State News : Texas

Responding to Hurricane Harvey, Gov. Abbott declared a state of disaster in several Texas counties. Following the declaration, the Division issued a bulletin extending certain deadlines for workers’ compensation processes and procedures residing in the disaster affected counties. Effective January 10, 2018, the Division will lift the bulletin and all standard workers’ compensation deadlines and procedures will go back into effect. The Division bulletin is availablehere.

The Supreme Court recently confirmed the exclusive jurisdiction of the Division extends to claims made against a workers’ compensation carrier, Accident Fund General Insurance Company and its adjuster Kriste Henderson (collectively, Accident Fund) arising out of the bona fide offer of employment process. In In re Accident Fund Insurance Company, injured worker Rick Sayaz was presented with two bona fide offers of employment by the Employer. Sayaz failed to respond to the offers and failed to seek dispute resolution in the Division to determine the validity of the offers. Sayaz sued the Employer for retaliatory discharge under section 451.001 and for defamation. The injured worker also sued Accident Fund alleging it aided and abetted the Employer’s retaliatory discharge, tortiously interfered with Sayaz’s employment relationship, and conspired with the Employer to wrongfully terminate Sayaz. According to Sayaz, Accident Fund’s participation in the bona fide offer of employment process was a pretext for the retaliatory discharge.
 
In the trial court, and citing the Supreme Court’s opinions inIn re Crawford & Co. and Texas Mut. Ins. Co. v. Ruttiger, Accident Fund filed a plea to the jurisdiction arguing that Sayaz’s claims are within the exclusive jurisdiction of the Division. The plea was denied, and Accident Fund filed a petition for writ of mandamus with the court of appeals. The appellate court denied the petition, and Accident Fund sought relief from the Texas Supreme Court.
 
In aper curium opinion, the Supreme Court held that Sayaz’s claims are within the exclusive jurisdiction of the Division. The Court explained that the Act and Division rules provide the Division with exclusive jurisdiction to determine whether an offer of employment is bona fide for purposes of the Act. In this case, all of the claims alleged against Accident Fund arise from its participation in the bona fide offer of employment process and Sayaz’s complaints about that process. The question of the validity of the offers – and whether they were in fact “bona fide” – was a threshold factual determination for each of Sayaz’s claims. Therefore, Sayaz’s claims asked the trial court to make a determination on a matter within the exclusive jurisdiction of the Division. Citing Ruttiger, the Court concluded, “Sayaz’s claims against Accident Fund arise out of the statutory claims-handling process and, as a result, ‘the current Act with its definitions, detailed procedures, and dispute resolution process demonstrate[s] legislative intent for there to be no alternative remedies.’” Because the Division has exclusive jurisdiction over the bona fide offer of employment process, and Sayaz failed to exhaust his administrative remedies in the Division, the trial court lacked jurisdiction over Sayaz’s claims. The Court granted mandamus relief to Accident Fund and Ms. Henderson and directed the trial court to withdraw its orders denying their plea to the jurisdiction and dismiss all claims against them.In re Accident Fund General Insurance Co., No. 16-0556 (Tex. Dec. 15, 2017).
 
Dan Price represented Accident Fund and Ms. Henderson in this case.
 
-Dan Price, Stone Loughlin & Swanson, LLP.

Also in State Office of Risk Management v. Martinez, the Texas Supreme Court held that, to preserve their case on judicial review, workers’ compensation litigants are only required to appeal the ultimate conclusions of the Division and not the underlying findings of fact supporting those conclusions. In Martinez, the injured worker presented the Court with a cross-petition in support of the court of appeals’ dismissal of the case alleging that SORM waived its right to judicial review by not expressly appealing the Division’s findings of fact. The Supreme Court noted that the courts of appeal were split on whether each finding of fact must be appealed to avoid forfeiture of the right to judicial review. Ultimately, the Court determined that each finding of fact did not have to be appealed. The Labor Code defines incorrect findings of fact as “errors” and not appeals. The parties are entitled to a modified de novo proceeding without deference to the findings of fact of the hearing officer. For this reason, it is not the findings of fact that must be appealed. But rather, the ultimate conclusions of the hearing officer are what must be appealed. In the case of Ms. Martinez, the ultimate conclusions were whether Martinez sustained a compensable injury and whether she had disability. SORM was not required to appeal each finding of fact the hearing officer relied on in coming to these ultimate conclusions. State Office of Risk Management v. Martinez, No. 16-0337 (Tex. Dec. 15, 2017).
 
-Dan Price, Stone Loughlin & Swanson, LLP.

A litigant is entitled to judicial review of a final decision of the Division of Workers’ Compensation, but judicial review is limited to the “issues” decided by the DWC Appeals Panel. In the case ofState Office of Risk Management v. Martinez, the Texas Supreme Court explained what an “issue” is for purposes of judicial review.
 
Edna Martinez was an employee of the State of Texas, who was injured at her home. The disputed issues defined by the benefit review officer were whether Martinez sustained a compensable injury and whether she had disability. At the CCH, Ms. Martinez alleged the injury occurred while working from home. The State Office of Risk Management (SORM), on behalf of the State agency, argued the injury was not in the course and scope of employment because Martinez violated an agency policy by working from home and because the injury did not involve an instrumentality of the employer. The DWC Appeals Panel reversed the hearing officer, determining the injury did occur in the course and scope of employment. SORM filed a petition for judicial review, alleging it is relieved from liability because Martinez violated a statute by working from home. Both SORM and Martinez filed motions for summary judgment. SORM argued Martinez did not sustain an injury in the course and scope of employment while at home because working from home was prohibited by law. Martinez argued that SORM could not raise this “issue” because it was not first presented to the Division and, as such, was not an “issue” on which judicial review was sought. The trial court granted SORM’s motion and denied Martinez’s. The San Antonio Court of Appeals reversed and determined the trial court had no jurisdiction over SORM’s petition because the statutory-violation ground was not first presented to the Division. The question for the Supreme Court was, for purposes of the Workers’ Compensation Act (the Act), what is an “issue” on which judicial review is sought by a party?
 
Citing the Act, the Supreme Court explained that the “final decision of the appeals panel regarding compensability or eligibility” describes the “issues” on which the trial court may render judgment. Those “issues” are defined by the benefit review officer at the outset of the dispute and proceed through the dispute resolution process with the same definition. Because the issue is defined at this early stage, the “issue” is not – and cannot be – a point of error as can be waived in an appellate context. Nor is an “issue” an argument that must be raised at this early stage. Applying this framework, the Court explained that the relevant “issue” on which judicial review was sought was whether the Claimant was injured in the course and scope of employment. The “issue” was not each argument refuting this point, such as the statutory-violation ground raised by SORM. Because the statutory-violation ground is an argument that Martinez was not in the course and scope of employment, SORM could present the argument for the first time on appeal. State Office of Risk Management v. Martinez, No. 16-0337 (Tex. Dec. 15, 2017).
 
-Dan Price, Stone Loughlin & Swanson, LLP.

The California Insurance Commissioner has approved the admission of Golden Bear Insurance Company to sell “cannabis business insurance” in the state. The insurance is intended to provide coverage to the cannabis industry, including coverage for workers in the industry. The filing, the first of its kind nationwide, raises a number of questions including: will “cannabis business insurance” cover the “gaps” provided by workers’ who are intoxicated on marijuana? Will it cover slow-downs in productivity from using the product? Will it cover vending machine abuse by workers with the munchies? Inquiring minds want answers to these questions and we look forward to California providing them. HT:Insurance Journal.

The work day begins once the employee arrives at the office and thereafter any travel home which furthers the affairs of the employer is within the “course and scope” of employment. Recently, the Appeals Panel addressed this situation where an employee arrived at work, but left shortly after to return home to retrieve a work laptop he had forgotten. While on the way home, the employee was killed in a motor vehicle accident. The Appeals Panel determined the work day started when the employee arrived at his office and that his travel to and from his residence to retrieve the work laptop (which was necessary for the performance of his duties) was within the course and scope of employment. Unlike in a “coming and going” situation, the travel in this case was not simply transportation to and from the workplace, but rather was travel that both furthered the employer’s business andoriginated in the business. – Appeal No. 171936, decided October 5, 2017.

The general rule in Texas is that a Carrier is not liable for workers’ compensation benefits when a worker is injured while traveling to or from work. The “coming and going” rule, as it is known, was recently applied by the San Antonio Court of Appeal to uphold the Division’s denial of death benefits to the widow of Robert Estrada, a worker who was killed while traveling from his home to work to drop off his weekly timesheets while on his way to a jobsite.

In its decision, the appellate court explained that an activity is in the “course and scope” of employment, if itoriginates in the employer’s business and furthers the employer’s affairs. The court focused on the “origination component” and found that Mr. Estrada’s travel to his office did not originate in the employer’s business. The employer did not require its employees to start or end their day at the office, but rather, their work day began at the jobsite. Additionally, the employer exerted no influence on Mr. Estrada’s route to work, and Mr. Estrada could have delivered his timesheets in some other manner, including using a fax machine at the job site or sending them with another employee. Moreover, Mr. Estrada was not on a “special mission” in delivering the timesheet. Finally, the employer did not furnish Mr. Estrada with transportation or reimburse him for his travel. While it did provide a stipend for gas, the stipend was an “accommodation,” not a “necessity,” and there was no evidence that Mr. Estrada was required to use the stipend for gas or for any other specific purpose.

Ultimately the appeals court upheld the Division and trial court’s ruling that Mr. Estrada’s travel was not in the course and scope of his employment, stating that the risks to which he was exposed while traveling to and from work were shared by society as a whole and did not arise as a result of the work of his employer.  – Fuentes v. Texas Mutual Ins. Co., No.04-16-00662-CV, 2017 WL 4942859 (Tex. App.—San Antonio Nov. 1, 2017).

The American public is aware of the rapidly escalating opioid crisis sweeping the country. According to the Center for Disease Control, fifty-three thousand Americans died from opioid overdoses in 2016, which is more than people who died in car crashes or from gun violence in 2015. Bringing attention to the issue, New Jersey Governor Chris Christie reports that opioids kill roughly 142 Americans every day, which he describes as “September 11th every three weeks.” In late October, President Trump declared the opioid crisis a Public Health Emergency and vowed to alleviate the scourge of drug addiction that has affected every demographic. But what does this actually mean?

By acting through the Public Health Services Act, President Trump directed the Acting-Secretary of Health and Human Services to declare a nationwide health emergency, a designation that will not automatically be followed by additional federal funding. Instead, the order will expand access to tele-medicine in rural areas, instruct agencies to curb bureaucratic delays in dispensing grant money, and shift some federal grants toward combating the opioid crisis. 

The order allows Congress to fund the Public Health Emergency Fund and to increase federal funding in year-end budget deals currently being negotiated on Capitol Hill. The biggest concerns remain whether President Trump will follow through on a nationwide health emergency declaration and how many toes he is willing to step on to do it.

“Copy and paste” reports are not just for college kids on tight deadlines anymore. Recently, we have noticed that some medical providers are copying and pasting, word-for-word, their causation opinions from unreliable web sources. One such instance was identified by our own attorneys, Robert Greenlaw and Amanda Schwertner, while preparing for a hearing in Weslaco. The “Letter of Causation” provided by an Edinburg chiropractor lifted several large blocks of text—verbatim—from several webpages, two of which were written by two different personal injury attorneys in California. (Both of the lawyers’ websites urge the reader to call their offices for a free consult regarding their claim – Call Now!) This particular chiropractor also lifted several text blocks—verbatim—from the websites www.shimspine.com and www.patient.info. These latter websites warn that the information provided is not medical advice and should not be used for diagnosis or treatment of medical conditions. Moreover, the information fromwww.patient.info is based on UK and European Guidelines, not the US or accepted worker’s compensation guidelines.

The Washington Post recently published a story about an emerging trend among senior citizens: worker camps. As life expectancy continues to rise and social security benefits stagnate, more and more would-be retirees find they lack the retirement savings to provide for themselves and their lifestyles. The number of senior workers in the United States has more than doubled since the year 2000, and now nearly 20% of Americans over 65 are working. Contributing factors for this phenomenon are the 2008 recession, a shift from pensions to worker-based retirement programs, such as 401(k)’s, and rising costs of healthcare.

“Workampers” is the appellation for a growing group of seniors who have adopted an itinerant lifestyle of traveling the nation’s highways, often in an RV (hence the nickname), driving state to state looking for seasonal employment. The jobs are typically low-paying and devoid of benefits but are increasingly necessary to an expanding class of citizens who simply do not have the retirement savings to provide for themselves in their final years.

As the work camp movement spreads, it can be expected to generate confusion in states’ workers’ compensation programs. “Workampers” routinely travel between states seeking employment, leading to inevitable disputes over which state’s work comp program has jurisdiction over a particular claim. Beyond that, the seasonal nature of the employment will almost surely complicate calculation of a given worker’s average weekly wage and, by extension, the value of his or her weekly benefits. Finally, as employees age, they naturally become more susceptible to workplace illness and injury, which means that as more seniors opt to postpone retirement—by choice or out of necessity—a rise in overall work comp claims can also be anticipated.