NWCDN Members regularly post articles and summary judgements in workers’ compensations law in your state.
Select a state from the dropdown menu below to scroll through the state specific archives for updates and opinions on various workers’ compensation laws in your state.
Contact information for NWCDN members is also located on the state specific links in the event you have additional questions or your company is seeking a workers’ compensation lawyer in your state.
It is a common misperception in the industry that the exclusive remedy defense
prevents an employee of a subsidiary company from suing the parent company. It
does not. The Dallas Court of Appeals makes this clear in Olivares v. Chevron, issued March
14, 2023.
For a defendant to assert the exclusive remedy defense, the defendant must be
the plaintiff’s employer. However, the Dallas Court explains that
employees of a subsidiary company are not by default also employees of the
parent company and in fact, there is a strong presumption that a parent
corporation is not the employer of its subsidiary employees. The court’s
decision continues:
“An injured employee of a subsidiary corporation, who is estopped under an exclusive remedy provision in his state's workers’ compensation act from suing his employer, may nonetheless bring a third-party claim against the subsidiary's parent or sibling corporation.” Sims v. W. Waste Indus., 918 S.W.2d 682, 684 (Tex. App.—Beaumont 1996, writ denied) (cleaned up). “We are not persuaded that the legislature ever intended parent corporations, who deliberately chose to establish a subsidiary corporation, to be allowed to assert immunity under the Texas Workers’ Compensation Act by reverse piercing of the corporate veil they themselves established.” Id. at 686.
The plaintiff in Olivares v. Chevron was
employed by Apache Global, a subsidiary of Apache Industrial Services, Inc.
Chevron sought to show that it had an owner-controlled insurance program (OCIP)
with the plaintiff’s employer meaning that Chevron would also be considered his
employer and therefore, could not be sued for his work injury. The court
held that Chevron failed to show that the OCIP was with Apache Global, the
subsidiary company, rather than Apache Industrial, the parent company and
because employees of a subsidiary company are not also employees of the parent
company, the exclusive remedy defense did not prevent the plaintiff from suing
Chevron.
Chevron presumably spent a lot of money to put this OCIP together to prevent it
from being sued for work injuries on its premises and it was for naught. This
case provides some good practice pointers for anyone working with OCIPs to make
sure they are set up and administered properly.
Copyright 2023, Stone Loughlin & Swanson, LLP
The Third Court of
Appeals decision issued on February 28, 2023 in Texas Department of Insurance, Division of Workers’
Compensation v. Accident Fund Insurance Company of America and Texas Cotton
Ginners’ Trust prevents the Division of Workers’ Compensation (DWC)
from using work search contacts as a substitute for job applications submitted
to a prospective employer by a worker eligible to apply for Supplemental Income
Benefits. Experience over the years since 2005 when the Texas Legislature
did away with the “good faith” SIBs standard and replaced it with the four objectively
verifiable methods by which a worker qualifies for SIBs, showed that the
methods used gradually devolved over time.
In recent years, SIBS applications were approved by the DWC administrative law
judges where only work search contacts were submitted in a check-box manner
with no supporting documentation that the worker made an active, meaningful,
and personal work search. During discovery, DWC admitted that its position was
that solo job seekers do not need to personally file any job applications to qualify
for SIBs: they could rely on "work search activities" filed by
another on their behalf. Applications were rare where the worker attested to
participating in a vocational rehab program, participated with the Texas
Workforce Commission (TWC), or documented his job search with copies of
applications submitted to employers.
As a result, many carriers rubber-stamped and approved applications showing
only contacts, knowing that disputing a workers’ entitlement to SIBs was a
fool’s errand because of the DWC’s instructions through its Appeals Panel
Manual to system participants simply to count whether the requisite number of
“contacts” was made. For the same reason, carriers were not offering vocational
rehabilitation programs to their injured workers eligible to apply for SIBs.
And the incentive was removed for workers to go through the TWC, an
agency with a variety of resources for Texas workers who can work in some
capacity to find employers who post job openings for which the worker would
qualify.
What can we expect next? We can expect closer scrutiny by the DWC when
considering SIBs applications, either at the first quarter or subsequent ones
as may be disputed and taken to a contested case hearing. Even though
applying for jobs can now be done on-line, the worker can prove his search by
submitting a copy of applications submitted and attach them to the DWC-52 for
review by the carrier and the agency for credibility. He can show that he
is participating with the TWC. He can accept a carrier’s offer to
participate in vocational rehabilitation. These methods will result in a
meaningful, active job search—a search most likely to bring a job offer and
return the worker to gainful employment.
This is, after all, the goal of the Labor Code. SIBs are to provide a bridge to
support a worker returning to the workforce to the extent he is able. It
is short-sighted for workers to forego the resources available to them for
finding work. This is because even if they manage to get a regular check from the
carrier for the entire SIBs period, the benefits will end 401 weeks from the
date disability began, leaving the worker without income.
A job is a much more reliable and meaningful outcome of the SIBs process, and
is what the Texas Legislature intended.
Editor’s note: Jane Stone and David Swanson of the Firm represent Accident Fund
Insurance Company of America in this case.
Copyright 2023, Stone Loughlin & Swanson, LLP
For all you non-subscribers not enjoying the many benefits of the Texas workers’ compensation system, it is that time of year again when you must tell DWC that you do not care enough to provide your employees with workers’ compensation coverage. Employers must use the DWC-Form 005 to let DWC know they have opted out of the workers’ compensation system. According to the Division’s Biennial Report to the 88th Legislature, “In 2022, the percentage of employers that were non-subscribers (25%) was the lowest in six years” and “The percentage of Texas employees working for non-subscribers (17%) was the lowest in 12 years.” In other words, three out of four employers have decided that it is in the best interest of them and their employees to carry workers’ compensation coverage. Check out this link for more information for non-subscribers including a coverage comparison and analysis of alternative coverages: https://www.tdi.texas.gov/wc/employer/cb007.html
Copyright 2023, Stone Loughlin & Swanson, LLP
In Appeal No. 230067 issued March 3, 2023, the Appeal Panel reversed the ALJ’s decision that the carrier is entitled to reduce the claimant’s IIBs by 50% based on contribution from an earlier compensable injury and rendered a new decision that the carrier is not entitled to a reduction of the claimant’s IIBs. The Appeals Panel held that the carrier still bore the burden of proof at the hearing even though the Division issued an order approving the carrier’s application for contribution which the claimant appealed. The Appeals Panel held that because the carrier failed to present a cumulative impact analysis, it did not meet its burden of proof. The Appeals Panel analogized the case to the situation in which the Division determines a claimant is entitled to first quarter SIBs and the carrier appeals the determination. In that situation, the employee still has the burden of proof at the hearing. The decision was authored by Appeals Panel Judge Carisa Space-Beam. Appeal No. 230067, filed March 3, 2023.
Copyright 2023, Stone Loughlin & Swanson, LLP
The Division expends a great deal of effort to ensure compliance with its
deadlines and in fact, most of its enforcement actions involve a missed
deadline. Here is an overview of some of the most recent workers’ compensation
disciplinary orders:
Fine: $14,000. Violation: Carrier paid IIBs on a DD report 186 days late.
No. 2023-7845 03/15/23 Security National Ins. Co.
Fine: $1,500. Violation: Carrier took action on a medical bill 159 days
late.
No. 2023-7842 03/10/23 Travelers Property Cas. Co. of Am.
Fine: $800. Violation: Carrier reported the true death benefit
termination 5,536 days late.
No. 2023-7831 03/01/23 West American Insurance Co.
Fine: $11,000. Violation: Carrier failed to timely make IIBs payments
from 6 to 111 days late.
No. 2023-7830 03/01/23 LM Insurance Corp.
Fine: $2,500. Violation: Carrier paid a medical bill 198 days late.
No. 2023-7829 02/28/23 National Interstate Ins. Co.
Fine: $10,000. Violation: Carrier failed to timely pay SIBs.
No. 2023-7827 02/28/23 Safety National Cas. Corp.
Fine: $10,000. Violation: Carrier paid IIBs on a DD report 175 days
late.
No. 2023-7824 02/28/23 New Hampshire Ins. Co.
Fine: $5,500. Violation: Carrier paid benefits on a CCH decision 52 days
late.
No. 2023-7823 02/28/23 New Hampshire Ins. Co.
Fine: $8,000. Violation: Carrier took action on a medical bill 35 days
late.
No. 2023-7820 02/24/23 Chubb Indem. Ins. Co.
Fine: $700. Violation: Carrier paid medical bill 97 days late.
No. 2023-7815 02/21/23 Montgomery County
Fine: $3,500. Violation: Carrier started death benefits 57 days
late.
No. 2023-7814 02/21/23 TASB Risk Mgmt. Fund
Fine: $4,000. Violation: Carrier paid benefits on a CCH decision 16 days
late.
No. 2023-7812 02/21/23 TASB Risk Mgmt. Fund
Copyright 2023, Stone Loughlin & Swanson, LLP
