorney’s accomplishments and skills, and is known to position him among the elite practitioners in the country.

Mr. Williams commented, “It is a tremendous honor to be peer reviewed by judges and other attorneys for this kind of recognition. It is truly an achievement that belongs as much to me as to my great teammates at the firm who I have been fortunate enough to work with over the years.”

In addition to attaining AV® Preeminent™ status, Mr. Williams has also been recently named as one of Tarrant County’s Top Lawyers in Fort Worth Magazine.

He has also been awarded a  “Superb” Rating by AVVO (a perfect score of 10.0 out of 10.0), a Top Attorney rating calculated using a mathematical model that evaluates relevant data in an attorney’s profile, including experience, disciplinary history, professional achievements, client reviews, peer reviews and industry recognition .The rating system periodically collects background data from multiple sources, including state bar associations, court records, websites, and other information, and is considered a premier consumer dedicated attorney rating system.

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

www.texasdefensecounsel.com

 

 

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 office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.

Martindale AVtexas[2]

 

 

 

Fort Worth Magazine Top Attorney Awards–Fort Worth, Texas Civil Litigation Attorneys

Congratulations to Jim Williams and Jeff Lacy for being named to Fort Worth Magazine’s Top Attorney List for 2014. They will be attending a Reception honoring the selected attorneys at the Fort Worth Club on November 20th.

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 office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.

Martindale AVtexas[2]

Texas Supreme Court Addresses Subrogation Rights of Workers’ Comp Insurers in Death Cases–Texas Subrogation Attorneys

The Texas Supreme Court in a June 20, 2014 decision called State Office of Risk Management v. Carty, 2014 WL 2790810 (Tex. 2014), addressed how a workers’ compensation carrier’s future credit is calculated when more than one death beneficiary is involved in the case.

As background, in Texas, an insurance company that has paid workers’ compensation benefits to a legal beneficiary of an employee has subrogation rights that attach to a beneficiary’s claims against a 3rd party. Tex. Lab. Code § 417.001-.002 (2006). The Texas Workers’ Compensation Act defines the term “legal beneficiary” as meaning a person who is entitled to receive a death benefit under the Act. Tex. Lab. Code § 401.011(29). The workers’ compensation carrier has a right of reimbursement from the first monies paid by the 3rd party tortfeasor, whether by settlement or pursuant to judgment. Texas Mut. Ins. Co. v. Ledbetter, 251 S.W.3d 31 (Tex. 2008).

“That portion of an award or settlement which represents a workers’ compensation beneficiary’s interest”, is what a carrier’s rights are limited to. If there is a settlement that involves beneficiaries and non-beneficiaries, monies must first be allocated to each before the extent of the carrier’s rights under § 417.002 can be determined. It is important to note that a carrier has no right to any part of the distribution of a 3rd party recovery that represents a non-beneficiary’s interest. U.S. Fire Ins. Co. v. Hernandez, 918 S.W.2d 576 (Tex. App. – Corpus Christi, 1996, writ denied).

With this legal back drop, in the Carty case, the 5th Circuit had posed this question to the Supreme Court: How should a workers’ compensation carrier’s right under § 417.002 to treat a recovery as an advance of future benefits be calculated in a case involving multiple beneficiaries? Should the carrier’s right be determined on a beneficiary-by-beneficiary basis or on a collective-recovery basis?

The Court stated that in such a scenario the carrier recovers its past lien off the top any time there are multiple beneficiaries involved. The net amount recovered by a claimant should be used to reimburse the carrier for past benefits paid. With respect to future benefits, the insurance carrier’s right to claim credit is premised on the concept that a carrier is entitled to recover first money and the advance of any future benefits in a case involving several beneficiaries must be determined on a collective-recovery basis. Consequently, the future benefits credit is not determined on a beneficiary by beneficiary basis, but must be looked at as a whole.

When the apportionment of a settlement has an effect on an insurance carrier’s reimbursement rights, a court should apportion the monies based upon the relative value and merit of the various claims involved. The court cannot do so in a way that circumvents the carrier’s subrogation rights. Texas Workers’ Comp. Ins. Fund v. Travis, 912 S.W.2d 895 (Tex. Civ. App. – Fort Worth, 1995, no writ).

Language from the Ledbetter case reflects the strength of a carrier’s position in a workers’ compensation subrogation matter in Texas courts generally:
When an injured worker settles a case without reimbursing a compensation carrier, everyone involved is liable to the carrier for conversion – the plaintiffs, the plaintiffs’ attorney, and the defendants. As between those parties, we have held that generally those who received the funds unlawfully (the plaintiffs and their attorney) should disgorge them rather than making the tortfeasors pay twice. Ledbetter, supra.

It is expected that the new Supreme Court decision in Carty will be interpreted as a more clear definition of a workers’ compensation carrier’s rights under § 417.002 of The Texas Labor Code. Combined with the “club” that the “conversion” cause of action provides as reflected in Ledbetter, the Carty decision now arms insurance carriers with more clarity to go with the “club”.

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 office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.

Martindale AVtexas[2]

Wait a Second… Didn’t you Sign a Release of This Employment Discrimination Claim?!?–Texas Employment Attorneys

It’s very common for employers, when terminating an employee, to pay a sum of money (usually termed “severance”) in exchange for the former employee’s release of any legal claim related to the employment relationship. Often times the terminated employee is satisfied with the “severance” payment and everyone goes on with their lives.

However, there are other times when the terminated employee is not satisfied with the way things ended with its former employer. Maybe the “severance” was not enough, or maybe the employee felt that he was terminated for an unlawful reason. This is when the employer really needs that release it paid for to be enforceable.

The problem is, many of them are not. Employment law can be very technical and as a result innocent mistakes are frequently made. Does the release provide the employee with an opportunity to review the terms with independent counsel? Does it use clear and specific language to address the type of claims being waived? Does it require the employee to acknowledge that he is receiving fair compensation in return for his signature on the release?

If the answer is no to any of these questions there is a possibility that the employee will be permitted to pursue legal action despite that fact that he signed a release. The good news is that with the help of an experienced employment lawyer problems in release documents can be easily corrected.

 

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 office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.

Martindale AVtexas[2]

Fire At-Will! …Only When Prepared to Face the Legal Consequences–Fort Worth, Texas Employment Attorneys

You have likely heard that Texas is an employment at-will state. This means that an employer may terminate an employee’s employment at any time, without notice. Furthermore, there is no requirement that the employer state a cause for the termination. This general rule makes it real easy for the employer who wishes to make a personnel change, right? Wrong!

For every rule there is an exception, and in the case of at-will employment, the exceptions have nearly swallowed the rule, making the decision to terminate an employee one of the more complex decisions that a business will consider.

Personnel decisions that are based (or appear to be based) on race, color, sex, religion, national origin, or age are often called into scrutiny by the disgruntled employee or job applicant. Similarly, the decision to terminate someone who has recently filed for workers’ compensation benefits or benefits under the Family Medical Leave Act can lead to claims of retaliation.

So, although Texas does technically allow termination without cause every employer needs to understand the various exceptions to the rule. Using policies and procedures that establish the employer’s expectations and the procedure for disciplining employees when those expectations are not met will go a long way in the effort to minimize employment disputes.

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 office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.

Martindale AVtexas[2]

The Role of the Appeals Panel in Texas Workers’ Compensation Cases–Texas Workers’ Compensation Defense Attorneys

We frequently handle Contested Case Hearings on behalf of our insurance company clients in Texas workers’ compensation cases. When we win at the CCH level, and the Claimant appeals, we work hard to convince the Appeals Panel to affirm the decision of the Hearing Officer. We often point out the following points of law in support of our position:

It is settled law that the Hearing Officer is the trier of fact and the sole judge of the relevance, materiality, weight and credibility of the evidence presented at the hearing. (Tex. Lab. Code Sec. 410.165(a); AP No. 990132). It is also well settled that the Hearing Officer can believe part or all of the testimony of a witness. (AP No. 972447). The Hearing Officer is the trier of fact and judges the credibility of each and every witness, the weight to assign to each witness= testimony and resolves conflicts and inconsistencies in the testimony. (Taylor v. Lewis 553 S.W.2d 153 (Tex. Civ. App. – Amarillo 1977, writ ref=d n.r.e.); AP No. 93426).

Equally true is the application by the Hearing Officer of the assignment of credibility and weight in the resolution of conflicts and inconsistencies as regards medical evidence. (Texas Employers Insurance Association v. Campos, 666 S.W.2d 286 (Tex. App. – Houston [14th Dis.] 1984, no writ.)). The trier of fact is not required to accept a Claimant=s testimony at face value, even if not specifically contradicted by other evidence. (Bullard v. Universal Underwriters Insurance Company, 609 S.W.2d 62 (Tex. Civ. App. – Amarillo 1980, no writ.)). The Hearing Officer may believe all, part or none of the testimony of any witnesses. (Aetna Insurance Company v. English, 204 S.W. 2d 850 (Tex. Civ. App. Fort Worth 1947, no writ.)).

An appeals level body is not a fact finder and does not normally pass upon the credibility of witnesses or substitute its own judgment for that of the trier of fact, even if the evidence could support a different result. (National Union Fire Insurance Company of Pittsburgh, Pennsylvania v. Soto, 819 S.W.2d 619, 620 (Tex. App. – El Paso 1991, writ denied)). The Appeals Panel has stated : “… we do not substitute our judgment for that of the Hearing Officer if there is some appropriate evidence supporting his factual determination, and it is not so against the great weight and preponderance of the evidence as to be clearly wrong and unjust.” (AP No. 92155; In Re Kings Estate, 150 Tex. 662, 244 S.W.2d 660 (1951); Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986)).

When the evidence in a case clearly supports the Hearing Officer’s Decision and Order, the Appeals Panel is supposed to affirm on any grounds available. See Daylin, Inc. v. Juarez, 766 S.W.2d 347 (Tex. App. – El Paso 1989, writ denied); Hernandez v. Hernandez, 611 S.W.2d 732 (Tex. Civ. App. – San Antonio 1981, no writ.).

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 office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.

Martindale AVtexas[2]