law-workers-comp | workplace injury case law decisions | compensability of injury | course and scope of
employment duties | Workers Compensation Act subscribers and nonsubscribers | liability with respect to
independent contractors | statutory employer status | exclusive remedy defense |
RECENT TEXAS SUPREME COURT OPINIONS: WORKERS COMPENSATION,
SUBSCRIBERS, NONSUBSCRIBERS, EXCLUSIVE REMEDY DEFENSE
Ins. Co. of the State of Pennsylvania v. Muro, No. 09-0340 (Tex. Aug. 26, 2011)
(Opinion by Justice David Medina)(workers compensation benefits taken away)
The Texas Workers' Compensation Act authorizes the award of lifetime income benefits to employees who lose
certain body parts or suffer certain injuries in work-related accidents. The specific body parts and injuries that
qualify an employee for this type of benefit are enumerated in section 408.161 of the act. See Tex. Lab. Code §
408.161(a)(1)-(7). That enumeration includes, among others, "loss [or lost use] of both feet at or above the
ankle." Id. § 408.161(a)(2), (b).
The question here concerns the standard for awarding lifetime income benefits under section 408.161. The
employee in this case injured her hips, an injury and body part not enumerated in section 408.161. The hip
injuries, however, affected the use of her feet to the extent that she could no longer work. Although her feet
were not injured, per se, the employee was awarded lifetime income benefits because her hip injuries prevented
her from continuing to work. The issue then is whether the statute authorizes the award of lifetime benefits for
injuries to body parts not enumerated in the statute, that is, whether the occurrence of one of the injuries
identified in section 408.161 is a prerequisite to the award of lifetime benefits or whether other injuries that result
in the employee's total and permanent incapacity, such as the hip injuries here, are enough.
Affirming the employee's award of lifetime income benefits, the court of appeals concluded that section 408.161
does not limit the award of lifetime income benefits to the specific injuries and body parts enumerated in the
statute. 285 S.W.3d 524, 529 (Tex. App.-Dallas 2009). We conclude, however, that section 408.161 limits the
award of lifetime benefits to the injuries enumerated therein and that an employee does not lose the use of a
body part, within the statute's meaning, without some evidence of an injury to that body part. Because there is
no evidence that the employee suffered one of the enumerated injuries in this case, we reverse and render.
INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA v. CARMEN MURO; from Dallas County; 5th district
(05-07-00279-CV, 285 SW3d 524, 03-12-09)
The Court reverses the court of appeals' judgment and renders judgment.
Justice Medina delivered the opinion of the Court. [pdf]
Link to e-briefs including amicus briefs: INS. CO. OF THE STATE OF PA v. MURO
Texas Mutual Ins. Co. v. Ruttiger, No. 08-0751 (Tex. Aug. 26, 2011)(Opinion by Justice Phil Johnson)
(Worker's Compensation Act)
In 1989 the Legislature enacted maj or amendments to the Workers' Compensation Act (Act). Tex.Lab.Code §§
401.001-506.002. The amendments included significant reforms, among which were changes in how to calculate
income benefits for injured workers, the amount of income benefits workers could recover, the dispute resolution
process, the addition of an ombudsman program to provide assistance for injured workers who had disputes
with insurers, and increasing sanctions for violations of the Act. In this case, the issues presented involve,
among other matters, (1) the interaction of the current Act with the Insurance Code and the Deceptive Trade
Practices Act (DTPA), and (2) whether the 1989 restructuring of the Act and subsequent amendments obviate
the need we found in Aranda v. Insurance Co. of North America, 748 S.W.2d 210 (Tex. 1988) to engraft an extra-
statutory cause of action for breach of the duty of good faith and fair dealing onto the workers' compensation
We conclude that (1) claims against workers' compensation insurers for unfair settlement practices may not be
made under the Insurance Code, but (2) claims under the Insurance Code may be made against those insurers
for misrepresenting provisions of their policies, although in this case there was no evidence the insurer did so.
Further, seven members of the Court would consider whether Aranda should be overruled even though the
court of appeals did not reach the issues involving the cause of action for breach of the duty of good faith and
fair dealing. Four Justices would hold that Aranda should be overruled while three would hold that it should not
be. Two members of the Court would have the court of appeals first consider the issues involving breach of the
duty of good faith and fair dealing before addressing them. In accordance with these views, a majority of the
Court joins in the judgment reversing the judgment of the court of appeals and rendering judgment in part and
remanding in part for further proceedings as to the issues involving breach of the duty of good faith and fair
TEXAS MUTUAL INSURANCE COMPANY v. TIMOTHY J. RUTTIGER; from Galveston County; 1st district (01-06-
00897-CV, 265 SW3d 651, 07-31-08)
The Court reverses the court of appeals' judgment, renders judgment in part, and remands the case to that
Justice Johnson delivered the opinion of the Court with respect to Parts I, II, III, IV, and VI, in which Justice Hecht,
Justice Wainwright, Justice Medina, Justice Willett and Justice Guzman joined, and an opinion with respect to
Part V, in which Justice Hecht, Justice Wainwright, and Justice Medina joined. [pdf]
Justice Willett delivered a concurring opinion, in which Justice Guzman joined. [pdf]
Chief Justice Jefferson delivered a dissenting opinion, in which Justice Green and Justice Lehrmann joined. [pdf]
Link to e-briefs incl. amicus briefs and responses s: TEXAS MUTUAL INS. CO. v. RUTTIGER
State Office of Risk Management v. Lawton, No. 08-0363 (Tex. Aug. 28, 2009)(Jefferson)
(workers comp claim; deadline for contesting compensability)
STATE OFFICE OF RISK MANAGEMENT v. MARY LAWTON; from Brazos County;
10th district (10-07-00072-CV, 256 SW3d 436, 04-16-08)
The Court reverses the court of appeals' judgment and remands the case to the trial court.
Chief Justice Jefferson delivered the opinion of the Court.
In Re Liberty Mutual Fire Ins. Co., No. 08-0742 (Tex. Aug. 28, 2009)(per curiam)
(worker's comp, exhaustion of administrative remedies, preauthorization of medical treatment)
IN RE LIBERTY MUTUAL FIRE INSURANCE COMPANY; from Nueces County;
13th district (13-08-00129-CV, ___ SW3d ___, 08-07-08)
Pursuant to Texas Rule of Appellate Procedure 52.8(c), without hearing oral argument, the Court conditionally
grants the petition for writ of mandamus.
Per Curiam Opinion
Entergy Gulf States, Inc. v. Summers. No. 05-0272 (Tex. 2009)(Substitute opinion by Green) (premises owner
as general contractor for workers compensation exclusive remedy purposes, industrial plants, industrial
accidents, refinery explosion)
ENTERGY GULF STATES, INC. v. JOHN SUMMERS; from Jefferson County; 9th district (09-04-00152-CV, ___
SW3d ___, 12-30-04)
The Court reverses the court of appeals' judgment and renders judgment.
Justice Green delivered the opinion of the Court, in which Justice Wainwright and Justice Brister joined, and in
Parts I, II, III, IV, V, VI, VIII and IX of which Justice Hecht joined, and in Parts I, II, III, IV, V, VI, VII, and IX of which
Justice Johnson joined, and in Parts I, II, III, VI, VII, and IX of which Justice Willett joined.
Justice Hecht delivered a concurring opinion of the Court.
Justice Willett delivered a concurring opinion.
Justice O'Neill delivered a dissenting opinion, in which Chief Justice Jefferson and Justice Medina joined.
Hcbeck, Ltd. v. Rice, No. 06-0418 (Tex. 2009)(Green)(worker's compensation, exclusive remedy defense, extent
to which a general contractor must “provide” workers’ compensation insurance under the Act to qualify for
statutory employer status and the resulting immunity from the work-related claims of a subcontractor’s
HCBECK, LTD. v. CHARLES RICE; from Tarrant County; 2nd district (02-05-00239-CV, ___ SW3d ___, 04-06-
The Court reverses the court of appeals' judgment and renders judgment.
Justice Green delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Hecht, Justice
Wainwright, and Justice Brister joined, and in Parts I, II, III, IV, V, and VII of which Justice Willett joined.
Justice Johnson delivered a dissenting opinion, in which Justice Medina joined.
(Justice O'Neill not sitting)
In re Labatt Food Service, LP, No. 07-0419 (Tex. 2009)(Johnson)
(arbitration mandamus, arbitration of wrongful death claim by nonsignatories compelled)
The Labor Code provides that an employee’s cause of action against a non-subscriber employer to recover
damages for personal injuries or death sustained in the course and scope of employment may not be waived by
an employee before the employee’s injury or death. Any agreement by an employee to waive [such] a cause of
action . . . before the employee’s injury or death is void and unenforceable.
Tex. Lab. Code § 406.033(e).
SWBT v. Mitchell, No. 05-0171 (Tex. Dec. 19, 2008)(Hecht)(workers comp, deadline for carrier to contest
compensability of employee's injury)
Chief Justice Jefferson delivered a dissenting opinion, in which Justice O'Neill and Justice Medina joined. (Justice
Green not sitting)
Texas Mutual Ins. Co. v. Ledbetter, No. 06-0814 (Tex. Apr. 4, 2008)(Brister)(workers comp, subrogation claim)
district (11-05-00098-CV, 192 S.W.3d 912, 06-01-06) 2 petitions
motion for emergency relief from declaratory judgment action dismissed as moot
The Court affirms in part and reverses in part the court of appeals' judgment and remands the case to the
Justice Brister delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Hecht, Justice
O'Neill, Justice Wainwright, Justice Medina, Justice Green, and Justice Willett joined, and in which Justice
Johnson joined as to Parts I through III and Part V.
Morales v. Liberty Mutual Ins. Co., No. 05-0754 (Tex. Dec. 7, 2007)(O'Neill)
(worker's compensation employment status)
PETITIONS FOR REVIEW DENIED BY THE TEXAS SUPREME COURT
IN WORKERS COMPENSATION APPEALS FROM THE INTERMEDIATE COURTS
THE INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA, GALLAGHER BASSETT SERVICES, INC.
AND BELINDA YBARRA v. SUE ANN STINSON; from Harris County; 14th district (14-07-00698-CV, 286 SW3d
77, 04-30-09, pet. denied Sep. 2009) (extra-contractual claims against appellees the Insurance Company)
(workers compensation denial of claim)
(Stinson contends the trial court erred in dismissing her suit for want of jurisdiction based on an asserted failure
to exhaust available administrative remedies. We reverse and remand.)
CODY JONES v. GRAY INSURANCE COMPANY; from Newton County; 9th district
(09-08-00322-CV, ___ SW3d ___, 03‑05‑09) This is a workers' compensation case. The appeals panel of the
division of workers' compensation of the Texas Department of Insurance concluded that Cody Jones did not
sustain a compensable injury. Challenging the panel's decision, Jones filed an original petition in the district
court of Newton County. A jury found in Jones's favor. The trial court's judgment states Jones sustained an
injury in the course of his employment and orders Gray Insurance Company, the workers' compensation
insurance carrier, to pay all benefits related to the injury. Gray Insurance appeals the judgment. Appellant
argues the injury did not occur in the course of the employment. Because the evidence is legally
insufficient to support the jury's finding, we reverse the judgment.
PANQUITA CARTER v. UNIVERSITY TEXAS SYSTEMS; from Dallas County; 5th district (05-07-00592-CV, ___
SW3d ___, 02-25-08, pet. denied Oct. 2008)(workers comp, compensable injury, carpal tunnel syndrome,
frivolous appeal sanctions denied)
THOMAS LOUIS v. MOBIL CHEMICAL COMPANY, A DIVISION OF EXXON MOBIL OIL CORPORATION, JAMES
BOWSER AND RANDALL ROY; from Jefferson County; 9th district (09-06-00568-CV, 254 SW3d 602, 05-01-08,
pet denied Aug. 1 2008) (Justice O'Neill not sitting) (employment dispute, IIED, defamation, workers
compensation retaliation for filing claim)
In his third issue, Louis contends the trial court erred in granting summary judgment on his workers'
compensation retaliation claim. The Texas Labor Code prohibits an employer from discharging an employee for
filing a workers' compensation claim in good faith. Tex. Lab. Code Ann. § 451.001(1). "To prove a 'retaliatory
discharge' claim, the employee must show that the employer's action would not have occurred when it did had
the employee's protected conduct -- filing a workers' compensation claim -- not occurred." Haggar Clothing
Co. v. Hernandez, 164 S.W.3d 386, 388 (Tex. 2005). Circumstantial evidence and reasonable inferences from
the evidence can establish the causal connection. Cont'l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 451
(Tex. 1996). If the employee can establish a causal link, the employer must rebut the alleged retaliation by
showing that there was a legitimate reason for the discharge. Id. Although not elements of retaliation,
circumstantial evidence offered to establish a causal link may include: "(1) knowledge of the compensation claim
by those making the decision on termination; (2) expression of a negative attitude toward the employee's injured
condition; (3) failure to adhere to established company policies; (4) discriminatory treatment in comparison to
similarly situated employees; and (5) evidence that the stated reason for the discharge was false." Aust v.
Conroe Indep. Sch. Dist., 153 S.W.3d 222, 228 (Tex. App.--Beaumont 2004, no pet.).
The discrepancies in Louis's paperwork surfaced before Louis's chest began to hurt and there is no evidence in
the summary judgment record to indicate that the investigation and subsequent decision to terminate Louis's
employment was a pretext to disguise a retaliatory discharge. Thus, although Louis produced some
evidence that a Mobil employee discouraged Louis from filing a claim for workers' compensation, there is no
evidence that either directly or inferentially connects the nurse's comment to Louis's discharge from employment
or that shows that Mobil did not have a legitimate non-discriminatory reason to terminate Louis's
employment. The trial court did not err in granting motion for summary judgment for all defendants on Louis's
retaliation claim. We overrule issue three.
ZENITH INSURANCE COMPANY v. ROSAURA O. LOPEZ; from Midland County; 11th district
(11-06-00086-CV, 229 SW3d 775, 05-17-07, pet. denied June 2008) (workers' compensation case)
Zenith Insurance Company filed suit to appeal the Texas Workers' Compensation Commission's Appeals Panel's
decision that it had waived the right to dispute Rosaura O. Lopez's workers' compensation claim. The trial court
granted Zenith's motion for summary judgment finding that Zenith had timely controverted Lopez's claim and
that, because Lopez had not suffered an injury in the course and scope of her employment, Zenith could not
waive its right to contest her claim. We reverse and remand.
ROBERT F. GREEN v. FORT BEND ISD; from Fort Bend County; 1st district (01-06-01157-CV, ___ SW3d ___,
12-20-07, pet. denied Jun 2008) as redrafted (Workers Comp TWCC judicial review suit)
This is an appeal from a suit for judicial review of a decision of the Texas Workers’ Compensation
The Texas Workers’ Compensation Commission was replaced in 2005 by the Texas Department of Insurance,
Division of Workers’ Compensation. See Tex. Lab.Code Ann. § 402.001 (Vernon 2006). We refer to that
authority as it existed at the time ofthe administrative hearings in this case, which took place in 2003.
The TWCC determined that appellant, Robert F. Green, suffered a compensable injury while on the job as a
school teacher for appellee, Fort Bend Independent School District (“FBISD”), and that Green was disabled for
the period of August 17, 2002 to October 3, 2002. Green appealed the determination of the period of disability
to the trial court. The trial court affirmed the decision of the TWCC.
On appeal, Green presents four issues. In his first issue, Green contends that the trial court erred by admitting
evidence of prior and collateral injuries because compensability was not appealed. In his second issue, Green
contends that the trial court erred by failing to give presumptive weight to the findings of the “designated
doctor.” In his third issue, Green contends that the “trial court erred in excluding and/or failing to consider
evidence of the date of maximum medical improvement.” In his fourth issue, Green challenges the factual
sufficiency of the evidence to support the trial court’s conclusion that Green’s period of disability ended October
3, 2002. We affirm.
GUILLERMINA MOSQUEDA v. G&H DIVERSIFIED MFG., L.P.; from Harris County; 14th district
(14-04-00183-CV, 223 S.W.3d 571, 01-31-07) [Dissenting opinion by Justice Edelman] (workplace injury,
workers compensation, exclusive remedy defense) In this case, G & H is entitled to the exclusive remedy
defense. Because Mosqueda was the borrowed employee of G & H, she cannot maintain her common law
claims against G & H. Therefore, even if we concluded that the summary judgment should not have been
granted, there is no basis for recovery against the Kash defendants. See Aluminum Chemicals (Bolivia), Inc. v.
Bechtel Corp., 28 S.W.3d 64, 68 (Tex. App.- Texarkana 2000, no pet.) (stating that, if there is no finding of
liability against subsidiary, plaintiff cannot recover against the parent under single business enterprise, joint
enterprise, or alter ego theories). Because there can be no derivative recovery against the Kash
defendants, and Mosqueda failed to obtain favorable jury findings directly against the Kash defendants, we
overrule Mosqueda's seventh issue.
CARL POLLITT v. CENTRE INSURANCE COMPANY, SUCCESSOR TO BUSINESS INSURANCE COMPANY; from
Ector County; 11th district (11-06-00214-CV, 242 S.W.3d 112, 10-25-07, pet. denied May 2008)(workers
compensation, workplace injury)
This is a workers' compensation dispute. Carl Pollitt suffered an on-the-job injury and received workers'
compensation benefits from Centre Insurance Company, Successor to Business Insurance Company. After
reaching maximum medical improvement (MMI), Pollitt claimed that his condition had substantially changed and
he sought an increased impairment rating. The trial court granted Pollitt's motion for summary judgment and
increased Pollitt's impairment rating. Because Pollitt's condition changed after his statutory MMI date, we
reverse the trial court's judgment and render judgment for Centre.
Pollitt was injured while in the course and scope of his employment on March 6, 1995. Centre accepted his
claim and began paying benefits. Pollitt reached statutory MMI on March 11, 1997, but he subsequently
underwent three spinal surgeries.
WILLIAM LOWE, M.D. v. MARY HERNANDEZ; from Tarrant County; 2nd district (02-06-00132-CV, ___ S.W.3d
___, 06-07-07) (job termination, injury, ability to perform job responsibilities, proximate cause)
In five issues, Appellant William Lowe, M.D. asserts that the trial court erred in awarding judgment, following a
jury trial, to Appellee Mary Hernandez for a job termination claim following a course of surgical and medical
treatment provided by Dr. Lowe. We affirm.
JERRY C. MCLELLAND, ET AL. v. EXXONMOBIL OIL CORPORATION F/K/A MOBIL OIL CORPORATION, ET
AL.; from Jefferson County; 9th district (09-06-00566-CV, ___ SW3d ___, 01-10-08, pet. denied April 2008)
Plaintiffs alleged that Mobil schemed to deprive appellants of their common-law causes of action for work-related
injuries by fraudulently representing to its employees that it carried workers' compensation insurance, when
Mobil actually had a cash-flow retrospective plan pursuant to side agreements with its insurance carriers. (2)
Plaintiffs asserted causes of action for fraudulent inducement, commercial bribery, securing execution of a
document by deception, breach of the duty of good faith and fair dealing, violations of article 21.21 of the Texas
Insurance Code, breach of contract, civil conspiracy, and common law fraud. (Justice O'Neill not sitting)
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