law-workers-comp | workplace injury case law decisions | compensability | workers comp self-insurance |
workers comp impairment ratings disputes | attorney's fees in workman's compensation cases |

The Texas Workers’ Compensation Act provides a four-tier system for the disposition of claims.  
Subsequent Injury Fund v. Serv. Lloyds Ins. Co., 961 S.W.2d 673, 675 (Tex. App.—Houston [1st Dist.]
1998, pet. denied); see generally TEX. LAB. CODE ANN. §§ 410.002–410.308 (Vernon 2006 &
Supp. 2010).  The first tier is a benefit review conference conducted by a benefit review officer.  
Subsequent Injury Fund, 961 S.W.2d at 675.  From the benefit review conference, the parties may
proceed, by agreement, to arbitration.  Id.  If the parties do not agree to arbitrate, the aggrieved party
may seek relief at a contested case hearing.  Id.  The hearing officer’s decision is final in the absence
of an appeal.  TEX. LAB. CODE ANN. § 410.169 (Vernon 2006).  At the third tier, a party may seek
review by an administrative appeals panel.  Subsequent Injury Fund, 961 S.W.2d at 675.  In the fourth
tier, a party aggrieved by a final decision of the appeals panel has the right to seek judicial review of
the appeals panel decision.  TEX. LAB. CODE ANN. § 410.251 (Vernon 2006); Cont’l Cas. Ins. Co. v.
Functional Restoration Assocs., 19 S.W.3d 393, 398 (Tex. 2000); see also In re Tex. Workers’ Comp.
Ins. Fund, 995 S.W.2d 335, 37 (Tex. App.—Houston [1st Dist.] 1999, orig. proceeding [mand. denied]).
A party may not raise an issue in the trial court that was not raised before a DWC Appeals Panel.  
TEX. LAB. CODE ANN. § 410.302(b) (Vernon 2006); Alexander v. Lockheed Martin Corp., 188 S.W.
3d 348, 353 (Tex. App.—Fort Worth 2006, pet. denied).  A trial is “limited to issues decided by the
appeals panel and on which judicial review is sought,” and the “pleadings must specifically set forth the
determinations of the appeals panel by which the party is aggrieved.”  TEX. LAB. CODE ANN. §
410.302(b).  A party waives judicial review of any issue not raised before the DWC Appeals Panel
and identified in a timely request for judicial review.  Adams v. Liberty Mut. Ins. Co., No. 01-09-00178-
CV, 2010 WL 143450, at *3 (Tex. App.—Houston [1st Dist.] Jan 14, 2010 no pet.) (mem. op).

RECENT TEXAS SUPREME COURT OPINIONS: WORKERS COMPENSATION,
SUBSCRIBERS, NONSUBSCRIBERS

SWBT v. Mitchell, No. 05-0171 (Tex. Dec. 19, 2008)(Hecht)(workers comp, deadline for carrier to contest
compensability of employee's injury)
SOUTHWESTERN BELL TELEPHONE COMPANY, L.P., D/B/A SBC TEXAS v. WILLIAM C. MITCHELL,
BENEFICIARY OF LOUISE MITCHELL, DECEDENT; from Bexar County; 4th district (04-04-00466-CV, ___
SW3d ___, 01-26-05)
The Court reverses the court of appeals' judgment and remands the case to the trial court.
Justice Hecht delivered the opinion of the Court, in which Justice Wainwright, Justice Brister, Justice Johnson,
and Justice Willett joined.
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)
TEXAS MUTUAL INSURANCE COMPANY v. PAULA LEDBETTER, REPRESENTATIVE OF THE ESTATE OF
CHARLES WADE LEDBETTER, INDIVIDUALLY AND AS NEXT FRIEND OF DUSTIN WADE LEDBETTER, A
MINOR, AND TONJA LEDBETTER AND JAMIE LEDBETTER, INDIVIDUALLY; from Jones County; 11th
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
trial court.
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
OF APPEALS

08-0275          
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)

08-0461
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.

07-0503  
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.

08-0106  
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 Commission
(“TWCC”).  
The Texas Workers’ Compensation Commission was replaced in 2005 by the TexasDepartment 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.

07-0342  
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.

08-0045  
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.  

07-0574  
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.

08-0133  
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)
(workers comp)
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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