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.
Contact information for NWCDN members is also located on the state specific links in the event you have additional questions or your company is seeking a workers’ compensation lawyer in your state.
We are grateful to all of you who have supported the Firm all these years. The practice of workers’ compensation law has changed a lot over the years– as have we. Workers’ compensation system participants comprise a relatively small group. Untangling and deciphering agency regulation has made the jobs of insurance adjusters, ombudsmen, doctors, lawyers and claimants more difficult by the day. We try to keep up for you with developments as they occur. This issue of the Compendium continues that tradition. We learn from and welcome your favorable comments and your criticisms and thank you for the time you take to read about what we think it is important to know.
Copyright 2024, Stone Loughlin & Swanson, LLP
The Texas Supreme Court has asked for full briefing from the parties on
Accident Fund’s Petition for Review of Accident Fund’s challenge to the
agency’s SIBs qualification rule, which we are hopeful signals that the Court
will hear the case on the merits of the rule challenge.
While we wait for the Court to decide the case, the saga continues at the
agency level. The moral of this story (if you choose to read it, below) is that
at least for now, in the real world it’s the Claimant’s claim of “believe me
when I say so” rather than objective proof of an actual job search that
satisfies the SIBs work search requirement.
Once upon a time we told you that the Division provided guidance through an FAQ
from its General Counsel that claimants who were applying for SIBs (without the
help of the Workforce Commission) were to show they were actively looking for a
job by attaching job applications or other documents showing they were looking
for a job. Later, we told you the tale of the Attorney General’s briefing
to the Highest Court in the Land (well, Texas anyway) that the Division, in
fact, does require those claimants to document their searches by job
applications and to submit copies of those applications (whether they apply
online or by hard-copy) with their SIBs application.
Unfortunately, real life has not lived up to the story we told. Our firm
recently defended a SIBs quarter in which the claimant’s DWC-52 spun a tale of
job searches for each week of the qualifying period, but she did not submit a
copy of one single job application with her DWC-52 nor did she bother
identifying information for any single employer she claimed to have contacted.
Instead, she simply wrote down the names of employers she allegedly contacted
on the DWC-52.
As recently as October of this year, the version of the story the Division told
the Supreme Court of Texas was that the Division requires every claimant (not
assisted by the Workforce Commission) who is seeking entitlement to SIBS to
provide copies of job applications with the DWC-52. Our firm made this argument
to the ALJ mere weeks ago, providing the very words from the AG for her
consideration, but the ALJ appears to have missed the Division’s memo on the
subject. The ALJ found the claimant was entitled to SIBs.
Copyright 2024, Stone Loughlin & Swanson, LLP
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.
Copyright 2024, Stone Loughlin & Swanson, LLP
Ruth Castilleja of Baytown got caught for fraud after reporting an injury while
working as a phlebotomist. Texas Mutual accepted her workers’
compensation claim and started her benefits for income replacement. That
is until they learned that she was working, again as a phlebotomist but at
another company. In the parlance of workers’ comp, this is called “double
dipping.” She said she was too hurt to work in order to get workers’
compensation income replacement benefits, but in reality she was not so hurt
that she couldn’t work. Her punishment? Three days in Travis County
Jail where she attended some classes on theft, and $7,100 to be paid in
restitution to Texas Mutual (presumably to be paid from her ill-gotten
gains).
Copyright 2024, Stone Loughlin & Swanson, LLP
There has been a flurry of activity within the Division of late as DWC staff
flutter off. Ana Thornton, the South-Eastern Regional Director overseeing
hearings in Houston, San Antonio, and the Valley, has departed for a position
with Traveler’s Insurance Company. Of course, we wish her nothing but the
best.
Jeff Carothers, formerly the Team Lead for the Southern Region and a San
Antonio Administrative Law Judge, accepted the Regional Director position left
vacant by Ms. Thornton and will therefore no longer preside over hearings.
Administrative Law Judge Hector Martinez of San Antonio will replace Mr.
Carothers as the Team Lead of the Southern Region. We heartily congratulate
them both!
Meanwhile, ALJ Franca Okonkwo transferred from the Houston West Field Office to
Houston East, and the Division has hired Victoria Mendoza as its newest
Administrative Law Judge in the West office. Judge Mendoza received her
J.D. from Texas Southern University and became licensed to practice in 2016.
Prior to joining the Division, we understand her area of expertise was
immigration law. We look forward to working with her.
Finally, Amparo Ilustre, a Benefit Review Officer in the Fort Worth area,
retired in January. No word yet on her replacement, but our best wishes to Ms.
Ilustre for a happy retirement!
Copyright 2024, Stone Loughlin & Swanson, LLP