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.
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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
There are not many new SOAH decisions these days because there are not nearly
as many medical fee disputes as there used to be. Therefore, when a new
SOAH decision comes out it bears mention.
In SOAH Docket No. 454-22-09437, the
Administrative Law Judge held that the claimant was not entitled to
reimbursement for his out-of-pocket medical expenses because he did not file
his request for medical fee dispute resolution with the Division until about
ten months after the filing deadline:
[Claimant] argues that he has much experience in workers’ compensation—having even written a book on it—and “if someone as well versed in the workers’ compensation system cannot prevail in this matter, what hope does the average injured worker have?” Although the fairness of a labyrinthine workers’ compensation system can be questioned, ultimately its existence and structure is a question for the Texas Legislature and for the Commissioner of Insurance. The ALJ only applies the law as it is. Because [claimant’s] request for resolution was untimely, he is not entitled to reimbursement of his out-of-pocket medical expenses involved in this appeal.
The ALJ’s decision to strictly enforce the Division’s filing deadline should come as no surprise. As the Texas Supreme Court put it, “A deadline is not something one can substantially comply with. A miss is as good as a mile.” Edwards Aquifer Auth. v. Chemical Lime, Ltd., 291 S.W.3d 392, 403 (Tex. 2009). The U.S. Supreme Court has explained why filing deadlines must be strictly enforced:
The notion that a filing deadline can be complied with by filing sometime after the deadline falls due is, to say the least, a surprising notion, and it is a notion without limiting principle. If 1–day late filings are acceptable, 10–day late filings might be equally acceptable, and so on in a cascade of exceptions that would engulf the rule erected by the filing deadline; yet regardless of where the cutoff line is set, some individuals will always fall just on the other side of it. Filing deadlines, like statutes of limitations, necessarily operate harshly and arbitrarily with respect to individuals who fall just on the other side of them, but if the concept of a filing deadline is to have any content, the deadline must be enforced. Any less rigid standard would risk encouraging a lax attitude toward filing dates. A filing deadline cannot be complied with, substantially or otherwise, by filing late—even by one day.
United States v. Locke, 471 U.S. 84, 100–101
(1985).
The Supreme Court’s words are important to remember. The Texas workers’
compensation system is replete with deadlines that must be strictly enforced to
keep the system running smoothly.
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
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
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
A more or less advanced decay and feebleness of the intellectual faculties; that weakness of mind which, without depriving the person entirely of the use of his reason, leaves only the faculty of conceiving the most common and ordinary ideas and such as relate almost always to physical wants and habits.