TEXAS TOP CASES, powered by Texas Workers' Compensation Handbook (updated 6/15/2010)

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General Contractor Entitled to Assert Exclusive Remedy Defense. In HCBeck, Ltd. v. Rice, 284 S.W.3d 349 (Tex. 2009), the Texas Supreme Court held that a general contractor who provides workers' compensation insurance to subcontractors and employees of subcontractors through written agreements with the project owner and subcontractors is entitled to assert the exclusive remedy doctrine when a subcontractors' employee is injured and collects workers' compensation benefits, even if the cost of the coverage actually provided is paid by the project owner rather than the general contractor.

Post-Mortem Toxicology Screen is Evidence of Intoxication. In DWC Appeals Panel Decision No. 091309 (Oct. 30, 2009), 2009 TX Wrk. Comp. LEXIS 90, an appeals panel held that a positive post-mortem toxicology screen is sufficient to shift the burden to a claimant to prove that a decedent was not intoxicated at the time the fatal injury occurred.

On-Call Police Officer Was Within Course of Employment When Traveling to Assist Other Officer. In Harris County v. Hinojosa, 294 S.W.3d 737 (Tex. App.--Houston [1st. Dist.] 2009, pet. denied), the court of appeals held that a police officer appointed as the sergeant on call was within the course and scope of employment while traveling to a coffee shop to meet a deputy who had called and requested his assistance.

Medical Evidence Required to Prove Cause of Back Injury. In City of Laredo v. Garza, 293 S.W.3d 625 (Tex. App.--San Antonio 2009, no pet. h.), the court of appeals held that medical evidence was required to prove a causal link between an on-the-job injury and L4-L5 and L5-S1 herniated discs, L5-S1 radiculopathy, and complex regional pain syndrome, when the claimant did not report back problems until a month after the accident and only lay testimony linking the two was provided at trial.

Work Search Contacts Need Not Include Completed Job Application to Support SIBs Eligibility. In DWC Appeals Panel Decision No. 100229 (Apr. 30, 2010), 2010 TX Wrk. Comp. LEXIS 28, an appeals panel held that a claimant who made 5 documented work search contacts per week, but only submitted 5 actual job applications during the qualifying period, was eligible for SIBs.

Sufficiently Detailed Treatment Notes of Doctor Can Constitute “Narrative Report” for SIBs Purposes. In Texas Mut. Ins. Co. v. Baker, 292 S.W.3d 798 (Tex. App.--Fort Worth 2009, no pet. h.), the court of appeals held that a treating doctor's letters and treatment notes can qualify as a “narrative report” if a claimant tries to prove an inability to work for purposes of establishing eligibility for SIBs. However, in DWC Appeals Panel Decision No. 091318 (Oct. 23, 2009), 2009 TX Wrk. Comp. LEXIS 87, an appeals panel held that a letter that states only in conclusory terms that a claimant is unable to return to work, without specifically explaining how the injury has caused a total inability to work, will not suffice as a “narrative report.”

Injury to Hips and Shoulders Can Support LIBs Eligibility. In Ins Co. of State of Pennsylvania v. Muro, 285 S.W.3d 524 (Tex. App.--Dallas 2009, pet. filed), the court of appeals held that, for purposes of establishing eligibility for LIBs, serious injuries to the hips and shoulders can support a finding that the claimant has suffered the loss of use of the feet at or above the ankles and loss of use of the hands at or above the wrist, even without direct injury to the feet or hands.

Appeals Panel Decisions Aid in Proper Use of AMA Guides. In DWC Appeals Panel Decision No. 091822 (Jan. 14, 2010), 2010 TX Wrk. Comp. LEXIS 4, an appeals panel held that when applying the AMA Guides to assign an impairment rating, the Injury Diagnosis-Related Estimate Model (DRE) should be used rather than the Range of Motion (ROM) Model, unless none of the categories of the DRE Model are applicable or the ROM Model is being used as a differentiator, and a doctor utilizing the ROM Model must provide an explanation for why the DRE Model was not used. In DWC Appeals Panel Decision No. 090692 (July 14, 2009), 2009 TX Wrk. Comp. LEXIS 67, an appeals panel held that a doctor does not have the discretion to add an additional impairment component based on the doctor's conclusion that the claimant did not receive appropriate rehabilitative treatment after surgery.

Beneficial Post-MMI Surgery Insufficient to Avoid 90-Day Period for Contesting MMI. In DWC Appeals Panel Decision No. 092051 (Feb. 23, 2010), 2010 TX Wrk. Comp. LEXIS 16, an appeals panel held that the mere fact that a claimant underwent post-MMI surgery that proved beneficial does not automatically establish that his or her treatment prior to the MMI date was improper or inadequate for purposes of avoiding the 90-day period for contesting the first IR certified.

Division Has Jurisdiction Over Pharmacy Reimbursement Disputes. In Apollo Enterprises, Inc. v. ScripNet, Inc., 301 S.W.3d 848 (Tex. App.--Austin 2009, no pet. h.), the court of appeals held that the Division has jurisdiction over disputes about reimbursement of pharmacy costs, at least to the extent that the disputes are actually medical fee disputes, such as when the disputes involve the question of the appropriate amount of reimbursement.

Claim-Filing Period Not Tolled When Employee Delays Notifying Employer of Injury. In DWC Appeals Panel Decision No. 091971 (Feb. 23, 2010), 2010 Tex. Wrk. Comp. LEXIS 14, an appeal panel held that an employer must have knowledge of a work-related injury in order to be under an obligation to file a notice with the carrier, and the time for filing a claim is not tolled if the employee fails to notify the employer of the injury until after the claim-filing period has expired and the employer did not otherwise have knowledge of the claimed injury.

Dispute of Claimant's Extent of Injury Not Governed by Rules Setting Time for Disputing Compensability of Injury. In State Office of Risk Management v. Lawton, 295 S.W.3d 646 (Tex. 2009), the Texas Supreme Court held that the rules governing the time period for contesting the compensability of an injury do not apply to disputes concerning the extent of a claimant's injury, a holding that is consistent with the Division's rule on the subject.

Dispute of Compensability of Hepatitis C Infection Timely. In Fire and Cas. Ins. Co. of Conn. v. Miranda, 293 S.W.3d 620 (Tex. App.--San Antonio 2009, no pet. h.), the court of appeal held that, when a claimant had initially reported a scratch on the arm to the employer and waited 6 months before reporting a Hepatitis C infection, an insurer's dispute to the compensability of the claimant's Hepatitis C was timely when made within three days of receiving notice of that infection.

Administrative Remedies Exhausted by Insurer's Failure to Provide Timely Denial of Preauthorization Request. In Stinson v. Insurance Co. of Pennsylvania, 286 S.W.3d 77 (Tex. App.--Houston [14th Dist.] 2009, pet. denied), the court of appeals held that if an insurer fails to send a timely written denial of preauthorization for requested medical treatment, the claimant is not required to pursue further administrative procedures at that time before later suing for wrongful denial of those benefits, as the claimant's procedural obligations would have been tied to receiving a timely denial notice from the carrier that never came.

Telephone Denial of Coverage for Medical Treatment by Insurance Adjustor Did Not Exhaust Claimant's Administrative Remedies. In In re Liberty Mut. Fire Ins. Co., 295 S.W.3d 327 (Tex. 2009), the Texas Supreme Court held in a per curiam opinion that if a claimant needs insurer approval before undergoing specific medical treatment, the claimant has not exhausted administrative remedies if the claimant files suit for bad-faith denial of claim after being denied approval from an adjustor over the phone, without following the administrative procedures for resolving medical disputes.

Trial Court Jurisdiction to Review LIBs Award Limited to Entitlement as of Date Found by Division. In Facility Ins. Corp. v. Gibbs, 298 S.W.3d 791 (Tex. App.--Eastland 2009, no pet. h.), the court of appeals held that a trial court's jurisdiction reviewing an entitlement to LIBs was limited to the claimant's entitlement to LIBs as of the date such entitlement was found by the Division, and the court could not determine whether the claimant was entitled as of some later date, as that issue had not first been adjudicated by the Division.

Motion for Directed Verdict by Claimant Should Normally be Denied. In State Office of Risk Management v. Martinez, 300 S.W.3d 9 (Tex. App.--San Antonio 2009, pet. filed), the court of appeals held that given the normal existence of disputed factual issues when a claim is on judicial review, a pre-trial motion for a directed verdict made by a claimant should normally be denied, as granting such a motion would deprive a defendant of the right to challenge the credibility of witnesses.

Venue of Workers' Compensation Disputes Involving Texas Property and Casualty Insurance Guaranty Association Governed by Workers' Compensation Act. In Campos v. Texas Property & Cas. Ins., 282 S.W.3d 226 (Tex. App.--Austin 2009, no pet. h.), the court of appeals held that while the Texas Property and Casualty Insurance Guaranty Act provides its own venue provision at Ins. C. § 462.017(b) mandating that suit be brought in Travis County when relating to an action or ruling by the Texas Property and Casualty Insurance Guaranty Association (TPCIGA), the more specific venue provision of Lab. C. § 410.252(b) takes priority and applies in workers' compensation disputes over the compensability of an employee's claim even when the TPCIGA would be obligated to pay the claim.

Aggrieved Claimant Seeking SIBs Award on Judicial Review Not Entitled to Attorney's Fees. In Texas Mut. Ins. Co. v. Baker, 292 S.W.3d 798 (Tex. App.--Fort Worth 2009, no pet. h.), the court of appeals held that in the absence of an initial determination by the Division that the claimant is entitled to SIBs, a claimant who files suit seeking SIBs is not entitled to an award of attorney's fees if prevailing at trial.

Conflicting Court of Appeal Decisions on Right to Jury Determination of Attorney's Fees Under Lab. C. § 408.221. In Discover Property & Cas. Ins. Co. v. Tate, 298 S.W.3d 249 (Tex. App.--San Antonio 2009, pet. filed), the court of appeals held both that a party may demand a jury determination of attorney's fees due under Lab. C. § 408.221 and that attorney's fees incurred in seeking attorney's fees are not recoverable, although the issues are already pending before the Texas Supreme Court in another case in which another court of appeals decided differently.

Exemplary Damages Claim Against Employer for Wrongful Death of Employee Governed by Wrongful Death Statute. In Ross v. Union Carbide Corp., 296 S.W.3d 206 (Tex. App.--Houston [14th Dist.] 2009, pet. filed), the court of appeals held that an exemplary-damages claim against an employer for death to an employee is a derivative cause of action that has to be brought under the Texas wrongful death statute, and neither the Texas Constitution nor the Labor Code create the basis for an independent, nonderivative cause of action, and as a derivative claim, the suit will generally be subject to any defenses that would have applied to a suit brought by the decedent had he or she lived.

Exemplary Damages Suit Against Co-Employee May Be Barred by Decedent's Acceptance of Workers' Compensation Coverage. In Garrett v. Patterson-UTI Drilling Co., L.P., 299 S.W.3d 911 (Tex. App.--Eastland 2009, pet. denied), the court of appeals held that a suit against a decedent's co-employee may be barred under the exclusive remedy doctrine if the decedent accepted workers' compensation coverage, even when the suit is one seeking exemplary damages.

Statutory Ban on Pre-Injury Waiver of Action Against Non-Subscribing Employer Ineffective Against Arbitration Agreement. In In re Golden Peanut Co., LLC, 298 S.W.3d 629 (Tex. 2009), the Texas Supreme Court held in a per curiam opinion that Lab. C. § 406.033(e), which invalidates any pre-injury waiver of an employee's cause of action against a non-subscribing employer, does not affect a pre-injury arbitration agreement, as the latter does not constitute a waiver of claim but merely specifies the forum.

Non-Contractual School District Employee Not Required to Exhaust Administrative Remedies Prior to Retaliatory Discharge Suit. In Larsen v. Santa Fe Independent School Dist., 296 S.W.3d 118 (Tex. App.--Houston [14th Dist.] 2009, pet. denied), the court of appeals held that a non-contractual school district employee was not required to exhaust administrative remedies prior to suing for retaliatory discharge under Lab. C. § 451.001.

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