Slip and Fall Defense Litigation in Texas: The Time Notice Rule

The mere fact that a store employee is simply in close proximity to a dangerous or hazardous condition does not replace what is called in Texas, “the time-notice rule”. Constructive knowledge of a dangerous condition can be shown by proof that the dangerous or hazardous condition in dispute had existed for a reasonably long enough period of time  that the premises owner reasonably should have discovered it. This is known as the “time-notice rule,” and the Texas Supreme Court has repeatedly held that “temporal evidence best indicates whether the owner had a reasonable opportunity to discover and remedy a dangerous condition.” As the Texas Supreme Court stated in Wal-Mart Stores, Inc. v. Reece, 81 SW.3d 812, 816 (Tex. 2002):

An employee’s proximity to a hazard, with no evidence indicating how long
the hazard was there, merely indicates that it was possible for the
premises owner to discover the condition, not that the premises owner
reasonably should have discovered it. Constructive notice demands a more
extensive inquiry. Without some temporal evidence, there is no basis upon
which the factfinder can reasonably assess the opportunity the premises
owner had to discover the dangerous condition.

 
Without the time related requirement of the, owners of real property could be subject to strict liability claims for any dangerous or hazardous condition on the premises, which would be in itself unreasonable.

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.

Martindale AVtexas[2]

Grace Period for Texas Employers Without Workers’ Compensation Insurance Coverage–Texas Non Subscriber Defense Attorneys

The Texas Department of Insurance, Division of Workers’ Compensation (DWC) is providing a grace period for employers without workers’ compensation insurance coverage or that terminated their coverage (non-subscribers) to report their non-coverage status to DWC without penalty. This grace period also extends to non-subscribers with five or more employees that have not previously reported on-the-job injuries, illnesses, and fatalities to DWC. Historically, non-subscriber reporting rates are low, and DWC is offering this grace period to increase compliance with required state reporting. This grace period allows non-subscribers that have not previously reported their non-coverage status, to submit the DWC Form-005, Employer Notice of No Coverage or Termination of Coverage (DWC Form-005), without an administrative penalty during the February 1, 2016, through April 30, 2016, reporting period.

Additionally, this grace period also allows non-subscribers with five or more employees that have not previously reported their injuries, illnesses, and fatalities, to submit the DWC Form-007, Employer’s Report of Non-Covered Employee’s Occupational Injury or Disease (DWC Form-007) without an administrative penalty for injuries, illnesses, and fatalities occurring on or after May 1, 2016. By law, non-subscribers must annually notify DWC of their decision not to obtain workers’ compensation insurance coverage by submitting the DWC Form-005 and must also report each onthe-job injury, occupational illness, or fatality resulting in more than one day of lost time to DWC by filing DWC Form-007. Nonsubscribers that fail to comply with state requirements are subject to administrative penalties. Non-subscribers can file the DWC Form-005 with DWC online, by fax, or by mail. The DWC Form-007 may be filed by fax or by mail. Non-subscriber Reporting Requirements A non-subscriber must file the DWC Form-005, Employer Notice of No Coverage or Termination of Coverage to DWC:  between February 1 and April 30 each year;  within 30 days of hiring its first employee; or  within 10 days of DWC’s request. Non-subscribers with five or more employees must report each fatality, occupational disease, and onthe-job injury that results in more than one day of lost time to the DWC.

Non-subscribers must submit the DWC Form-007, Employer’s Report of Non-Covered Employee’s Occupational Injury or Disease to the DWC within the seventh day of the month following the month in which:  the death occurred;  the employee was absent from work for more than one day as a result of the on-the-job injury; or  the employer acquired knowledge of the occupational disease. Additional information on non-subscriber reporting requirements is available on the TDI website  at www.tdi.texas.gov/wc/employer/index.html.

 

 

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 civil litigation attorneys in Tarrant County who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.

Martindale AVtexas[2]

OSHA levies $80K in Fines Against Texas Roofing Company–Texas Roofing Contractor Litigation

OSHA levies $80K in fines for Quick Roofing for repeatedly exposing Conroe, Texas, workers to falls, ladder hazards, eye injuries | United States Department of Labor

OSHA levies $80K in fines for Quick Roofing for repeatedly exposing Conroe, Texas, workers to falls, ladder hazards, eye injuries
Employer has been cited six times in three years for same or similar violations

Employer name: Quick Roofing LLC

Inspection Site: 628 Maple Point Drive, Conroe, Texas

Citations issued: April 14, 2016

Investigation findings: On Nov. 23, 2015, after witnessing three roofers at work at a site in Conroe not using fall protection systems, U.S. Department of Labor Occupational Safety and Health Administration inspectors began an investigation of their employer, Quick Roofing LLC. The inspectors found one serious and four repeat violations dealing with fall, ladder, and eye hazards. The Texas roofing company has an extensive history with OSHA for repeatedly exposing workers to fall and ladder hazards. The agency previously cited Quick Roofing for the same or similar violations in:

  • Dallas in December 2015
  • San Antonio in October 2015
  • Austin in September 2015
  • Fort Worth in July 2014 and February 2013

Proposed Penalties: $80,280

Quote: “Falls from roofs and ladders can debilitate or kill workers,” said Joann Figueroa, OSHA’s area director in the Houston North office. “Quick Roofing’s continued history of ignoring federal safety standards must end. OSHA will not tolerate employers that repeatedly ignore commonsense safety requirements.”

Link to the citations:http://www.osha.gov/ooc/citations/QuickRoofingLLC_1107565_0414_16.pdf

Background: In 2014, more than 800 workers died after falling. From May 2-6, 2016, construction employers and employees across the country will stop work for a few hours to learn more about how to recognize and prevent fall hazards. The National Safety Stand Down to Prevent Falls in Construction web site has information, materials and programs designed to help save lives.

Quick Roofing has 120 workers at its headquarters in Kennedale and has facilities in Austin, San Antonio, and Katy. The company has 15 business days from receipt of its citations to comply, request an informal conference with OSHA’s area director, or contest the citations and penalties before the independent Occupational Safety and Health Review Commission.

 

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 civil litigation attorneys in Tarrant County who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.

Martindale AVtexas[2]

Court Rules Fort Worth Nonsubscriber Employer’s Negligence Must Be A Cause In Fact Of Injury–Ft Worth Nonsubscriber Defense Attorneys

Court Rules Fort Worth Nonsubscriber Employer’s Negligence Must Be A Cause In Fact Of Injury

TEXAS NON-SUBSCRIBER DEFENSE LAW–Fort Worth Lawsuit
Employer’s Negligence Must Be A Cause In Fact Of Injury
Hang On II, Inc. v Tuckey 1998 WL 559791 (Tex. App.-Fort worth) August 31,
1998
The trial court awarded the employee $84,500 for injuries sustained when she fell from steps at work (a topless bar). She was climbing the steps to retrieve drink glasses and alleged that the Employer was negligent because there was inadequate lighting and no guard rail.
The Fort Worth Court of Appeals reversed and rendered a judgment that the employee take nothing. There was no evidence that Hang-On’s negligence proximately caused the employee’s injury.
The mere occurrence of an injury at work, standing alone, is not probative evidence that the injury occurred because of negligence. There was no testimony that the employee fell because of the inadequate lighting or lack of a guard rail. All Hang-On did was to furnish a condition that made injury possible. There was no evidence that condition caused 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 Fort Worth, Texas nonsubscriber defense attorneys in Tarrant County who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.

Martindale AVtexas[2]

Is Workers’ Compensation Coverage Required in Texas? The answer is NO–Fort Worth, Texas Nonsubscriber Defense Attorneys

Information for Texas Nonsubscribers

Is Workers’ Compensation Coverage Required in Texas? The answer is NO! But there are some things every Texas employer should know.

 

  1. Texas, unlike other states, does not require an employer to have workers’ compensation coverage.
  2. Subscribing to workers’ compensation insurance puts a limit on the amount and type of compensation that an injured employee may receive – the limits are set in the law.
  3. Being a “non-subscriber”, i.e., going “bare” or without coverage, leaves an employer open to personal injury lawsuits from employees who are injured on the job – the damages and attorney’s fees are almost unlimited – in addition, certain defenses available in most personal injury lawsuits, such as assumption of the risk, contributory negligence, “last clear chance”, and co-worker negligence, are not available to a non-subscriber in a job injury case.
  4. At hire, notify each new hire of coverage (Notice 6 (PDF)) or non-coverage (Notice 5 (PDF)) and post the same notice along with other required workplace posters – also, let each new hire know that they have five days to elect to waive their right to workers’ compensation benefits and retain their common-law right to sue the employer for a work-related injury – the notice must let the employee know that if they give up workers’ compensation, they give up the right to receive medical or income benefits under the workers’ compensation law (the Division of Workers’ Compensation at the TDI has a form available for that purpose at http://www.tdi.state.tx.us/forms/dwc/newemployeenotice.pdf (PDF)).
  5. If an employer discontinues its workers’ compensation coverage, it must inform employees and the Workers’ Compensation Division of the Texas Department of Insurance as soon as possible via a Form DWC005 (PDF).
  6. Under workers’ compensation law, an injury or illness is covered, without regard to fault, if it was sustained in the course and scope of employment, i.e., while furthering or carrying on the employer’s business; this includes injuries sustained during work-related travel.
  7. Injuries are not covered if they were the result of the employee’s horseplay, willful criminal acts or self-injury, intoxication from drugs or alcohol, voluntary participation in an off-duty recreational activity, a third party’s criminal act if directed against the employee for a personal reason unrelated to the work, or acts of God.
  8. Injured workers must file injury reports within thirty days of the injury, must appeal the first impairment rating within 90 days of its issuance, and must file the formal paperwork for the workers’ compensation claim within one year of the injury. If the work-related nature of the injury or illness was not immediately apparent, those deadlines run from the date on which the employee should have known the problem was work-related.
  9. Three main types of benefits: medical benefits, income benefits, and death benefits – each type is statutorily defined and limited.
  10. The law places a heavy emphasis on return-to-work programs, since all studies show that recovery is faster and more efficient if an employee has some kind of useful work to do.
  11. An employee’s refusal of suitable light-duty work can stop the payment of workers’ compensation benefits.
  12. A job injury can involve other laws as well, such as the FMLA and the ADA – in multiple-law situations, whatever law provides the greatest protection should be applied (see “Medical Leave-Related Laws”).
  13. Chapter 451 of the workers’ compensation law prohibits discrimination or retaliatory action against employees who have filed workers’ compensation claims or are somehow in the process of doing so – stray remarks can be harmful to a company’s legal position in a Chapter 451 lawsuit, so never let anyone with your company be heard talking about a claim in terms of it being a problem, since any negative remarks can be twisted and spun to make the employer look as if it intended to retaliate against the claimant.
  14. Design your paid leave policies to avoid “benefits stacking”, i.e., the combining of workers’ compensation and leave-related benefits in such a way that the employee ends up getting more than 100% of his or her regular wage each week – for a sample policy, see “Limits on Leave Benefits” in “The A to Z of Personnel Policies” in this book.
  15. Employees on workers’ compensation do not have to be allowed to continue accruing leave or other benefits, but should be treated at least as favorably as other absent employees in that regard.
  16. Loss of health insurance benefits while on workers’ compensation leave is a COBRA-qualifying event.
  17. If a workers’ compensation claimant files an unemployment claim, he or she will be disqualified from unemployment benefits unless the workers’ compensation benefits are for “permanent, partial disability”, which translates to “impairment income benefits” under the current law – in addition, the claimant’s medical ability to work would be in question and should be raised by the employer as an issue in its response to the unemployment claim.

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 defense attorneys in Tarrant County who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.

Martindale AVtexas[2]

Employer Notice of No Coverage or Termination of Coverage-TDI-DWC–Fort Worth, Texas Nonsubscriber Defense Attorneys

Frequently Asked Questions
Employer Notice of No Coverage or Termination of Coverage
Who must file the DWC Form-005?
An employer who does not have workers’ compensation insurance (non-subscriber) must file the DWC Form-005, unless the employer’s only employees are
exempt from coverage under the Texas Workers’ Compensation Act (for example, certain domestic workers, certain farm and ranch workers).
An employer who terminates workers’ compensation insurance coverage must file the DWC Form-005.
Failure to file the form when required may subject the employer to administrative penalties.
When do I file the DWC Form-005?
An employer who uses the DWC Form-005 to file a notice of no coverage must file:
· annually between February 1st and April 30th of each calendar year;
· within 30 days of the employer hiring its first employee, unless this due date falls between February 1st and April 30th and the employer submits
the notice within this time period; and
· within 10 days of receipt of a TDI-DWC request for filing a notice of no coverage.
An employer who uses the DWC Form-005 to file a notice of termination of coverage must file:
· within 10 days after notifying the insurance carrier of the termination of coverage unless the employer purchases a new policy or becomes a
certified self-insurer; and
· thereafter, the employer must file the DWC Form -005 as a non-subscriber as long as the employer remains in operation and does not have
workers’ compensation insurance coverage.
How do I file the DWC Form-005?
Employers can submit the DWC Form-005 to the TDI-DWC by:
· filing electronically on the TDI website at:
https://txcomp.tdi.state.tx.us/TXCOMPWeb/common/home.jsp;
· faxing the form to (512)804-4146; or
· mailing the form to the address listed at the top of the form (if the filing is for termination of coverage, the submission must be by certified mail).
How/when must a non-subscriber notify employees that workers’ compensation coverage is not provided?
An employer must post the Notice to Employees Concerning Workers’ Compensation in Texas in the workplace in English, Spanish and any other language
common to the employer’s employee population in the print type specified by TDI-DWC rules whenever the employer:
· elects to not have workers’ compensation insurance;
· cancels or terminates workers’ compensation insurance;
· withdraws from certified self-insurance; or
· has its workers’ compensation coverage cancelled by the insurance company.
An employer must also provide this notice to each employee:
· at the time of hire;
· when the employer elects to not have workers’ compensation insurance;
· within 15 days of notification to the insurance carrier that the employer is terminating coverage unless the employer maintains continuous
coverage under a new policy or becomes a certified self-insurer; or
· within 15 days of cancellation by the insurance company.
The required notice may be found on the TDI website at:
http://www.tdi.texas.gov/forms/dwc/notice5.pdf (English) and
http://www.tdi.texas.gov/forms/dwc/notice5s.pdf (Spanish).
DWC005 Rev. 01/13 Page 3 of 3
DWC005
Are non-covered employers required to file other forms with TDI-DWC?
Employers with five or more employees are required to report work-related injuries and diseases to the TDI-DWC. Non-subscribers and covered employers
whose employee(s) have waived workers’ compensation insurance coverage must report these work-related injury and diseases using the DWC Form-007,
Employer’s Report of Non-covered Employee’s Occupational Injury or Diseases. The form must be filed not later than the 7th day of the month following the
month in which:
· a work-related death occurred,
· an employee was absent from work for more than one day* as a result of an on-the-job injury, or
· the employer acquired knowledge of an occupational disease.
*Do not count the day of the injury or the day the injured employee returned to work when calculating the number of days absent from work.
The DWC Form-007 can be obtained from the TDI website at http://www.tdi.texas.gov/forms/dwc/dwc7injnc.pdf.
Are any fields on the DWC Form-005 optional?
No, all applicable fields must be completed each time the DWC Form-005 is filed.
Additional information can be obtained from the TDI website at:
http://www.tdi.texas.gov/wc/employer/index.html or by calling 1-800-372-7713.

 

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 defense attorneys in Tarrant County who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.

Martindale AVtexas[2]

General Contractor Protected From Tort Liability Under Section 406.123 Based On Agreement With Subcontractor–Ft. Worth, Texas Employment Law Defense Attorneys

Texas Non Subscriber Defense Law

 

IMMUNITY FROM SUIT
General Contractor Protected From Tort Liability Under Section 406.123 Based On Agreement With Subcontractor
Williams v. Brown & Root Inc. 1997 WL 297750 (Tex. App.- Texarkana, June 6, 1997)
Texas Eastman Company was a general contractor that subcontracted work to Brown and Root. Brown and Root in turn subcontracted work to Tracer Construction Company. Williams sustained a work-related injury as a Tracer employee when he slipped on some stairs and was paid workers’ compensation. Williams then sued Brown and Root for negligently permitting the stairs to be slippery. Brown and Root had an agreement to provide workers’ compensation for Tracer through Eastman’s “Owner Controlled Insurance Program”.
The Texarkana Court of Appeals affirmed summary judgment in Brown and Root’s favor.
Under Section 406.123, workers’ compensation tort immunity is extended to the general contractor for “providing” workers’ compensation insurance. It is not necessary that the general contractor “pay” for that insurance.

 

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.

Martindale AVtexas[2]

Signed Waiver Precludes Employee’s Right to Sue for Injuries in Course & Scope of Employment–Texas Non Subscriber Defense Attorneys

Texas Non Subscriber Defense Law

Signed Waiver Precludes Employee’s Right to Sue for Injuries in Course & Scope of Employment
Lambert v. Affiliated Foods, Inc. 1999 WL 1277559 (Tex.App.-Amarillo) November 16, 1999

 

The Employer elected not to provide workers’ compensation coverage and established an employee disability benefit plan. The plan provides alternative no-fault coverage for occupational and non-occupational injuries to employees who voluntarily elect to participate in the plan.
Lambert was hired, and subsequently elected to participate in the plan, signing a statement that indicated he understood that he would lose the right to sue Affiliated if injured, and that his only remedy would be to benefits under the plan. Once injured, Lambert received and accepted disability and medical care benefits under the employer’s plan, then filed suit for personal injuries under the Labor Code.
Lambert asserted that the waiver or election of rights was unenforceable on public policy grounds only, as well as the defenses of estoppel and ratification. In affirming summary judgment for Affiliated, the appeals court noted that the legislature addressed certain common law defenses to actions brought by employees in §406.033 of the Act, and that even though waiver is a common law defense, it is not included in the list of prohibited defenses to a common law action for personal injuries brought by an employee, and declined to hold the waiver void on public policy grounds.
The court also addressed §406.035 of the Act that states that an agreement by an employee to waive rights to compensation is void. They held that §406.035 only applies to employees of a subscribing 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 new office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.

Martindale AVtexas[2]

Breach Of Duty To Provide Safe Workplace Found/Collateral Source Rule–Texas Non Subscriber Defense Attorneys

TEXAS NON-SUBSCRIBER DEFENSE ATTORNEYS:
Breach Of Duty To Provide Safe Workplace Found/Collateral Source Rule
Harwood Tire-Arlington, Inc. v. Young 1998 WL 65677(Tex.App.-Ft. Worth)Feb. 19, 1998
Plaintiff was a mechanic who was injured in an accident involving a hydraulic lift.
The Fort Worth Court of Appeals affirmed a jury verdict of 1.3 million in Young’s favor and found sufficient evidence of negligence in that another employee had placed the vehicle on the lift and the lack of any instruction concerning the safe operation of the lift. Harwood had a duty to provide Young a safe place to work. Young’s workplace was unsafe, and Young was injured as a result.
The Court also stated that the trial court did not err in excluding evidence of other insurance when it excluded evidence of a disability policy that was purchased by Harwood to replace workers’ compensation coverage.

 

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.

Martindale AVtexas[2]

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

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

 

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.

Martindale AVtexas[2]