State News

WTH is an OARFI?

When we dusted off our rule book to look at the rules in the aforementioned chapters of the Administrative Code, we discovered all kinds of little treasures. For example, many acronyms that we use every day in the system, such as AWW, BRC, MMI, etc., are actually codified in DWC Rule 102.7. Others, such as BRO, DD, LOC, POD, etc. are not included. 

This past month saw some new acronyms enter the system, resulting in a new form and some new additions to DWC staff hierarchy.  

You might recall that the new DD request form (DWC032) implemented on 6/5/23 does not include a box for the Carrier to identify the accepted condition and thus, the DD determines the compensable injury during the exam. In the April edition of The Compendium, our own Erika Copeland predicted that the change to the DWC032 would create more problems with informal resolution. Kudos to Erika and her foresight, because the new OARFI (“Request for Information”) appears to be the first attempt at righting the ship. The OARFI lists multiple conditions and requests that the Carrier check whether it “Accepts” or “Disputes” the condition. It also asks the parties to identify any additional injuries that they believe should be considered when assessing MMI or the impairment rating. The parties are asked to send the information to a named “Benefit Review Officer” within three business days, and notice is given that the information is for “mediation purposes only.” The Carrier is told that the answers are not binding and that they can change their mind but inaccurate answers will likely cause additional exams and delays in the dispute resolution process. Likewise, to date there doesn’t appear to be any penalty associated with not returning the form.

The “Benefit Review Officer” named on the form is actually known as a “BRO-1” (which begs the question – is the BRO that presides over the BRC now known as “Big Bro”?). The BRO-1 has been charged with looking at issues before a BRC and requesting information of the parties so a Presiding Officer’s Directive (POD) can be sent to the DD.

Meanwhile, we have been informed that if you need to request the status of LOC requests or responses, DD reports, or RME reports, you need to contact the Proceeding Resolution Officer or “PRO.” If you are seeking information about scheduling, resets, requests for dates, motions, subpoenas, agreements, or interpreter requests, you need to contact the Docketer.

Unfortunately, we do not have the key to knowing who actually handles the docketing for each field office nor are we able to keep up with the frequent changes in PRO assignments. Our wish list for next month includes periodic information updates from the DWC regarding these changes. Until then, here is our (non)helpful chart of how this works on a daily basis.

Copyright 2023, Stone Loughlin & Swanson, LLP

Rule Review Time

The DWC will be reviewing multiple sections of the Texas Administrative Code (Chapters 102, 104, 109, 110, 112, 114, and 116) to determine whether the rules are still relevant and necessary. The DWC Legal Services team is requesting that system participants send written comments along with proposed alternative language to RuleComments@tdi.texas.gov by 5 p.m. CST on October 3, 2023. 
 

Copyright 2023, Stone Loughlin & Swanson, LLP

Seasonal Employees Simplified

Other proposed form changes include a complete (and long overdue) overhaul of the forms relating to adjusting income benefits for seasonal employees. The DWC intends to retire Form-054 (Notice to Employee: Intention to Request Division Permission to Adjust Benefits) and Form-056 (Seasonal Employee Wage Information from Texas Workforce Commission Records). The proposed new Form-055 will combine the Notice to Employee and Carrier’s Request to Adjust Average Weekly Wage. The DWC invites all who wish to submit comments on the proposed changes to email them to RuleComments@tdi.texas.gov by 5 pm CST on September 18th.

Copyright 2023, Stone Loughlin & Swanson, LLP 

Is Change Afoot for SIBs?

Will the Texas Department of Insurance, Division of Workers’ Compensation begin requiring applicants for Supplemental Income Benefits to provide material evidence of job applications they have submitted in their search for work? It sure looks that way. 

In a memo to stakeholders on August 17, General Counsel Kara Mace enclosed proposed changes to the DWC Form-052, Supplemental Income Benefits Application. The proposed revision includes an FAQ page with the following guidance for applicants who are looking for work on their own:
 

Show you were actively looking for a job by attaching job applications or other documents showing you were looking for a job.  

If the Division adopts the proposed version, and if it requires SIBs applicants to actually attach job applications to the Form-052, that would be a welcome change. Currently, Division ALJs typically do not require a SIBs applicant to submit material evidence of job applications they have submitted. Instead, the Division’s position is that an applicant’s assertion, on the Form-052, that he submitted applications is sufficient documentation of such applications.  

Of course, many stakeholders disagree with the Division’s position, and that position is one reason that Accident Fund Insurance Company of America, represented by this Firm, filed an action for declaratory relief in the Travis County district court challenging the validity and applicability of the Division’s SIBs rule. As we have reported previously, the district court held the rule invalid, the Division appealed, and the Austin court of appeals issued a decision on February 28, 2023. Texas Department of Insurance, Division of Workers’ Compensation v. Accident Fund Insurance Company of America, et al. A petition for review is currently pending in the Supreme Court of Texas. 

We will continue to monitor and report on the proposed changes to the Form-052. 

Copyright 2023, Stone Loughlin & Swanson, LLP 

Beat the Heat

Don’t miss this unique chance to golf at The Lakes at Castle Hills on October 23rd! Register today for a rewarding day of golf, while supporting an amazing cause.  Our first full golf team has already signed up! Thank you, Kyle Morris, for putting together a team and showing up again this year! Spots are limited and filling quickly. All proceeds benefit Kids’ Chance of Texas scholarship recipients and provide these students with the opportunity for a strong education and career, despite the most difficult circumstances. Register here. You can also find information at www.kidschanceoftexas.org, and for those of you with modern skills, there is a QR code.  See you on the course!

Copyright 2023, Stone Loughlin & Swanson, LLP 

NWCDN in the Windy City

SLS is the Texas selected member of the National Workers’ Compensation Defense Network (NWCDN). This year, the NWCDN conference is set in Chicago October 18th and 19th and we would love to send you an invitation if you are interested in attending.  The conference is free, and there are greatly reduced hotel rates at the Radisson Blu Aqua blocked if you book by September 19th.  Here is a link to the registration materials and the terrific agenda: Program Agenda.  Hope to see you there! 

Copyright 2023, Stone Loughlin & Swanson, LLP 

Victory Belongs to the Most Tenacious

Remember when we reported on the SOAH case where the ALJ questioned the DWC’s actions regarding claim investigation and its method of assessing penalties?  We learned that, but for a courageous Third Party Administrator (Abercrombie Simmons & Gillette) who footed the cost of the litigation for its customer, the City of Baytown, the issues the case presented would still be buried at the agency. They say you “can’t fight City Hall” but that saying only goes to those unwilling to do so.

Copyright 2023, Stone Loughlin & Swanson, LLP 

ALJ on the Move

Our friend and colleague, ALJ Carol Fougerat, will be hanging up her hat at the DWC on September 20th. We will miss her and wish her well on her upcoming adventures!

Copyright 2023, Stone Loughlin & Swanson, LLP 

21st Century Tech Advances on the Horizon

DWC is also conducting a survey to modernize their dispute resolution technology services. They’ve requested that system participants complete the survey at the following link by September 15, 2023. www.surveymonkey.com/r/VPC6NM6

Copyright 2023, Stone Loughlin & Swanson, LLP 

Navigating Workplace Violence Claims Under the North Carolina

Workers’ Compensation Act

By: Elizabeth P. Ligon & Logan H. Shipman

I.                   Compensability of Workplace Violence Claims

Under the North Carolina Workers’ Compensation Act, there are three conditions antecedent to the right to compensation: (1) that claimant suffered a personal injury by accident; (2) that such injury arose in the course of the employment; and (3) that such injury arose out of the employment. Wilson v. Town of Mooresville, 222 N.C. 283, 22 S.E.2d 907 (1942). These conditions must be satisfied in claims for injuries resulting from violence in the workplace, as with any other work-related injury. The ways in which these conditions apply to such workplace violence claims are discussed below in greater detail.

A.    Injury by Accident

The term “accident” is defined under the Act as “an unlooked for and untoward event which is not expected or designed by the injured employee.” Harding v. Thomas & Howard CO., 256 N.C. 427, 428, 124 S.E.2d 109, 110-11 (1962). Although workplace violence, such as an assault, is an intentional act, it may qualify as an accident within the meaning of the Act if the violence is “unexpected and without design on the part of the employee who suffers from it.” Robbins v. Nicholson, 281 N.C. 234, 238, 188 S.E.2d 350, 353 (1972); see also Withers v. Black, 230 N.C. 428, 432, 53 S.E.2d 668, 672 (1949). North Carolina courts have generally held that the mere fact that an injury is the result of the willful or criminal assault of a third person does not prevent the injury from being regarded as an accident. Conrad v. Cook-Lewis Foundry Co., 198 N.C. 273, 153 S.E. 266 (1930).

For example, in Robbins, an unexpected shooting at work was found to constitute an accident. Robbins, 281 N.C. at 238, 188 S.E.2d at 353. Likewise, in Withers, the North Carolina Supreme Court found the claimant sustained an injury by accident when a fellow employee purposefully threw a hod of mortar composed of sand and lime into the claimant’s face, seriously injuring his eyes. Withers, 230 N.C. at 432, 53 S.E.2d at 672. An assault in which an employee kicked the claimant in her leg has also constituted an injury by accident. Daniels v. Swofford, 55 N.C. App 555, 286 S.E.2d 582 (1982). Given most instances of workplace violence are unlooked for and untoward events not expected or designed by the injured employee, the question of whether such incidents constitute “accidents” is rarely at issue in these claims.

B.     In the Course of the Employment

 The course of the employment refers to the “time, place, and circumstances under which an accidental injury occurs.” Robbins, 281 N.C. at 238, 188 S.E.2d at 353. An injury arises in the course of the employment where evidence demonstrates it “occurred during the hours of the employment and at the place of the employment while the claimant was actually engaged in the performance of the duties of the employment.” Withers, 230 N.C. at 432, 53 S.E.2d at 672. In Withers, the claimant was assaulted by a fellow employee. The Court noted the assault was in the course of the claimant’s employment because the claimant was at work and performing his job duties when his fellow employee hurled the hod of mortar into his face. Id. Since instances of workplace violence tend to, by definition, occur during the hours of employment and at the place of employment, this second element of compensability is rarely contested. Instead, the primary issue in such workplace violence claims typically involves the question of whether the injury arose out of employment.

C.    Arising Out of Employment

In claims involving workplace violence, the primary dispute is most often whether the injury arose out of the claimant’s employment. An accident that occurs during the course of employment does not Ipso facto arise out of it. Robbins, 281 N.C. at 238, 188 S.E.2d at 354. The injury suffered as a result of workplace violence must be incidental to some duty of employment. Ashley v. F-W Chevrolet Co., 222 N.C. 25, 21 S.E.2d 834 (1942). The assault arises out of the employment when it is a “natural and probable” consequence or incident of the claimant’s job and a “natural result of one of its risks, so that there is some causal relation between the injury and the performance of some service of the employment.” Robbins, 281 N.C. at 239, 188 S.E.2d at 354. Where a claimant is assaulted by a fellow employee due to a dispute about the manner of work, use of tools, interference, etc. it is inferred that the injury arose out of the employment. Withers, 230 N.C. at 433, 53 S.E.2d at 672-73. The danger which causes the workplace violence must be a risk connected with the employment and has flowed from that employment as a rational consequence. Gallimore v. Marilyn’s Shoes, 292 N.C. 399, 233 S.E.2d 529 (1977). Furthermore, the danger which causes the assault must be “peculiar to the work and not common to the neighborhood.” Id. at 405, 233 S.E.2d at 533.

The North Carolina Court of Appeals held that the assault inflicted upon the claimant in D’Aquisto v. Mission St. Joseph’s Health Sys., 171 N.C. App. 216, 614 S.E.2d 583 (2005), rev’d in part, 360 N.C. 567, 633 S.E.2d 89 (2006), was a compensable workers’ compensation injury because the claimant’s employment put her at an increased risk of such an assault. The claimant, a hospital employee, was injured by an assailant while she was carrying business records to the hospital’s morgue, where few, if any, people were expected to be in her vicinity. Id. at 224, 614 S.E.2d at 588.

Similarly, the North Carolina Supreme Court in Withers found the injury sustained by the claimant after being assaulted by a fellow employee was compensable because it arose out of his employment. Withers, 230 N.C. at 433, 53 S.E.2d at 672-73. In support of their holding, the Court noted the claimant and assailant did not know each other outside of their employment. Id. at 433, 53 S.E.2d at 672. They got into an argument over the work they were performing for their common employer, and that argument led to the assault and the claimant’s resulting injury. Id. The Court reasoned “where [employees] are working together at the same work disagreements may be expected to arise about the work, the manner of doing it… and occasionally blows and fighting.” Id. at 434, 53 S.E.2d at 673.  

However, there are several instances in which an accident sustained in the course of employment because of the workplace violence does not constitute a compensable injury arising out of the employment. For instance, if a claimant is assaulted by a fellow employee as a result of anger, hatred, revenge, or vindictiveness which is not related to their employment, the injury is attributed to the voluntary act of the assailant and is not considered an incident of the employment. Ashley, 222 N.C. at 25, 21 S.E.2d at 835. This is true even if the claimant was engaged in the performance of his duties at that time. Robbins, 281 N.C. at 240, 188 S.E.2d at 354. Indeed, in cases where the claimant’s employment may have provided a convenient opportunity for workplace violence, the injury does not arise out of the claimant’s employment if there is no basis for a reasonable inference that the nature of the employment created the risk of such an attack. Id. Similarly, an injury stemming from violence at the workplace is not compensable if it is inflicted upon the claimant by a third party because of a personal relationship unrelated to the claimant’s employment.

In Dildy v. MBW Investments, Inc., 152 N.C. App. 65, 566 S.E.2d 759, the claimant sought workers’ compensation benefits after being shot by her former boyfriend while at work. The claimant was employed as a cashier at a gas station, which primarily involved conducting transactions for gasoline and merchandise. Id. at 66, 566 S.E.2d at 761. Outside of work, the claimant was previously involved in an abusive, violent relationship with her former boyfriend, but she never told her fellow employees or supervisors about the relationship. Id. While the employee was engaged in her duties at the cash register, her former boyfriend entered the store and shot her in an attempt to kill her. Id. at 67, 566 S.E.2d at 762. The Court found the claimant’s injuries did not arise out of her employment because the assault was the result of a personal relationship between her and her former boyfriend. It was not related to her employment. Id. at 71-72, 566 S.E.2d at 764. Her work as a cashier did not create the risk of the assault by her former abusive boyfriend, so her claim was denied. Id.

            The Court in Robbins likewise found the injury suffered as a result of workplace violence was not compensable under the Act. Robbins, 281 N.C. at 242, 188 S.E.2d at 356. The claimant in Robbins was shot by a fellow employee’s jealous spouse. Id. at 241, 188 S.E.2d at 355. The assault was entirely unrelated to the nature of the claimant’s employment and did not result from the work the claimant was required to do. Id. The North Carolina Supreme Court noted any male employee whose duties required him to work with the female victim would have been equally endangered. Id. The origin of the assault was the assailant’s alcoholism and his personal relationship with his spouse. Id. at 242, 188 S.E.2d at 355. The Court concluded the “risk of murder by a jealous spouse is not one which a rational mind would anticipate as an incident of the employment of both sexes in a business or industry… [it] is a hazard common to the neighborhood that is independent of the relation of master and servant.” Robbins, 281 N.C. at 242, 188 S.E.2d at 356.

II.                Practice Pointers and Takeaways

As evidenced by the above, the determination of whether an injury stemming from workplace violence is compensable most often depends on whether the violent act arises out of the claimant’s employment. To make such a determination, it is crucial that practitioners conduct a thorough factual investigation into the claim. Such an investigation should include a deep dive into the personal relationship, if any, between the claimant and the assailant. Do they know each other outside of work? If the assailant is a fellow employee, did he or she work the same shifts as the claimant? Did the conflict arise as a result of the claimant’s employment duties?

 The claim is likely to be found compensable if the investigation reveals the reason for the claimant’s assault was related to their employment. Evidence demonstrating the workplace violence was the direct result of an outside, personal conflict or other vendetta may insulate defendants from liability on grounds that the injury did not arise out of the claimant’s employment.

In claims involving an assault on an employee by a non-employed third person, practitioners should investigate whether the claimant’s employment put them at an increased risk for the workplace violence. Is the danger which caused the assault peculiar to the claimant’s work or is it common to the neighborhood? Evidence demonstrating the assault flowed as a rational consequence of the claimant’s employment is likely to be held as a compensable injury by accident.

As you navigate workers’ compensation claims involving workplace violence, it is crucial to fully investigate the facts of the claim to determine whether the incident arose out of the claimant’s employment.