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What Hospital Liens Do Not Attach To In Texas– Fort Worth, Texas Insurance Defense Attorneys

The Texas statutes prevent a hospital lien from attaching to the following:

Claims under the Texas Workers’ Compensation Act, the Federal Employees Liability Act; the Federal Longshoremens’ of Harbor Worker’s Compensation Act, and claims against railroad companies who own the hospital in which the injured person is treated, § 55.003(b);

Claims against the injured worker’s own insurance policy proceeds, such as uninsured/underinsured motorists’ coverage and PIP. §55.003; Members Mutual Insurance Co. v. Hermann Hospital, 664 S.W.2d 325, 28 (Tex. 1984) (uninsured/underinsured motorists benefits are not subject to statutory hospital lien);

Hospital liens do not attach to proceeds from wrongful death actions, but they do attach to survival actions. They attach only in cases where recovery for personal injury is sought; they do not attach to judgments or awards for wrongful death;

Hospital liens do not attach to the expenses of treatment of medical problems that are unrelated to the accident at issue but which are attributed to the negligence of another person;

A hospital may not recover pre-judgment interest on the amount of its hospital lien, and, where it intervenes in a suit in order to recover its lien, it may not recover attorneys’ fees, either. Hermann Hospital v. Vardeman, 775 S.W.2d 866, 867-868 (Tex. App. – Houston [1st Dist.] 1989, no writ).

The text of the relevant statutory language is below:

Texas Property Code CHAPTER 55. HOSPITAL AND EMERGENCY MEDICAL SERVICES LIENS

PROPERTY CODE

CHAPTER 55. HOSPITAL AND EMERGENCY MEDICAL SERVICES LIENS

§ 55.001. DEFINITIONS. In this chapter:
(1) “Emergency medical services” has the meaning
assigned by Section 773.003, Health and Safety Code.
(2) “Emergency medical services provider” has the
meaning assigned by Section 773.003, Health and Safety Code.
(3) “Hospital” means a person or institution
maintaining a facility that provides hospital services in this
state.
(4) “Person” does not include a county, common, or
independent school district.

Acts 1983, 68th Leg., p. 3562, ch. 576, § 1, eff. Jan. 1, 1984.
Amended by Acts 2003, 78th Leg., ch. 337, § 1, eff. Sept. 1,
2003.

§ 55.002. LIEN. (a) A hospital has a lien on a cause of
action or claim of an individual who receives hospital services for
injuries caused by an accident that is attributed to the negligence
of another person. For the lien to attach, the individual must be
admitted to a hospital not later than 72 hours after the accident.
(b) The lien extends to both the admitting hospital and a
hospital to which the individual is transferred for treatment of
the same injury.
(c) An emergency medical services provider has a lien on a
cause of action or claim of an individual who receives emergency
medical services in a county with a population of 575,000 or less
for injuries caused by an accident that is attributed to the
negligence of another person. For the lien to attach, the
individual must receive the emergency medical services not later
than 72 hours after the accident.

Acts 1983, 68th Leg., p. 3562, ch. 576, § 1, eff. Jan. 1, 1984.
Amended by Acts 2003, 78th Leg., ch. 337, § 1, eff. Sept. 1,
2003.

§ 55.003. PROPERTY TO WHICH LIEN ATTACHES. (a) A lien
under this chapter attaches to:
(1) a cause of action for damages arising from an
injury for which the injured individual is admitted to the hospital
or receives emergency medical services;
(2) a judgment of a court in this state or the decision
of a public agency in a proceeding brought by the injured individual
or by another person entitled to bring the suit in case of the death
of the individual to recover damages arising from an injury for
which the injured individual is admitted to the hospital or
receives emergency medical services; and
(3) the proceeds of a settlement of a cause of action
or a claim by the injured individual or another person entitled to
make the claim, arising from an injury for which the injured
individual is admitted to the hospital or receives emergency
medical services.
(b) The lien does not attach to:
(1) a claim under the workers’ compensation law of this
state, the Federal Employees Liability Act, or the Federal
Longshore and Harbor Workers’ Compensation Act; or
(2) the proceeds of an insurance policy in favor of the
injured individual or the injured individual’s beneficiary or legal
representative, except public liability insurance carried by the
insured that protects the insured against loss caused by an
accident or collision.
(c) A hospital lien described by Section 55.002(a) does not
attach to a claim against the owner or operator of a railroad
company that maintains or whose employees maintain a hospital in
which the injured individual is receiving hospital services.

Acts 1983, 68th Leg., p. 3562, ch. 576, § 1, eff. Jan. 1, 1984.
Amended by Acts 2003, 78th Leg., ch. 337, § 1, eff. Sept. 1,
2003.

§ 55.004. AMOUNT OF LIEN. (a) In this section,
“emergency hospital care” means health care services provided in a
hospital to evaluate, stabilize, and treat a serious medical
problem of recent onset or severity, including severe pain that
would lead a prudent layperson possessing an average knowledge of
medicine and health to believe that the condition, illness, or
injury is of such a nature that failure to obtain immediate medical
care would in all reasonable probability:
(1) seriously jeopardize the patient’s health;
(2) seriously impair one or more bodily functions;
(3) seriously harm an organ or other part of the body;
(4) cause serious disfigurement; or
(5) in the case of a pregnant woman, seriously
jeopardize the health of the fetus.
(b) A hospital lien described by Section 55.002(a) is for
the amount of the hospital’s charges for services provided to the
injured individual during the first 100 days of the injured
individual’s hospitalization.
(c) A hospital lien described by Section 55.002(a) may also
include the amount of a physician’s reasonable and necessary
charges for emergency hospital care services provided to the
injured individual during the first seven days of the injured
individual’s hospitalization. At the request of the physician, the
hospital may act on the physician’s behalf in securing and
discharging the lien.
(d) A hospital lien described by Section 55.002(a) does not
cover:
(1) charges for other services that exceed a
reasonable and regular rate for the services;
(2) charges by the physician related to any services
provided under Subsection (c) for which the physician has accepted
insurance benefits or payment under a private medical indemnity
plan or program, regardless of whether the benefits or payment
equals the full amount of the physician’s charges for those
services;
(3) charges by the physician for services provided
under Subsection (c) if the injured individual has coverage under a
private medical indemnity plan or program from which the physician
is entitled to recover payment for the physician’s services under
an assignment of benefits or similar rights; or
(4) charges by the physician related to any services
provided under Subsection (c) if the physician is a member of the
legislature.
(e) A hospital lien described by Section 55.002(a) is not
affected by a hospital’s use of a method of classifying patients
according to their ability to pay that is solely intended to obtain
a lien for services provided to an indigent injured individual.
(f) An emergency medical services lien described by Section
55.002(c) is for the amount charged by the emergency medical
services provider, not to exceed $1,000, for emergency medical
services provided to the injured individual during the 72 hours
following the accident that caused the individual’s injuries.
(g) An emergency medical services lien described by Section
55.002(c) does not cover:
(1) charges for services that exceed a reasonable and
regular rate for the services;
(2) charges by the emergency medical services provider
related to any services for which the emergency medical services
provider has accepted insurance benefits or payment under a private
medical indemnity plan or program, regardless of whether the
benefits or payments equal the full amount of the charges for those
services; or
(3) charges by the emergency medical services provider
for services provided if the injured individual has coverage under
a private medical indemnity plan or program from which the provider
is entitled to recover payment for the provider’s services under an
assignment of benefits or similar right.
(h) If the physician is employed in that capacity by an
institution of higher education, as defined by Section 61.003,
Education Code, and the lien does not include the amount of the
physician’s reasonable and necessary charges described by
Subsection (c), the physician has a lien on the cause of action in
the same manner as a hospital under this chapter. The lien is
subject to provisions of this chapter applicable to a hospital
lien, and the physician or the physician’s employing institution
may secure and enforce the lien in the manner provided by this
chapter.

Acts 1983, 68th Leg., p. 3563, ch. 576, § 1, eff. Jan. 1, 1984.
Amended by Acts 2001, 77th Leg., ch. 930, § 1, eff. Sept. 1,
2001; Acts 2003, 78th Leg., ch. 337, § 1, eff. Sept. 1, 2003;
Acts 2003, 78th Leg., ch. 1266, § 1.16, eff. June 20, 2003; Acts
2005, 79th Leg., ch. 728, § 23.001(79), eff. Sept. 1, 2005.

§ 55.005. SECURING LIEN. (a) To secure the lien, a
hospital or emergency medical services provider must file written
notice of the lien with the county clerk of the county in which the
services were provided. The notice must be filed before money is
paid to an entitled person because of the injury.
(b) The notice must contain:
(1) the injured individual’s name and address;
(2) the date of the accident;
(3) the name and location of the hospital or emergency
medical services provider claiming the lien; and
(4) the name of the person alleged to be liable for
damages arising from the injury, if known.
(c) The county clerk shall record the name of the injured
individual, the date of the accident, and the name and address of
the hospital or emergency medical services provider and shall index
the record in the name of the injured individual.

Acts 1983, 68th Leg., p. 3563, ch. 576, § 1, eff. Jan. 1, 1984.
Amended by Acts 1995, 74th Leg., ch. 1031, § 1, eff. Aug. 28,
1995; Acts 2003, 78th Leg., ch. 337, § 1, eff. Sept. 1, 2003.

§ 55.006. DISCHARGE OF LIEN. (a) To discharge a lien
under this chapter, the authorities of the hospital or emergency
medical services provider claiming the lien or the person in charge
of the finances of the hospital or emergency medical services
provider must execute and file with the county clerk of the county
in which the lien notice was filed a certificate stating that the
debt covered by the lien has been paid or released and authorizing
the clerk to discharge the lien.
(b) The county clerk shall record a memorandum of the
certificate and the date it was filed.
(c) The filing of the certificate and recording of the
memorandum discharge the lien.

Acts 1983, 68th Leg., p. 3564, ch. 576, § 1, eff. Jan. 1, 1984.
Amended by Acts 2003, 78th Leg., ch. 337, § 1, eff. Sept. 1,
2003.

§ 55.007. VALIDITY OF RELEASE. (a) A release of a cause
of action or judgment to which a lien under this chapter may attach
is not valid unless:
(1) the charges of the hospital or emergency medical
services provider claiming the lien were paid in full before the
execution and delivery of the release;
(2) the charges of the hospital or emergency medical
services provider claiming the lien were paid before the execution
and delivery of the release to the extent of any full and true
consideration paid to the injured individual by or on behalf of the
other parties to the release; or
(3) the hospital or emergency medical services
provider claiming the lien is a party to the release.
(b) A judgment to which a lien under this chapter has
attached remains in effect until the charges of the hospital or
emergency medical services provider claiming the lien are paid in
full or to the extent set out in the judgment.

Acts 1983, 68th Leg., p. 3564, ch. 576, § 1, eff. Jan. 1, 1984.
Amended by Acts 2003, 78th Leg., ch. 337, § 1, eff. Sept. 1,
2003.

§ 55.008. RECORDS. (a) On request by an attorney for a
party by, for, or against whom a claim is asserted for damages
arising from an injury, a hospital or emergency medical services
provider shall as promptly as possible make available for the
attorney’s examination its records concerning the services
provided to the injured individual.
(b) The hospital or emergency medical services provider may
issue reasonable rules for granting access to its records under
this section, but it may not deny access because a record is
incomplete.
(c) The records are admissible, subject to applicable rules
of evidence, in a civil suit arising from the injury.

Acts 1983, 68th Leg., p. 3564, ch. 576, § 1, eff. Jan. 1, 1984.
Amended by Acts 2003, 78th Leg., ch. 337, § 1, eff. Sept. 1,
2003.

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.

Aug 23rd, 2014 Insurance Defense Litigation, Nonsubscriber Law, Workers' Compensation Defense

In-Cab of Truck Video Surveillance of Drivers– Texas Trucking Defense Attorneys

Back in the day, truck drivers use to drive all over the country with daily stops in the morning to find a payphone so they could call dispatch to let them know of their location and how much farther they had to go to delivery or next pick up.

Then the pager got introduced to the trucking industry as a great new way of communicating with the driver. Wow, beep, beep, and then a number would come across the screen and the driver would find a payphone to call the 1-800 number. When Qualcomms got introduced many drivers didn’t like it because, they felt they were being spied on. What do drivers’ think now that cameras are being put into the truck cab? Not only to look out the windshield, but also looking at the driver as he drives.

Several reasons the trucking companies are giving for this new technology, for safety and data collecting information on drivers reactions as they drive. Whether it be a hard break, accident or bad weather. In some cases it has help some drivers to be better drivers’ because safety was able to see what occurred at the time in question. At times it just a bad habit, other times the driver is doing things against company policy. The company can help the driver by pointing out the bad habit or decide it is time to part ways…

See rest of article:

https://www.linkedin.com/today/post/article/20140730213815-144411830-in-cab-of-truck-video-surveillance-of-drivers?trk=object-title
www.texasdefensecounsel.com

Aug 22nd, 2014 Employment Law Defense, Insurance Defense Litigation, Nonsubscriber Law, Workers' Compensation Defense

Reducing Hazards to Temporary Workers– Fort Worth, Texas Insurance Defense Attorneys

In 2013, an enforcement initiative was launched by OSHA focusing on the improvement of safety measures for temporary workers.

OSHA defines “temporary workers” as workers that are supplied to a host employer and paid by a staffing agency. This applies whether the worker’s job is temporary or not. OSHA’s enforcement initiative focuses on identifying temporary workers, evaluating whether they are exposed to any safety hazards, and determining if they have received proper training and protection.

In recent months, OSHA has received a number of reports of temporary workers suffering fatal injuries during their first few days on a job. For example, in December of 2013, an Illinois temporary worker was killed by the forklift he was operating when it fell between the dock and truck. Also in December of 2013, a temporary worker died from a fall after he was caught in a sorter. Lastly OSHA cited Bacardi Bottling Corporation after a 21-year old temporary worker was fatally injured his first day on the job.

Ultimately, OSHA views the protecting of temporary workers as a joint responsibility between host employers and their staffing agency. However, OSHA has shown concern that as a means to avoid meeting all their compliance obligations under the OSH Act and other worker protection laws, some employers are using more and more temporary workers. Temporary workers are often not given adequate safety and health training or explanations of their duties by either the temporary staffing agency or the host employer and are likely more vulnerable to workplace safety and health hazards than workers in traditional employment relationships.

To see article:
https://www.linkedin.com/today/post/article/20140722232211-5310498–reducing-hazards-to-temporary-workers?trk=object-title

Aug 21st, 2014 Employment Law Defense, Insurance Defense Litigation, Nonsubscriber Law, Workers' Compensation Defense

Texas Looks At Mandatory Workers’ Comp–Texas Non Subscriber Attorneys

On Tuesday the Business & Industry Committee of the Texas House held a hearing on the voluntary nature of workers’ compensation in Texas. Some effort to make workers’ comp mandatory is made in every session of the legislature . Some effort to make workers’ comp mandatory is made in every session of the legislature and usually goes nowhere. That may be the case in the upcoming session, but it seems the concept will get a harder look this time. The hearing was due to the interim charge from Speaker Joe Strauss to study the “voluntary” nature of workers’ comp. in Texas….

linkedin.com https://www.linkedin.com/today/post/article/20140424155428-48751910-texas-looks-at-mandatory-workers-comp

www.texasdefensecounsel.com

Aug 11th, 2014 Employment Law Defense, Insurance Defense Litigation, Nonsubscriber Law, Workers' Compensation Defense

Occupational Disease or Ordinary Disease of Life?–Fort Worth, Texas Workers’ Compensation Attorneys

We represent insurance carriers and self-insureds in Texas workers compensation litigation, and have often have litigated disputes regarding whether or not the claimant has sustained a compensable injury in the course and scope of his or her employment, rather than a non-compensable ordinary disease of life.

In the Texas workers’ compensation system, ordinary diseases of life are illnesses or conditions that the general public is exposed to outside the scope of employment. If an employee has an injury that is considered to be an ordinary disease of life, he or she is generally not entitled to receive benefits. An illness or injury is considered an ordinary disease of life, and therefore not compensable, when there is no causal connection between the injury and the work, and the disease is not indigenous to the workplace or present at an increased degree with the employment. Congenital heart disease, cancer and diabetes are common ordinary diseases which usually are determined to be non-compensable. But that is not always true.

Claimant’s attorneys are sure to remind us that not all diseases are ordinary diseases of life. Some diseases are instead, occupational diseases. There has to be some substantial connection to the employment, and the disease must not be an ordinary disease of life. Although workers’ compensation law draws a distinction between ordinary diseases of life and occupational diseases, the distinction between the two is often difficult.

When injuries are occupational, the date of injury for an occupational disease is the date on which the employee knew or should have known the disease may be related to the employment. Section 408.007 of the Texas Labor Code. This date is not necessarily the date on which symptoms first appeared, but is the date on which a reasonable person recognizes the nature, seriousness, and work-relatedness of the disease. Commercial Ins. Co. of Newark, New Jersey v. Smith, 596 S.W.2d 661, 665 (Tex. Civ. App.—Ft. Worth 1980, writ ref’d n.r.e.).

If an injury is an occupational disease, the employer in whose employ the employee was last injuriously exposed to the hazards of the disease is considered to be the employer of the employee. Section 406.031(b)of the Texas Labor Code. The date of injury is the determining factor as to which of various workers compensation insurance carriers is liable for compensation of an occupational disease. However, when an employee has worked for several employers over a period of time and is exposed to similar causes of the occupational disease throughout his or her employment but had no distinct manifestation of the disease, the insurance company liable for compensation will be the one that insured the employer that the injured employee worked for when last injuriously exposed to the causes of the disease. Hernandez v. Travelers Indemnity Co. of Rhode Island, 855 S.W.2d 786 (Tex. App.—El Paso 1993, 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 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 28th, 2014 Workers' Compensation Defense

When Workers’ Compensation Claims and Child Support Orders Meet–Fort Worth, Texas Workers’ Compensation Defense Attorneys

Texas employers and insurance carriers who write in Texas are often confronted with child support orders directing them to withhold earnings from an employee’s income. But what happens when that employee is still employed but receiving workers’ compensation benefits instead of wages?

Workers’ compensation payments are not regarded as “income” for purposes of federal income taxes. However, they are regarded as “income” for purposes of calculating an employee’s child support obligations in Texas.

As an employer, it is important not to disregard such an order. If an employee is receiving workers’ compensation benefits and not receiving wages, unless the employer is self-insured, the employer must send a copy of the order to the workers compensation insurance carrier with whom the claim has been filed. If the employee is not expected to be returning to work, the employer must notify the court and obligee of the termination of employment within seven days and provide the employee’s last known address, and the name and address of the new employer, if known. [TFC §158.206 and §158.213]. If the employee returns to work after receiving income benefits for lost time, the employer should resume income withholding according to the order.

Relevant statutes that employers and workers compensation insurance carriers should consult when a child support order hits your desk are as follows:

Texas Family Code – Section 158.206

§ 158.206. LIABILITY AND OBLIGATION OF EMPLOYER;

WORKERS’ COMPENSATION CLAIMS.

(a) An employer receiving an order or a writ of withholding under this chapter, including an order or writ directing that health insurance be provided to a child, who complies with the order or writ is not liable to the obligor for the amount of income withheld and paid as required by the order or writ.

(b) An employer receiving an order or writ of withholding who does not comply with the order or writ is liable:

(1) to the obligee for the amount not paid in compliance with the order or writ, including the amount the obligor is required to pay for health insurance under Chapter 154;

(2) to the obligor for:

(A) the amount withheld and not paid as required by the order or writ; and

(B) an amount equal to the interest that accrues under Section 157.265 on the amount withheld and not paid; and

(3) for reasonable attorney’s fees and court costs.

(c) If an obligor has filed a claim for workers’ compensation, the obligor’s employer shall send a copy of the income withholding order or writ to the insurance carrier with whom the claim has been filed in order to continue the ordered withholding of income.

Texas Family Code – Section 158.213

§ 158.213. WITHHOLDING FROM WORKERS’ COMPENSATION BENEFITS.

(a) An insurance carrier that receives an order or writ of withholding under Section 158.206 for workers’ compensation benefits payable to an obligor shall withhold an amount not to exceed the maximum amount allowed to be withheld from income under Section 158.009 regardless of whether the benefits payable to the obligor for lost income are paid as lump sum amounts or as periodic payments.

(b) An insurance carrier subject to this section shall send the amount withheld for child support to the place of payment designated in the order or writ of withholding.

Texas Family Code – Section 158.009

§ 158.009. MAXIMUM AMOUNT WITHHELD FROM EARNINGS. An order or writ of withholding shall direct that any employer of the obligor withhold from the obligor’s disposable earnings the amount specified up to a maximum amount of 50 percent of the obligor’s disposable earnings.

Feb 28th, 2014 Employment Law Defense, Workers' Compensation Defense

Important Texas Workers’ Compensation Website Links–Texas Workers’ Compensation Attorneys

The 1917 workers compensation law provided the basic framework for the Texas Workers’ Compensation system for the next seven decades. In 1989, after much debate, a new Texas Workers’ Compensation law was enacted, becoming effective during 1991. Provisions of this law formulated specific billing and reporting requirements for physicians treating injured workers and enacted a new income benefit and administrative dispute systems. During the 2001 Texas legislative session, lawmakers passed House Bill 2600 (HB 2600), which again significantly changed the delivery of health care and workers compensation benefits to injured Texas workers. Since that time, the changes have just kept coming.

Texas, unlike other states, does not require an employer to have workers’ compensation coverage. The Texas system of workers’ compensation is essentially elective, meaning that employers can choose between providing worker’s compensation coverage to its employees or being subject to a civil lawsuit in the event of an employee’s death or injury by opting to be a non-subscriber. Workers’ compensation insurance may be provided through a private insurance company or employers may self-insure.

Because Texas workers compensation law is ever evolving, and due to the rapid changes in the current business climate, the below links are often useful to consult on a regular basis to make sure the latest information is at your finger tips:

Texas Department of Insurance:

http://www.tdi.texas.gov/

TDI-Division of Workers’ Compensation:

http://www.tdi.texas.gov/wc/index.html

Advisories and bulletins:

http://www.tdi.texas.gov/wc/news/advisories/index.html

Appeals Panel Decision Manuel:

http://www.tdi.texas.gov/wc/idr/apdmtoc.html

Medical Contested Case Hearing Manuel:

http://www.tdi.texas.gov/wc/idr/mddmtoc.html

Medical Fee Dispute Resolution:

http://www.tdi.texas.gov/wc/mfdr/

Workers’ compensation forms:

http://www.tdi.texas.gov/forms/form20.html

Informal Working Drafts:

http://www.tdi.texas.gov/wc/rules/drafts.html

Requests for a Letter of Clarification (LOC) of a Designated Doctor’s Report:

http://www.tdi.texas.gov/wc/loc/index.html

SIBs Work Requirements per County:

http://www.tdi.texas.gov/wc/employee/sibs.html

Proposed Rules:

http://www.tdi.texas.gov/wc/rules/proposedrules/index.html

Rule book supplements:

http://www.tdi.texas.gov/wc/rules/supplements.html

Administrative decisions including AP decisions and medical contested case decisions:

http://www.tdi.texas.gov/wc/admindecisions.html

TxComp:

https://txcomp.tdi.state.tx.us/twccprovidersolution/homehtml

TDI Search for Company’s Attorney for Service:

https://wwwapps.tdi.state.tx.us/inter/perlroot/consumer/attorney/attorney.html

Information on Networks:

http://www.tdi.texas.gov/wc/wcnet/indexinjured.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 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 28th, 2014 Employment Law Defense, Workers' Compensation Defense

The 30 Day Notice of Injury Requirement in Texas Workers’ Compensation Law–Fort Worth, Texas Workers’ Compensation Attorneys

In Texas Workers’ Compensation Law, an employee or a person acting on the employee’s behalf must notify the employer of an injury not later than the 30^th day after the date on which the injury occurs. This is commonly referred to as the 30 Day Notice Rule. If an injury is an occupational disease, the employee or person acting on the employee’s behalf must notify the employer of the injury no later than the 30^th day after the date on which the employee knew or should have known that the injury might be related to the employment.

The requirements of notice of injury to employer are spelled out in § 409.001 as follows:

“Sec. 409.001. NOTICE OF INJURY TO EMPLOYER.

(a) An employee or person acting on the employee’s behalf shall notify the employer of the employee of an injury not later than the 30^th day after the date on which:

(1) the injury occurs; or

(2) if the injury is an occupational disease, the employee knew or should have known that the injury may be related to the employment.

(b) The notice required under Subsection (a) may be given to:

(1) the employer; or

(2) an employee of the employer who holds a supervisory or management position.

(c) If the injury is an occupational disease, for purposes of this section, the employer is the person who employed the employee on the date of last injurious exposure to the hazards of the disease.

The requirement that an employee give notice to the employer does not mean that the employee can simply give notice of the condition itself. Section 409.001 has been interpreted to require an employee to also give notice of the fact that the condition is or may be work related.

Under section 409.002 if an employee fails to notify his or her employer as required by section 409.001, then the employer and the carrier are relieved of liability unless one of the following three exceptions applies: 1) if the employer, a person eligible to receive notice, or the employer’s carrier has actual knowledge of the employee’s injury; 2) if the Commission determines that good cause exists for failure to provide notice; or 3) if the employer or the employer’s insurance carrier does not contest the claim.

Under Texas Workers’ Compensation Appeals Decision No. 961562, the good cause standard for an employee is whether the employee prosecutes his claim with that degree of diligence that an ordinarily prudent person would have exercised under the same or similar circumstances.

Good cause is something of a subjective area that lends itself to a fair amount of dispute and litigation. These often become very fact specific cases where the fact findings of hearing officers are not disturbed by the Appeals Panel.

Whether good cause exists is a question of fact to be determined by the hearing officer. Good cause must exist continuously up to the time the otherwise untimely report of injury is made. This does not mean that a report of injury must be made immediately upon determination of good cause. The hearing officer must consider the totality of claimant’s conduct in determining ordinary prudence. Texas Workers’ Compensation Commission Appeals Panel Decision No. 93815. The question is whether a reasonable person would recognize the nature and seriousness of the injury and that it may be work related. Texas Workers’ Compensation Appeals Panel Decision No. 94894.

Although ignorance of the law in and of itself is not good cause for failure to file a claim, reliance on representations by the employer that it has indeed filed a claim, along with furnishing of medical and income benefits, may be possibly considered good cause. Texas Workers’ Compensation Appeals Panel Decision No. 94274.

A belief that an injury was trivial can constitute good cause for failure to timely notify an employer. Texas Workers’ Compensation Appeals Panel Decision No. 91123.

There is no requirement in the Workers’ Compensation Act that an individual receiving the report of an injury be a supervisor over the claimant. The only requirement is that the person be in a supervisory capacity. Texas Workers Compensation Appeals Panel Decision No. 92271.

The purpose of the notice requirement has historically been to give the insurance carrier an opportunity to timely investigate the facts surrounding an injury. This is why the Appeals Panel has required that the employer must receive notice, not only of the condition, but also of the fact that there is an allegation that the injury is work related. This was demonstrated in Appeals Panel Decision No. 92357, where the claimant complained of back pain similar to complaints she had in the past to her employer, but did not provide her employer with notice that she had sustained a work related back injury. This was held to be insufficient notice of a new injury .

In Appeals Panel Decision No. 002549, the Appeals Panel reiterated that the 30 day notice period can be extended by the weekend. If the 30^th day after the date of injury is a Sunday, Rule 102.3(a)(3) provides that the period in which to report an injury is extended to the next day that is not a Saturday, Sunday, or legal holiday.

To be effective, notice of injury needs to inform the employer of the general nature of the injury and the fact that it is job related. Texas Workers’ Compensation Appeals Panel Decision No. 001479, citing DeAnda v. Home Insurance Company, 618 S.W.2d 529 (Tex. 1980).

It has also been held and reiterated by the Appeals Panel in Decision No. 00283 that the carrier is not relieved of liability for a so called “follow on injury” based on the claimant’s failure to give timely notice to the employer. In that decision the Appeals Panel affirmed and cited Appeals Panel Decision No. 971706 and DeAnda v. Home Insurance Company, supra, as stating that the employer need only know the general nature of the injury and the fact that it is work related. The claimant had no duty, in that case, to advise her employer of complications arising out of the original injury that she had already timely reported.

In the case of Safford v. Cigna Insurance Company of Texas, 983 S.W.2d 317 (Tex. App. – Fort Worth 1998, pet. denied), the thirty day notice provision in a “latent” disease or injury situation, was interpreted to mean that thirty day notice begins to run when an employee’s symptoms manifest themselves to a degree or for a duration that would put a reasonable person on notice that he or she suffers from some injury and knows, or in the exercise of reasonable diligence should have known, that the injury is likely work related.

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 lawyers 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 Alcohol Intoxication Defense to Workers’ Compensation Claims in Texas–Fort Worth, Texas Workers’ Compensation Attorneys

Alcohol intoxication is defined two different ways under the 1989 Texas Workers’ Compensation Act. Under the first definition, it is defined as having an alcohol concentration to qualify as intoxicated under Section 49.01, Penal Code. Section 401.013(a)(1). Under the second definition, intoxication is defined as the state of not having the normal use of mental or physical faculties resulting from the voluntary introduction into the body of an alcoholic beverage, as defined by Section 1.04 of the Texas Alcoholic Beverage Code. Section 401.013(a)(2)(A). A finding that the employee was intoxicated at the time of the claimed injury under either definition will relieve the insurance carrier from liability and make the injury non-compensable. The employee is presumed to be sober at the time of the injury. Bender v. Federal Underwriters Exchange, 133 S.W.2d 214, (Tex.Civ.App.—Eastland, 1939, writ dism’d judgm’t correct).

It is well established that an insurance carrier is not liable for payment of workers compensation benefits if the injury “occurred while the employee was in a state of intoxication.” Section 406.032(1)(A). The intoxication exception does not require a causal connection between the injury and the employee’s intoxication and serves as an absolute exception to liability, regardless of the cause of injury. Texas Indemnity Insurance Company v. Dill, 42 S.W.2d 1059 (Tex. App.—Eastland 1931), aff’d 63 S.W.2d 1016 (Tex. Comm’n App. 1933). Whether or not an employee was intoxicated due to the voluntary introduction into the body of an alcoholic beverage at the time of the injury is a question of fact for the Hearing Officer to decide. Appeals Panel Decision 002818. The introduction of the alcohol does have to be voluntary, however, an employee may be considered to be outside the course and scope of his or her employment due to intoxication even when the employee’s supervisors are involved and present during the intoxication.

As a matter of law, an employee who tests at or above the legal limit for alcohol concentration at the time of the claimed injury is intoxicated for purposes of the 1989 Act. Intoxication is defined in Section 401.013(a)(1)as having an alcohol concentration of 0.08 or more as defined by Section 49.01 of the Texas Penal Code:

§ 49.01. DEFINITIONS. In this chapter:

(2) “Intoxicated” means:
(A) not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body; or
(B) having an alcohol concentration of 0.08 or more

Under Texas law “alcohol concentration” means the number of grams of alcohol per:

(A) 210 liters of breath;
(B) 100 milliliters of blood; or
(C) 67 milliliters of urine.

Blood Alcohol Content is referred to as “BAC”.

When a carrier properly raises the defense of alcohol intoxication, there is a shifting burden of the burden of proof. Since the employee is presumed to have been sober at the time the injury occurred, the initial burden is on the carrier to present evidence that the employee was in a state of intoxication due to the employee’s voluntary introduction into the body of an alcoholic beverage. When the carrier presents “probative evidence” of intoxication to rebut the presumption of sobriety, then the claimant has the burden to prove that he or she was not intoxicated at the time of the injury. March v. Victoria Lloyds Insurance Co., 773 S.W.2d 785 (Tex. Civ. App.—Fort Worth 1989, writ denied).

An extrapolation of a blood-alcohol concentration can be sufficient evidence to shift the burden of proof to the employee to prove that he was not intoxicated from the voluntary introduction into the body of alcohol. Appeals Panel Decision 002818. Even a test revealing a blood alcohol concentration which is less than that provided for in Penal Code Section 49.01(2), along with other evidence, may possibly be sufficient to shift the burden of proof regarding sobriety to the employee. Appeals Panel Decision 982483.

While an employee’s refusal to submit to a drug or alcohol test does not shift the burden of proof on the issue of intoxication as a matter of law, the hearing officer may find that the burden shifts through introduction of other evidence.

Although, scientific or medical evidence is not required to establish sobriety, a one line statement that an employee was not intoxicated does not do enough to overcome the presumption of intoxication, once the burden of proof shifts. Appeal Panel Decision 062507-S.

Typically, whether or not an employee had the normal use of his or her mental and physical faculties at the time of the injury is a question of fact for the Hearing Officer or court to decide.

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 lawyers 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 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.

Feb 17th, 2014 Workers' Compensation Defense