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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.

Feb 17th, 2014 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.

Feb 17th, 2014 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.

(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:

good cause exists for failure to file a claim in a timely manner; or
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).

Feb 17th, 2014 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, 5^th 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.

Feb 17th, 2014 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

Feb 17th, 2014 Workers' Compensation Defense

The Analysis Provided to Designated Doctors Pursuant to Texas Labor Code §408.0041(c) and 28 Texas Administrative Code §127.10(a)(2) Cannot Include Legal Arguments and Directives–Texas Workers’ Compensation Defense Attorneys

On December 16, 2013, the Texas Department of Insurance, Division of Workers’ Compensation (DWC) reiterated an Initiative defining the character of the communications which may take place between participants and the Division appointed Designated Doctor.

The DWC has reminded workers’ compensation system participants that pursuant to Texas Labor Code §409.0041 and 28 Texas Administrative Code (TAC) §127.10, only the injured employee’s treating doctor and the insurance carrier may send the designated doctor an analysis.

This analysis may only cover the injured employee’s:

1. medical condition;

2. functional abilities; and

3. return-to-work opportunities.

The analysis may also include supporting information such as videotaped activities of the injured worker, as well as marked copies of the medical records, but may not include impermissible legal arguments and directives. The DWC has found that, in some cases, these improper analyses have misstated DWC rules and requirements regarding the designated doctor’s evaluation. Any impermissible analysis provided to the designated doctor, whether drafted by the insurance carrier, the treating doctor, or their agents constitutes improper communication with the designated doctor and may result in an enforcement action.

To emphasize this further, the DWC recently sent a copy of this clarifying initiative directly to the state’s designated doctors to reiterate the statutory and rule requirements [Texas Labor Code §408.0041(a)(1) and §408.123(a) and 28 TAC §130.1(b)(4) & (c)(3)].

Feb 17th, 2014 Workers' Compensation Defense

Attorneys’ Fees Recovery in Breach of Contract Claims in Texas–Fort Worth, Texas Contracts Law Attorneys

An issue that frequently arises in our commercial litigation and collection lawsuits in Texas is the question of entitlement to repayment of attorneys’ fees by the losing party. Sometimes there is no mention of attorneys’ fees in the contract, or even no written contract at all. The reality here in our Texas collection cases is that no written contract is needed to prevail on a claim for attorneys’ fees in a breach of contract action. Even in the absence of entitlement to attorneys’ fees under the contract, a Plaintiff can still recover attorneys’ fees as a prevailing party under the Texas Civil Practice and Remedy Code.

Section 38.001 of the Texas Civil Practice and Remedy Code provides that a person may recover reasonable attorney’s fees, in addition to the amount of a valid claim and costs, if the claim is for rendered services, performed labor, furnished materials, a suit on a sworn account or . . . an oral or written contract. Tex. Civ. Prac. & Rem. Code 38.001.

A party must (1) prevail on a cause of action for which attorney’s fees are recoverable, and (2) recover damages. Green Int’l, Inc. v. Solis, 951 S.W.2d 384, 390 (Tex. 1997).

The claimant must present the claim to the opposing party or to a duly authorized agent of the opposing party and payment for the just amount owed must not have been tendered before the expiration of the 30th day after the claim is presented. See Tex. Civ. Prac. & Rem. Code Ann. 38.002.

The prevailing party is the one vindicated by the judgment rendered. See Taylor Elec. Servs., Inc. v. Armstrong Elec. Supply Co., 167 S.W.3d 522, 532 (Tex. App.-Fort Worth 2005, no pet.). In determining the prevailing party, the focus is the successful party on the merits of the case. Id. A party can be the prevailing party entitled to attorney’s fees even where the amount recovered is offset by an amount awarded to the opposing party. Id. at 533 (citing Blizzard v. Nationwide Mut. Fire Ins. Co., 756 S.W.2d 801, 806 (Tex. App.-Dallas 1988, no writ)).

So, it makes sense for a lot of reasons to hire attorneys experienced in debt collection and breach of contract litigation in Texas cases. Recovery of attorneys’ fees is a win-win for the client too, and the right approach to attorney fee recovery can make all the difference.

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

Feb 17th, 2014 Collections and Foreign Judgments, Construction Law, Contracts and Commercial Litigation

Texas Venue Rules–Fort Worth, Texas Civil Litigation Attorneys

The “venue” of a lawsuit can potentially have a significant impact on insurance and business litigation. Venue is simply concerned with the proper place (which county) to litigate the lawsuit. In Texas state courts, the proper venue can be established in more than one county based on rules regarding venue. Typically, the plaintiff chooses where to file the lawsuit initially, but a defendant might have reasons to transfer the lawsuit to another venue. In some situations, the convenience of the parties might dictate that venue is proper in one particular county. There may also be a strategic advantage in transferring a lawsuit to another venue because some venues are more favorable to a defendant than others. Texas lays out three rules for determining venue: general venue rules, permissive venue rules, and mandatory venue rules. The mandatory venue rules override the general rules in certain suits while the permissive rules provide more venue options than the general rules.

Unless a mandatory or permissive provision applies, the general rules say that a lawsuit should be brought in either the county in which “all or a substantial part or part of the events or omissions giving rise to the claim occurred,” or the county in which the defendant resides (if the defendant is a “natural born person”), or in the county of the defendant’s principal office in Texas, if the defendant is not a natural person. If none of the options are available, however, a plaintiff may file his suit in the county where he resided when the loss occurred. Thus, there are potentially four different counties where a plaintiff can file his lawsuit under Texas’s general venue rule.

Texas affords more flexibility in venue options to a defendant in certain circumstances through its permissive venue rules. The permissive venue rules allow some defendants the choice of being sued in a particular county. Some examples of permissive provisions include: (i) suits involving property coverages disputes against insurance carriers; (ii) suits against an estate; and (iii) suits alleging breach of warranty by a manufacturer of consumer goods.

Under the mandatory venue rules, there is only one place where a lawsuit can be filed. The Texas Codes provide several mandatory venue provisions. Some examples of lawsuits that have mandatory venue provisions include: (i) suits involving uninsured or underinsured motorist coverage; (ii) suits reviewing a workers’ compensation decision; and (iii) suits for the recovery of damages to real property.

A motion to transfer venue is the most common way to obtain a proper or more favorable venue but the timing is critical when moving to transfer venue. A defendant must file its motion before its answer or risk waiving its venue challenge.
If you need help navigating the intricacies of the Texas venue rules, contact Williams, Lacy, McClure & Parmelee. With over 90 years of combined experience, Williams, Lacy, McClure & Parmelee is prepared to discuss the options available to you.

James L. Williams, Jr.
Williams, Lacy, McClure & Parmelee
May, 2012

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.

May 1st, 2012 Collections and Foreign Judgments, Construction Law, Contracts and Commercial Litigation, Employment Law Defense, Insurance Defense Litigation, Nonsubscriber Law, Workers' Compensation Defense