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Exclusivity Provision of Workers’ Compensation Act Does Not Preclude Civil Recovery For Non-Work-Related Injuries
Schneider Electric USA, Inc. f/k/a Square D v. Williams, et. al. (2022-CA-0190-MR) KY Court of Appeals 7/7/2023, not final
Plaintiff was six years old when adopted by Ken Baxter in 1967. Plaintiff lived with Baxter until the mid-1980s and during that time Baxter worked for Square D who manufactured plastic electrical parts from molding compounds, some of which contained asbestos until around 1974. Plaintiff also worked for Square D for a few months in 1978. Plaintiff was diagnosed with mesothelioma in 2016 and died a year later. Prior to her death she filed suit against Square D claiming she was exposed to asbestos from her father’s contaminated work clothes and directly during her brief employment in 1978. During discovery, all of the medical and expert proof attributed her mesothelioma to asbestos from her father’s work clothes. Square D moved for summary judgment based partly on the exclusivity provision of the Workers’ Compensation Act. The trial court denied summary judgment. Square-D argues the trial court wrongly concluded Plaintiff’s claims were not barred by the Workers’ Compensation Act.
The Kentucky Court of Appeals affirmed the trial court’s refusal to dismiss claims against Square D based on workers’ compensation exclusivity. It reasoned that there was no evidence that Plaintiff was exposed to asbestos during her brief time working at Square D. The Court also agreed with the trial court that a jury is capable of apportioning work-related and non-work-related injuries, if appropriate. The Court further determined that allowing Plaintiff’s brief summer employment with Square D to immunize Square D against all repercussions from other-than-workplace asbestos exposure would result in an unfair windfall for Square D.
Should you have any
questions or wish to discuss any related matters, please contact us at your
convenience.
H. Douglas Jones, Esq. – djones@jsbattorneys.com, 859.594.4200
Margo Menefee, Esq. – mmenefee@jsbattorneys.com, 859.594.4200
Disclaimer: This is not an
actual flow chart and is not intended to accurately represent real persons or
events.
Copyright 2023, Stone Loughlin & Swanson, LLP
When we dusted off our rule book to look at the rules in the aforementioned
chapters of the Administrative Code, we discovered all kinds of little
treasures. For example, many acronyms that we use every day in the system, such
as AWW, BRC, MMI, etc., are actually codified in DWC Rule 102.7. Others, such
as BRO, DD, LOC, POD, etc. are not included.
This past month saw some new acronyms enter the system, resulting in a new form
and some new additions to DWC staff hierarchy.
You might recall that the new DD request form (DWC032) implemented on 6/5/23
does not include a box for the Carrier to identify the accepted condition and
thus, the DD determines the compensable injury during the exam. In the April
edition of The Compendium,
our own Erika Copeland predicted that the change to the DWC032 would create
more problems with informal resolution. Kudos to Erika and her foresight,
because the new OARFI (“Request for Information”) appears to be the first
attempt at righting the ship. The OARFI lists multiple conditions and requests
that the Carrier check whether it “Accepts” or “Disputes” the condition. It
also asks the parties to identify any additional injuries that they believe
should be considered when assessing MMI or the impairment rating. The parties
are asked to send the information to a named “Benefit Review Officer” within
three business days, and notice is given that the information is for “mediation
purposes only.” The Carrier is told that the answers are not binding and that
they can change their mind but inaccurate answers will likely cause additional
exams and delays in the dispute resolution process. Likewise, to date there
doesn’t appear to be any penalty associated with not returning the form.
The “Benefit Review Officer” named on the form is actually known as a “BRO-1”
(which begs the question – is the BRO that presides over the BRC now known as
“Big Bro”?). The BRO-1 has been charged with looking at issues before a BRC and
requesting information of the parties so a Presiding Officer’s Directive (POD)
can be sent to the DD.
Meanwhile, we have been informed that if you need to request the status of LOC
requests or responses, DD reports, or RME reports, you need to contact the
Proceeding Resolution Officer or “PRO.” If you are seeking information about
scheduling, resets, requests for dates, motions, subpoenas, agreements, or
interpreter requests, you need to contact the Docketer.
Unfortunately, we do not have the key to knowing who actually handles the
docketing for each field office nor are we able to keep up with the frequent
changes in PRO assignments. Our wish list for next month includes periodic
information updates from the DWC regarding these changes. Until then, here is
our (non)helpful chart of how this works on a daily basis.
Copyright 2023, Stone Loughlin & Swanson, LLP
The DWC will be
reviewing multiple sections of the Texas Administrative Code (Chapters 102,
104, 109, 110, 112, 114, and 116) to determine whether the rules are still
relevant and necessary. The DWC Legal Services team is requesting that system
participants send written comments along with proposed alternative language to RuleComments@tdi.texas.gov
by 5 p.m. CST on October 3, 2023.
Copyright 2023, Stone Loughlin & Swanson, LLP
Other proposed form changes include a complete (and long overdue) overhaul of
the forms relating to adjusting income benefits for seasonal employees. The DWC
intends to retire Form-054 (Notice to Employee: Intention to Request Division
Permission to Adjust Benefits) and Form-056 (Seasonal Employee Wage Information
from Texas Workforce Commission Records). The proposed new Form-055 will
combine the Notice to Employee and Carrier’s Request to Adjust Average Weekly
Wage. The DWC invites all who wish to submit comments on the proposed changes
to email them to RuleComments@tdi.texas.gov by 5 pm CST on
September 18th.
Copyright 2023, Stone Loughlin & Swanson, LLP
Will the Texas Department of Insurance, Division of Workers’ Compensation begin
requiring applicants for Supplemental Income Benefits to provide material evidence of job
applications they have submitted in their search for work? It sure looks that
way.
In a memo to stakeholders on August 17, General Counsel Kara Mace enclosed
proposed changes to the DWC Form-052, Supplemental
Income Benefits Application. The proposed revision includes an FAQ
page with the following guidance for applicants who are looking for work on
their own:
Show you were actively looking for a job by attaching job applications or other documents showing you were looking for a job.
If the Division adopts the proposed version, and if it requires SIBs applicants
to actually attach job applications to the Form-052, that would be a welcome
change. Currently, Division ALJs typically do not require a SIBs applicant to
submit material evidence of job applications they have submitted. Instead, the
Division’s position is that an applicant’s assertion,
on the Form-052, that he submitted applications is sufficient documentation of
such applications.
Of course, many stakeholders disagree with the Division’s position, and that
position is one reason that Accident Fund Insurance Company of America,
represented by this Firm, filed an action for declaratory relief in the Travis
County district court challenging the validity and applicability of the
Division’s SIBs rule. As we have reported previously, the district court held
the rule invalid, the Division appealed, and the Austin court of appeals issued
a decision on February 28, 2023. Texas
Department of Insurance, Division of Workers’ Compensation v. Accident Fund
Insurance Company of America, et al. A petition for review is
currently pending in the Supreme Court of Texas.
We will continue to monitor and report on the proposed changes to the
Form-052.
Copyright 2023, Stone Loughlin & Swanson, LLP
Don’t miss this unique chance to golf at The Lakes at Castle Hills on October
23rd! Register today for a rewarding day of golf, while supporting an amazing
cause. Our first full golf team has already signed up! Thank you, Kyle
Morris, for putting together a team and showing up again this year! Spots are
limited and filling quickly. All proceeds benefit Kids’ Chance of Texas
scholarship recipients and provide these students with the opportunity for a
strong education and career, despite the most difficult circumstances. Register here. You can also find information
at www.kidschanceoftexas.org, and for those of
you with modern skills, there is a QR code. See you on the course!
Copyright 2023, Stone Loughlin & Swanson, LLP
SLS is the Texas selected member of the National Workers’ Compensation Defense
Network (NWCDN). This year, the NWCDN conference is set in Chicago October 18th
and 19th and we would love to send you an invitation if you are interested in
attending. The conference is free, and there are greatly reduced hotel
rates at the Radisson Blu Aqua blocked if you book by September 19th.
Here is a link to the registration materials and the terrific agenda: Program Agenda. Hope to see you
there!
Copyright 2023, Stone Loughlin & Swanson, LLP
Remember when we reported on the SOAH case where the ALJ questioned the DWC’s
actions regarding claim investigation and its method of assessing penalties?
We learned that, but for a courageous Third Party Administrator
(Abercrombie Simmons & Gillette) who footed the cost of the litigation for
its customer, the City of Baytown, the issues the case presented would still be
buried at the agency. They say you “can’t fight City Hall” but that saying only
goes to those unwilling to do so.
Copyright 2023, Stone Loughlin & Swanson, LLP
Our friend and colleague, ALJ Carol Fougerat, will be hanging up her hat at the
DWC on September 20th. We will miss her and wish her well on her upcoming
adventures!
Copyright 2023, Stone Loughlin & Swanson, LLP