State News : Texas

What better way to celebrate the Dog Days of Summer than to pay tribute to the time-honored tradition of the Dog Show? 

TOY GROUP

Courts of Appeal Toy with Exclusive Remedy

How Exclusive is “Exclusive”

The stage is set for the Supreme Court of Texas to weigh in on whether a plaintiff can bypass the DWC adjudication process and, instead, have a trial court consider the merits of a defendant’s exclusive remedy defense in a plaintiff’s personal injury lawsuit.
 
The courts are now officially split on the issue.  In January of 2023, the 13^th Court of Appeals decided UTRGV v Oteka, and decided Ms. Oteka did not need to exhaust her administrative remedies with the DWC before filing her personal injury suit and the trial court had jurisdiction to deny UTRGV’s plea to the jurisdiction.  No. 13-22-00063-CV, 2023-WL 413587 (Tex. App. – Corpus Christi – Edinburg Jan. 26, 2023, pet. filed) (mem. op.)   Noting UTRGV had not had the merits of the exclusive remedies defense considered by the trial court, instead moving for dismissal on the grounds that the course and scope issue was the exclusive jurisdiction of the Division, the Valley Court of Appeals concluded that “Oteka’s suit is not based on the ultimate question of whether she is eligible for workers’ compensation benefits.  As we previously observed, it is ‘just the opposite, if [Oteka’s] injury is compensable, this would likely bar [her]suit pursuant to the exclusive-remedy defense.’”
 
Fast forward to August 20, 2024, when the 1^st Court of Appeals in Houston took the completely opposite position.  The Houston Court spent quite a bit of time unpacking the Texas Workers’ Compensation Act and the legal precedent supporting their holding that failure to exhaust the administrative remedies required by the Act deprived the trial court of subject matter jurisdiction over the personal injury lawsuit filed by the plaintiff in In Re Prentis, a mandamus action filed by the defendants in a personal injury suit filed by Desi Sykes arising out of claimed work injury. (No. 01-23-00616-CV, 2024 WL 3862953(Tex. App. – Houston [1^st. Dist] August 20, 2024).

The 1^st Court of Appeals reasoned that the Act vested the Division with the sole authority to determine whether an employee sustained a compensable injury thereby entitling him to workers’ compensation benefits and that same Act provides the mechanism for resolving disputes regarding those claimed injuries. 
 
Sykes’ thought that the fact that whether he was injured in the course and scope of his employment was “hotly contested” conferred jurisdiction on the trial court and allowed him to bypass the DWC administrative process.  The 1^st Court disagreed.  The Court of Appeals held, to the contrary, that the Legislature conferred exclusive jurisdiction on the DWC “to consider in the first instance the question of compensability, including the question of course and scope” and Sykes failed to exhaust his administrative remedies, necessarily depriving the trial court of jurisdiction over the matter.  The 1^st Court determined abatement, rather than dismissal was the appropriate remedy, pending the exhaustion of Mr. Sykes’ administrative remedies.  The 1^st Court conditionally granted the Petition for Mandamus feeling confident the trial court would vacate its order denying the Plea to the Jurisdiction and issue and order abating the case in accordance with its holding.
 
With the Courts of Appeal in a dogfight over this exclusive remedy issue, the Supreme Court is primed to bring the issue to heel once and for all.

Administrative Violations Don’t Defeat Exclusive Remedies Defense

Meanwhile, over in Cowtown, the Fort Worth Court of Appeals, upheld a trial court’s summary motion judgment in Lane v. Odle, 2024 WL3897109 (August 22, 2024).  Mr. Lane filed a third-party suit and Odle, Inc., filed a summary judgment motion in district court alleging an exclusive remedy defense, presenting all kinds of evidence of Mr. Lane’s employment status.  The trial court granted the summary judgment.
 
Lane’s arguments in support of his defense of the summary judgment included: the failure of Odle to prove TDI had approved its workers’ compensation policy; the failure of Odle to offer evidence that it was authorized to write workers’ compensation insurance in Texas; and, Odle’s failure to show it was a registered subscriber with TDI.  The Fort Worth Court held that in order to prevail, Odle had to show that Mr. Lane was its employee at the time of the injury and was covered by its workers’ compensation insurance policy.
 
The Court pointed to numerous pieces of uncontroverted evidence, including Mr. Lane’s own petition in which he asserted he was an employee, in support of the affirmative defense and defeat of the no-evidence grounds.  The Court then looked to the shifted burden and discussed the fact that rather than attaching evidence raising a genuine issue of material fact, Lane complained that there was no evidence the workers’ compensation insurance policy was approved by TDI and that Odle’s parent company failed to register with DWC – facts that amounted to administrative violations – not facts that would overcome Lane’s evidentiary burden.  The Fort Worth Court of Appeals cited other Texas courts who have held an administrative violation does not affect an employer’s ability to satisfy the employer element of the exclusive remedy defense.
 

WORKING GROUP
 

The Appeals Panel was busy this month – and by busy, I mean they wrote three decisions, which lands them squarely in the Working Dog Group.
 
In APD 240974, they reversed and remanded an ALJ who made a material error in the statement of the evidence when determining a claimant didn’t have disability.  When adding up the claimant’s earnings for the relevant disability periods, the ALJ apparently got the math wrong and the Appeals Panel remanded the case to allow the ALJ to dust off her trusty calculator and try again.
 
In APD 240839 and APD 240805, the Appeals Panel reversed ALJs who got it right on extent of injury, but subsequently adopted designated doctor certifications of MMI/IR that included conditions that they themselves determined were not compensable.  The Appeals Panel pointed out that this is a no-no and overcomes the presumption afforded said designated doctor.  In 240839, happily there was another certification that rated the compensable injury and the Appeals Panel was able to render a decision on MMI/IR.  In 240805, however, there was no other certification that rated the compensable injury, as defined by the Division after the CCH, and the Appeals Panel had no choice but to remand for the ALJ to send the case back to a designated doctor to rate the compensable injury only.
 

SPORTING GROUP
 

BE A SPORT!! REGISTER NOW! FOR THE 5^TH ANNUAL Kids’ Chance of Texas Golf Tournament – October 28, 2024 – Shotgun start 1:00 p.m. – The Lakes at Castle Hills, Lewisville, Texas
 

HOUNDS

Licensing board hounding you to get your hours in?  Here’s a great opportunity to rack up some CE credit and learn a few things while you are at it:  NWCDN’s Annual Conference in Denver September 26, 2024 – BONUS: It’s free to SLS clients 😊 – Check out the Agenda here.
 

TERRIERS
 

The Division is like a dog with a bone when it comes to sending out information and they just introduced a new way to do just that - the DWC Texas Comp Update. Check it out here.

HERDING GROUP
 

The Division is herding everyone together on September 5, 2024 at 2:30 p.m. for a Hybrid Insurance Carrier/Health Care Provider Quarterly Meeting. For more information about this and future hybrid stakeholder meetings, including dates and times and Zoom links, see here.
 

NON-SPORTING GROUP

A few participants found themselves in the doghouse with the Division recently which landed them in the non-sporting group. 

 
One claimant’s attorney, was directly paid attorney fees by the Carrier by virtue of winning a disputed SIBs quarter.  He failed to timely pay back said Carrier when ordered by the DWC following a CCH requested by the Carrier to dispute the amount of those fees.  The DWC felt 1,857 days was far too long to pay back the owed fees, regardless of any mitigating circumstances, fined him $10,000 and ordered him to attend 6 hours of ethics.
 
An RME doctor, who was ordered by the DWC to perform an extent of injury examination, apparently threw in an MMI/IR certification as well and completed a DWC-69 and report, which was entitled “Peer Review/Impairment Rating.”  The Division fined the doctor $500.00 for improperly certifying MMI/IR when not being ordered to do so, and for certifying MMI/IR without an examination (although there clearly was some kind of examination), and for assigning a prospective MMI date.
 
A carrier is on a short leash with the DWC when it comes to lifetime and death benefits.  The Division, noting the harm in failing to timely pay LIBs and death benefits to injured employees and their beneficiaries under particularly stressful circumstances, fined the Carrier $19,000 for a variety of violations related to the administration of death and LIBs benefits.
 
Finally, a Carrier who determined there were no beneficiaries in a death case waited 84 days too long to send that money to the SIF.  Turns out, that dog won’t hunt – the Carrier was fined $32,000! 
 
It’s a dog-eat-dog world in workers’ comp so keep your nose clean (and out of your neighbor’s tail) and remember, every dog has his day.
 

BEST IN SHOW
 

From time to time, we all hear some interesting - and let’s face it - entertaining stories in our line of work.  Our Best In Show entry is designed to put a smile on your face as you slough off the August heat and, hopefully, welcome some cooler fall days. 
 
While reviewing a BRC report recently, our own Robert Greenlaw came across a most peculiar injury for which he was unable to find a corresponding ICD-10 code – a lumbar disc bugle!  As Rob put it, “wouldn’t want to hear him play that…”
 

Copyright 2024, Stone Loughlin & Swanson, LLP