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Employer Takes Claimant As He Is When He Enters Employment / Aggravation Of Pre-existing Condition Is Compensable

INJURY IN TEXAS WORKERS’ COMPENSATION DEFENSE CASE
Employer Takes Claimant As He Is When He Enters Employment / Aggravation Of Pre-existing Condition Is Compensable
Gill v. Transamerica Ins. Co., 417 S.W.2d 720 (Tex.App.-Dallas) June 23, 1967
Claimant with a prior spinal injury alleged a new injury while at work. The Carrier argued that he had an ordinary disease of life, spondylolisthesis, or that his injury was a continuation of a prior compensable injury. The trial court found for the claimant but awarded only about $700 total for disability and medical benefits, prompting the appeal on grounds of inadequacy and that the trial court failed to present instructions to jury regarding aggravation of a congenital defect or infirmity.
The appellate court found this was error and remanded because the failure to give proper instruction confused the jury and resulted in the inadequate award. The court stated that liability for a workers’ compensation claim cannot be defeated by showing that the employee was not a well person at the time of the injury. The employer accepts the employee as he is at the time he enters employment. In the event an injury aggravates or accelerates the effect of a pre-existing injury, disease or condition that made the worker more susceptible to such an injury, coverage may not be denied.

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

Jul 28th, 2015 Workers' Compensation Defense

Prevailing Party Is One Who Is Vindicated By The Trial Court’s Judgment–Texas Workers’ Compensation Defense Attorneys

TEXAS ATTORNEY FEES –WORKERS COMPENSATION LAW
Prevailing Party Is One Who Is Vindicated By The Trial Court’s Judgment
Insurance Company of the State of Pennsylvania v. Orosco, 2005 Tex.App.Lexis 3958 (Tex.App.-San Antonio 2005)

At issue in this case was whether the claimant sustained an injury in the course and scope of employment and whether the claimant timely reported his injury to his employer. The claimant alleged a repetitive trauma injury to his left hand due to typing. The TWCC HO and Appeals Panel determined that the claimant was injured in the course and scope of employment, but that he failed to timely report his injury to his employer. Therefore, he would not recover work comp benefits.
Following this decision, the claimant filed a new claim alleging repetitive trauma injury to the right hand. ICSP therefore filed suit in the original claim seeking a determination that the left hand injury was not work-related. This was done in part to protect itself against the new claim alleging a new injury out of the same cause as the underlying action. Presumably, a favorable finding in the trial court would preclude the new claim. ICSP was also concerned that failing to file suit would result in preclusion of its defenses to the new claim.
The appellate court determined that ICSP was not aggrieved by the decision of the Appeals Panel. ICSP had been relieved of liability by the Appeals Panel. Because it is not aggrieved, it has no standing to appeal the determination that the injury was sustained in the course and scope of employment.
Orosco was awarded attorney fees for prevailing in this action under Texas Labor Code §408.221. ICSP argued that Orosco did not “prevail.” The court noted that the Texas Labor Code does not define a “prevailing” party. However, case law indicates a prevailing party is one who is vindicated by the trial court’s judgment. Here, Claimant sought and obtained dismissal of the Insurance Carrier’s claim against him. Therefore, Claimant prevailed.

Jul 28th, 2015 Workers' Compensation Defense

Texas Workers’ Compensation Defense Attorneys–Medical Evidence Required To Show The Work Was A Greater Factor Than Pre-Existing Condition

Medical Evidence Required To Show The Work Was A Greater Factor Than Pre-Existing Condition
Transcontinental Ins. Co. v. Smith, 2004 Tex.App. LEXIS 1228 (Tex.App.-San Antonio 2004)

Plaintiff was engaged in heavy labor and developed profuse sweating, pain in his elbow, and chest discomfort. After going home for the day, his wife took him to the hospital where it was determined that he had suffered a heart attack. After prevailing on a workers’ compensation claim at a contested case hearing, the TWCC Appeals Panel reversed that finding and Smith filed suit.
The court noted that for a heart attack to be compensable it must occur at a definite time and place, caused by a specific event in the course and scope of employment, and medical evidence must show that the employee’s work, rather than a natural progression of a pre-existing heart condition or disease was a substantial contributing factor of the attack.

Jul 28th, 2015 Workers' Compensation Defense

Claimant Waived His Right To Litigate A Timely Controversion Issue–Texas Workers’ Compensation Defense Attorneys

Claimant Waived His Right To Litigate A Timely Controversion Issue
APPEAL 950140 – MARCH 9, 1995
The Claimant litigated a course and scope issue relating to a 1991 injury through the dispute resolution procedure and lost. Thereafter, he raised the issue of whether there had been a timely controversion. The AP stated that the TWCC had jurisdiction to make a determination on the timeliness and sufficiency of the Carrier’s contest of compensability even though the AP had already decided that the claim was not compensable. The AP also stated, however, that the Claimant had waived his right to raise the issue.
The AP referred to Appeal 941333 in which it held that an issue of extent of injury was waived when the issue of impairment rating had already been determined. The AP stated that an issue of timely dispute of compensability may not be raised later without the consent of the parties if it was not raised at the BRC. Because of this, it would be incongruous to hold that the issue may be revived at a later proceeding. An issue of timely contest is closely linked with the issue of compensability. It is a threshold issue that should be determined at the same time as a compensability issue so that the claim can be processed in an orderly fashion. Different issues in the same case should not go separately through the dispute resolution process because the result might be conflicting determinations as to whether the Claimant is entitled to benefits.

Jul 27th, 2015 Workers' Compensation Defense

Employee Phone Calls and Personal Comfort Doctrine–Texas Workers’ Compensation Defense Attorneys

PERSONAL COMFORT AND CONVENIENCE
Does It Apply When An Employee Makes A Personal Phone Call?
Yeldell v. Holiday Hills Retirement And Nursing Center, Inc., 701 S.W.2d 243 (Tex. 1985), December 11, 1985
During Yeldell’s regular shift and while at her duty station, she called her daughter. As she hung up the telephone, the cord became entangled with a coffee urn that overturned and spilled on her, resulting in serious burns.
Holiday Hills contended that the personal telephone call was a deviation which took Yeldell out of the course and scope of her employment.
The court found that an employee need not have been engaged in the discharge of any specific duty incident to his employment; rather, an employee in the course of his employment may perform acts of a personal nature that a person might reasonably do for his health and comfort, such as quenching thirst or relieving hunger; such acts are considered incidental to the employee’s service and the injuries sustained while doing so arise in the course and scope of his employment and are compensable. Making a personal telephone call during working hours may be as essential as a rest period or a refreshment break. In particular, a parent’s telephone call to a minor child at bedtime is as reasonably necessary to a workers’ well-being as quenching one’s thirst or relieving hunger.

Jul 27th, 2015 Workers' Compensation Defense

Carrier’s Failure To Raise Issue Of Timely Filing Of TWCC-52 Resulted in Waiver–Texas Workers’ Compensation Defense Attorneys

Carrier’s Failure To Raise Issue Of Timely Filing Of TWCC-52 Resulted in Waiver

APPEAL 951305 – SEPTEMBER 21, 1995

The HO made findings of SIBs eligibility for the second compensable quarter. The Carrier appealed and stated that it was relieved of liability because Claimant had not filed a timely TWCC-52.

The AP affirmed and stated that the Carrier had waived the issue of whether the Claimant’s TWCC-52 was timely filed. When the Carrier received the TWCC-52 in December, 1994, it was put on notice that the application was late because the Claimant’s initial SIBs quarter expired on October 6, 1994. The Carrier did not raise this issue until the BCCH took place.

Claimant’s testimony about this issue was not an unequivocal manifestation of consent to add the issue.

Jul 27th, 2015 Workers' Compensation Defense

Carrier’s Entitlement to Reimbursement From the Subsequent Injury Fund (SIF)–Texas Workers’ Compensation Case Law

In 1995, the Texas Court of Appeals decided the case of Texas Workers’ Comp. Comm’n v. City of Bridge City, 900 S.W.2d 411, 416 (Tex. App.–Austin 1995, writ denied). Bridge City addressed a carrier’s entitlement to reimbursement from the Subsequent Injury Fund (SIF) regarding benefits paid pursuant to an interlocutory order or a contested case decision when the order is overturned by the Appeals Panel or court. Based on the language in the Texas Workers’ Compensation Act, the Court of Appeals stated that a carrier is not entitled to reimbursement for benefits paid pursuant to a TWCC order between the date of a contested case hearing decision and the TWCC Appeals Panel decision. This gap in the period of benefits that carriers could obtain reimbursement from the SIF could under certain circumstances be significant.

Jul 24th, 2015 Workers' Compensation Defense

NOTIFICATION OF MAXIMUM MEDICAL IMPROVEMENT/FIRST IMPAIRMENT INCOME BENEFIT PAYMENT–Texas Workers’ Compensation Law

NOTIFICATION OF MAXIMUM MEDICAL IMPROVEMENT/FIRST IMPAIRMENT INCOME BENEFIT PAYMENTDATE:

TO: [NAME OF INJURED EMPLOYEE]

[ADDRESS]

[CITY, STATE, ZIP]

RE: [DATE OF INJURY]

[NATURE OF INJURY]

[PART OF BODY INJURED]

[EMPLOYEE SSN]

[CLAIM #]

[CARRIER NAME/TPA NAME]

[CARRIER CLAIM#]

[EMPLOYER NAME]

[EMPLOYER ADDRESS]

[EMPLOYER CITY, STATE, ZIP]

You have been certified to have reached Maximum Medical Improvement (MMI) and had an Impairment Rating (IR) assigned. Entitlement to Impairment Income Benefits (IIBs) begins the day after the date you were certified as having reached MMI. For each percentage point of the impairment rating, you will receive 3 weeks of benefits. The amount of your IIBs benefit is based on 70% of the reported Average Weekly Wage of (***$$$***).

_____ We have received a report from Dr.____________(copy attached) certifying that you have reached MMI on (***date of MMI***) and have been assigned a whole body IR of 0%. Based on this report, you are not eligible for additional income payments of any type. You remain entitled to necessary medical benefits related to this injury.

_____ We have received a report from Dr. __________(copy attached) certifying that you have reached MMI on (***date of MMI***) and have been assigned a whole body IR of _____%. Based on this report you will no longer be eligible for TIBs, however, beginning (***date after MMI***), you will receive _____ weeks of IIBs at the rate of $______ per week less any allowable reductions. These benefits will end approximately ____________. You remain entitled to necessary medical benefits related to this injury.

_____ We are disputing the IR of _____% certified by Dr._________ (copy attached) and have made a reasonable assessment of _____% impairment. Based on this assessment, we will pay IIBs for _____ weeks at the rate of $______ per week pending the resolution of the IR dispute less any allowable reductions. You remain entitled to necessary medical benefits related to this injury.

_____ We have received a report from Dr.__________(copy attached) certifying that you have reached MMI and you do not have any permanent impairment as a result of this compensable injury. Based on this report you are not eligible for any income benefits of any type. You remain entitled to necessary medical benefits related to this injury.

_____ Based on a benefit accrual date of (***date of the 8^th day of disability***) we have determined you have reached statutory MMI. In the absence of an IR certified by a doctor, we have made a reasonable assessment of _____% and will pay IIBs for ______ weeks at the rate of $_______ per week pending the resolution of the IR dispute less any allowable reductions. You remain entitled to necessary medical benefits related to this injury.

If you are expected to be paid benefits for a period of eight weeks or more, you may request that we make benefit payments by electronic funds transfer directly to your bank account. Also, you may request that we change your IIBs to a monthly payment.

Explanatory Comments: (free text for explanatory comments)__________________________________________________________

____________________________________________________________________________________________________________

If you do not agree with this certification of MMI and/or IR you have 90 days from the date you receive this notification of MMI and/or IR to file a dispute with the Texas Department of Insurance, Division of Workers’ Compensation by contacting the Division office handling your claim at 1-800-252-7031.

If you are interested in having your payments made directly to your bank account or do not agree with the finding of MMI, IR certified by the doctor, or the amount being paid please contact me:

Adjuster’s Name: __________________________________________________

Toll Free Telephone #: __________________________________________________

Fax #/E-mail Address: __________________________________________________

If we are unable to resolve the issue to your satisfaction, you may contact the Texas Department of Insurance, Division of Workers’ Compensation for further assistance. You have the right to request a Benefit Review Conference. You can contact the Division office handling your claim at 1-800-252-7031.

If you would like to receive notices such as this by facsimile or e-mail, please contact me and provide your facsimile number or e-mail address.

Please note that making a false or fraudulent workers’ compensation claim is a crime that may result in fines and/or imprisonment.

Cc:

INSTRUCTIONS:

Notification of Maximum Medical Improvement and Impairment Rating (DWC FORM PLN-3), Rule 124.2(e)(1),(4), and (5), and (f); (MTC: IP, CB,RB)

This is a letter for the Notification of MMI/IR and will serve as a notice of payment or non-payment of 030 (IIBs). This letter may be used if the payment of 030 (IIBs) benefits is the first payment of income benefits (IP), the change from TIBs to IIBs (CB), or when IIBs are being reinstated after the payment of TIBs has been suspended (RB). This notice should be used to report to the injured employee/representative the payment of impairment income benefits.

THIS PLN IS NOT TO BE USED AS A NOTICE IF THE EMPLOYEE HAS REACHED STATUTORY MMI AND THE CARRIER IS NOT ASSESSING AN IMPAIRMENT RATING. REFER TO DWC FORM PLN-9 SUSPENSION OF BENEFITS.

THIS FORM SHALL BE USED TO REPORT THE CONVERSION OF INCOME BENEFITS FROM TEMPORARY INCOME BENEFITS TO IMPAIRMENT INCOME BENEFITS.

EACH OPTION IS EXCLUSIVE IN ITSELF AND YOU SHOULD CHOOSE OR MARK ONLY ONE OPTION.

1. Check the box next to the appropriate reason for the conversion/suspension of income benefits. You may provide only the appropriate reason for the conversion. All other reasons may be deleted form the body of the notice.

2. Fill in all required blank fields for the selected option.

DO NOT SEND THIS LETTER TO THE TEXAS DEPARTMENT OF INSURANCE, DIVISION OF WORKERS’ COMPENSATION

Jul 24th, 2015 Workers' Compensation Defense

NOTICE TO EMPLOYEES CONCERNING WORKERS’ COMPENSATION–Texas Workers’ Compensation Law

COVERAGE: [Name of employer] has workers’ compensation insurance coverage from [name of commercial insurance company] in the event of work-related injury or occupational disease. This coverage is effective from [effective date of workers’ compensation insurance policy] . Any injuries or occupational diseases which occur on or after that date will be handled by [name of commercial insurance company] . An employee or a person acting on the employee’s behalf, must notify the employer of an injury or occupational disease not later than the 30th day after the date on which the injury occurs or the date the employee knew or should have known of an occupational disease, unless the Texas Department of Insurance, Division of Workers’ Compensation (Division) determines that good cause existed for failure to provide timely notice. Your employer is required to provide you with coverage information, in writing, when you are hired or whenever the employer becomes, or ceases to be, covered by workers’ compensation insurance.

You may elect to retain your common law right of action if, no later than five days after you begin employment or within five days after receiving written notice from the employer that the employer has obtained workers’ compensation insurance coverage, you notify your employer in writing that you wish to retain your common law right to recover damages for personal injury. If you elect to retain your common law right of action, you cannot obtain workers’ compensation income or medical benefits if you are injured.

EMPLOYEE ASSISTANCE: The Division provides free information about how to file a workers’ compensation claim. Division staff will answer any questions you may have about workers’ compensation and process any requests for dispute resolution of a claim. You can obtain this assistance by contacting your local Division field office or by calling 1-800-252-7031. The Office of Injured Employee Counsel (OIEC) also provides free assistance to injured employees and will explain your rights and responsibilities under the Workers’ Compensation Act. You can obtain OIEC’s assistance by contacting an OIEC customer service representative in your local Division field office or by calling 1-866-EZE-OIEC (1-866-393-6432).

SAFETY VIOLATIONS HOTLINE: The Division has a 24 hour toll-free telephone number for reporting unsafe conditions in the workplace that may violate occupational health and safety laws. Employers are prohibited by law from suspending, terminating, or discriminating against any employee because he or she in good faith reports an alleged occupational health or safety violation. Contact the Division at 1-800-452-9595.

Jul 24th, 2015 Employment Law Defense, Workers' Compensation Defense

Historical Work Related Fatality Statistics-2007–Texas Worker’s Compensation Law

Austin, Texas, August 13, 2007 – The Texas Department of Insurance, Division of Workers’ Compensation announced that Texas recorded 486 work-related fatalities in 2006, a slight decrease compared to 2005 when 495 fatalities occurred. Nationally, there were 5,703 fatal work injuries in 2006, about a one percent decrease from 5,734 fatalities in 2005, according to the most recently available data released August 9 by the Census of Fatal Occupational Injuries (CFOI). Additional information about the decrease in work-related fatalities can be found at http://www.tdi.state.tx.us/news/2007/news2007106.html.

Jul 24th, 2015 Workers' Compensation Defense