State News : Texas

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. 

Well-placed sources inform us that the powers that be within the Division have begun focusing on the number of dispute proceedings held each month, supposedly as a means of gauging the effectiveness and productivity of the Hearings section. The higher the number of proceedings held, the reasoning goes, the greater the number of disputes that have been resolved. 

However, as usual, a strict quantitative analysis (i.e., pure statistics and number-crunching) tells only part of the story and provides skewed results. In accumulating their data, the DWC makes no differentiation between Contested Case Hearings that result in a Decision & Order and those that are merely convened and continued at the outset. In other words, a hearing that continues at the scheduled start time is considered a “proceeding held,” while a hearing for which a motion to continue is granted before the proceeding will not count toward the tally.

There are two obvious results of this practice. First, the DWC can artificially inflate its total number of proceedings held per month by urging judges to postpone ruling on continuance requests until the day of the hearing. Second, the costs associated with preparing for and traveling to a Contested Case Hearing, only to find that is has been continued at the last minute, are passed along to system participants.

The Texas hiring freeze for state workers lapsed on September 1, 2017, and since then the Division of Workers’ Compensation has hired three new Administrative Law Judges. 

Ana Kirk Thornton will soon begin presiding over disputes in the new San Antonio Field Office.  Ms. Thornton is a graduate of Trinity University and The University of Texas School of Law. She has been licensed since 1991 and most recently worked with another state agency, the Texas Workforce Commission. 

Christopher Maisel is another graduate of The University of Texas School of Law but has recently returned to Texas after practicing in California. He brings with him decades of experience in bankruptcy, mergers & acquisitions, and insurance law. Mr. Maisel will become one of two new ALJ’s in the Houston West Field Office.

The other new Houston judge is Eric Robertson, a Baton Rouge native but longtime Texas resident. A degree in Business Administration brought him to Texas Wesleyan University School of Law, and he has been licensed in Texas since 2014. Mr. Robertson first practiced criminal law before moving into the realm of workers’ compensation in January 2017 at the firm of Bailey & Galyen. 

In its October 5, 2017 edition, the New York Times reported on an alarming development in some Japanese workplaces: “karoshi,” which translates to “death from overwork.” First emerging in the production boom of the 1980’s,karoshi initially affected blue-collar workers disproportionately, as employees in manufacturing industries pushed themselves to dangerous levels of fatigue by way of inordinately high overtime hours per month. Over the past three decades, the tendency to forego sleep, work on weekends, and bypass holiday leave in an effort to clock ever higher numbers of overtime hours has seeped into the white collar realm.

The reporting was based around the recent disclosure of the 2013 death of Miwa Sado, a journalist at NHK, Japan’s premiere broadcasting company. Sado clocked 159 hours of overtime in one month before passing away of congestive heart failure at age 31. Following a government investigation, it was determined that Ms. Sado’s death was directly attributable to her work schedule, which produced persistent fatigue and chronic sleep deprivation.

For many Japanese workers, especially those employed by prestigious companies, exhaustion by way of overwork is a sign of one’s commitment to an employer. Karoshi can sometimes require employees to continue working after the end of shift by entertaining business clients well into the evening. Workers under the age of 35 were found to be particularly susceptible to the alarming phenomenon, according to the Japan Institute for Labor Policy and Training.  

The new prosecution unit of the Texas Department of Insurance, Division of Workers’ Compensation, has obtained indictments against a Massachusetts company and three individuals for organized crime activity pertaining to workers’ compensation fraud. The indicted defendants are EME International Inc. and Christine Caldwell, both of Marblehead, Massachusetts, and Enrique Colon and Marcos Ricoy of Deer Park, Texas and Rancho Viejo, Texas, respectively. 

Charges include submitting false workers’ compensation health care claims to Texas Mutual Insurance Company pertaining to functional capacity evaluations of injured workers. The defendants are alleged to have submitted false medical claims for more time than the services required in order to defraud the insurance company in an amount between $20,000 and $100,000.

The indictment is the first step in the trial process. We will keep you posted as the cases develop.