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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Anecdotally, we are
seeing plaintiffs trying novel means of getting around the Labor Code’s
exclusive remedy provision which protects insured employers from suits claiming
negligence. A recent example is a negligence suit filed by an injured
worker where a claim of fraud was tacked on. Fraud is an intentional tort
that may not be covered by the employer’s liability part of the workers’
compensation policy. The lesson? Read the allegations in suits against
employers carefully in case there is a coverage issue lurking behind the
negligence claim.
Retaliatory discharge cases are still a favorite of plaintiff attorneys, and
are often a way to relief for a worker who can’t overcome the exclusive remedy.
A new case provides a good opportunity for a refresher in the law.
Mr. Frausto was an injured worker who was on light duty who failed to
show up for work or inform his employer that he wasn’t coming in. After
he was fired under a consistently applied company policy, he claimed (among
other things) that he was fired because he had filed a workers’ compensation
claim. The Corpus Christi Court of Appeals explained that a plaintiff
filing a retaliatory discharge claim relying on Texas Labor Code Sec. 451.001
must make a prima facie showing that his workers’ compensation claim was filed
in good faith and that there is a causal link between the filing of his claim
and his discharge. He can do this if he proves that he would not have
been fired but for his filing a workers’ compensation claim. The burden
of proof then shifts to the employer to show that it had a legitimate,
non-discriminatory reason for the discharge. If the employer succeeds in
proving this, then the burden shifts back to the worker to produce evidence of
a retaliatory motive. In this case, the employer had a uniformly enforced
absence control policy that overcame the claim that its motives were
pretextual. Frausto v.
RC Industries, LLC, (Tex. App. - Corpus Christi), January 11, 2024,
WL 117601.
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