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Texas Workers’ Compensation Labor Code Definitions–Texas Workers’ Compensation Defense Attorneys

TEXAS LABOR CODE CHAPTER 401. GENERAL PROVISIONS

SUBCHAPTER B. DEFINITIONS

Sec. 401.011. GENERAL DEFINITIONS. In this subtitle:

(1) “Adjuster” means a person licensed under Chapter 4101, Insurance Code.

(2) “Administrative violation” means a violation of this subtitle, a rule adopted under this subtitle, or an order or decision of the commissioner that is subject to penalties and sanctions as provided by this subtitle.

(3) “Agreement” means the resolution by the parties to a dispute under this subtitle of one or more issues regarding an injury, death, coverage, compensability, or compensation. The term does not include a settlement.

(4) “Alien” means a person who is not a citizen of the United States.

(5) “Benefit” means a medical benefit, an income benefit, a death benefit, or a burial benefit based on a compensable injury.

(5-a) “Case management” means a collaborative process of assessment, planning, facilitation, and advocacy for options and services to meet an individual’s health needs through communication and application of available resources to promote quality, cost-effective outcomes.

(6) “Certified self-insurer” means a private employer granted a certificate of authority to self-insure, as authorized by this subtitle, for the payment of compensation.

(7) “Child” means a son or daughter. The term includes an adopted child or a stepchild who is a dependent of the employee.

(8) “Commissioner” means the commissioner of workers’ compensation.

(9) “Commute” means to pay in a lump sum.

(10) “Compensable injury” means an injury that arises out of and in the course and scope of employment for which compensation is payable under this subtitle.

(11) “Compensation” means payment of a benefit.

(12) “Course and scope of employment” means an activity of any kind or character that has to do with and originates in the work, business, trade, or profession of the employer and that is performed by an employee while engaged in or about the furtherance of the affairs or business of the employer. The term includes an activity conducted on the premises of the employer or at other locations. The term does not include:

(A) transportation to and from the place of employment unless:

(i) the transportation is furnished as a part of the contract of employment or is paid for by the employer;

(ii) the means of the transportation are under the control of the employer; or

(iii) the employee is directed in the employee’s employment to proceed from one place to another place; or

(B) travel by the employee in the furtherance of the affairs or business of the employer if the travel is also in furtherance of personal or private affairs of the employee unless:

(i) the travel to the place of occurrence of the injury would have been made even had there been no personal or private affairs of the employee to be furthered by the travel; and

(ii) the travel would not have been made had there been no affairs or business of the employer to be furthered by the travel.

(12-a) “Credentialing” has the meaning assigned by Chapter 1305, Insurance Code.

(13) “Death benefit” means a payment made under this subtitle to a legal beneficiary because of the death of an employee.

(13-a) “Department” means the Texas Department of Insurance.

(14) “Dependent” means an individual who receives a regular or recurring economic benefit that contributes substantially to the individual’s welfare and livelihood if the individual is eligible for distribution of benefits under Chapter 408.

(15) “Designated doctor” means a doctor appointed by mutual agreement of the parties or by the division to recommend a resolution of a dispute as to the medical condition of an injured employee.

(16) “Disability” means the inability because of a compensable injury to obtain and retain employment at wages equivalent to the preinjury wage.

(16-a) “Division” means the division of workers’ compensation of the department.

(17) “Doctor” means a doctor of medicine, osteopathic medicine, optometry, dentistry, podiatry, or chiropractic who is licensed and authorized to practice.

(18) “Employer” means, unless otherwise specified, a person who makes a contract of hire, employs one or more employees, and has workers’ compensation insurance coverage. The term includes a governmental entity that self-insures, either individually or collectively.

(18-a) “Evidence-based medicine” means the use of current best quality scientific and medical evidence formulated from credible scientific studies, including peer-reviewed medical literature and other current scientifically based texts, and treatment and practice guidelines in making decisions about the care of individual patients.

(19) “Health care” includes all reasonable and necessary medical aid, medical examinations, medical treatments, medical diagnoses, medical evaluations, and medical services. The term does not include vocational rehabilitation. The term includes:

(A) medical, surgical, chiropractic, podiatric, optometric, dental, nursing, and physical therapy services provided by or at the direction of a doctor;

(B) physical rehabilitation services performed by a licensed occupational therapist provided by or at the direction of a doctor;

(D) the services of a hospital or other health care facility;

(E) a prescription drug, medicine, or other remedy; and

(F) a medical or surgical supply, appliance, brace, artificial member, or prosthetic or orthotic device, including the fitting of, change or repair to, or training in the use of the appliance, brace, member, or device.

(20) “Health care facility” means a hospital, emergency clinic, outpatient clinic, or other facility providing health care.

(21) “Health care practitioner” means:

(A) an individual who is licensed to provide or render and provides or renders health care; or

(B) a nonlicensed individual who provides or renders health care under the direction or supervision of a doctor.

(22) “Health care provider” means a health care facility or health care practitioner.

(22-a) “Health care reasonably required” means health care that is clinically appropriate and considered effective for the injured employee’s injury and provided in accordance with best practices consistent with:

(A) evidence-based medicine; or

(B) if that evidence is not available, generally accepted standards of medical practice recognized in the medical community.

(23) “Impairment” means any anatomic or functional abnormality or loss existing after maximum medical improvement that results from a compensable injury and is reasonably presumed to be permanent.

(24) “Impairment rating” means the percentage of permanent impairment of the whole body resulting from a compensable injury.

(25) “Income benefit” means a payment made to an employee for a compensable injury. The term does not include a medical benefit, death benefit, or burial benefit.

(25-a) “Independent review organization” has the same meaning as in Section 1305.004(a)(11), Insurance Code.

(26) “Injury” means damage or harm to the physical structure of the body and a disease or infection naturally resulting from the damage or harm. The term includes an occupational disease.

(27) “Insurance carrier” means:

(A) an insurance company;

(B) a certified self-insurer for workers’ compensation insurance;

(D) a governmental entity that self-insures, either individually or collectively.

(28) “Insurance company” means a person authorized and admitted by the Texas Department of Insurance to do insurance business in this state under a certificate of authority that includes authorization to write workers’ compensation insurance.

(29) “Legal beneficiary” means a person entitled to receive a death benefit under this subtitle.

(30) “Maximum medical improvement” means the earlier of:

(A) the earliest date after which, based on reasonable medical probability, further material recovery from or lasting improvement to an injury can no longer reasonably be anticipated;

(B) the expiration of 104 weeks from the date on which income benefits begin to accrue; or

(31) “Medical benefit” means payment for health care reasonably required by the nature of a compensable injury and intended to:

(A) cure or relieve the effects naturally resulting from the compensable injury, including reasonable expenses incurred by the employee for necessary treatment to cure and relieve the employee from the effects of an occupational disease before and after the employee knew or should have known the nature of the disability and its relationship to the employment;

(B) promote recovery; or

(31-a) “Network” or “workers’ compensation health care network” means an organization that is:

(A) formed as a health care provider network to provide health care services to injured employees;

(B) certified in accordance with Chapter 1305, Insurance Code, and rules of the commissioner of insurance; and

(32) “Objective” means independently verifiable or confirmable results that are based on recognized laboratory or diagnostic tests, or signs confirmable by physical examination.

(33) “Objective clinical or laboratory finding” means a medical finding of impairment resulting from a compensable injury, based on competent objective medical evidence, that is independently confirmable by a doctor, including a designated doctor, without reliance on the subjective symptoms perceived by the employee.

(34) “Occupational disease” means a disease arising out of and in the course of employment that causes damage or harm to the physical structure of the body, including a repetitive trauma injury. The term includes a disease or infection that naturally results from the work-related disease. The term does not include an ordinary disease of life to which the general public is exposed outside of employment, unless that disease is an incident to a compensable injury or occupational disease.

(34-a) “Orthotic device” means a custom-fitted or custom-fabricated medical device that is applied to a part of the human body to correct a deformity, improve function, or relieve symptoms related to a compensable injury or occupational disease.

(35) “Penalty” means a fine established by this subtitle.

(35-a) “Prosthetic device” means an artificial device designed to replace, wholly or partly, an arm or leg.

(36) “Repetitive trauma injury” means damage or harm to the physical structure of the body occurring as the result of repetitious, physically traumatic activities that occur over time and arise out of and in the course and scope of employment.

(37) “Representative” means a person, including an attorney, authorized by the commissioner to assist or represent an employee, a person claiming a death benefit, or an insurance carrier in a matter arising under this subtitle that relates to the payment of compensation.

(38) “Research center” means the research functions of the Texas Department of Insurance required under Chapter 405.

(38-a) “Retrospective review” means the utilization review process of reviewing the medical necessity and reasonableness of health care that has been provided to an injured employee.

(39) “Sanction” means a penalty or other punitive action or remedy imposed by the commissioner on an insurance carrier, representative, employee, employer, or health care provider for an act or omission in violation of this subtitle or a rule, order, or decision of the commissioner.

(40) “Settlement” means a final resolution of all the issues in a workers’ compensation claim that are permitted to be resolved under the terms of this subtitle.

(41) “Subjective” means perceivable only by an employee and not independently verifiable or confirmable by recognized laboratory or diagnostic tests or signs observable by physical examination.

(42) “Treating doctor” means the doctor who is primarily responsible for the employee’s health care for an injury.

(42-a) “Utilization review” has the meaning assigned by Chapter 4201, Insurance Code.

(42-b) “Utilization review agent” has the meaning assigned by Chapter 4201, Insurance Code.

(42-c) “Violation” means an administrative violation subject to penalties and sanctions as provided by this subtitle.

(43) “Wages” includes all forms of remuneration payable for a given period to an employee for personal services. The term includes the market value of board, lodging, laundry, fuel, and any other advantage that can be estimated in money that the employee receives from the employer as part of the employee’s remuneration.

(44) “Workers’ compensation insurance coverage” means:

(A) an approved insurance policy to secure the payment of compensation;

(B) coverage to secure the payment of compensation through self-insurance as provided by this subtitle; or

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993. Amended by Acts 1997, 75th Leg., ch. 1443, Sec. 1, eff. Sept. 1, 1997; Acts 2003, 78th Leg., ch. 275, Sec. 2, eff. Sept. 1, 2003.

Amended by:

Acts 2005, 79th Leg., Ch. 265 (H.B. 7), Sec. 3.003, eff. September 1, 2005.

Acts 2007, 80th Leg., R.S., Ch. 133 (H.B. 1003), Sec. 1, eff. September 1, 2007.

Acts 2007, 80th Leg., R.S., Ch. 134 (H.B. 1006), Sec. 1, eff. September 1, 2007.

Acts 2007, 80th Leg., R.S., Ch. 147 (S.B. 458), Sec. 1, eff. September 1, 2007.

Acts 2009, 81st Leg., R.S., Ch. 1330 (H.B. 4290), Sec. 13, eff. September 1, 2009.

Sec. 401.012. DEFINITION OF EMPLOYEE. (a) In this subtitle, “employee” means each person in the service of another under a contract of hire, whether express or implied, or oral or written.

(b) The term “employee” includes:

(1) an employee employed in the usual course and scope of the employer’s business who is directed by the employer temporarily to perform services outside the usual course and scope of the employer’s business;

(2) a person, other than an independent contractor or the employee of an independent contractor, who is engaged in construction, remodeling, or repair work for the employer at the premises of the employer; and

(3) a person who is a trainee under the Texans Work program established under Chapter 308.

(1) a master of or a seaman on a vessel engaged in interstate or foreign commerce; or

(2) a person whose employment is not in the usual course and scope of the employer’s business.

(d) A person who is an employee for the purposes of this subtitle and engaged in work that otherwise may be legally performed is an employee despite:

(1) a license, permit, or certificate violation arising under state law or municipal ordinance; or

(2) a violation of a law regulating wages, hours, or work on Sunday.

(e) This section may not be construed to relieve from fine or imprisonment any individual, firm, or corporation employing or performing work or a service prohibited by a statute of this state or a municipal ordinance.

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993. Amended by Acts 1997, 75th Leg., ch. 456, Sec. 6, eff. Sept. 1, 1997.

Sec. 401.013. DEFINITION OF INTOXICATION. (a) In this subtitle, “intoxication” means the state of:

(1) having an alcohol concentration to qualify as intoxicated under Section 49.01(2), Penal Code; or

(2) not having the normal use of mental or physical faculties resulting from the voluntary introduction into the body of:

(A) an alcoholic beverage, as defined by Section 1.04, Alcoholic Beverage Code;

(B) a controlled substance or controlled substance analogue, as defined by Section 481.002, Health and Safety Code;

(D) an abusable glue or aerosol paint, as defined by Section 485.001, Health and Safety Code; or

(E) any similar substance, the use of which is regulated under state law.

(b) The term “intoxication” does not include the loss of normal use of mental or physical faculties resulting from the introduction into the body of a substance:

(1) taken under and in accordance with a prescription written for the employee by the employee’s doctor; or

(2) listed under Subsection (a) by inhalation or absorption incidental to the employee’s work.

(c) On the voluntary introduction into the body of any substance listed under Subsection (a)(2)(B), based on a blood test or urinalysis, it is a rebuttable presumption that a person is intoxicated and does not have the normal use of mental or physical faculties.

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993. Amended by Acts 1995, 74th Leg., ch. 76, Sec. 14.48, eff. Sept. 1, 1995; Acts 1999, 76th Leg., ch. 1426, Sec. 1, eff. Sept. 1, 1999.

Jul 10th, 2015 Workers' Compensation Defense

Random Texas Workers’ Compensation Law Considerations from TDI–Fort Worth, Texas Workers’ Compensation Attorneys

In workers’ compensation cases in Texas, 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.
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.
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.
Three main types of benefits exist: medical benefits, income benefits, and death benefits – each type is statutorily defined and limited.
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.
An employee’s refusal of suitable light-duty work can stop the payment of workers’ compensation benefits.
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”).
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.
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” at the TDI website, for which credit for these thoughts is due.
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.
Loss of health insurance benefits while on workers’ compensation leave is a COBRA-qualifying event.
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.

See http://www.twc.state.tx.us/businesses

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 9th, 2015 Workers' Compensation Defense

Contested Case Hearings Under the Texas Workers’ Compensation Act–Texas Workers’ Compensation Defense Attorneys

TEXAS LABOR CODE

TITLE 5. WORKERS’ COMPENSATION

SUBTITLE A. TEXAS WORKERS’ COMPENSATION ACT

CHAPTER 410. ADJUDICATION OF DISPUTES

SUBCHAPTER D. CONTESTED CASE HEARING

Sec. 410.151. CONTESTED CASE HEARING; SCOPE. (a) If arbitration is not elected under Section 410.104, a party to a claim for which a benefit review conference is held or a party eligible to proceed directly to a contested case hearing as provided by Section 410.024 is entitled to a contested case hearing.

(b) An issue that was not raised at a benefit review conference or that was resolved at a benefit review conference may not be considered unless:

(1) the parties consent; or

(2) if the issue was not raised, the commissioner determines that good cause existed for not raising the issue at the conference.

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993.

Amended by:

Acts 2005, 79th Leg., Ch. 265 (H.B. 7), Sec. 3.180, eff. September 1, 2005.

Sec. 410.152. HEARING OFFICERS; QUALIFICATIONS. (a) A hearing officer shall conduct a contested case hearing.

(b) A hearing officer must be licensed to practice law in this state.

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993.

Sec. 410.153. APPLICATION OF ADMINISTRATIVE PROCEDURE ACT. Chapter 2001, Government Code, applies to a contested case hearing to the extent that the commissioner finds appropriate, except that the following do not apply:

(1) Section 2001.054;

(2) Sections 2001.061 and 2001.062;

(3) Section 2001.202; and

(4) Subchapters F, G, I, and Z, except for Section 2001.141(c).

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993. Amended by Acts 1995, 74th Leg., ch. 76, Sec. 5.93, eff. Sept. 1, 1995.

Amended by:

Acts 2005, 79th Leg., Ch. 265 (H.B. 7), Sec. 3.181, eff. September 1, 2005.

Sec. 410.154. SCHEDULING OF HEARING. The division shall schedule a contested case hearing in accordance with Section 410.024 or 410.025(b).

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993.

Amended by:

Acts 2005, 79th Leg., Ch. 265 (H.B. 7), Sec. 3.182, eff. September 1, 2005.

Sec. 410.155. CONTINUANCE. (a) A written request by a party for a continuance of a contested case hearing to another date must be directed to the division.

(b) The division may grant a continuance only if the division determines that there is good cause for the continuance.

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993.

Amended by:

Acts 2005, 79th Leg., Ch. 265 (H.B. 7), Sec. 3.183, eff. September 1, 2005.

Sec. 410.156. ATTENDANCE REQUIRED; ADMINISTRATIVE VIOLATION. (a) Each party shall attend a contested case hearing.

(b) A party commits an administrative violation if the party, without good cause as determined by the hearing officer, does not attend a contested case hearing.

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993.

Amended by:

Acts 2005, 79th Leg., Ch. 265 (H.B. 7), Sec. 3.184, eff. September 1, 2005.

Sec. 410.157. RULES. The commissioner shall adopt rules governing procedures under which contested case hearings are conducted.

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993.

Amended by:

Acts 2005, 79th Leg., Ch. 265 (H.B. 7), Sec. 3.185, eff. September 1, 2005.

Sec. 410.158. DISCOVERY. (a) Except as provided by Section 410.162, discovery is limited to:

(1) depositions on written questions to any health care provider;

(2) depositions of other witnesses as permitted by the hearing officer for good cause shown; and

(3) interrogatories as prescribed by the commissioner.

(b) Discovery under Subsection (a) may not seek information that may readily be derived from documentary evidence described in Section 410.160. Answers to discovery under Subsection (a) need not duplicate information that may readily be derived from documentary evidence described in Section 410.160.

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993.

Amended by:

Acts 2005, 79th Leg., Ch. 265 (H.B. 7), Sec. 3.186, eff. September 1, 2005.

Sec. 410.159. STANDARD INTERROGATORIES. (a) The commissioner by rule shall prescribe standard form sets of interrogatories to elicit information from claimants and insurance carriers.

(b) Standard interrogatories shall be answered by each party and served on the opposing party within the time prescribed by commissioner rule, unless the parties agree otherwise.

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993.

Amended by:

Acts 2005, 79th Leg., Ch. 265 (H.B. 7), Sec. 3.187, eff. September 1, 2005.

Sec. 410.160. EXCHANGE OF INFORMATION. Within the time prescribed by commissioner rule, the parties shall exchange:

(1) all medical reports and reports of expert witnesses who will be called to testify at the hearing;

(2) all medical records;

(3) any witness statements;

(4) the identity and location of any witness known to the parties to have knowledge of relevant facts; and

(5) all photographs or other documents that a party intends to offer into evidence at the hearing.

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993.

Amended by:

Acts 2005, 79th Leg., Ch. 265 (H.B. 7), Sec. 3.188, eff. September 1, 2005.

Sec. 410.161. FAILURE TO DISCLOSE INFORMATION. A party who fails to disclose information known to the party or documents that are in the party’s possession, custody, or control at the time disclosure is required by Sections 410.158-410.160 may not introduce the evidence at any subsequent proceeding before the division or in court on the claim unless good cause is shown for not having disclosed the information or documents under those sections.

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993.

Amended by:

Acts 2005, 79th Leg., Ch. 265 (H.B. 7), Sec. 3.189, eff. September 1, 2005.

Sec. 410.162. ADDITIONAL DISCOVERY. For good cause shown, a party may obtain permission from the hearing officer to conduct additional discovery as necessary.

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993.

Sec. 410.163. POWERS AND DUTIES OF HEARING OFFICER. (a) At a contested case hearing the hearing officer shall:

(1) swear witnesses;

(2) receive testimony;

(3) allow examination and cross-examination of witnesses;

(4) accept documents and other tangible evidence; and

(5) allow the presentation of evidence by affidavit.

(b) A hearing officer shall ensure the preservation of the rights of the parties and the full development of facts required for the determinations to be made. A hearing officer may permit the use of summary procedures, if appropriate, including witness statements, summaries, and similar measures to expedite the proceedings.

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993.

Sec. 410.164. RECORD. (a) The proceedings of a contested case hearing shall be recorded electronically. A party may request a transcript of the proceeding and shall pay the reasonable cost of the transcription.

(b) A party may request that the proceedings of the contested case hearing be recorded by a court reporter. The party making the request shall bear the cost.

(c) At each contested case hearing, as applicable, the insurance carrier shall file with the hearing officer and shall deliver to the claimant a single document stating the true corporate name of the insurance carrier and the name and address of the insurance carrier’s registered agent for service of process. The document is part of the record of the contested case hearing.

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993. Amended by Acts 2001, 77th Leg., ch. 1456, Sec. 11.01, eff. June 17, 2001.

Sec. 410.165. EVIDENCE. (a) The hearing officer is the sole judge of the relevance and materiality of the evidence offered and of the weight and credibility to be given to the evidence. Conformity to legal rules of evidence is not necessary.

(b) A hearing officer may accept a written statement signed by a witness and shall accept all written reports signed by a health care provider.

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993.

Sec. 410.166. STIPULATIONS. A written stipulation or agreement of the parties that is filed in the record or an oral stipulation or agreement of the parties that is preserved in the record is final and binding.

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993.

Sec. 410.167. EX PARTE CONTACTS PROHIBITED. A party and a hearing officer may not communicate outside the contested case hearing unless the communication is in writing with copies provided to all parties or relates to procedural matters.

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993.

Sec. 410.168. DECISION. (a) The hearing officer shall issue a written decision that includes:

(1) findings of fact and conclusions of law;

(2) a determination of whether benefits are due; and

(3) an award of benefits due.

(b) The decision may address accrued benefits, future benefits, or both accrued benefits and future benefits.

(c) The hearing officer may enter an interlocutory order for the payment of all or part of medical benefits or income benefits. The order may address accrued benefits, future benefits, or both accrued benefits and future benefits. The order is binding during the pendency of an appeal to the appeals panel.

(d) On a form that the commissioner by rule prescribes, the hearing officer shall issue a separate written decision regarding attorney’s fees and any matter related to attorney’s fees. The decision regarding attorney’s fees and the form may not be made known to a jury in a judicial review of an award, including an appeal.

(e) The commissioner by rule shall prescribe the times within which the hearing officer must file the decisions with the division.

(f) The division shall send a copy of the decision to each party.

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993. Amended by Acts 1999, 76th Leg., ch. 955, Sec. 3, eff. Sept. 1, 1999.

Amended by:

Acts 2005, 79th Leg., Ch. 265 (H.B. 7), Sec. 3.190, eff. September 1, 2005.

Sec. 410.169. EFFECT OF DECISION. A decision of a hearing officer regarding benefits is final in the absence of a timely appeal by a party and is binding during the pendency of an appeal to the appeals panel.

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993.

Jul 9th, 2015 Workers' Compensation Defense

Substantial Change of Medical Condition Under the Texas Workers’ Compensation Act–Fort Worth, Texas Workers’ Compensation Defense Attorneys

TEXAS LABOR CODE

TITLE 5. WORKERS’ COMPENSATION

SUBTITLE A. TEXAS WORKERS’ COMPENSATION ACT

CHAPTER 410. ADJUDICATION OF DISPUTES

Sec. 410.307. SUBSTANTIAL CHANGE OF CONDITION. (a) Evidence of the extent of impairment is not limited to that presented to the division if the court, after a hearing, finds that there is a substantial change of condition. The court’s finding of a substantial change of condition may be based only on:

(1) medical evidence from the same doctor or doctors whose testimony or opinion was presented to the division;

(2) evidence that has come to the party’s knowledge since the contested case hearing;

(3) evidence that could not have been discovered earlier with due diligence by the party; and

(4) evidence that would probably produce a different result if it is admitted into evidence at the trial.

(b) If substantial change of condition is disputed, the court shall require the designated doctor in the case to verify the substantial change of condition, if any. The findings of the designated doctor shall be presumed to be correct, and the court shall base its finding on the medical evidence presented by the designated doctor in regard to substantial change of condition unless the preponderance of the other medical evidence is to the contrary.

(c) The substantial change of condition must be confirmable by recognized laboratory or diagnostic tests or signs confirmable by physical examination.

(d) If the court finds a substantial change of condition under this section, new medical evidence of the extent of impairment must be from and is limited to the same doctor or doctors who made impairment ratings before the division under Section 408.123.

(e) The court’s finding of a substantial change of condition may not be made known to the jury.

(f) The court or jury in its determination of the extent of impairment shall adopt one of the impairment ratings made under this section.

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993.

Amended by:

Acts 2005, 79th Leg., Ch. 265 (H.B. 7), Sec. 3.207, eff. September 1, 2005.

Jul 9th, 2015 Workers' Compensation Defense

Texas Seat Belt Laws–Texas Insurance Defense Attorneys

Here Is the Law

Vernon’s Texas Statutes and Codes Annotated Transportation Code

Texas Seatbelt Laws

TRANSPORTATION CODE
Chapter 545. Operation and Movement of Vehicles
§ 545.412. Child Passenger Safety Seat Systems; Offense.

(a) A person commits an offense if the person operates a passenger vehicle, transports a child who is younger than eight years of age, unless the child is taller than four feet, nine inches, and does not keep the child secured during the operation of the vehicle in a child passenger safety seat system according to the instructions of the manufacturer of the safety seat system.

(b) An offense under this section is a misdemeanor punishable by a fine of not less than $25 and not more than $250.

(b-1) [Repealed by Acts 2011, 82nd Leg., 1st C.S., ch. 4 (S.B. 1), § 69.01(1), effective September 28, 2011.]

(c) It is a defense to prosecution under this section that the person was operating the vehicle in an emergency or for a law enforcement purpose.

(d) [Repealed by Acts 2003, 78th Leg., ch. 204 (H.B. 4), § 8.01, effective September 1, 2003.]

(e) This section does not apply to a person:

(1) operating a vehicle transporting passengers for hire, excluding third-party transport service providers when transporting clients pursuant to a contract to provide nonemergency Medicaid transportation; or

(2) transporting a child in a vehicle in which all seating positions equipped with child passenger safety seat systems or safety belts are occupied.

(f) In this section:

(1) “Child passenger safety seat system” means an infant or child passenger restraint system that meets the federal standards for crash-tested restraint systems as set by the National Highway Traffic Safety Administration.

(2) “Passenger vehicle” means a passenger car, light truck, sport utility vehicle, passenger van designed to transport 15 or fewer passengers, including the driver, truck, or truck tractor.

(3) “Safety belt” means a lap belt and any shoulder straps included as original equipment on or added to a vehicle.

(4) “Secured,” in connection with use of a safety belt, means using the lap belt and any shoulder straps according to the instructions of:

(A) the manufacturer of the vehicle, if the safety belt is original equipment; or

(B) the manufacturer of the safety belt, if the safety belt has been added to the vehicle.

(g) A judge, acting under Article 45.0511, Code of Criminal Procedure, who elects to defer further proceedings and to place a defendant accused of a violation of this section on probation under that article, in lieu of requiring the defendant to complete a driving safety course approved by the Texas Education Agency, shall require the defendant to attend and present proof that the defendant has successfully completed a specialized driving safety course approved by the Texas Education Agency under the Texas Driver and Traffic Safety Education Act (Article 4413(29c), Vernon’s Texas Civil Statutes) that includes four hours of instruction that encourages the use of child passenger safety seat systems and the wearing of seat belts and emphasizes:

(1) the effectiveness of child passenger safety seat systems and seat belts in reducing the harm to children being transported in motor vehicles; and

(2) the requirements of this section and the penalty for noncompliance.

(h) Notwithstanding Section 542.402(a), a municipality or county, at the end of the municipality’s or county’s fiscal year, shall send to the comptroller an amount equal to 50 percent of the fines collected by the municipality or the county for violations of this section. The comptroller shall deposit the amount received to the credit of the tertiary care fund for use by trauma centers.

Chapter 545. Operation and Movement of Vehicles
§ 545.4121. Dismissal; Obtaining Child Passenger Safety Seat System.

(a) This section applies to an offense committed under Section 545.412.

(b) It is a defense to prosecution of an offense to which this section applies that the defendant provides to the court evidence satisfactory to the court that:

(1) at the time of the offense:

(A) the defendant was not arrested or issued a citation for violation of any other offense;

(B) the defendant did not possess a child passenger safety seat system in the vehicle; and

(2) subsequent to the time of the offense, the defendant obtained an appropriate child passenger safety seat system for each child required to be secured in a child passenger safety seat system under Section 545.412(a).

Chapter 545. Operation and Movement of Vehicles
§ 545.413. Safety Belts; Offense.

(a) A person commits an offense if:

(1) the person:

(A) is at least 15 years of age;

(B) is riding in a passenger vehicle while the vehicle is being operated;

(D) is not secured by a safety belt; or

(2) as the operator of a school bus equipped with a safety belt for the operator’s seat, the person is not secured by the safety belt.

(b) A person commits an offense if the person:

(1) operates a passenger vehicle that is equipped with safety belts; and

(2) allows a child who is younger than 17 years of age and who is not required to be secured in a child passenger safety seat system under Section 545.412(a) to ride in the vehicle without requiring the child to be secured by a safety belt, provided the child is occupying a seat that is equipped with a safety belt.

(b-1) A person commits an offense if the person allows a child who is younger than 17 years of age and who is not required to be secured in a child passenger safety seat system under Section 545.412(a) to ride in a passenger van designed to transport 15 or fewer passengers, including the driver, without securing the child individually by a safety belt, if the child is occupying a seat that is equipped with a safety belt.

(c) A passenger vehicle or a seat in a passenger vehicle is considered to be equipped with a safety belt if the vehicle is required under Section 547.601 to be equipped with safety belts.

(d) An offense under Subsection (a) is a misdemeanor punishable by a fine of not less than $25 or more than $50. An offense under Subsection (b) is a misdemeanor punishable by a fine of not less than $100 or more than $200.

(e) It is a defense to prosecution under this section that:

(1) the person possesses a written statement from a licensed physician stating that for a medical reason the person should not wear a safety belt;

(2) the person presents to the court, not later than the 10th day after the date of the offense, a statement from a licensed physician stating that for a medical reason the person should not wear a safety belt;

(3) the person is employed by the United States Postal Service and performing a duty for that agency that requires the operator to service postal boxes from a vehicle or that requires frequent entry into and exit from a vehicle;

(4) the person is engaged in the actual delivery of newspapers from a vehicle or is performing newspaper delivery duties that require frequent entry into and exit from a vehicle;

(5) the person is employed by a public or private utility company and is engaged in the reading of meters or performing a similar duty for that company requiring the operator to frequently enter into and exit from a vehicle;

(6) the person is operating a commercial vehicle registered as a farm vehicle under the provisions of Section 502.433 that does not have a gross weight, registered weight, or gross weight rating of 48,000 pounds or more; or

(7) the person is the operator of or a passenger in a vehicle used exclusively to transport solid waste and performing duties that require frequent entry into and exit from the vehicle.

(f) The department shall develop and implement an educational program to encourage the wearing of safety belts and to emphasize:

(1) the effectiveness of safety belts and other restraint devices in reducing the risk of harm to passengers in motor vehicles; and

(2) the requirements of this section and the penalty for noncompliance.

Chapter 545. Operation and Movement of Vehicles
§ 545.414. Riding in Open Beds; Offense.

(a) A person commits an offense if the person operates an open-bed pickup truck or an open flatbed truck or draws an open flatbed trailer when a child younger than 18 years of age is occupying the bed of the truck or trailer.

(b) An offense under this section is a misdemeanor punishable by a fine of not less than $25 or more than $200.

(1) operating or towing the vehicle in a parade or in an emergency;

(2) operating the vehicle to transport farmworkers from one field to another field on a farm-to-market road, ranch-to-market road, or county road outside a municipality;

(3) operating the vehicle on a beach;

(4) operating a vehicle that is the only vehicle owned or operated by the members of a household; or

(5) operating the vehicle in a hayride permitted by the governing body of or a law enforcement agency of each county or municipality in which the hayride will occur.

(d) Compliance or noncompliance with Subsection (a) is not admissible evidence in a civil trial.

(e) In this section, “household” has the meaning assigned by Section 71.005, Family Code.

Texas law now requires drivers and all passengers in vehicles to be secured by a safety belt. A safety belt violation can result in fines ranging from $25 to $250, plus court costs.

Safety Seat Guidelines

Safety belts are designed for adults, not children.

Follow these guidelines when buying the proper seat and buckling up children:

Birth-2 Years

All infants and toddlers should ride in a rear-facing car seat until they are at least 2 years of age or until they reach the highest weight or height allowed by their car seat’s manufacturer. (Check labels on seat for this information.)
Secure the chest clip even with your baby’s armpits.
Fasten harness straps snugly against your baby’s body. You should not be able to pinch the slack at the baby’s shoulder.
Use the harness slot at or below the baby’s shoulder for rear-facing.

Over 2 Years

Use a forward-facing seat for as long as the safety seat manufacturer recommends it. (Check labels for maximum height and weight information.)
Fasten harness straps snugly against your child’s body. You should not be able to pinch the slack at the baby’s shoulder.
Secure the chest clip even with your child’s armpits.
Use either seat belt or lower anchors to secure the car seat, not both. Always latch the tether strap to the corresponding anchor if your vehicle has one.

4-8 Years

Use a booster seat to the maximum height or weight limit. (Check labels for information.)
Fasten the lap belt across your child’s thighs and hips, not stomach.
The shoulder belt should rest on the chest, not the neck. Check belt routing on booster for proper placement.

Over 8 Years Old

Always use a lap and shoulder belt for maximum protection.
Anyone under the age of 13 should be restrained in the back seat.

See http://www.txdot.gov/driver/kids-teens/safety-belts.html

Jul 9th, 2015 Employment Law Defense, Insurance Defense Litigation, Nonsubscriber Law, Workers' Compensation Defense

Workers’ Compensation Insurance Coverage in Texas–Fort Worth, Texas Workers’ Compensation Attorneys

Texas workers’ compensation insurance coverage provides covered employees with income and medical benefits if they sustain a work-related injury or illness. Except as otherwise provided by law; Texas private employers can choose whether or not to provide workers’ compensation insurance coverage for their employees. Except in cases of gross negligence or an intentional act or omission of the employer, workers’ compensation insurance limits an employer’s liability if an employee brings suit against the employer for damages. Certain building or construction employers who contract with governmental entities are required to provide workers’ compensation coverage for each employee working on the public project. Some clients may also require their contractors to have workers’ compensation insurance. Providing Workers’ Compensation Insurance If employers choose to provide workers’ compensation, they must do so in one of the following ways:

• purchase a workers’ compensation insurance policy from an insurance company licensed by the Texas Department of Insurance (TDI) to sell the coverage in Texas; • be certified by the Texas Department of Insurance, Division of Workers’ Compensation (TDI-DWC) to self-insure workers’ compensation claims; or

• join a self-insurance group that has received a certificate of approval from the TDI. Note: Political subdivisions may self-insure, buy coverage from insurance companies, or enter into inter-local agreements with other political subdivisions that self-insure.

EMPLOYER RIGHTS

Covered employers have the following rights:

• the right to contest the compensability of a workers’ compensation claim if the insurance carrier accepts liability for payment of benefits;

• the right to be notified of a proposal to settle a claim or of any administrative or judicial proceeding related to resolution of a claim (after making a written request to the insurance carrier);

• the right to attend dispute resolution proceedings related to an employee’s claim and present relevant evidence about the disputed issues; Employer Rights and Responsibilities Information for Employers from the Division of Workers’ Compensation

• the right to report suspected fraud to the TDI-DWC or to the insurance carrier;

• the right to contest the failure of the insurance carrier to provide required accident prevention services; and

• the right to receive return-to-work coordination services as necessary to facilitate an employee’s return to employment.

To dispute a workers’ compensation claim, an employer may file the DWC Form-004, and the DWC Form-045, Request to Schedule, Reschedule or Cancel a Benefit Review Conference (BRC), which may be obtained from the TDI website at http://www.tdi.texas.gov/forms/ form20employer.html or by calling 1-800-252-7031. Non-Reimbursable Employer Payments An employer is not entitled to and cannot seek reimbursement from the employee or insurance carrier if after a work-related injury or illness they voluntarily:

• continue to pay the injured employee’s salary continuation; or

• pay the injured employee salary supplementation to supplement income benfits paid by the insurance carrier. Employer Voluntary Payments of Benefits

An employer may voluntarily pay income or medical benefits to an employee during a period in which the insurance carrier has:

• contested compensability of the injury;

• contested liability for the injury; or

• has not completed its initial investigation of the injury. Note: an employer is only allowed to pay benefits in this situation for the first two weeks after the injury. For reimbursement, the employer is required to timely report the injury to the insurance carrier and to let the insurance carrier know, within 7 days of beginning For further assistance, call 1-800-252-7031 or visit http://www.tdi.texas.gov/wc/employer/index.html

This publication is a summary and is presented for informational purposes only. It is not a substitute for the statute and TDI-DWC rules. For questions about TDI-DWC rules, call Customer Assistance at 1-800-252-7031. CS05-017F(10-13)

https://www.tdi.state.tx.us/pubs/factsheets/employerrr.pdf

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

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

Jul 8th, 2015 Employment Law Defense, Workers' Compensation Defense

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

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

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

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

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

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

Workers’ Compensation Insurance Coverage

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

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

Liability Limits for Workers’ Compensation Subscribers

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

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

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

Employee Benefits

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

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

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

Alternative Coverages are Not Substitutes for Workers’ Compensation Insurance Coverage

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

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

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

Unlicensed Companies Providing Workers’ Compensation Insurance

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

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

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

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

Note: Policy terms in unlicensed policies may be unenforceable.

For More Information or Assistance

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

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

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

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

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

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

Jul 8th, 2015 Employment Law Defense, Nonsubscriber Law, Workers' Compensation Defense

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

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

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

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

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

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

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

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

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

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

Aug 29th, 2014 Insurance Defense Litigation, Workers' Compensation Defense

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

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

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

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

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

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

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

Aug 26th, 2014 Workers' Compensation Defense

Medical Evidence And Causation in Texas Workers’ Compensation Cases–Fort Worth, Texas Workers’ Compensation Defense Attorneys

Texas has a substantial factor requirement in workers’ compensation cases which the Claimant’s evidence frequently fails to meet in our hearing offices and court rooms. Also, if the medical evidence of causation is conclusory, it is insufficient.

1) SUBSTANTIAL FACTOR REQUIRED

The causation standard on whether an injury is work related is based on a recent Texas Supreme Court case called Transcontinental Insurance Co. v. Crump . It says that “producing cause in workers’ compensation cases is defined as a substantial factor in bringing about an injury, and without which the injury would not have occurred.”

The Crump court said: “In other words, for an act or event to rise to the level of cause in the legal sense, the act or event must be such that reasonable jurors would identify it as being actually responsible for the ultimate harm. The cause must be more than one of the countless ubiquitous and insignificant causes that in some remote sense may have contributed to a given effect as, for example, simply getting up in the morning. That the term substantial factor is given to this commonsense aspect of legal causation simply makes plain to jurors that more than causation in this indirect, “philosophic sense” is required.”

2) EVIDENCE CANNOT JUST BE CONCLUSORY

And in Texas Workers Compensation Appeals Panel Decision 110054, the Appeals Panel stated that “[a]lthough the claimed conditions are listed in the record, there is not any explanation of causation for the claimed conditions in the record. We hold that in this case the mere recitation of the claimed conditions in the medical records without attendant explanation how those conditions may be related to the compensable injury does not establish those conditions are related to the compensable injury within a reasonable degree of medical probability.”
Reversing the Hearing Officer, The Appeals Panel stated:

“There are no medical records in evidence, neither those of the treating doctor or the designated doctor, that explain how the work injury of [date of injury], caused the claimed right lower extremity myelopathy, arthrosis at L4-5, disc bulge at L5-S1, and aggravation of degenerative disc disease. The peer review doctor, testified at the CCH as to what each of these claimed conditions were, and why, in his medical opinion, the medical records of the claimant did not establish the claimed conditions resulted from the work injury, within reasonable medical probability. In contrast, the Designated Doctor’s letter of causation is a mere recitation of the claimed extent-of-injury diagnoses and is conclusory. Accordingly, that portion of the hearing officer’s finding that the claimant’s right lower extremity myelopathy, arthrosis at L4-5, disc bulge at L5-S1, and aggravation of degenerative disc disease arose out of and naturally flowed from the compensable injury of [date of injury], is so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust.”

We as Insurance Carrier Attorneys frequently make these and similar arguments with success in Contested Case Hearings at the Division of Workers’ Compensation. Gone are the days of minimal proof of causation with little or no supporting expert opinion evidence. This trend has been favorable for our insurance company clients.

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 26th, 2014 Workers' Compensation Defense