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CASE LAW UPDATE

DEFENDANT PERSPECTIVE

MARGARET M KNOTT Dallas

Knott amp Doyle

State Bar of Texas

ANNUAL

ADVANCED WORKERSrsquo COMPENSATION COURSE

August 11-12 2011

Austin

CHAPTER 111

Case Law Update Defendant Perspective Chapter 111

TABLE OF CONTENTS

INTRODUCTION 1

ATTORNEY FEES 1

BAD FAITH 3

CAUSATION 4

COMMON LAW MARRIAGE 7

COURSE AND SCOPE 8

DEATH BENEFITS 10

EVIDENCE 11

EXPERT EVIDENCE 11

EXTENT OF INJURY 12

GOVERNMENTAL IMMUNITY 12

IMMIGRATION STATUS 12

IMPAIRMENT RATING 13

INDEPENDENT CONTRACTOR 13

INTOXICATION 13

JUDICIAL REVIEW PROCEDURE 13

LIBS 15

MEDICAL DISPUTE RESOLUTION 15

RETALIATORY DISCHARGE 16

SIBs 16

SUBCLAIMANT STATUS 16

SUBROGATION 16

WAIVER OF WORKERSrsquo COMPENSATION BENEFITS 17

WRONGFUL TERMINATION 17

Aleman v Zenith Ins Co 2011 Tex App LEXIS 3347(Tex App ndashEl Paso

May 4 2011 no pet ) 3

American Home Assurance Company v Poehler 323 SW3d 626 (Tex App ndash Tyler 2010 pet filed) 2 13 16

Austin ISD Self-Insured v Manbeck 338 SW3d 147(Tex App-

Austin 201 pet filed) 1

City of Beaumont v OrsquoQuinn 2010 Tex App LEXIS 7634 (Tex App- Beaumont

2010 no pet)(mem op) 1 11 12

Collins v Indemnity Insurance Company of North America 2011 Tex App

LEXIS 3104 (Tex App ndashSan Antonio April 27 2011 no pet) 10

Commerce amp Industry Insurance Company v Ferguson-Stewart

339 SW3d 744(Tex App- Austin 2011 pet filed) 3 11

Continental Casualty Company v Baker 2011 Tex App LEXIS 3418

(Tex App - Houston [1sst Dist] May 5 2011 no pet h) 1 3 6 12

Continental Casualty Insurance Company v Lavender No 02-10-00399-CV

2011 Tex App LEXIS 4431(Tex App-Fort Worth June 9 2011 no pet h) 3 7 10

Crain v Hartford Ins Co 2010 Tex App LEXIS 9203 (Tex App ndash Austin Nov 18 2010 pet filed ) 15

Critical Health Connection Inc v Texas Workforce Commission 338 SW3d 758

(Tex App ndash Austin 2011 no pet h) 13

Dallas National Insurance Company v Lewis 2011 Tex App LEXIS 4564 (Tex App ndash Houston [1st Dist] June 6 2011 no pet h) 13

Elliott vHollingshead 327 S W 3d 824 (Tex App - Eastland 2010 no pet) 1 3 16

Espinoza v Cargill Meat Solutions Corporation 622 F3d 432 (5th Cir 2010) 17

Holmes v Tex Mut Ins Co 335 SW3d 738 (Tex App ndash El Paso 2011

pet abated) 14

In Re Metropolitan Transit Authority 334 SW3d 806 (Tex App Houston [1st Dist]

2011 orig proceeding) 13

In Re Texas Mutual Insurance Company 331 SW3d 70 (Tex App ndash

Eastland 2010 orig proceeding) 16

In Re Texas Mutual Insurance Company 333 SW3d 925 (Tex App-Waco

2011 orig proceeding) 15 17

Insurance Company of the State of Pennsylvania v Muro 285 SW3d 524

(Tex AppndashDallas 2009 pet granted) 2011 LEXIS 83 (Tex Jan 21 2011) 15

King v Zurich American Insurance Company 2011 Tex App LEXIS 1213

(Tex App - Fort Worth Feb 17 2011 no pet h) 13

Leordeanu v American Protection Insurance Company 330 SW3d 239 (Tex 2010) 1 8

Martinez v State Office of Risk Management 2011 Tex App LEXIS 305

(Tex App ndash San Antonio Jan 19 2011 no pet) 14

MeadWestvaco Corp v Booker 2010 Tex App LEXIS 10333 (Tex App ndash Beaumont Dec 30 2010 no pet) 11

Rangel v Nueces County 2011 Tex App LEXIS 1793 (Tex App

ndash Corpus Christi 2011 no pet) 11

Region XIX Service Center v Banda 2011 Tex App LEXIS 905 (Tex App ndash

El Paso Feb 9 2011 pet filed) 15

Republic Waste Service v Martinez 335 SW3d 401 2011 Tex App LEXIS 540

(Tex App- Houston [1st Dist] 2011 no pet) 12

Smith v Travelers Casualty and Surety Company 327 SW 3d 775 (Tex App-

Eastland 2010 no pet) 14

Transcontinental Insurance Company v Crump 330 S W 3d 211(Tex 2010) 1 3 4 6

Travis Central Appraisal District v Norman 54 Tex Sup Ct J 891 2011

LEXIS 324 (Tex April 29 2011) 12 16

Zurich American Insurance Company v McVey 339 SW3d 724 (Tex App-Austin

2011 pet filed July 7 2011) 9

CASE LAW UPDATE

INTRODUCTION

This paper contains a survey of appellate cases decided in the last twelve months involving workerslsquo

compensation and related matters One of the most

significant is the Texas Supreme Courtlsquos decision in

Transcontinental Insurance Company v Crump 330

S W 3d 211(Tex 2010) in which the court held that

producing cause in a workerslsquo compensation case is defined as ―a substantial factor in bringing about an

injury or death and without which the injury or death

would not have occurred The court found that a

definition of producing cause that did not include a

―but-for component was erroneous The courtlsquos

decision is already affecting the outcome of cases where Carrierlsquos have disputed extent of injury based on

causation For an excellent discussion of this see

Continental Casualty Company v Baker 2011 Tex

App LEXIS 3418 (Tex App - Houston [1sst Dist]

May 5 2011 no pet h)

The Texas Supreme Court issued a decision in

December 2010 in a case involving course and scope under the dual purpose rule Leordeanu v American

Protection Insurance Company 330 SW3d 239 (Tex

2010) The court included a detailed discussion

regarding the distinction between the dual purpose and

coming and going rules and an analysis of course and

scope under the dual purpose rule As of the date this paper was prepared the Texas

Supreme Court decision is still pending in Insurance

Company of The State of Pennsylvania v Muro 285

SW3d 524(Tex AppndashDallas 2009 pet granted)

2011 LEXIS 83(Tex Jan 21 2011) The court heard

oral arguments on March 3 2011 The Texas Supreme Court is reviewing a Court of Appeals decision holding

that the jurylsquos finding that loss of use of the hand and

both feet is within the class of injuries covered by the

LIBs statute even though there was no direct injury to

the feet or hands

There are a number of cases discussing the award of attorneylsquos fees to Claimantslsquo attorneys where the

Carrier sought judicial review on issues on which the

Claimant prevailed at DWC and the Carrier was not

successful in the judicial review suit The Crump

opinion of the Texas Supreme Court addressed this

issue holding that when a question of fact exists on the reasonableness and necessity of a Claimantlsquos

attorneylsquos fees under Texas Labor Code sect408221(c)

the Carrier is entitled to submit the issue of the

reasonableness and necessity of the fees to the jury

Several other cases regarding attorneylsquos fees on

judicial review have held that the fee shifting provision

in sect408221(c) does not authorize Claimants to recover attorneylsquos fees for fees incurred solely to recover their

attorneylsquos fees These issues are thoroughly explained

in Austin ISD v Manbeck 338 SW3d 147(Tex App-Austin 2011 pet filed)

In City of Beaumont v OrsquoQuinn 2010 Tex App

LEXIS 7634 (Tex App- Beaumont an appellate

decision in favor of a self-insured employer the Court

of Appeals found the evidence was legally insufficient

to support a jurylsquos findings on extent of injury The opinion includes a thorough discussion of the expert

evidence The court held that expert opinions offered

by the Claimant that were no more than ―bare

conclusions were insufficient to support the judgment

With regard to subrogation Elliott

vHollingshead 327 S W 3d 824 (Tex App - Eastland 2010 no pet) held that a trial court may not

enter a judgment based on a settlement that arbitrarily

compromises the Carrierlsquos right to subrogation

including the future credit by structuring the award so

that a non-beneficiary recovers a disproportionate

amount In the materials that follow cases are described

under the topic heading to which they primarily apply

and are referenced by name and page number under

other topics to which they also relate

ATTORNEY FEES

Austin ISD Self-Insured v Manbeck 338

SW3d 147(Tex App- Austin 2011 pet filed)

Claimantrsquos attorney not entitled to fees after

carrierrsquos non-suit or for time to recover fees

AISD originally sought judicial review in this

extent-of-injury dispute The claimant filed a

counterclaim seeking attorneys fees under section

408221 subsection (c) of the Labor Code

Subsequently AISD non-suited its judicial-review

claim and the parties proceeded to jury trial solely on Manbecks attorneys-fees counterclaim Based on the

jurys findings the trial court awarded Manbeck

$36000 for trial-level attorneys fees incurred up to the

time of AISDs non-suit an additional $17415 for

trial-level attorneys fees incurred after the non-suit

plus contingent appellate attorneys fees

1 No fees after non-suit

The COA affirmed the award for fees incurred

before the nonsuit but otherwise reversed and rendered

judgment that the claimant take nothing on his other

fee claims The COA reasoned that the issue on which judicial relief was sought by the district in accordance

with Tex Lab Code Ann sect 410302 was the parties

extent-of-injury dispute and could not include any

future or potential claim regarding the claimants

entitlement to fees under Tex Lab Code Ann sect

408221(c) By limiting claimants entitlement to fees

solely to those incurred in connection with the issues appealed by the carrier on which the claimant

prevailed the Legislature precluded the award of fees

incurred by claimants solely in pursuit of fees

otherwise authorized by the provision Because the

districts nonsuit of its judicial review claim left the

claimants counterclaim for fees as the sole remaining issue in the case sect 408221(c) did not authorize an

award of fees the claimant incurred from that point

forward

2 No fees for fees

On appeal AISD argued that the district court erred in its judgment because (1) Labor Code section

408221 subsection (c) does not authorize workers

compensation claimants to recover fees for feesmdash

attorneys fees incurred solely to recover any attorneys

fees otherwise authorized by that provisionmdashand thus

did not authorize recovery of the fees Manbeck incurred after AISD non-suited its judicial review

claim and (2) the evidence was legally and factually

insufficient to support the jurys award of the attorneys

fees that Manbeck was found to have incurred before

AISD non-suited its claim

The COA discussed that Manbecks attorneys fee awards in this case are each predicated on section

408221 of the Labor Code which contains a fee-

shifting provision whereby claimants may recover

additional attorneys fees from insurance carriers in

certain circumstances

The Court noted that the provisions of subsection

(c) that are directly applicable to this case can be restated for clarity as follows

(1) If [a]n insurance carrier seeks judicial

review under Subchapter G Chapter 410 of

a final decision of the appeals panel

regarding compensability or eligibility for or the amount of income or death benefits

(2) such a carrier is liable for reasonable and

necessary attorneys fees as provided by

Subsection (d) [that are] incurred by the

claimant as a result of the insurance carriers

appeal (3) if the claimant prevails on an issue on which

judicial review is sought by the insurance

carrier in accordance with the limitation of

issues contained in Section 410302

AISD focused its contentions on the second set of requirements listed above It argued that any attorneys

fees Manbeck incurred after it non-suited its judicial-

review claim could not have been incurred by the

claimant as a result of the insurance carriers appeal

within the meaning of section 408221 subsection (c)

AISD urged that subsection (c) contemplates that the

attorneys fees a claimant incurs as a result of the insurance carriers appeal are only those it incurs in

prevailing on an issue on which judicial review is

sought by the insurance carrier Once it non-suited its

judicial-review claim the sole issue that remaining for

judicial resolution was Manbecks counterclaim for

attorneys fees under section 408221 subsection (c) Whether Manbeck was entitled to attorneys fees under

the provision AISD argued was not in itself an issue

on which judicial review [was] sought by [AISD] so

none of the fees he incurred in pursuing that claim

would result from AISDs appeal AISD disputes in

other words whether subsection (c) authorizes recovery of attorneys fees that a claimant incurs in

recovering the attorneys fees he incurs in prevailing on

issue[s] on which judicial review is sought by the

insurance carrier

The COA concluded that the Legislature

necessarily intended to authorize claimants to recover attorneys fees incurred in prevailing on the issues on

which the carrier sought judicial review but not fees

incurred in pursuit of those fees The Court observed

that three other courts have previously addressed

similar issues concerning the proper construction of

subsection (c) and two have reached the same conclusions as we do In Twin City Fire Insurance Co

v Vega-Garcia the Fifth Court of Appeals determined

that subsection (c) clearly limits recovery of attorneys

fees to those fees incurred in prevailing on the issue on

which judicial review was sought and thereby does

not authorize the award of fees incurred in pursuing

fees 223 SW3d at 769 The Fourth Court of Appeals subsequently followed the reasoning of Vega-Garcia

Discover Prop amp Cas Ins Co v Tate 298 SW3d

249 260 (Tex AppmdashSan Antonio 2009 pet denied)

The COA held that because they lack either a

statutory or contractual basis it must reverse the

district courts award of $17415 for attorneys fees Manbeck incurred at the trial level following AISDs

non-suit as well as its awards of contingent appellate

attorneys fees and render judgment that Manbeck take

nothing on those claims However it concluded that

Manbeck presented legally and factually sufficient

evidence to support an award of $36000 for the reasonable and necessary trial-level attorneys fees he

incurred prior to AISDs non-suit and affirmed the

award of those fees

American Home Assurance Company v Poehler

323 SW3d 626 (Tex App ndash Tyler 2010 pet

filed)

Attorneyrsquos fees reduced because Claimant did

not prevail on all issues

1 IR and SIBS issues

The appellate court found that without presurgery x-rays the doctor could not provide objectively

verifiable evidence to place the workers impairment

rating at 20 The doctors opinion of the workers

impairment rating using Division Advisory 2003-10

was based on legally insufficient evidence and was an

invalid impairment rating The Division was not presented with a specific percentage impairment rating

based on either the use of range of motion as a

differentiator or the use of Table 70 of the Guides to

the Division Because the doctors opinion of the

workers impairment rating was invalid the Division

was presented with only one valid impairment rating the 5 impairment rating Based on the default the

trial courts judgment that the worker was entitled to

supplemental income benefits for quarter 1 was

correct

2 Attorneylsquos Fees American Home did not lose all issues on which it

sought judicial review When the trial court assessed

attorneys fees against American Home it had

determined that American Home was unsuccessful on

all issues on which it sought judicial review The COA

agreed with American Home that the trial courts award of attorneys fees to Poehler was incorrect The COA

held that because American Home was not successful

on all of its issues Poehler is entitled to some amount

of attorneys fees However American Home is also

entitled to a jury issue on the amount of attorneys fees

Transcontinental Insurance Company v

Crump 330 S W 3d 211(Tex 2010)

Carrier entitled to submit reasonableness and

necessity of claimantrsquos attorneys fees to jury

Insurance Company of the State of

Pennsylvania v Muro 285 SW3d 524(Tex

App ndashDallas 2009 pet granted) 2011 LEXIS

83(Tex Jan 21 2011)(ordered reset for oral

argument)

Oral arguments heard March 3 2011 decision

pending

Continental Casualty Insurance Company v

Lavender No 02-10-00399-CV 2011 Tex

App LEXIS 4431(Tex App-Fort Worth June

9 2011 no pet h)

Commerce amp Industry Insurance Company v

Ferguson-Stewart 339 SW3d 744(Tex App-

Austin 2011 pet filed)

Pleadings gave sufficient notice of claim for

attorneyrsquos fees

Continental Casualty Company v Baker

2011 Tex App LEXIS 3418 (Tex App -

Houston [1st

Dist] May 5 2011 no pet h)

No attorneyrsquos fees for pursuit of fees

Elliott vHollingshead 327 S W 3d 824 (Tex

App - Eastland 2010 no pet)

Allocation of fees in subrogation claim

BAD FAITH

Aleman v Zenith Ins Co and Salerno 2011

Tex App LEXIS 3347(Tex App ndash El Paso

Insurer did not act in bad faith by contesting

compensability before peer review

The claimant reported a work-related injury and

was diagnosed with a wrist sprain tenosynovitis and carpal tunnel syndrome After reviewing the medical

information but before requesting a peer review of the

claim the insurer contested compensability It notified

the claimant that the medical literature did not support

a causal relationship between her work activities and

carpal tunnel syndrome At the hearing the insurer accepted the claim as to the wrist sprain and

tenosynovitis and the evidence was found insufficient

as to the causation of the claimants carpal tunnel

syndrome The court held that there was no bad faith

under Tex Ins Code Ann sect 541060 (2009) as to

carpal tunnel syndrome because the denial was prompt and the claim was not covered As to the initial denial

of the claim for wrist sprain and tenosynovitis the

insurers evidence established that it reasonably

believed the claimants symptoms were caused by non-

work-related carpal tunnel syndrome In light of the

deadline in Tex Lab Code Ann sect 409021(c) (2006) the insurer did not act in bad faith by contesting

compensability before the peer review The notice

complied with Tex Admin Code sect 1242(f)

CAUSATION

Crump 330 S W 3d 211(Tex 2010)

Producing cause defined as a substantial factor

in bringing about the injury or death

DWC awarded death benefits based on a finding

that a work injury was a producing cause of death

even though the worker was on a lifelong regimen of

immunosuppressant drug therapy related to a kidney

transplant The Texas Supreme Court held that it was

reversible error to instruct that producing cause means an efficient exciting or contributing cause that

in a natural sequence produces the death in question

There may be more than one producing cause The

omission of but-forlsquo language rendered that definition

legally incorrect Producing cause in workers

compensation cases is defined as a substantial factor

in bringing about an injury or death and without

which the injury or death would not have occurred

The court also held that expert medical causation

testimony from the workers treating physician who

relied on a differential diagnosis was legally sufficient

evidence as to causation Finally when a question of fact existed on the reasonableness and necessity of a

claimants attorneys fees under Tex Lab Code Ann sect

408221(c) the carrier had a right to submit that

question to a jury

1 Factual background

Crump received a kidney transplant in 1975 and began a lifelong regimen of immunosuppressant drug

therapy to ensure his body would not reject the new

kidney Crump began working for Frito-Lay in the

mid-1980s In May 2000 while training another

employee in the packaging department Crump struck

his right knee on a piece of machinery The injury caused a contusion and a hematoma at the wound site

He applied for and received workers compensation

benefits for the work-related injury After a series of

increasingly serious health complications which

required repeated lengthy hospitalizations Crump died

in January 2001 at age forty-three His wife Joyce Crump applied for workers compensation death

benefits alleging that the May 2000 injury was a

producing cause of her husbands death A contested

case hearing officer found that the May 2000 injury

resulted in Crumps death and awarded death benefits

In 2002 the workers compensation appeals panel affirmed the hearing officers benefits award

2 Expert evidence

Crumps expert and treating physician Daller

testified that the wound site of the May 2000 work-

related injury became infected the infection caused

Crumps already-weakened organs to fail and his organ failure in turn caused his death Based on

Dallers experience and training as a transplant

specialist and surgeon his dealings with infection-

susceptible immunosuppressed patients and his direct

dealings with Crump--which included taking cultures

directly from the wound site for diagnostic purposes-- he concluded that Crumps wound became infected

that the infection weakened his organs and that the

natural progression of these events caused his death

Daller testified that he took cultures from the

wound site and performed surgery to diagnose and to

assist healing of the wound The cultures allowed the observation that Crumps wound was infected with the

same agent as the infectious agent that had become

systemic in Crump Daller observed that Crump--

despite being a kidney transplant recipient with

diabetes and undiagnosed hepatitis C--had no medical

history of organ problems from the period after the transplant in 1975 until after the work-related injury in

2000 Daller observed the problems with Crumps

organ function and concluded that the worsening of

those organs functions was caused by the infection

Transcontinental objected to the admission of

Dallers testimony on the ground that it was unreliable and therefore legally insufficient evidence of causation

Without Dallers testimony Transcontinental argued

its experts testimony established the lack of causation

The Texas Supreme Court considered whether

expert medical causation testimony from a treating

physician relying on a differential diagnosis is reliable

and therefore legally sufficient evidence to support the jurys verdict It concluded that the physicians

opinion was based on a reliable foundation and was

legally sufficient evidence to support the jurys

verdict

The Court discussed that it was considering the

reliability of a treating physicians opinion based on a particular diagnostic methodology--differential

diagnosis This is a routine diagnostic method used in

internal medicine whereby a treating physician

formulates a hypothesis as to likely causes of a

patients presented symptoms and eliminates unlikely

causes by a deductive process of elimination The mere fact that differential diagnosis was used

does not exempt the foundation of a treating

physicians expert opinion from scrutiny--it is to be

evaluated for reliability as carefully as any other

experts testimony

The Court held that Dallers testimony was based on a sufficiently reliable foundation under the

standards set out in Robinson and Gammill Because

Dallers expert medical causation testimony is based on

a reliable foundation it was admissible at trial as

evidence to prove that the May 2000 injury was a

producing cause of Crumps death

3 Causation definition

The Court considered whether the trial court erred

in submitting a jury charge that defined producing

cause without including a but-for component and held

that the trial courts omission of the but-for component in the jury charge constituted reversible error

The Court discussed that Transcontinental bore

the burden of proving its only disputed issue--that the

May 2000 injury was not a producing cause of Crumps

death--by a preponderance of the evidence At trial

Transcontinental offered the testimony of Dr Judson Hunt Hunt reviewed Crumps medical records and

testified that the May 2000 injury was not a producing

cause of Crumps death and that his death would have

occurred without the work-related injury The jury

answered in the affirmative the single question put

before it Was Charles Crumps May 9 2000 injury a producing cause of his death

Transcontinental appealed in part on the basis

that the trial courts definition of producing cause was

legally incorrect Transcontinental argued that the

omission of but-for language in the charge submitted

by the trial court rendered the definition legally incorrect the Texas Supreme Court agreed that the

definition of ―producing cause given by the trial court

erroneously lacked a ―but-for component

In holding that the definition given was erroneous

and legally incorrect the Court considered the

definition given by the trial court which was

Producing Cause means an efficient exciting or contributing cause that in a natural sequence produces

the death in question There may be more than one

producing cause

The Court discussed that even though the Texas

Workers Compensation Act does not use the phrase

producing cause this has been the standard for proving causation in workers compensation claims for

more than eighty years It is well settled that in a suit

under the compensation law it is not necessary for the

claimant to show that the injury ―proximately caused

disability or death Recovery is authorized if a causal

connection is established between the injury and the disability or death ―Producing cause is the term most

frequently used in compensation cases

The Court distinguished ―producing cause from

―proximate cause noting that ―producing cause is

broader in its scope than is ―proximate cause The two

elements of proximate cause are cause in fact (or substantial factor) and foreseeability Cause in fact is

established when the act or omission was a substantial

factor in bringing about the injuries and without it the

harm would not have occurred The producing cause

inquiry is conceptually identical to that of cause in fact

The Court reasoned that for an act or event to rise

to the level of cause in the legal sense the act or event must be such that reasonable jurors would identify it as

being actually responsible for the ultimate harm The

cause must be more than one of the countless

ubiquitous and insignificant causes that in some remote

sense may have contributed to a given effect as for

example simply getting up in the morning The Court concluded that the producing cause

inquiry in workers compensation cases is conceptually

no different from the cause in fact inquiry in

negligence cases and the producing cause inquiry in

other substantive contexts The Court stated that it saw

no reason to define producing cause differently in this context and therefore ―We hold that producing cause

in workers compensation cases is defined as a

substantial factor in bringing about an injury or

death and without which the injury or death would

not have occurred

The Court disagreed with Crumplsquos argument that the substantial factor component of the definition

imposes a higher causation burden upon workers

compensation claimants than what exists at present

stating ―We have always required in workers

compensation cases a showing of unbroken causal

connection between the compensable injury and the claimants injury or death The Court found that the

definition submitted coonstituted harmful error and

remanded the case for new trial

4 Attorneylsquos Fees

The Court considered whether an insurance carrier

that is unsuccessful on judicial review is entitled to a jury trial on the disputed amount of a claimants

attorneys fees under Texas Labor Code sect 408221(c)

and held that an insurance carrier is entitled to have a

jury determine the disputed amount of reasonable and

necessary attorneys fees for which it is liable It

reversed the COA judgment and remand the case to the trial court for new trial

Crump had submitted the issue of attorneys fees

to the trial court Transcontinental objected that those

fees should also be submitted to the jury rather than

the trial court The trial court disagreed with

Transcontinental and awarded Crump attorneys fees as well as fees for time spent pursuing those fees

On appeal Transcontinental first argued that the

trial court erred in denying it a jury trial on the amount

of Crumps reasonable and necessary attorneys fees for

which Transcontinental was statutorily liable and

second in permitting Crump to recover attorneys fees incurred in pursuing those statutory attorneys fees

The Court held that when a question of fact exists

on the reasonableness and necessity of a claimants

attorneys fees under sect 408221(c) the carrier is

entitled to submit the issue of the reasonableness and

necessity of a claimants attorneys fees where

disputed to a jury which will consider subsection (d)s factors

Continental Casualty Company v Baker 2011 Tex App LEXIS 3418 (Tex App -

Houston [1sst

Applying Crump substantial factor definition of

producing cause

DWC found in favor of employee and a jury of

the 80th District Court Harris County Texas also found that his compensable injury extended to a left

knee meniscus tear identified on an MRI over five

years after his work-related accident At trial

Continental bore the burden of proving by a

preponderance of the evidence that Bakers workplace

accident in 2000 was not a producing cause of the left knee meniscus tear observed in 2005

1 Erroneous instruction on producing cause

In applying the ―substantial factor definition

adopted by the Texas Supreme Court in

Transcontinental Insurance Company v Crump the

COA held that the instruction on producing cause included

in the charge was erroneous and probably caused the

rendition of an improper judgment

The Court observed that it is undisputed that the definition of producing cause submitted to the jury did

not include the but-for or substantial factor

component set out as the standard in Crump

Erroneous instruction

Producing cause is an efficient exciting or contributing cause that in the natural

sequence produces the injury disability or

illness in question A workplace accident or

disease is considered a producing cause even

if it is not a substantial factor in bringing

about the injury disability or illness In a workers compensation case there may be

more than one producing cause of an injury

[emphasis added]

The trial court instructed the jury that Continentals

burden was to prove by a preponderance of evidence that James Bakers July 12 2000 injury was not a

producing cause of the meniscus tear identified on the

MRI of December 5 2005 and it erroneously

instructed the jury that [a] workplace accident or

disease is considered a producing cause even if it is not

a substantial factor in bringing about the injury disability or illness

The COA discussed that the inclusion of the

producing cause instruction had the effect of confusing

the jury as to whether Continental had to prove that the

injuries for which Baker sought compensation came

about as a direct and natural result of his stepping off a ladder and twisting his left knee at work on July 12

2000 and would not have happened but for that

accident or whether Continental had to prove only that

Bakers stepping off the ladder was one of the causes of

the injuries for which he sought compensation even if

it was not a substantial factor in bringing about the injuries The Court found that the Crump opinion

makes it clear that these two standards of proof are in

conflict and that producing cause in workers

compensation cases is defined as a substantial factor in

bringing about an injury or death and without which

the injury or death would not have occurred Crump 330 SW3d at 223 Thus the instruction on producing

cause was erroneous and confusing to the jury rather

than of assistance to it and it was therefore improper

Because it related to a contested critical issue it was

also harmful and therefore probably caused the

rendition of an improper verdict

2 Attorneylsquos fees

The judgment of the trial court awarded claimant

$13469480 in trial-level attorneys fees and expenses

and $33500 in conditional appellate attorneys fees

The charge did not include a question asking the jury to determine the amount of reasonable and necessary

attorneys fees

Continental objected to Bakers recovery of

attorneys fees contending that he waived such

recovery by failing either to request a jury question on

reasonable and necessary fees or to object to the

omission of such a question Continental also objected to the trial courts determining the amount of attorneys

fees solely by written evidence contending that it was

entitled to either a jury determination or at least a

bench trial on the issue of reasonable and necessary

On appeal Baker agreed based upon the Texas Supreme Courts recent decision in Crump that if

timely requested an insurance carrier is entitled to

have a jury determine the reasonableness and necessity

of a claimants attorneys fees and he requests that we

remand the fee award for determination by a jury

The COA discussed that Section 408221(c) clearly limits recovery of attorneys fees to those fees

incurred by [the claimant] in prevailing on an issue on

which judicial review was sought by [the carrier] It

concluded that section 408221(c) does not allow the

recovery of attorneys fees incurred in pursuit of

attorneys fees The Court held that because the Division did not award attorneys fees and therefore

attorneys fees was not an issue on which Continental

sought judicial review we hold that Baker is not

entitled to recover attorneys fees in pursuit of his

attorneys fees

COMMON LAW MARRIAGE

9 2011 no pet h)

Subsequent common law marriage not proven

to end entitlement to death benefits

Lavender became eligible for workers

compensation death benefits when her husband

suffered a compensable injury that resulted in his death

while in the course and scope of his employment Continental Casualty Insurance Company after paying

the death benefits for several years filed proceedings

with DWC claiming that Mary had become ineligible

to continue to receive death benefits because she had

remarried by virtue of a common law marriage to

Michael Brucia Both the Contested Case Hearing Officers Decision and the subsequent decision of the

Appeals Panel were adverse to the carrier which then

sought judicial review Mary filed a no-evidence

motion for summary judgment in the district court

claiming that no evidence existed that she had agreed

to be presently married to Brucia or that the couple held themselves out as husband and wife The trial

court granted Marys no-evidence motion for summary

judgment and awarded attorneys fees to her

1 Insufficient proof of common law marriage

The COA discussed that a common law marriage

cannot be founded on an agreement to be married in the future For purposes of its claim that the wife was

remarried the carrier pointed only to the fact that the

wife received an engagement ring the fact that the

wife and her fiance agreed to be married at some date

in the future and the fact that they cohabitated

However none those facts nor any other evidence in the record constituted more than a scintilla of evidence

of an intent by the wife and the fiance to be presently

married The COA held that because no evidence

existed on the first element of a common law marriage

under Tex Fam Code Ann sect 2401(a)(2) (2006) the

trial court did not err by granting the wifes no-evidence motion for summary judgment The wife was

still entitled to receive workers compensation death

benefits

2 Attorneys fee award upheld

The trial court awarded attorneys fees to the wife pursuant to Tex Lab Code Ann sect 408221(c) (2006)

because the insurance company sought judicial review

of a final decision of the workers compensation

appeals panel regarding the wifes eligibility for

workers compensation death benefits and she

prevailed on the issue on which judicial review was

sought The carrier claimed that the trial courts award of

$24400 in attorneys fees to Marys attorneys was

erroneous because the no-evidence summary judgment

was improper the hourly rates for the fees awarded to

Marys attorneys exceeded $150 per hour which

Appellant alleges is a statutory cap the hourly rates for the fees awarded to Marys attorneys were not

reasonable the judgment ordered the attorneys fees

paid directly to Marys attorneys even though they are

not parties to the lawsuit and the fee award included

time spent by Marys attorneys in pursuit of their fees

The COA noted that the trial court conducted an evidentiary hearing on Marys request for attorneys

fees The trial court heard testimony from Marys

attorneys examined Marys attorneys billing records

that were admitted into evidence at the hearing and

examined a twelve-page affidavit from Marys counsel

that was admitted into evidence at the hearing The record reflected that Marys attorneys ultimately

proved up attorneys fees in the amount of $53075

This fee amount was based on 67 hours at the rate of

$400 per hour for Mr Barbknecht as senior attorney on

the case 1646 hours at the rate of $275 per hour for

associate Laci Dreher and 342 hours at the rate of $150 per hour for paralegals Following the evidentiary

hearing on attorneys fees the trial court sent the

parties a letter ruling explaining that it was going to

award $24400 in attorneys fees and setting forth how

the trial court had reached that number

The COA noted that the hourly rate fee caps set

by the commissioner are expressly not applicable to an award of attorneys fees made pursuant to section

408221 subsection (c) of the Texas Labor Code The

carrier also argued that the trial court erred because it

awarded attorneys fees to Marys attorneys for actions

performed in pursuit of the attorneys fees The COA

held that because the trial court did not make findings of fact or conclusions of law concerning its attorneys

fee award to the extent if any that attorneys fees

incurred in pursuit of a statutory right to attorneys fees

are not recoverable and because the trial court did not

award the amount of attorneys fees requested and

proved up by Marys attorneys but instead awarded less than half of that amount it would presume that the trial

court did not include actions taken in pursuit of

attorneys fees in its $24400 fee award See eg

Worford v Stamper 801 SW2d 108 109 (Tex 1990)

[14] (holding that in absence of findings of fact and

conclusions of law appellate court must presume all facts in support of the judgment and must uphold

judgment on any legal theory finding support in the

record)

COURSE AND SCOPE

Leordeanu v American Protection Insurance

Company 330 SW3d 239 (Tex 2010)

Employee in course and scope under dual

purpose rule

While traveling in her company car from a work-

related dinner meeting to a company-provided self-

storage unit near her residence the employee was

injured in a motor vehicle accident Employee sought

review of a judgment from the Court of Appeals for the

Third District (Texas) which reversed the trial courts judgment for the employee in her appeal from an

administrative decision that had upheld respondent

carriers denial of her claim for workers compensation

benefits The COA held that the employee was within

the course and scope of her employment as defined in

Tex Lab Code Ann sect 401011(12) although she was homeward-bound

1 Background facts

Leordeanu a pharmaceutical sales representative

officing out of her northwest Austin apartment drove

her company car to business appointments in Bastrop some forty miles southeast then back to a south Austin

restaurant for dinner with clients Afterward her route

home took her past a company-provided self-storage

unit adjacent her apartment complex in which she

kept drug samples and marketing materials She

intended to stop at the unit and empty her car of

business supplies in preparation for an out-of-town personal trip the next day But midway there she ran

off the highway and was seriously injured

American Protection Insurance Company denied

Leordeanus claim for workers compensation The

Texas Department of Insurance Workers

Compensation Commission Division upheld APICs decision concluding that Leordeanu was not in the

course and scope of employment at the time of her

accident and she appealed A jury found to the

contrary and the trial court rendered judgment on their

verdict for Leordeanu A divided court of appeals

reversed and rendered judgment for APIC holding that there was no evidence to support the verdict

2 Distinction between dual purpose and coming and

going rules

Reviewing the historical development of the dual

purpose rule and the coming and going rule the court stated that the dual purpose rule was devised for the

distinct situation in which an employee was traveling

between work and a place other than home whereas

the coming and going rule developed separately and

was specifically for travel between home and work If

the dual purpose rule also applied to travel to and from

work homeward-bound travel could never be in the course and scope of employment The court concluded

that such a result would be an unreasonable application

of sect 401011(12) Thus the court held that only the

coming and going rule as set forth in sect 401011(12)(A)

applied to travel to and from the place of employment

while the dual purpose rule in sect 401011(12)(B) applied to other dual-purpose travel

3 Course and scope analysis

The Texas Workers Compensation Act defines a

compensable injury--one sustained in the course of

employment--to include all injuries of every kind and character having to do with and originating in the

work business trade or profession of the employer

received by an employee while engaged in or about the

furtherance of the affairs or business of his employer

whether upon the employers premises or elsewhere

The definition had two components the injury had to (1) relate to or originate in and (2) occur in the

furtherance of the employers business Both had to be

satisfied

Cases applying the Act concluded that work-

required travel is in the course of employment ―but

not as a general rule travel between home and work An employees travel to and from work makes

employment possible and thus furthers the employers

business satisfying the second component of the

definition but such travel cannot ordinarily be said to

originate in the business the requirement of the first

component because [t]he risks to which employees

are exposed while traveling to and from work are shared by society as a whole and do not arise as a

result of the work of employers

Then in 1989 the Legislature rewrote this

provision and the 1917 general definition and

combined them in a single section of the Act The

result with minor edits in 1993 16 is now section 401011(12) of the Texas Labor Code

Course and scope of employment means an

activity of any kind or character that has to do with and

originates in the work business trade or profession

[244] of the employer and that is performed by an

employee while engaged in or about the furtherance of the affairs or business of the employer The term

includes an activity conducted on the premises of the

employer or at other locations The term does not

include

(A) transportation to and from the place of employment unless

(i) the transportation is furnished as a part

of the contract of employment or is paid

for by the employer

(ii) the means of the transportation are

under the control of the employer or (iii) the employee is directed in the

employees employment to proceed from

one place to another place or

(B) travel by the employee in the furtherance of

the affairs or business of the employer if the travel is also in furtherance of personal or

private affairs of the employee unless

(i) the travel to the place of occurrence of

the injury would have been made even

had there been no personal or private affairs of the employee to be furthered

by the travel and

(ii) the travel would not have been made

had there been no affairs or business of

the employer to be furthered by the

travel

The Texas Supreme Court held that only subsection

(A) applies to travel to and from the place of

employment and that subsection (B) applies to other

dual-purpose travel This is consistent with the

historical development of the coming and going and dual purpose rules their application in our cases and

the reasonable results they were designed to achieve

It is undisputed that Leordeanu was driving a car

provided by her employer at the time of her accident

and therefore excepted from the coming and going

rule by subsection (A)(i) APIC argues that there is no

evidence of the first element of the general definition in section 401011(12)--that Leordeanus travel at the

time of her injury ha[d] to do with and originate[d] in

the work business trade or profession of [her]

employer--because she was simply on her way home

from work But leaving aside the fact that she officed

at home and intended to do some paperwork there before retiring for the night 37 Leordeanu was also on

her way from an employer-sponsored dinner to an

employer-provided storage facility to empty her

company car of business supplies

The Court noted that APIC cited no authority

suggesting that such activity was not work-related and held it was As for the second element of the

definition--that at the time of her injury Leordeanu

was engaged in or about the furtherance of the affairs

or business of [her] employermdashthe Court stated that

APIC concedes that there was evidence of one or

more work purposes to the trip and that [a]part from the [dual purpose rule] she would satisfy the

furtherance requirement Thus there was evidence

to support the jurys verdict that Leordeanu was injured

in the course and scope of employment APICs

challenge to the legal sufficiency of the evidence to

support the verdict fails

Zurich American Insurance Company v McVey

339 SW3d 724(Tex App-Austin 2011 pet

filed July 7 2011)

Travel to out of town conference in course and

scope as coming and going rule did not apply

After an employee was killed in a motor vehicle

accident while driving to a job-related conference his

wife sought workers compensation survivor benefits

The insurer denied coverage The Texas Division of Workers Compensation held that the death was

compensable The trial court granted the wifes motion

for summary judgment and denied the insurers motion

On appeal the court found that the undisputed facts

established that the coming and going rule did not

apply to the travel in which the employee was engaged at the time of his fatal accident

Part of the employers business involved training

its managers in leadership skills To train the

employee the employer ordered him to travel for a

multi-day leadership conference and provided him a

vehicle to do so Because the employer instructed the employee to go to the conference to enhance its

business and because the means to do so were provided

for him by the employer the COA found that his travel

originated in the employers business The employees

planned stop to pick up a coworker did not alter the

business character of the trip Accordingly the

employees death was compensable under Tex Lab Code Ann sect 401011(10) (Supp 2010)

1 Background Facts

At the time of his death Troy was employed as an

operations manager for TruGreen LandCare a

landscaping company where he was charged with supervising numerous landscaping crews while they

performed on-site services to clients in the Austin area

TruGreen had issued Troy a company-owned truck to

use in performing his job responsibilities

On the day of his fatal accident Troy had been

scheduled to attend a mandatory multi-day TruGreen leadership training conference in Houston Along the

way Troy had planned to pick up a coworker who had

also been required to attend the conference and who

lived near Troys planned route to Houston

While en route to the coworkers house Troy was

involved in a motor-vehicle accident that killed him Because of the relative location of the two mens

houses the route that Troy was taking at the time of

the accident happened to overlap with the same route

he would have taken had he been traveling to the

Austin TruGreen office for his usual morning meeting

with work crews After McVey sought workers compensation

survivors benefits from Zurich the carrier denied

coverage asserting that Troys death was not

compensable because Troy had merely been traveling

to work that day and thus had not been acting within

the course and scope of his employment See Tex Lab Code Ann sect 401011(10) (12) (West Supp 2010)

2 Court of Appeals Opinion

In this case it is undisputed that at the time of his

fatal accident Troy was traveling from his home to

work thereby potentially implicating the coming and going rule See Tex Lab Code Ann sect

401011(12)(A) However it is also undisputed that

Troy was traveling in a vehicle that his company

provided and paid for thus coming squarely within the

exception in subparagraph (i) of the rulemdashthe

transportation is furnished as a part of the contract of employment or is paid for by the employer See id sect

401011(12)(A)(i) Consequently Troys travel is

excepted from the coming and going rule

The effect of satisfying subparagraph (i) was not

as McVey asserts to establish that Troys travel was

within the course and scope of his employment but merely to establish that such travel was not excluded

from being within the course and scope of his

employment solely by virtue of the fact that Troy was

traveling to work See Rose v Odiorne 795 SW2d

210 213-14 (Tex App-Austin 1990 writ denied) But

to affirmatively be within the course and scope of his

employment Troys travel must also have satisfied the two elements of the general course-and-scope

definition See id Proof of [employer-paid travel]

does not entitle appellant to compensation but only

prevents his injury from being excluded from coverage

simply because it was sustained while he was traveling

to or from work [I]n order to prevail on the merits appellant was required to prove that the injury

originated in the employers business and was

sustained during the furtherance of the employers

business

An employees travel between home and work

furthers the affairs of the employer (the second element of the course and scope definition) because it makes

employment possible

The COA stated that there is no bright-line rule

for determining whether employee travel originated in

the employers business Rather each situation is

necessarily dependent on the facts As a general rule an employees travel originates in his employers

business if the travel was pursuant to the express or

implied requirements of the employment contract

No singular fact is necessarily dispositive Rather

we consider the nature of the employees job the

circumstances of the travel and any other relevant

facts An employee is generally within the course and scope of his employment when the employers business

requires him to travel away from the employers

premises

The COA held that as a matter of law the

undisputed facts establish that the coming and going

rule did not apply to the travel in which Troy McVey was engaged at the time of his fatal accident that this

travel furthered the business of his employer and that

it originated in the business of his employer

Consequently Troy was acting in the course and scope

of his employment at the time of the accident and his

death was compensable

Collins v Indemnity Insurance Company of

North America 2011 Tex App LEXIS 3104

(Tex App ndashSan Antonio April 27 2011 no

pet h)

Employee not in course and scope

The employee argued that she was injured in the

course and scope of employment The appellate court

found that the employee pointed to no evidence in the

record that she planned to do work as she was traveling home She was not working as a flight attendant on the

flight to San Antonio She pointed to no evidence that

she was planning to do business tasks for Southwest

when she arrived at the airport in San Antonio or when

she got home She offered no evidence that her travel

home related to or originated in the employers

business The employee presented no evidence that the cause of her injurymdashanother passenger dropping his

luggage on her head while she was seated in a

passenger seatmdashwas a risk that she faced as an

employee seeking ingress to or egress from her

workplace instead of a risk that she faced as a member

of the traveling public Because her injuries resulted from a risk to which she was exposed as a member of

the traveling public rather than a risk that arose from

her employment by Southwest she could not invoke

the access doctrine

DEATH BENEFITS

9 2011 no pet h)

EVIDENCE

Evidence of drug seeking behavior properly

excluded

The trial court excluded evidence that the

decedent had engaged in drug-seeking behavior in

connection with a prior work-related injury and that his death resulted from an overdose of pain medication

The claimant died after a period of disability but

before the administrative proceedings had concluded

CIIC claimed error in the trial courts exclusion of

medical records in which doctors described how

Stewart engaged in drug-seeking behavior in

connection with a prior work-related injury CIIC contended that the proffered evidence was relevant for

the purposes of impeachment because it identified a

possible motive for Stewart to falsify or fabricate a

workers compensation claim

The COA discussed that Texas courts have

consistently upheld the exclusion of evidence of a witnesss prior drug use for general impeachment

purposes Tex R Evid 608(b) prohibits the use of

specific instances of conduct of a witness including

evidence of prior drug use for general impeachment

purposes Any connection between the decedents use

of prescription pain medication and a possible motive to fabricate a workers compensation claim as

suggested by the insurer rested on speculation

The COA held that the trial court properly

excluded the evidence under Tex R Evid 403 because

the danger of unfair prejudice substantially outweighed any probative valueAny connection between Stewarts use of prescription pain medication and his workers

compensation claim rests on speculation The trial

court was within its discretion to exclude this evidence

given the issues the jury was to decide

Humberto A Rangel v Nueces County 2011

Tex App LEXIS 1793 (Tex App ndash Corpus

Christi 2011 no pet)

Under Tex R Civ P 263 because employee

stipulated that treating physician found the employee

sustained a new injury on May 26 2006 that fact was

binding on the employee and he could not challenge physicianlsquos report Genuine issue of material fact

existed concerning whether pain employee suffered in

2006 was caused by 2003 compensable injury

EXPERT EVIDENCE

City of Beaumont v OrsquoQuinn 2010 Tex App

LEXIS 7634 (Tex App- Beaumont 2010 no

pet)(mem op)

Expert opinions that are ldquobare conclusionsrdquo

insufficient to support judgment

The employee suffered a compensable heart attack

in 1995 In June 2003 he underwent coronary artery

bypass surgery The contested case hearing officer

issued a decision finding that the employees

compensable injury did not cause him to sustain or aggravate coronary artery disease high density

lipoprotein or gastritis The City of Beaumont

appealed a determination by a jury in the 60th District

Court Jefferson County Texas that the employees

compensable injury included coronary artery disease

and gastritis The COA held that the evidence was legally

insufficient to support the jurys finding that the

employees compensable injury included coronary

artery disease and gastritis The City of Beaumont

argued that there is no competent expert testimony or

evidence that supports the jurys findings The Court noted that the opinions stated were bare conclusions

insufficient to support the judgment See City of San

Antonio v Pollock 284 SW3d 809 816 (Tex 2009)

(recognizing that an experts bare conclusions do not

constitute competent evidence)

MeadWestvaco Corp v Booker 2010 Tex App

LEXIS 10333 (Tex App ndash Beaumont Dec 30

2010 no pet)

The court held that the trial court did not err in

admitting the testimony of the claimants expert under

Tex R Evid 702 The expert was qualified to give his expert opinion his testimony was not irrelevant

conclusory or speculative it was not based on an

unreliable foundation and any analytical gap between

the data and the opinion was not so great that it

rendered the opinion inadmissible as evidence The

jurys verdict was supported by legally and factually sufficient evidence The jurors apparently assigned

greater credibility to the testimony and report of the

claimants expert than to that of opposing experts The

claimants treating physician agreed with the 71

percent impairment rating assessed by his expert Even

if the court concluded the trial court erred in failing to include a jury instruction more specifically assigning

the burden of proof to the claimant the error was

harmless The jury question as submitted did not result

in the rendition of an improper judgment considering

the instructions at the beginning of trial and prior to

closing argument trial counsels statement assigning

the burden of proof to the claimant and the jury charge submitted

Houston [1sst

Detailed discussion of expert evidence on

extent of injury

Transcontinental Insurance Company v Crump 330 S W 3d 211(Tex 2010)

Expert evidence relying on differential

diagnosis sufficient evidence of causation

EXTENT OF INJURY

pet)(mem op)

Insufficient evidence to support finding of

extent to coronary artery disease and gastritis

See p 14

Houston [1sst

extent of injury

See p 7

GOVERNMENTAL IMMUNITY

Travis Central Appraisal District v Norman 54

Tex Sup Ct J 891 2011 LEXIS 324 (Tex April

29 2011)

Governmental immunity to retaliatory

discharge suit by employee of political

subdivision

Norman went to work for the Travis Central

Appraisal District (TCAD) as a probationary

employee in January of 2006 She was terminated about six months later shortly after filing a workers

compensation claim Norman claimed that she was

terminated for seeking workers compensation benefits

and sued TCAD for retaliatory discharge under

Chapter 451 of the Labor Code See TEX LAB CODE sect

451001(1)

TCAD generally denied Normans allegations and

subsequently filed a plea to the jurisdiction urging that Norman was required to exhaust her administrative

remedies under TCADs grievance procedures before

filing suit The trial court denied TCADs plea to the

jurisdiction and TCAD appealed

In the court of appeals TCAD repeated its

exhaustion-of-administrative-remedies argument but also argued that governmental immunity had not been

waived for Normans retaliatory discharge claim

The Texas Supreme Court noted that in 2005 the

Legislature made a number of changes to the Workers

Compensation Act designed to improve the delivery of

medical care and the efficiency of the workers compensation system Tex Lab Code Ann sect

504053(e) plainly purported to apply to the entire

chapter The immunity referenced in the 2005 no-

waiver provision referred to the immunity applicable to

the political subdivisions of the state The waiver of

governmental immunity had to be clear and unambiguous Tex Govt Code Ann sect 311034 and

the current version of the Political Subdivisions Law

was too inconsistent to satisfy that standard The

Political Subdivisions Law no longer waived immunity

for retaliatory discharge claims under Chapter 451

Because a retaliatory discharge claim may not be brought against the government without its consent and

the Political Subdivisions Law no longer provided such

consent by waiving the governments immunity the

underlying claim had to be dismissed

IMMIGRATION STATUS

Republic Waste Service v Martinez 335 SW3d

401 (Tex App ndash Houston [1st Dist] 2011 no

The court of appeals held that evidence of the

deceased workers illegal immigrant status was properly excluded under Tex R Evid 401 403

Although immigration status could be a relevant

consideration in determining pecuniary loss damages

the usefulness of the evidence was limited given what

other evidence was and was not admitted The

probative value of an immigration raid as well the deceased workers illegal immigrant status was slight

given the speculative nature of the evidence sought to

be admitted and the ample evidence that was admitted

about the deceased workers immigration status Had

the illegal immigrant status evidence been admitted

the jury would have been required to essentially guess whether the deceased would ever have been deported

IMPAIRMENT RATING

King v Zurich American Insurance Company

2011 Tex App LEXIS 1213 (Tex App - Fort

Worth Feb 17 2011 no pet h)

After the claimant was evaluated for an

impairment rating and received a 10 impairment rating she sought a benefits review conference (DWC-

45) A second request resulted in a reevaluation the

claimant was given a 20 impairment rating The

DWC-45 was deleted from the claimants records

Appellee insurer claimed that the 20 rating was

invalid as it had been based on Division of Workers Compensation (DWC) advisories that had been

declared invalid The claimant was sent to a second

doctor for another examination and received an

impairment rating of 5 On appeal the court

affirmed While the claimant argued that the 20

impairment rating had become final and binding under 28 Tex Admin Code sect 130102(h) the deletion of the

initial dispute request was not based on an agreement

by the parties but was a unilateral act by the DWC The

first doctor had admitted that the 10 rating was

incorrect the second rating of 20 was invalid as it

was based on withdrawn DWC advisories Therefore the 5 rating was the only valid rating and such a

rating was insufficient to meet the 15 threshold for

SIBs under Tex Lab Code Ann sect 408142(a)(1)

American Home Assurance Company Appellat

v Poehler 323 SW3d 626 (Tex App ndash Tyler

2010 pet filed)

INDEPENDENT CONTRACTOR

Critical Health Connection Inc v Texas

Workforce Commission 338 SW3d 758 (Tex

App ndash Austin 2011 no pet h)

On appeal the court held that the trial court did

not err by granting the Commission summary judgment

on the ground that the record conclusively established

that the employer was the providers employer under the Commissions test of rule 8215 and that the

providers were not independent contractors because a

substantial majority of the factors indicated that the

providers were employees rather than independent

contractors It was undisputed that once a provider

accepted a shift he or she had no discretion about when or where the work had to be performed and there

was no evidence that the providers shared in any

profits or losses or otherwise invested in the employers

business Because it was undisputed that the employer

fell within the statutory definition of temporary help

firm Tex Lab Code Ann sect 201029 (2006) mandated

that the employer was the providers employer for purposes of contributing on their behalf to the

unemployment compensation fund

INTOXICATION

Dallas National Insurance Company v Lewis

Individually and as Representative of the Estate

of Lewis 2011 Tex App LEXIS 4564 (Tex

App ndash Houston [1st Dist] June 6 2011 no pet

The employee worked as a shuttle bus driver He died when the bus he was driving caught fire The

relative filed a claim which was denied on the

allegation that the employee was intoxicated at the

time of his death The relative sought review and the

trial court reversed the TDI appeals panel The court

affirmed For purposes of Tex Lab Code Ann sect 401013(a)(2) the trial court could have found that a

lay witness was competent to testify regarding the

employees physical and mental faculties Her

testimony was relevant on the issue of whether he was

intoxicated and her testimony was not rendered

irrelevant because she did not observe the employee at the exact minute of his death The witnesss testimony

supported the findings that the employee was alert and

possessed the normal use of his faculties at the time of

his death A doctors testimony was consistent on the

point that it was not possible for him to determine from

the medical examiners report what level of

intoxication if any the employee suffered as a result of ingesting cocaine The evidence was sufficient to

support the trial courts findings that the employee was

not intoxicated at the time of his death

JUDICIAL REVIEW PROCEDURE

In Re Metropolitan Transit Authority 334

SW3d 806 (Tex App Houston [1st Dist] 2011

orig proceeding)

All disputed issues included in judicial review

Metro which is self-insured agreed that Wilson

had a compensable work-related lumbar sprain as a

result of the accident But Wilson also claimed that the

accident caused a foot injury that in turn caused a

burn with an infection in her right foot and the auto-amputation of her right great toe Metro disputed the

toe injury Wilson responded that Metro had waived its

right to challenge compensability because it did not

dispute the extent of Wilsons injury within 60 days of

receiving notice that her claim included her right foot

The hearing officer issued a decision favorable to

Metro concluding that it was not liable for medical benefits for the treatment of the infection of Wilsons

right foot and auto-amputation of her right great toe

Wilson appealed the hearing officers decision to

the DWCs appeals panel requesting review of each of

these adverse findings of fact and conclusions of law

The appeals panel considered the evidence in the case and reversed the hearing officers decision Although it

made findings regarding compensability and extent of

injury the appeals panel did not specifically reverse

the hearing officers fifth finding of fact ie that [t]he

infection of the right foot and auto-amputation of the

right great toe did not arise or naturally flow from the compensable injury

Metro sought judicial review of the appeals

panels decision Metro then filed a plea to the

jurisdiction arguing that the district courts jurisdiction

is confined to the waiver issue Metro asserts that the

appeals panels determination that the infection of Wilsons right foot was compensable by operation of

waiver precludes any other finding that might support

its decision Under Metros theory a decision in its

favor on the waiver issue would eliminate the need for

a trial on the merits or any further inquiry into its

liability After considering the arguments made by Metro

and Wilson the district court denied the plea to the

jurisdiction finding that it could consider the extent of

Wilsons injury Metros petition for writ of mandamus

followed

The COA stated that there is no dispute that

Wilson appealed each of the hearing officers adverse findings and conclusions to the appeals panel The

appeals panel then decided the issues of

compensability and the extent of injury in favor of

Wilson Wilson seeks only to defend the appeals

panels decision in the district court Metro cites no

case holding that a party has failed to exhaust its administrative remedies under such circumstances

Accordingly the COA declined to hold that Wilson

failed to exhaust her administrative remedies or that

the district court lacks jurisdiction to consider the

extent of Wilsons injury

Smith v Travelers Casualty and Surety

Company 327 SW 3d 775 (Tex App-

Eastland 2010 no pet)

Amended petition was timely appeal of

additional issue

Employee sued insurance company challenging

her impairment rating for an on-the-job injury She

later filed an amended petition challenging the date

she was determined to have reached maximum medical

improvement (MMI) The employee filed her amended petition on

December 3 2008 which was within the 40 days

allowed The Texas Workers Compensation Act did

not specify the use of an original petition to appeal a

final appeals panel decision Tex Lab Code Ann sect

410252 required only that a party file a petition with the appropriate court and the employees amended

petition satisfied all the requirements

The employees amended petition was filed in the

proper county and the trial court erred in granting the

companys plea to the jurisdiction based on Tex Lab

Code Ann sect 410301(a) (2006)

Martinez v State Office of Risk Management

2011 Tex App LEXIS 305 (Tex App ndash San

Antonio Jan 19 2011 no pet)

Error in jury charge

The employee argued that the trial court erred in

combining two separate controlling issues of fact into

one jury question As a result the jury did not

separately answer whether the employee sustained a

compensable injury Appellee employer argued that the employee did not preserve the issue for review The

appellate court found that the employees objection was

specific to make the trial court aware of the complaint

The hearing officer did not find that the employees

compensable injury was limited to a herniated disc

She was not required to challenge the administrative

decision in order to raise her jury charge complaint on appeal Under Tex R Civ P 277 the trial court erred

in combining the compensability and extent of injury

issues in one jury question in this case The jury charge

error probably caused the rendition of an improper

judgment thereby requiring reversal Tex R App P

441(a)(1) Had the issues relating to compensability and extent of injury been separated the jury could have

found the employee sustained a compensability injury

for which she had disability even if the jury found that

the herniated disc was not included in the compensable

injury

Holmes v Tex Mut Ins Co 335 SW3d 738

(Tex App ndash El Paso 2011 pet abated)

Suit not timely served on carrier

The employee argued that his suit was timely filed on October 20 2003 the first working day following

the fortieth day as October 18 2003 was a Saturday

The appellate court found that because October 18

2003 was a Saturday his suit filed on the following

Monday October 20 2003 was not time barred

However the employees suit would have interrupted

the running of the limitations only if he exercised due diligence in serving the insurer The appellate court

found that the insurer was never served with the

original petition nor was there any evidence in the

record that the insurer was ever aware that the

employee filed suit against it in the district court The

employee did not explain any undertakings on his part in determining whether service was completed in over

five years The employee offered no explanation as to

his failure to do anything in his suit or to serve the

insurer for five years

In Re Texas Mutual Insurance Company 333

SW3d 925 (Tex App - Waco 2011 orig

proceeding)

Wrongful termination claim not within DWCrsquos

jurisdiction so not barred by failure to exhaust

administrative remedies

Insurance Company of the State of Pennsylvania

v Muro 285 SW3d 524(Tex App ndashDallas

2009 pet granted) 2011 LEXIS 83(Tex Jan

21 2011)(ordered reset for oral argument)

Oral arguments heard March 3 2011

LIBS awarded for total loss of use of feethands

even though no direct injury

The employee slipped and fell on a bathroom

floor suffering injuries to her neck right shoulder

lower back and hips She alleged that due to those

injuries she lost the use of both feet and her right hand

Following the accident she underwent several

surgeries including a cervical fusion total right hip replacement total left hip replacement revision of left

hip replacement due to manufacturer recall reduction

of dislocated left hip another revision of left hip

replacement and right shoulder surgery

A jury found that employee had the total and

permanent loss of use of both feet and of one foot and one hand The trial court determined the employee was

entitled to lifetime income benefits (LIBS) and the

insurer appealed

The COA held that the jurys findings of loss of

use of the hand and both feet clearly brought the

employees injuries within the class of injuries covered by the LIBS statute Tex Lab Code Ann sect 408161

(2006) Medical experts explained that the injuries to

one part of her body (the hips and shoulder) had

rendered her unable to use other parts of her body (her

feet and hand) The lack of direct injury to her feet at

or above the ankle and hand at or above the wrist did

not remove her from the category of injuries covered by the LIBS statute

1 Attorneys fees

The insurance company argued that under a fee-

shifting scheme where the reasonableness and

necessity of attorneys fees is contested the amount of entitlement presents a fact question and the trial court

must submit the dispute to a jury The COA rejected

the insurance companylsquos argument that Muros failure

to secure jury findings waived her right to recover such

fees The Court noted that the insurance company

failed to present any authority to support the proposition that the labor code now requires jury

findings to support a fee award Without such

authority and in light of the language in the Texas

Labor Code and could not conclude it was necessary

for Muro to obtain jury findings with regard to her

award of attorneys fees

Region XIX Service Center v Banda 2011 Tex

App LEXIS 905 (Tex App ndash El Paso Feb 9

2011 pet filed)

The court of appeals held that the employee was not required to prove that conditions of her upper

extremities and foot were causally related to a work-

related knee injury because the trial courts charge to

which the employer did not object did not limit the

compensable injury to the original knee injury The

court also held that given the substantial medical

testimony regarding the employees injuries condition and physical limitations the ultimate issuemdashwhether

her hands and foot possessed any substantial utility as

members of the bodymdashwas not beyond the knowledge

and experience of the jurors similarly the jurors did

not require specialized training to determine whether

the employees condition was such that she could not get or keep employment requiring the use of her hands

or one hand and one foot Thus the employee was not

required to present expert testimony to establish total

loss of use under Tex Lab Code Ann sect 408161

Sufficient evidence supporting a finding of a total loss

of use of both hands at or above the wrist and the left foot at or above the ankle included the employees

testimony about constant pain difficulty walking and

tasks she could not form

MEDICAL DISPUTE RESOLUTION

Crain v Hartford Ins Co and Texas

Department of Insurance Division of Workersrsquo

Compensation 2010 Tex App LEXIS 9203

(Tex App ndash Austin Nov 18 2010 pet filed)

Workerslsquo compensation claimantlsquos request for

medical dispute resolution (MDR) was untimely under former 28 Tex Admin Code sect 134600(g) as

neurosurgeonlsquos second request for preauthorization

under Tex Lab Code Ann sect 413014 contained same

diagnosis and requested surgery as the first which was

denied and MDR was not requested within 45 days

RETALIATORY DISCHARGE

Tex Sup Ct J 891 2011 LEXIS 324 (Tex

April 29 2011)

subdivision

v Poehler 323 SW3d 626 ( Tex App ndash

Tyler 2010 pet filed)

SUBCLAIMANT STATUS

In Re Texas Mutual Insurance Company Et Al

331 SW3d 70 (Tex App Eastland 2010 orig

proceeding)

Employer did not have standing to intervene

The court held that the employer did not have

standing to intervene in the action between carrier and

the employee The plea to the jurisdiction should have

been granted because (1) the employer was not a

subclaimant under Tex Lab Code Ann sect 409009

(2006) because it provided no evidence that it requested but was denied reimbursement from the

insurer and premium payments were not compensation

under Tex Lab Code Ann sect 401011 (11) (Supp

2010) (2) the insurer had not accepted liability for any

claims resulting from the accident (3) Tex Lab Code

Ann sect 409011 was not merely a notice provision (4)

the employer did not have a general contractual right of standing and (5) the employer was not aggrieved by a

final decision of the workers compensation appeals

SUBROGATION

May not apportion settlement proceeds to

circumvent WC lien

Following the deceaseds death in a motor vehicle

accident while in the course and scope of her

employment the employer a self-insured

governmental entity began paying weekly workers

compensation death benefits to the children The claimants filed a wrongful death suit and the employer

intervened seeking reimbursement for the workers

compensation benefits that had been paid to the

children After several procedural issues the

defendants reached a settlement agreement with the

plaintiffs which by then also included the deceasedlsquos parents

1 Allocation of settlement proceeds

The trial court allocated 75 of the settlement

proceeds to the survival claims brought on behalf of

the deceasedlsquos estate and 25 of the settlement proceeds to the wrongful death claims In determining

the self-insuredlsquos advance against future benefit

payments the trial court found that it had no

subrogation rights in the settlement proceeds that had

been allocated to the survival claims

On appeal the self-insured argued that the trial courts judgment impermissibly compromised its

subrogation rights The appellate court ruled that the

trial courts decision to allocate 75-percent of the

settlement proceeds to the survival claims was not

supported by the evidence and the erroneous

allocation effectively circumvented the employers

right of subrogation Since the deceasedlsquos estate was not a legal beneficiary under the Workerslsquo

Compensation Act the self-insured had no subrogation

right in any recovery of settlement proceeds by the

estate on the survival claims

The Court held that the trial court may not enter a

judgment that arbitrarily compromises the carriers right to subrogation by structuring the award so that a

non-beneficiary recovers but a beneficiary does not

When the allocation of settlement proceeds impacts a

carriers right of reimbursement the trial court must

allocate the proceeds based upon the relative merits

and worth of the claims involved Trial courts cannot apportion settlement proceeds in a manner that

circumvents the carriers right of subrogation Citing

Tex Workers Comp Ins Fund v Travis 912 SW2d

895 898-99 (Tex App--Fort Worth 1995 no writ)

2 Attorneylsquos fee apportionment The COA held that the trial court abused its

discretion by awarding one-third of the self-insuredlsquos

recovery to Plaintifflsquos attorneys who opposed the self-

insuredlsquos recovery on its subrogation claim

The Court discussed the fee allocation in detail

noting that an attorney actively represents and actively participates in obtaining a recovery when the

attorney takes steps adequate when measured by the

difficulty of the case toward prosecuting the claim

Citing Buckland 882 SW2d at 447 In determining

whether an attorney actively represented the carriers

interest the controlling factor is not who aided in the claimants recovery but rather who aided in the

carriers recovery

WAIVER OF WORKERSrsquo COMPENSATION

BENEFITS

Espinoza v Cargill Meat Solutions Corporation

622 F3d 432 (5th

Cir 2010)

Waiver of workersrsquo compensation benefits

A former employee sued her former employer

alleging negligence and gross negligence The United

States District Court for the Northern District of Texas

granted summary judgment in favor of the employer

The employee appealed

The employer allowed employees to receive protection under its workers compensation insurance

policy waive workers compensation protection and

retain the right to sue in tort or waive both workers

compensation protection and the right to sue in tort

and instead participate in a medical plan The

employee signed a written waiver of workers

compensation insurance and an election to participate in the plan

The employee injured her hand at work received

benefits through the plan and was subsequently

terminated The employee asserted tort claims

regarding her injury The appellate court determined

that the employees suit was barred because (1) her waiver of workers compensation benefits was valid

and enforceable since inter alia the operation of Tex

Lab Code Ann sect 406033(e)s bar did not apply to the

employer since it had workers compensation coverage

irrespective of the employees decision to opt-out (2)

the unions waiver in the collective bargaining agreement (CBA) was valid and enforceable (3) the

Labor Management Relations Act barred the

employees state law tort claim and (4) she failed to

exhaust the claims procedure under the plan and the

WRONGFUL TERMINATION

SW3d 925 (Tex App-Waco 2011 orig

proceeding)

jurisdiction

Bell contended that Texas Mutual and his former

employer Warren Labs conspired to terminate his

employment He claimed that Texas Mutual

encouraged Warren Labs to terminate him and assisted

Warren Labs in his termination Bell stated that his claims are for wrongful termination and are not

controlled by the DWC and that he will not ask the trial

court to rule on or submit to the jury any question

within the jurisdiction of the DWC

Bell did not seek a judicial review of disputed

DWC findings on MMI impairment rating or return to work Bell did not exhaust his administrative remedies

The COA noted that for all purposes Bell cannot

challenge directly or indirectly DWCs determination

of the return-to-work date the date he reached MMI or

his impairment rating

The Court distinguished that the determination of whether a Texas Mutual employeelsquos statements

misrepresented DWCs determination of Bells MMI

and ability to return to work do not involve a matter

within the DWCs exclusive jurisdiction The Court

determined that the trial court can adjudicate Bells

claims against Texas Mutual while Bell fully embraces as he must the accuracy and finality of the

date he reached MMI his percentage of impairment

rating and his return-to-work date Notwithstanding

Bells failure to exhaust his administrative remedies to

challenge the DWCs now final decision the trial court

has jurisdiction of Bells claims

CASE LAW UPDATEDEFENDANT PERSPECTIVE

TABLE OF CONTENTS

ATTORNEY FEES

BAD FAITH

CAUSATION

COMMON LAW MARRIAGE

COURSE AND SCOPE

DEATH BENEFITS

EVIDENCE

EXPERT EVIDENCE

EXTENT OF INJURY

IMMIGRATION STATUS

IMPAIRMENT RATING

NTOXICATION

SUBCLAIMANT STATUS

SUBROGATION

WAIVER OF WORKERSrsquo COMPENSATION BENEFITS

TABLE OF CONTENTS

INTRODUCTION 1

ATTORNEY FEES 1

BAD FAITH 3

CAUSATION 4

COMMON LAW MARRIAGE 7

COURSE AND SCOPE 8

DEATH BENEFITS 10

EVIDENCE 11

EXPERT EVIDENCE 11

EXTENT OF INJURY 12

GOVERNMENTAL IMMUNITY 12

IMMIGRATION STATUS 12

IMPAIRMENT RATING 13

INDEPENDENT CONTRACTOR 13

INTOXICATION 13

JUDICIAL REVIEW PROCEDURE 13

LIBS 15

MEDICAL DISPUTE RESOLUTION 15

RETALIATORY DISCHARGE 16

SIBs 16

SUBCLAIMANT STATUS 16

SUBROGATION 16

WAIVER OF WORKERSrsquo COMPENSATION BENEFITS 17

WRONGFUL TERMINATION 17

May 4 2011 no pet ) 3

2010 no pet)(mem op) 1 11 12

pet abated) 14

LEXIS 324 (Tex April 29 2011) 12 16

CASE LAW UPDATE

INTRODUCTION

the feet or hands

ATTORNEY FEES

forward

2 No fees for fees

insurance carrier

award of those fees

filed)

correct

Crump 330 S W 3d 211(Tex 2010)

argument)

pending

9 2011 no pet h)

attorneyrsquos fees

Houston [1st

BAD FAITH

CAUSATION

Crump 330 S W 3d 211(Tex 2010)

question to a jury

2 Expert evidence

verdict

experts testimony

producing cause

not have occurred

Houston [1sst

producing cause

[emphasis added]

attorneys fees

COMMON LAW MARRIAGE

9 2011 no pet h)

benefits

record)

COURSE AND SCOPE

purpose rule

1 Background facts

going rules

satisfied

include

for by the employer

by the travel and

travel

filed July 7 2011)

1 Background Facts

business

employment possible

premises

pet h)

the access doctrine

DEATH BENEFITS

9 2011 no pet h)

EVIDENCE

excluded

EXPERT EVIDENCE

pet)(mem op)

2010 no pet)

Houston [1sst

extent of injury

EXTENT OF INJURY

pet)(mem op)

See p 14

Houston [1sst

extent of injury

See p 7

29 2011)

subdivision

451001(1)

IMMIGRATION STATUS

IMPAIRMENT RATING

2010 pet filed)

INTOXICATION

orig proceeding)

followed

additional issue

injury

proceeding)

insurer appealed

1 Attorneys fees

2011 pet filed)

April 29 2011)

subdivision

SUBCLAIMANT STATUS

proceeding)

SUBROGATION

circumvent WC lien

carriers recovery

BENEFITS

622 F3d 432 (5th

Cir 2010)

proceeding)

jurisdiction

TABLE OF CONTENTS

ATTORNEY FEES

BAD FAITH

CAUSATION

COMMON LAW MARRIAGE

COURSE AND SCOPE

DEATH BENEFITS

EVIDENCE

EXPERT EVIDENCE

EXTENT OF INJURY

IMMIGRATION STATUS

IMPAIRMENT RATING

NTOXICATION

SUBCLAIMANT STATUS

SUBROGATION

May 4 2011 no pet ) 3

2010 no pet)(mem op) 1 11 12

pet abated) 14

LEXIS 324 (Tex April 29 2011) 12 16

CASE LAW UPDATE

INTRODUCTION

the feet or hands

ATTORNEY FEES

forward

2 No fees for fees

insurance carrier

award of those fees

filed)

correct

Crump 330 S W 3d 211(Tex 2010)

argument)

pending

9 2011 no pet h)

attorneyrsquos fees

Houston [1st

BAD FAITH

CAUSATION

Crump 330 S W 3d 211(Tex 2010)

question to a jury

2 Expert evidence

verdict

experts testimony

producing cause

not have occurred

Houston [1sst

producing cause

[emphasis added]

attorneys fees

COMMON LAW MARRIAGE

9 2011 no pet h)

benefits

record)

COURSE AND SCOPE

purpose rule

1 Background facts

going rules

satisfied

include

for by the employer

by the travel and

travel

filed July 7 2011)

1 Background Facts

business

employment possible

premises

pet h)

the access doctrine

DEATH BENEFITS

9 2011 no pet h)

EVIDENCE

excluded

EXPERT EVIDENCE

pet)(mem op)

2010 no pet)

Houston [1sst

extent of injury

EXTENT OF INJURY

pet)(mem op)

See p 14

Houston [1sst

extent of injury

See p 7

29 2011)

subdivision

451001(1)

IMMIGRATION STATUS

IMPAIRMENT RATING

2010 pet filed)

INTOXICATION

orig proceeding)

followed

additional issue

injury

proceeding)

insurer appealed

1 Attorneys fees

2011 pet filed)

April 29 2011)

subdivision

SUBCLAIMANT STATUS

proceeding)

SUBROGATION

circumvent WC lien

carriers recovery

BENEFITS

622 F3d 432 (5th

Cir 2010)

proceeding)

jurisdiction

TABLE OF CONTENTS

ATTORNEY FEES

BAD FAITH

CAUSATION

COMMON LAW MARRIAGE

COURSE AND SCOPE

DEATH BENEFITS

EVIDENCE

EXPERT EVIDENCE

EXTENT OF INJURY

IMMIGRATION STATUS

IMPAIRMENT RATING

NTOXICATION

SUBCLAIMANT STATUS

SUBROGATION

LEXIS 324 (Tex April 29 2011) 12 16

CASE LAW UPDATE

INTRODUCTION

the feet or hands

ATTORNEY FEES

forward

2 No fees for fees

insurance carrier

award of those fees

filed)

correct

Crump 330 S W 3d 211(Tex 2010)

argument)

pending

9 2011 no pet h)

attorneyrsquos fees

Houston [1st

BAD FAITH

CAUSATION

Crump 330 S W 3d 211(Tex 2010)

question to a jury

2 Expert evidence

verdict

experts testimony

producing cause

not have occurred

Houston [1sst

producing cause

[emphasis added]

attorneys fees

COMMON LAW MARRIAGE

9 2011 no pet h)

benefits

record)

COURSE AND SCOPE

purpose rule

1 Background facts

going rules

satisfied

include

for by the employer

by the travel and

travel

filed July 7 2011)

1 Background Facts

business

employment possible

premises

pet h)

the access doctrine

DEATH BENEFITS

9 2011 no pet h)

EVIDENCE

excluded

EXPERT EVIDENCE

pet)(mem op)

2010 no pet)

Houston [1sst

extent of injury

EXTENT OF INJURY

pet)(mem op)

See p 14

Houston [1sst

extent of injury

See p 7

29 2011)

subdivision

451001(1)

IMMIGRATION STATUS

IMPAIRMENT RATING

2010 pet filed)

INTOXICATION

orig proceeding)

followed

additional issue

injury

proceeding)

insurer appealed

1 Attorneys fees

2011 pet filed)

April 29 2011)

subdivision

SUBCLAIMANT STATUS

proceeding)

SUBROGATION

circumvent WC lien

carriers recovery

BENEFITS

622 F3d 432 (5th

Cir 2010)

proceeding)

jurisdiction

TABLE OF CONTENTS

ATTORNEY FEES

BAD FAITH

CAUSATION

COMMON LAW MARRIAGE

COURSE AND SCOPE

DEATH BENEFITS

EVIDENCE

EXPERT EVIDENCE

EXTENT OF INJURY

IMMIGRATION STATUS

IMPAIRMENT RATING

NTOXICATION

SUBCLAIMANT STATUS

SUBROGATION

CASE LAW UPDATE

INTRODUCTION

the feet or hands

ATTORNEY FEES

forward

2 No fees for fees

insurance carrier

award of those fees

filed)

correct

Crump 330 S W 3d 211(Tex 2010)

argument)

pending

9 2011 no pet h)

attorneyrsquos fees

Houston [1st

BAD FAITH

CAUSATION

Crump 330 S W 3d 211(Tex 2010)

question to a jury

2 Expert evidence

verdict

experts testimony

producing cause

not have occurred

Houston [1sst

producing cause

[emphasis added]

attorneys fees

COMMON LAW MARRIAGE

9 2011 no pet h)

benefits

record)

COURSE AND SCOPE

purpose rule

1 Background facts

going rules

satisfied

include

for by the employer

by the travel and

travel

filed July 7 2011)

1 Background Facts

business

employment possible

premises

pet h)

the access doctrine

DEATH BENEFITS

9 2011 no pet h)

EVIDENCE

excluded

EXPERT EVIDENCE

pet)(mem op)

2010 no pet)

Houston [1sst

extent of injury

EXTENT OF INJURY

pet)(mem op)

See p 14

Houston [1sst

extent of injury

See p 7

29 2011)

subdivision

451001(1)

IMMIGRATION STATUS

IMPAIRMENT RATING

2010 pet filed)

INTOXICATION

orig proceeding)

followed

additional issue

injury

proceeding)

insurer appealed

1 Attorneys fees

2011 pet filed)

April 29 2011)

subdivision

SUBCLAIMANT STATUS

proceeding)

SUBROGATION

circumvent WC lien

carriers recovery

BENEFITS

622 F3d 432 (5th

Cir 2010)

proceeding)

jurisdiction

TABLE OF CONTENTS

ATTORNEY FEES

BAD FAITH

CAUSATION

COMMON LAW MARRIAGE

COURSE AND SCOPE

DEATH BENEFITS

EVIDENCE

EXPERT EVIDENCE

EXTENT OF INJURY

IMMIGRATION STATUS

IMPAIRMENT RATING

NTOXICATION

SUBCLAIMANT STATUS

SUBROGATION

forward

2 No fees for fees

insurance carrier

award of those fees

filed)

correct

Crump 330 S W 3d 211(Tex 2010)

argument)

pending

9 2011 no pet h)

attorneyrsquos fees

Houston [1st

BAD FAITH

CAUSATION

Crump 330 S W 3d 211(Tex 2010)

question to a jury

2 Expert evidence

verdict

experts testimony

producing cause

not have occurred

Houston [1sst

producing cause

[emphasis added]

attorneys fees

COMMON LAW MARRIAGE

9 2011 no pet h)

benefits

record)

COURSE AND SCOPE

purpose rule

1 Background facts

going rules

satisfied

include

for by the employer

by the travel and

travel

filed July 7 2011)

1 Background Facts

business

employment possible

premises

pet h)

the access doctrine

DEATH BENEFITS

9 2011 no pet h)

EVIDENCE

excluded

EXPERT EVIDENCE

pet)(mem op)

2010 no pet)

Houston [1sst

extent of injury

EXTENT OF INJURY

pet)(mem op)

See p 14

Houston [1sst

extent of injury

See p 7

29 2011)

subdivision

451001(1)

IMMIGRATION STATUS

IMPAIRMENT RATING

2010 pet filed)

INTOXICATION

orig proceeding)

followed

additional issue

injury

proceeding)

insurer appealed

1 Attorneys fees

2011 pet filed)

April 29 2011)

subdivision

SUBCLAIMANT STATUS

proceeding)

SUBROGATION

circumvent WC lien

carriers recovery

BENEFITS

622 F3d 432 (5th

Cir 2010)

proceeding)

jurisdiction

TABLE OF CONTENTS

ATTORNEY FEES

BAD FAITH

CAUSATION

COMMON LAW MARRIAGE

COURSE AND SCOPE

DEATH BENEFITS

EVIDENCE

EXPERT EVIDENCE

EXTENT OF INJURY

IMMIGRATION STATUS

IMPAIRMENT RATING

NTOXICATION

SUBCLAIMANT STATUS

SUBROGATION

correct

Crump 330 S W 3d 211(Tex 2010)

argument)

pending

9 2011 no pet h)

attorneyrsquos fees

Houston [1st

BAD FAITH

CAUSATION

Crump 330 S W 3d 211(Tex 2010)

question to a jury

2 Expert evidence

verdict

experts testimony

producing cause

not have occurred

Houston [1sst

producing cause

[emphasis added]

attorneys fees

COMMON LAW MARRIAGE

9 2011 no pet h)

benefits

record)

COURSE AND SCOPE

purpose rule

1 Background facts

going rules

satisfied

include

for by the employer

by the travel and

travel

filed July 7 2011)

1 Background Facts

business

employment possible

premises

pet h)

the access doctrine

DEATH BENEFITS

9 2011 no pet h)

EVIDENCE

excluded

EXPERT EVIDENCE

pet)(mem op)

2010 no pet)

Houston [1sst

extent of injury

EXTENT OF INJURY

pet)(mem op)

See p 14

Houston [1sst

extent of injury

See p 7

29 2011)

subdivision

451001(1)

IMMIGRATION STATUS

IMPAIRMENT RATING

2010 pet filed)

INTOXICATION

orig proceeding)

followed

additional issue

injury

proceeding)

insurer appealed

1 Attorneys fees

2011 pet filed)

April 29 2011)

subdivision

SUBCLAIMANT STATUS

proceeding)

SUBROGATION

circumvent WC lien

carriers recovery

BENEFITS

622 F3d 432 (5th

Cir 2010)

proceeding)

jurisdiction

TABLE OF CONTENTS

ATTORNEY FEES

BAD FAITH

CAUSATION

COMMON LAW MARRIAGE

COURSE AND SCOPE

DEATH BENEFITS

EVIDENCE

EXPERT EVIDENCE

EXTENT OF INJURY

IMMIGRATION STATUS

IMPAIRMENT RATING

NTOXICATION

SUBCLAIMANT STATUS

SUBROGATION

CAUSATION

Crump 330 S W 3d 211(Tex 2010)

question to a jury

2 Expert evidence

verdict

experts testimony

producing cause

not have occurred

Houston [1sst

producing cause

[emphasis added]

attorneys fees

COMMON LAW MARRIAGE

9 2011 no pet h)

benefits

record)

COURSE AND SCOPE

purpose rule

1 Background facts

going rules

satisfied

include

for by the employer

by the travel and

travel

filed July 7 2011)

1 Background Facts

business

employment possible

premises

pet h)

the access doctrine

DEATH BENEFITS

9 2011 no pet h)

EVIDENCE

excluded

EXPERT EVIDENCE

pet)(mem op)

2010 no pet)

Houston [1sst

extent of injury

EXTENT OF INJURY

pet)(mem op)

See p 14

Houston [1sst

extent of injury

See p 7

29 2011)

subdivision

451001(1)

IMMIGRATION STATUS

IMPAIRMENT RATING

2010 pet filed)

INTOXICATION

orig proceeding)

followed

additional issue

injury

proceeding)

insurer appealed

1 Attorneys fees

2011 pet filed)

April 29 2011)

subdivision

SUBCLAIMANT STATUS

proceeding)

SUBROGATION

circumvent WC lien

carriers recovery

BENEFITS

622 F3d 432 (5th

Cir 2010)

proceeding)

jurisdiction

TABLE OF CONTENTS

ATTORNEY FEES

BAD FAITH

CAUSATION

COMMON LAW MARRIAGE

COURSE AND SCOPE

DEATH BENEFITS

EVIDENCE

EXPERT EVIDENCE

EXTENT OF INJURY

IMMIGRATION STATUS

IMPAIRMENT RATING

NTOXICATION

SUBCLAIMANT STATUS

SUBROGATION

producing cause

not have occurred

Houston [1sst

producing cause

[emphasis added]

attorneys fees

COMMON LAW MARRIAGE

9 2011 no pet h)

benefits

record)

COURSE AND SCOPE

purpose rule

1 Background facts

going rules

satisfied

include

for by the employer

by the travel and

travel

filed July 7 2011)

1 Background Facts

business

employment possible

premises

pet h)

the access doctrine

DEATH BENEFITS

9 2011 no pet h)

EVIDENCE

excluded

EXPERT EVIDENCE

pet)(mem op)

2010 no pet)

Houston [1sst

extent of injury

EXTENT OF INJURY

pet)(mem op)

See p 14

Houston [1sst

extent of injury

See p 7

29 2011)

subdivision

451001(1)

IMMIGRATION STATUS

IMPAIRMENT RATING

2010 pet filed)

INTOXICATION

orig proceeding)

followed

additional issue

injury

proceeding)

insurer appealed

1 Attorneys fees

2011 pet filed)

April 29 2011)

subdivision

SUBCLAIMANT STATUS

proceeding)

SUBROGATION

circumvent WC lien

carriers recovery

BENEFITS

622 F3d 432 (5th

Cir 2010)

proceeding)

jurisdiction

TABLE OF CONTENTS

ATTORNEY FEES

BAD FAITH

CAUSATION

COMMON LAW MARRIAGE

COURSE AND SCOPE

DEATH BENEFITS

EVIDENCE

EXPERT EVIDENCE

EXTENT OF INJURY

IMMIGRATION STATUS

IMPAIRMENT RATING

NTOXICATION

SUBCLAIMANT STATUS

SUBROGATION

Houston [1sst

producing cause

[emphasis added]

attorneys fees

COMMON LAW MARRIAGE

9 2011 no pet h)

benefits

record)

COURSE AND SCOPE

purpose rule

1 Background facts

going rules

satisfied

include

for by the employer

by the travel and

travel

filed July 7 2011)

1 Background Facts

business

employment possible

premises

pet h)

the access doctrine

DEATH BENEFITS

9 2011 no pet h)

EVIDENCE

excluded

EXPERT EVIDENCE

pet)(mem op)

2010 no pet)

Houston [1sst

extent of injury

EXTENT OF INJURY

pet)(mem op)

See p 14

Houston [1sst

extent of injury

See p 7

29 2011)

subdivision

451001(1)

IMMIGRATION STATUS

IMPAIRMENT RATING

2010 pet filed)

INTOXICATION

orig proceeding)

followed

additional issue

injury

proceeding)

insurer appealed

1 Attorneys fees

2011 pet filed)

April 29 2011)

subdivision

SUBCLAIMANT STATUS

proceeding)

SUBROGATION

circumvent WC lien

carriers recovery

BENEFITS

622 F3d 432 (5th

Cir 2010)

proceeding)

jurisdiction

TABLE OF CONTENTS

ATTORNEY FEES

BAD FAITH

CAUSATION

COMMON LAW MARRIAGE

COURSE AND SCOPE

DEATH BENEFITS

EVIDENCE

EXPERT EVIDENCE

EXTENT OF INJURY

IMMIGRATION STATUS

IMPAIRMENT RATING

NTOXICATION

SUBCLAIMANT STATUS

SUBROGATION

COMMON LAW MARRIAGE

9 2011 no pet h)

benefits

record)

COURSE AND SCOPE

purpose rule

1 Background facts

going rules

satisfied

include

for by the employer

by the travel and

travel

filed July 7 2011)

1 Background Facts

business

employment possible

premises

pet h)

the access doctrine

DEATH BENEFITS

9 2011 no pet h)

EVIDENCE

excluded

EXPERT EVIDENCE

pet)(mem op)

2010 no pet)

Houston [1sst

extent of injury

EXTENT OF INJURY

pet)(mem op)

See p 14

Houston [1sst

extent of injury

See p 7

29 2011)

subdivision

451001(1)

IMMIGRATION STATUS

IMPAIRMENT RATING

2010 pet filed)

INTOXICATION

orig proceeding)

followed

additional issue

injury

proceeding)

insurer appealed

1 Attorneys fees

2011 pet filed)

April 29 2011)

subdivision

SUBCLAIMANT STATUS

proceeding)

SUBROGATION

circumvent WC lien

carriers recovery

BENEFITS

622 F3d 432 (5th

Cir 2010)

proceeding)

jurisdiction

TABLE OF CONTENTS

ATTORNEY FEES

BAD FAITH

CAUSATION

COMMON LAW MARRIAGE

COURSE AND SCOPE

DEATH BENEFITS

EVIDENCE

EXPERT EVIDENCE

EXTENT OF INJURY

IMMIGRATION STATUS

IMPAIRMENT RATING

NTOXICATION

SUBCLAIMANT STATUS

SUBROGATION

COURSE AND SCOPE

purpose rule

1 Background facts

going rules

satisfied

include

for by the employer

by the travel and

travel

filed July 7 2011)

1 Background Facts

business

employment possible

premises

pet h)

the access doctrine

DEATH BENEFITS

9 2011 no pet h)

EVIDENCE

excluded

EXPERT EVIDENCE

pet)(mem op)

2010 no pet)

Houston [1sst

extent of injury

EXTENT OF INJURY

pet)(mem op)

See p 14

Houston [1sst

extent of injury

See p 7

29 2011)

subdivision

451001(1)

IMMIGRATION STATUS

IMPAIRMENT RATING

2010 pet filed)

INTOXICATION

orig proceeding)

followed

additional issue

injury

proceeding)

insurer appealed

1 Attorneys fees

2011 pet filed)

April 29 2011)

subdivision

SUBCLAIMANT STATUS

proceeding)

SUBROGATION

circumvent WC lien

carriers recovery

BENEFITS

622 F3d 432 (5th

Cir 2010)

proceeding)

jurisdiction

TABLE OF CONTENTS

ATTORNEY FEES

BAD FAITH

CAUSATION

COMMON LAW MARRIAGE

COURSE AND SCOPE

DEATH BENEFITS

EVIDENCE

EXPERT EVIDENCE

EXTENT OF INJURY

IMMIGRATION STATUS

IMPAIRMENT RATING

NTOXICATION

SUBCLAIMANT STATUS

SUBROGATION

by the travel and

travel

filed July 7 2011)

1 Background Facts

business

employment possible

premises

pet h)

the access doctrine

DEATH BENEFITS

9 2011 no pet h)

EVIDENCE

excluded

EXPERT EVIDENCE

pet)(mem op)

2010 no pet)

Houston [1sst

extent of injury

EXTENT OF INJURY

pet)(mem op)

See p 14

Houston [1sst

extent of injury

See p 7

29 2011)

subdivision

451001(1)

IMMIGRATION STATUS

IMPAIRMENT RATING

2010 pet filed)

INTOXICATION

orig proceeding)

followed

additional issue

injury

proceeding)

insurer appealed

1 Attorneys fees

2011 pet filed)

April 29 2011)

subdivision

SUBCLAIMANT STATUS

proceeding)

SUBROGATION

circumvent WC lien

carriers recovery

BENEFITS

622 F3d 432 (5th

Cir 2010)

proceeding)

jurisdiction

TABLE OF CONTENTS

ATTORNEY FEES

BAD FAITH

CAUSATION

COMMON LAW MARRIAGE

COURSE AND SCOPE

DEATH BENEFITS

EVIDENCE

EXPERT EVIDENCE

EXTENT OF INJURY

IMMIGRATION STATUS

IMPAIRMENT RATING

NTOXICATION

SUBCLAIMANT STATUS

SUBROGATION

business

employment possible

premises

pet h)

the access doctrine

DEATH BENEFITS

9 2011 no pet h)

EVIDENCE

excluded

EXPERT EVIDENCE

pet)(mem op)

2010 no pet)

Houston [1sst

extent of injury

EXTENT OF INJURY

pet)(mem op)

See p 14

Houston [1sst

extent of injury

See p 7

29 2011)

subdivision

451001(1)

IMMIGRATION STATUS

IMPAIRMENT RATING

2010 pet filed)

INTOXICATION

orig proceeding)

followed

additional issue

injury

proceeding)

insurer appealed

1 Attorneys fees

2011 pet filed)

April 29 2011)

subdivision

SUBCLAIMANT STATUS

proceeding)

SUBROGATION

circumvent WC lien

carriers recovery

BENEFITS

622 F3d 432 (5th

Cir 2010)

proceeding)

jurisdiction

TABLE OF CONTENTS

ATTORNEY FEES

BAD FAITH

CAUSATION

COMMON LAW MARRIAGE

COURSE AND SCOPE

DEATH BENEFITS

EVIDENCE

EXPERT EVIDENCE

EXTENT OF INJURY

IMMIGRATION STATUS

IMPAIRMENT RATING

NTOXICATION

SUBCLAIMANT STATUS

SUBROGATION

EVIDENCE

excluded

EXPERT EVIDENCE

pet)(mem op)

2010 no pet)

Houston [1sst

extent of injury

EXTENT OF INJURY

pet)(mem op)

See p 14

Houston [1sst

extent of injury

See p 7

29 2011)

subdivision

451001(1)

IMMIGRATION STATUS

IMPAIRMENT RATING

2010 pet filed)

INTOXICATION

orig proceeding)

followed

additional issue

injury

proceeding)

insurer appealed

1 Attorneys fees

2011 pet filed)

April 29 2011)

subdivision

SUBCLAIMANT STATUS

proceeding)

SUBROGATION

circumvent WC lien

carriers recovery

BENEFITS

622 F3d 432 (5th

Cir 2010)

proceeding)

jurisdiction

TABLE OF CONTENTS

ATTORNEY FEES

BAD FAITH

CAUSATION

COMMON LAW MARRIAGE

COURSE AND SCOPE

DEATH BENEFITS

EVIDENCE

EXPERT EVIDENCE

EXTENT OF INJURY

IMMIGRATION STATUS

IMPAIRMENT RATING

NTOXICATION

SUBCLAIMANT STATUS

SUBROGATION

Houston [1sst

extent of injury

EXTENT OF INJURY

pet)(mem op)

See p 14

Houston [1sst

extent of injury

See p 7

29 2011)

subdivision

451001(1)

IMMIGRATION STATUS

IMPAIRMENT RATING

2010 pet filed)

INTOXICATION

orig proceeding)

followed

additional issue

injury

proceeding)

insurer appealed

1 Attorneys fees

2011 pet filed)

April 29 2011)

subdivision

SUBCLAIMANT STATUS

proceeding)

SUBROGATION

circumvent WC lien

carriers recovery

BENEFITS

622 F3d 432 (5th

Cir 2010)

proceeding)

jurisdiction

TABLE OF CONTENTS

ATTORNEY FEES

BAD FAITH

CAUSATION

COMMON LAW MARRIAGE

COURSE AND SCOPE

DEATH BENEFITS

EVIDENCE

EXPERT EVIDENCE

EXTENT OF INJURY

IMMIGRATION STATUS

IMPAIRMENT RATING

NTOXICATION

SUBCLAIMANT STATUS

SUBROGATION

IMPAIRMENT RATING

2010 pet filed)

INTOXICATION

orig proceeding)

followed

additional issue

injury

proceeding)

insurer appealed

1 Attorneys fees

2011 pet filed)

April 29 2011)

subdivision

SUBCLAIMANT STATUS

proceeding)

SUBROGATION

circumvent WC lien

carriers recovery

BENEFITS

622 F3d 432 (5th

Cir 2010)

proceeding)

jurisdiction

TABLE OF CONTENTS

ATTORNEY FEES

BAD FAITH

CAUSATION

COMMON LAW MARRIAGE

COURSE AND SCOPE

DEATH BENEFITS

EVIDENCE

EXPERT EVIDENCE

EXTENT OF INJURY

IMMIGRATION STATUS

IMPAIRMENT RATING

NTOXICATION

SUBCLAIMANT STATUS

SUBROGATION

followed

additional issue

injury

proceeding)

insurer appealed

1 Attorneys fees

2011 pet filed)

April 29 2011)

subdivision

SUBCLAIMANT STATUS

proceeding)

SUBROGATION

circumvent WC lien

carriers recovery

BENEFITS

622 F3d 432 (5th

Cir 2010)

proceeding)

jurisdiction

TABLE OF CONTENTS

ATTORNEY FEES

BAD FAITH

CAUSATION

COMMON LAW MARRIAGE

COURSE AND SCOPE

DEATH BENEFITS

EVIDENCE

EXPERT EVIDENCE

EXTENT OF INJURY

IMMIGRATION STATUS

IMPAIRMENT RATING

NTOXICATION

SUBCLAIMANT STATUS

SUBROGATION

proceeding)

insurer appealed

1 Attorneys fees

2011 pet filed)

April 29 2011)

subdivision

SUBCLAIMANT STATUS

proceeding)

SUBROGATION

circumvent WC lien

carriers recovery

BENEFITS

622 F3d 432 (5th

Cir 2010)

proceeding)

jurisdiction

TABLE OF CONTENTS

ATTORNEY FEES

BAD FAITH

CAUSATION

COMMON LAW MARRIAGE

COURSE AND SCOPE

DEATH BENEFITS

EVIDENCE

EXPERT EVIDENCE

EXTENT OF INJURY

IMMIGRATION STATUS

IMPAIRMENT RATING

NTOXICATION

SUBCLAIMANT STATUS

SUBROGATION

April 29 2011)

subdivision

SUBCLAIMANT STATUS

proceeding)

SUBROGATION

circumvent WC lien

carriers recovery

BENEFITS

622 F3d 432 (5th

Cir 2010)

proceeding)

jurisdiction

TABLE OF CONTENTS

ATTORNEY FEES

BAD FAITH

CAUSATION

COMMON LAW MARRIAGE

COURSE AND SCOPE

DEATH BENEFITS

EVIDENCE

EXPERT EVIDENCE

EXTENT OF INJURY

IMMIGRATION STATUS

IMPAIRMENT RATING

NTOXICATION

SUBCLAIMANT STATUS

SUBROGATION

carriers recovery

BENEFITS

622 F3d 432 (5th

Cir 2010)

proceeding)

jurisdiction

TABLE OF CONTENTS

ATTORNEY FEES

BAD FAITH

CAUSATION

COMMON LAW MARRIAGE

COURSE AND SCOPE

DEATH BENEFITS

EVIDENCE

EXPERT EVIDENCE

EXTENT OF INJURY

IMMIGRATION STATUS

IMPAIRMENT RATING

NTOXICATION

SUBCLAIMANT STATUS

SUBROGATION

TABLE OF CONTENTS

ATTORNEY FEES

BAD FAITH

CAUSATION

COMMON LAW MARRIAGE

COURSE AND SCOPE

DEATH BENEFITS

EVIDENCE

EXPERT EVIDENCE

EXTENT OF INJURY

IMMIGRATION STATUS

IMPAIRMENT RATING

NTOXICATION

SUBCLAIMANT STATUS

SUBROGATION

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CASE LAW UPDATE - · PDF fileLavender, No. 02-10-00399-CV, ... issue, holding that when a question of fact exists on the ... Case Law Update: