Liability/Compensability Issues PART 2
For sections C01 - C16, please see Liability/Compensability Issues PART 1.
For section C00, please see Liability/Compensability Issues PART 3.
- Reporting injury to employer. (C17)
- Filing claim with Division. (C18)
- Extraterritorial injury. (C19)
- Election of remedies. (C20)
- Liability of SIF/Carrier reimbursement. (C21)
Reporting Injury to Employer (C17)
An IW, or a person acting on the IW's behalf, must report a work related injury to the employer within 30 days after the date of injury. Sections 409.001 and 122.1. [Cross references: Date of Injury (C05); Compensability/Injury (C06)]. The purpose of the injury report is to allow the employer to notify the carrier so the carrier can immediately investigate the facts surrounding the injury. DeAnda v. Home Insurance Co., 618 S.W.2d 529 (Tex. 1980). The notice to the employer must be timely and adequate. Reporting the injury to the employer within the 30-day period is called "timely notice." The IW has the burden to prove that timely notice of a work related injury was given to the employer. APD 991691. Whether timely and adequate notice of a work related injury was given to the employer present questions of fact for the HO to resolve. APD 012669.
Adequacy of the Notice of Injury.
The IW has the burden to prove that adequate notice of a work related injury was given to the employer. Whether an IW has presented sufficient credible evidence to establish that adequate notice was given is a question of fact for the HO to resolve. APD 041787. The notice must merely convey the general nature of the injury and the fact that it is work related. The full extent of the injury need not be reported or described. Texas Indemnity Ins. Co. v. Bridges, 52 S.W.2d 1075 (Tex. Civ. App.-Eastland 1932, writ ref'd); APD 961033. The IW must establish that the notice was given:
(1) to the employer, a person designated by the employer as one who can receive notice of injury on the employer's behalf, or to a person who can receive notice of injury on the employer's behalf as a matter of law;
(2) within 30 days of the date of injury, unless one of the exceptions apply; and
(3) the injury being reported is work related.
Notice to Employer/Designee.
Sections 409.001(b)and 122.1(c) require that the notice be given to the employer or an employee of the employer who holds a supervisory or management position. In order for a person to be considered as holding a supervisory position for purposes of receiving notice of an injury, it is not necessary for the person to have hiring, firing, and disciplinary authority, rather, task-assigning authority may be sufficient to confer the status of a supervisor. Whether a person holds a supervisory position for purposes of receiving notice of an injury is a question of fact for the HO to resolve. APD 010226. This is so even in cases where the employer does not consider the person who received the notice to hold a supervisory position. APD 992797; APD 991635. The report may be made to any supervisor employed by the employer and does not have to be made to the IW's immediate supervisor. Dallas Independent School District v. Foley, 1999 Tex. App. LEXIS 4417 (unpublished); APD 951457.
Proper Notice Given.
The IW worked in the linen department of a hospital. The IW testified that she injured herself while repeatedly folding sheets. The IW reported the injury to a person the IW identified as the "substitute supervisor." The employer presented evidence to establish that the person whom the IW reported the injury to was a "lead linen aide" and her duties involved scheduling and organizing the tasks to be performed, but that she was not a supervisor. The actual supervisor of the department gave a statement in which she said that the "lead linen aide" was in charge when she wasn't there. While an IW's belief that the person to whom notice is given is a supervisor or manager does not establish this status, based upon the evidence presented at the CCH, the HO weighed the conflicting evidence and determined that the IW gave notice to a person in a supervisory position. Whether the lead linen aide was a supervisor for purposes of receiving notice of an injury was a question of fact for the HO to resolve. APD 980628.
Proper Notice Not Given.
The IW asserted that he injured his neck and shoulders while straining to move a piece of equipment. The IW testified that he notified a person whom he considered to be his supervisor, Mr. D, of the injury on the date it occurred. Mr. D acknowledged that he was made aware of the injury. Mr. D stated that he did not hire, fire, promote, or discipline workers, although he did direct and oversee the work done by the people in his group. Mr. D had been employed by the employer a little longer than the IW, he wasn't a supervisor, and that on occasion, the foreman would leave him in charge when the foreman was away from the job site. On the date of the injury, the foreman was present at the job site. The HO determined that the IW did not properly report the injury to a person in a supervisory capacity. The mere fact that a senior employee directs coworkers does not automatically mean that such person is a supervisor for purposes of Section 409.001. Whether Mr. D was a supervisor was a question of fact for the HO to resolve. APD 94381.
Notice Within 30 Days.
When an IW presents evidence that a supervisor was timely notified of the claimed injury within 30 days after the date of the injury, but the supervisor offers testimony that the notice was not timely given, whether the notice was timely becomes a question of fact for the HO to resolve. St. Paul Fire & Marine Insurance Co. v. Escalera, 385 S.W.2d 477 (Tex. Civ. App.-San Antonio 1964, writ ref'd n.r.e.); APD 94751.
Timely Notice Found.
The IW testified that he sustained a work related injury and that he reported the injury to his supervisor. The IW was not sure what date he went to the supervisor's office to report the injury. The IW stated that his supervisor told him to see the secretary to set up a doctor's appointment. An appointment was set, and the IW saw the company doctor within 30 days of the date of injury. The IW's supervisor indicated that while he paid the bills for the IW's medical treatment, he was unaware of what he was paying. The HO determined that the IW timely reported a work related injury to his employer. Whether the IW timely reported the injury within 30 days was a question of fact for the HO to resolve. APD 990782.
Timely Notice Not Found.
The IW testified that she tripped and injured her knee at work on September 1. In a transcribed statement, the IW had said that the injury occurred in late August. The IW stated that she informed her supervisor of a work related injury on the day it occurred. In a second transcribed statement, the IW stated that the injury occurred in March or April of "last year." In a third transcribed statement, the IW stated that she reported a knee injury to her supervisor in late August and that when he asked her if it was related to a prior work related knee injury from the year prior, she agreed that it could be. The IW then said that she didn't believe she told the supervisor that she tripped at work in August. The supervisor testified that the IW did not report an injury to him on September 1, but that she told him that her knee problems were related to an injury which occurred the previous year. The supervisor testified that he did not learn that the IW was claiming a new August or September injury until December of that year. The HO weighed the evidence and determined that the IW did not give timely notice. Whether the IW timely reported the injury within 30 days was a question of fact for the HO to resolve. APD 980979.
Notice that Injury is Work Related.
No particular form or manner is required in giving notice of an injury to the employer. Notice of an injury to the employer is sufficient if it reasonably informs the employer of the general nature of the injury and that the injury claimed is work related. DeAnda v. Home Insurance Co., 618 S.W.2d 529 (Tex. 1980); APD 041539.
Notice Sufficient.
The IW testified that she was injured when she slipped and fell at work. The IW testified that she reported the fall and an injury to her supervisor that same day. The supervisor stated that the IW reported that her back was hurting, but didn't mention a fall. The HO determined that the IW did report a work related injury. Whether the IW reported a work related injury was a question of fact for the HO to resolve. APD 981863.
Notice Not Sufficient.
The IW went to a doctor in October 1999 regarding pain in his hands. The doctor told the IW that he had CTS which was related to the IW's employment. The IW returned to work and gave his supervisor "paperwork" from his doctor which placed him on light duty. The IW merely told his supervisor that his hands hurt, and there was no indication that the "paperwork" from the doctor linked the cause of the IW's hand pain to his employment. The IW asserted that the employer knew his injury was work related at that time. The carrier presented evidence that the employer did not receive notice that the IW was claiming a work related injury until April 2000, a date shortly after the IW's termination. The HO determined that the IW failed to prove that he gave timely notice of a work related injury. Whether the IW reported a work related injury was a question of fact for the HO to resolve. APD 010084.
Exceptions to the 30 Day Rule.
If an IW fails to give the employer timely notice within 30 days of the date of the injury, the employer and the employer's carrier are relieved from liability to pay income and medical benefits for the claimed injury. Sections 409.002 and 122.1(d). Sections 409.002 and 122.1(d) provide for three exceptions to the 30 day reporting requirement. They are:
(1) the employer, a person eligible to receive notice pursuant to Sections 409.001(b) and 122.1(c), or the employer's carrier has actual knowledge of the IW's injury;
(2) the commission determines that good cause exists for failure to provide notice in a timely manner; or
(3) the employer or the employer's insurance carrier does not contest the claim.
Actual Knowledge.
Actual Knowledge of Carrier Found.
The IW asserted that he sustained a work related injury on May 31. The IW stated that he reported the injury to his supervisor several times and requested that he be allowed to see a doctor. The supervisor denied receiving any report of an injury from the IW. The IW's attorney filed a notice of injury with the carrier and the Commission with the carrier receiving it on June 28. The HO determined that the carrier had actual notice of the claimed injury when it received the notice from the IW's attorney. Because this was actual knowledge of a claimed injury came within 30 days of the date of injury, notice was proper and timely. Whether the carrier had actual notice of the claimed injury was a question of fact for the HO to resolve. APD 92038.
Actual Knowledge of Carrier Not Found.
IW did not report the claimed June 5, 1992, injury to the employer within 30 days after the date of the injury. The HO found that both the employer and the carrier had actual notice of the claimed injury because they were provided a June 5, 1992, medical report. However, that medical report was for the IW's prior unrelated 1991 compensable injury and it stated the medical test was within normal limits. The employer and carrier did not have actual knowledge based on the medical report because it was unrelated to the claimed injury and it indicated there was no injury. APD 971072.
Actual Knowledge of Employer Found.
The IW was the CEO of a computer consulting company. The IW was injured when the company plane which he was piloting crashed on the way back from a business trip. The carrier received notice of the injury approximately three months after the date of the crash. The carrier asserted that because the IW was both an employee and the employer at the time of the injury, he was required to report the injury to the carrier within 30 days of the injury. The court held that because the IW was the CEO, the employer had notice of the injury immediately. The court further noted that the 1989 Act does not require the notice argued for by the carrier; that the legislature could have adopted such a policy but declined to do so; and that the court declined to read such a policy into the 1989 Act. American Casualty Company of Reading, Pennsylvania v. Martin, 97 S.W.3d 679 (Tex. App.-Dallas 2003, no pet.); APD 992577.
Actual Knowledge of Employer Not Found.
The IW was a mid-level manager for the employer. The IW sustained a work related injury on October 20, but failed to timely report the injury to the employer. The IW testified that he did not report the injury to his supervisor because he feared losing his job. The IW asserted that since he himself was a supervisor, the employer had actual knowledge of the injury. In support of his position, the IW pointed to American Casualty Company of Reading, Pennsylvania v. Martin, 97 S.W.3d 679 (Tex. App.-Dallas 2003, no pet.) and APD 992577. The HO determined that the IW failed to give timely notice of the injury to his employer. In Martin, the IW was the CEO of the employer and had no supervisor above him. In this case, the IW acknowledged that he had a supervisor to whom he could have reported the injury. Whether the employer had actual notice of the claimed injury was a question of fact for the HO to resolve. APD 040802.
Good Cause.
The test for determining whether or not an IW had good cause for failing to timely report an injury is that of ordinary prudence; that is, whether the IW acted as an ordinarily prudent person would have under the same or similar circumstances. Hawkins v. Safety Casualty Company, 207 S.W.2d 370 (Tex. 1948). Good cause must continue up until the time notice of the injury is given, Continental Casualty Company v. Cook, 515 S.W.2d 261 (Tex. 1974); APD 950428, except that a reasonable time should be allowed for giving notice after the seriousness of the injury is suspected or determined. Hawkins, supra. The 30-day time period for reporting the injury does not "restart" on the date good cause ends. APD 93711.
Reasons or excuses commonly recognized as "good cause" include the IW's belief that the injury is trivial, mistake as to the cause of the injury, reliance on the representations of the employer or carrier, being under age, and physical or mental incapacity. Advice of third persons and ignorance of the law are frequently held not to constitute "good cause." APD 010852. The determination as to whether or not good cause exists is a question of fact for the HO to resolve. APD 001376. A HO's determination as to whether or not good cause exists for failing to timely report an injury is reviewed under an abuse-of-discretion standard. APD 040218.
Good Cause Found.
Mistake.
The IW had sustained a work related injury affecting her right arm and left shoulder in March of 1994. The IW returned to work with restrictions in April of 1996. The IW returned to her doctor in June 1996 when she developed hand and wrist pain and swelling. The IW testified that she felt this pain was new and different from what she had experienced previously, but that her doctor told her it was a flare up of RSD from the 1994 injury. Due to the hand and wrist pain, the IW was again taken off work in August 1996. The IW's doctor first noted carpal tunnel syndrome (CTS) in November 1996. A January 1997 EMG confirmed the diagnosis of CTS. The IW called the carrier and reported the CTS to the adjuster who urged her to file it under the 1994 claim. After medical coverage for the CTS was denied under the 1994 claim, the IW filed a new claim of injury in March 1997. The HO determined that the date of injury was June 1996, and that the IW had good cause for not timely reporting the injury. The IW's doctor and the carrier both believed her condition was related to the prior injury. Additionally, the employer had actual knowledge of the IW's condition. Whether the IW had good cause for not timely reporting the injury based upon mistake was a question of fact for the HO to resolve. The HO did not abuse his discretion in determining that good cause existed for failing to timely report the injury. APD 981397 and 972387.
Prompt Report After Good Cause Ends.
The IW sustained a work related knee injury on May 6 while attending a required training session. The IW continued to work and did not report the injury to her employer because she believed the knee injury was not serious and would gradually get better. On June 9 the IW resigned. By late September the IW's knee had steadily worsened to the point that it would sometimes buckle. On September 24, the IW went to a doctor for her knee. She was given medication and exercises. On October 2, the IW informed the doctor that her knee had not improved. On October 4, the IW reported the injury. The HO determined that the IW had good cause and acted as a reasonably prudent person because she had trivialized her injury and within 10 days of her first doctor's visit and within two days of her second discussion with him, she filed her notice of injury. Whether the IW promptly reported the injury after good cause ended was a question of fact for the HO to resolve. The HO did not abuse her discretion in determining that good cause existed for failing to timely report the injury and that the injury was promptly reported after good cause had ended. APD 93649.
Trivialization.
The IW was employed as a teacher and on December 17, she participated in a student/teacher volleyball game. During the game, the IW sustained an injury to her left thumb. The IW testified that the next day, her thumb was bruised and swollen and that when she attempted to play golf on December 21, she had difficulty gripping the club. The IW believed it was just a sprain and that the injury would resolve within a few weeks without medical treatment. On January 4, the IW commented to a co-worker that she may have to file a claim for her injury. On January 31, the injury had not gotten better so the IW reported the injury and sought medical treatment. The HO determined that the IW had good cause for not timely reporting her injury based upon trivialization. Whether the IW had good cause for not timely reporting the injury because of trivialization was a question of fact for the HO to resolve. The HO did not abuse his discretion in determining that good cause existed for failing to timely report the injury due to trivialization. APD 001376.
Good Cause Not Found.
Mistake.
The IW sustained a work related injury on August 19, when she raised from a bent over position and twisted. The IW stated that she did not realize she was injured until she got home and felt pain in her low back and knee. The IW underwent lumbar surgery for a herniation on October 8. The IW conceded that she did not report an injury to her employer until October 18, but stated this was because she didn't realize she had sustained a work related injury until she consulted a surgeon who told her she had. The HO determined that the IW did not have good cause for failing to timely report an injury because the evidence showed that the IW had some knowledge that her actions at work on August 19 played a causative role in her injury and she gave that history to her doctors, including her family doctor the day after the injury occurred. Whether the IW had good cause for not timely reporting the injury based upon mistake was a question of fact for the HO to resolve. The HO did not abuse his discretion in determining that good cause did not exist for failing to timely report the injury. APD 000931.
Prompt Report After Good Cause Ends.
The IW fell at work on May 1, injuring her elbows when they struck a filing cabinet. The IW stated that her elbows were immediately discolored and she had pain, but that she thought the injury was trivial until she saw her doctor on July 3. The IW admitted that she didn't report the injury until July 31. The HO determined that the IW knew the injury was no longer trivial on July 3, and that she did not have good cause for delaying her report until July 31. Whether the IW promptly reported the injury after good cause ended was a question of fact for the HO to resolve. The HO did not abuse her discretion in determining that good cause did not exist for failing to timely report the injury and that the injury was not promptly reported after good cause had ended. APD 980122.
Trivialization.
The IW was injured on June 5 when he sustained a hernia while lifting material. The IW stated that he felt pain for five or 10 minutes, stopped working for five or 10 minutes, worked the rest of the day and continued to work until August 25. The IW stated that he did not think the injury was serious until the pain forced him to go to the ER on August 25. The IW gave a history of injury to the ER as being lifting at work several months ago. A hernia was diagnosed. The HO determined that the IW did not have good cause based upon trivialization for failing to timely report the injury. The HO noted that immediate pain on June 5 was inconsistent with his two and a half month delay in seeking medical treatment. Whether the IW had good cause for not timely reporting the injury because of trivialization was a question of fact for the HO to resolve. The HO did not abuse his discretion in determining that good cause did not exist for failing to timely report the injury due to trivialization. APD 980159.
No Contest of Compensability.
A carrier that has waived the right to contest the compensability of a claimed injury by failing to comply with Section 409.021 also waives the right to raise the defense of untimely notice of injury. APD 022027-s.
Filing a Claim with DWC (C18)
Generally, an IE has one year to file a claim for compensation with DWC unless good cause exists or the employer or IC does not contest the claim. Texas Labor Code (TLC) Sections 409.003 and 409.004; 28 Texas Administrative Code (TAC) Sections 122.2 and 122.100. A claim for compensation does not necessarily have to be on a DWC Form-041, Employee’s Claim for Compensation for a Work-Related Injury or Occupational Disease, if the claim contains the information listed in 28 TAC Section 122.2(c). APD 190915.
Typically, in a death benefits case, legal beneficiaries have one year to file a claim for death benefits unless good cause exists or the legal beneficiary is a minor or legally incompetent. TLC Section 409.007; 28 TAC Section 122.100.
If an IE or legal beneficiary fails to file a claim within one year and no exception applies, the employer and IC will be relieved from liability. TLC Sections 409.004 and 409.007. 28 TAC Section 122.2(c) lists the requirements to be included in a claim for a specific injury or an occupational disease, while 28 TAC Section 122.100 (b) and (c) list requirements for a death benefits claim. Information provided in a claim may be amended at any time until DWC has disposed of the claim. APD 950881. Claims are not regarded as pleadings and are not guided by strict rules of formality. Booth v. Texas Employer's Ins. Ass'n, 132 Tex. 237, 123 S.W. 2d 322 (1938); Select Ins. Co. v. Patton, 506 S.W.2d 677 (Tex. Civ. App.-Amarillo 1974, writ ref'd n.r.e.).
Filing a Claim for Death Benefits.
[Cross reference: Other Death Benefits Issues (D00)]
Legal beneficiaries other than the Subsequent Injury Fund (SIF) must file a written claim with DWC within one year after the date of the deceased employee's death; failure to timely file a claim as required will bar the claim unless the beneficiary is a minor or legally incompetent. TLC Section 409.007 and 28 TAC Section 122.100(e); APD 042090. An untimely claim for death benefits may be found timely if good cause exists for the late filing. 28 TAC Section 122.100(e)(2); APD 042090. Each person wishing to receive death benefits as a legal beneficiary must file a separate claim for death benefits unless the claim specifically includes other people. 28 TAC Section 122.100(d).
Filing a Claim for an Occupational Disease.
[Cross reference: Date of Injury (C05)]
An IE or a person acting on the IE's behalf must file a written claim within one year after the date the IE knew or should have known that the disease was related to the employment. TLC Section 409.003(2); 28 TAC Section 122.2(b); APD 002758. An untimely claim may be found timely if good cause exists for the late filing or the employer or the IC does not contest the claim. TLC Section 409.004; 28 TAC Section 122.2(d); APD 002758.
Filing a Claim for a Specific Injury.
An IE or a person acting on the IE's behalf must file a written claim within one year after the date the injury occurred. TLC Section 409.003; 28 TAC Section 122.2(a); APD 031671. An untimely claim may be found timely if good cause exists for the late filing or the employer or the IC does not contest the claim. TLC Section 409.004; 28 TAC Section 122.2(d); APD 981824.
Good Cause.
The test used to determine whether an IE had good cause for not timely filing a claim is whether the IE acted as a reasonably prudent person would have acted under the same or similar circumstances. APD 960418. Good cause is a question of fact for the ALJ to resolve. APD 94792. The AP reviews an ALJ's determination of whether good cause exists under an abuse of discretion standard. APD 040218. Good cause must continue to the date the IE actually files the claim (Lee v. Houston Fire & Casualty Ins. Co., 530 S.W.2d 294 (Tex 1975); APD 94975); however, an IE is allowed a reasonable time to file the claim after good cause ends (Hawkins v. Safety Casualty Co., 146 Tex. 381, 207 S.W.2d 370 (1948); APD 94975). Failure to file the claim with due diligence may result in the denial of the claim.
Good Cause Found.
The deceased employee sustained a compensable fatal accident. The claimant, the employee's wife, consulted an attorney to pursue a gross negligence and a third-party claim but not a workers' compensation claim. The IC's adjuster assured the claimant that she would not need to hire an attorney because the adjuster would look after the claimant and the deceased employee's children. The IC began paying the claimant benefits beginning the month after the injury. TWCC (now DWC) received a claim for death benefits more than a year after the employee's death. The ALJ determined the claimant had good cause for the late filing. The AP affirmed, stating the claimant had good cause based on her good faith reliance on the IC's adjuster's representations and the fact that the IC's prompt initiation of benefits indicated that the claim had been filed. APD 941246.
The IE injured his back and notified the employer's secretary of his injury. Later, the IE notified the secretary that he needed to see a doctor because his back was still hurting him. The secretary told the IE to speak with an employee who was handling his workers' compensation claim. The IE asked this employee if he needed to fill out any paperwork, but the employee told him no, and that the employer had taken care of everything for the IE. The IE's medical bills were paid until nearly two years after the injury, although it was not determined at the hearing who had paid the bills. The IE contacted the IC and discovered a problem with his case. The IE immediately called TWCC, and was told he needed to fill out a form. TWCC received this form constituting the IE's written claim approximately a month after his bills stopped being paid. The ALJ determined the IE's reliance on the employee's representations that the employer had taken care of his claim for him constituted good cause. The AP affirmed, stating that a claimant's reliance upon the representations by an employer that it had filed a claim may constitute good cause. APD 94493.
No Good Cause Found.
The IE was injured when a wall clock fell on her upper back. The IE sustained a bruise and muscle spasms, but she believed the injury was trivial. Later, her symptoms got worse and she scheduled an appointment with a chiropractor over a year after the date of injury. The chiropractor diagnosed a dislocated rib, and told the IE that stress had caused her muscles to tighten and irritate the rib, and that the wall clock had probably knocked the rib out of place. The IE reported the doctor's opinion to her supervisor and then contacted the employer's home office. The day after the doctor's appointment, the home office sent report forms for the IE to fill out and return, which she did. Approximately two months after the doctor's appointment, the IC submitted a Payment of Compensation or Notice of Refused or Disputed Claim, TWCC-21, disputing the claim based on the IE's failure to timely file a claim within one year of the date of injury, and refused to pay for any treatment. Approximately a week after the IC submitted the TWCC-21, the IE called TWCC to determine why the claim had been denied. She was notified the claim had been denied because she failed to file the claim within one year of the date of injury. The IE asked for a BRC, and in a letter dated the day after she called TWCC, she received information from TWCC advising her to "[b]e sure to file a claim with the Commission within one year of your injury, using Form TWCC-41. IF YOU HAVE ALREADY FILED FORM TWCC-41, PLEASE DO NOT FILE IT AGAIN." A TWCC-41 was included with the letter. The IE did not fill out the TWCC-41 because she believed she had a year from the date she knew her injury was work-related, not the date of injury itself (which was a year prior to the date she knew her injury was work-related); she was busy at work with the approaching holiday season; she was not aware that the IC and TWCC were separate entities; she did not know whether or not she had already filed a TWCC-41 and did not want to submit a duplicate; and because she wanted to complete the form at the BRC. TWCC received the form on the date of the BRC, which was over 15 months after her injury. The ALJ determined the IE failed, without good cause, to timely file her claim. The AP affirmed, stating while good cause may exist when an IE trivializes an injury, an IE must file with reasonable promptness once the good cause ends. APD 960418.
The IE, an LVN, injured her back and neck when she turned to catch a medically dependent child. The IE's supervisor originally informed her the employer did not carry workers' compensation insurance. Two years after the injury, the IE reread her employee handbook, contacted an attorney, and had the attorney contact TWCC. The IE spoke with agency representatives two months later and was informed the employer did have insurance in place at the time of her injury. The IE did not file a claim with TWCC until the next month. The ALJ determined the IE did not meet her burden in proving she acted as a reasonably prudent person would have acted under the same or similar circumstances. The AP affirmed, stating even if the IE's reliance on the employer's representation that the employer did not have workers' compensation insurance constituted good cause until the time two years post-injury when the IE reread the employee handbook, contacted an attorney, and had the attorney contact TWCC (see APD 033132, where the AP found that an employer's similar representation provided the IE with good cause), such good cause did not continue up until the time she filed her claim. APD 950885.
Timeliness.
For a claim to be considered timely DWC must receive it within one year from the date of injury. APD 951704. 28 TAC Sections 102.3 (a)(3) and 102.3(e) discuss filing extensions when the last day of filing is a Saturday, Sunday, or when DWC is not open for business.
Tolling.
The employer is required to report to the IC the IE's reported injuries that result in absence from work more than one day or for an occupational disease. [Cross Reference: Compensability/Occupational Disease (C14)]. TLC Section 409.005. If the employer fails to deliver to the IC a written report of the injury or the IC fails to file the report of the injury on behalf of the employer according to TLC Section 409.005, the one-year period for filing the claim for compensation under TLC Sections 409.003 and 409.007 is tolled, and the one-year filing period does not begin until the day the injuries are reported as required by TLC Section 409.005. TLC Section 409.008; APD 980792.
In the case of co-employers, notice of the injury or illness given to DWC by one employer is sufficient for both employers and there is no tolling of the time period for the IE to file a claim. APD 971434.
One-Year Filing Period not Tolled.
The employer had notice of the IE’s injury, from which the IE did not lose time from work. The employer filed a TWCC-1, which was dated over a year post injury, and a copy was sent to the IE. The IC filed a TWCC-21 dated two months after the employer filed its TWCC-1, contesting compensability of the claim on the basis that the IE had not filed a claim within one year of the date of injury. A copy of the TWCC-21 was sent to the IE. The IE filed a TWCC-41 a month later. The ALJ determined the IE failed, without good cause, to file his claim within one year of the date of injury. The AP affirmed. As the IE lost no time from work as a result of the injury, the employer was not required to file a report of injury under TLC Section 409.005. APD 981824.
One-Year Filing Period Tolled.
The IE immediately reported the injury to her supervisor. The IE continued to work full-duty for two weeks after the injury, then missed half a day of work when she went to the doctor. The doctor placed the IE on light duty consisting of four-hour to five-hour workdays. The IE filed her TWCC-41 over a year after the injury. The employer filed the TWCC-1 a month after the IE filed her TWCC-41. The ALJ determined the half-day of missed work coupled with the loss of hours due to the light-duty limitations was sufficient to trigger the employer's duty to report the injury, and therefore found that the IE timely filed her claim because the one-year filing period was extended due to the employer's delay in filing the TWCC-1. The AP affirmed. APD 012742.
Extraterritorial Injury (C19)
Coverage.
An IE who is injured while working outside of Texas, or the IE's legal beneficiary in appropriate cases, is entitled to Texas workers' compensation benefits if the injury would be compensable had it occurred in Texas, and the IE has "significant contacts" with Texas or the employment is principally located in Texas. "Significant contacts" means that the IE was hired or recruited in Texas and the IE was injured not later than one year after the date of hire, or the IE has worked in Texas for at least 10 working days during the 12 months preceding the date of injury. See Texas Labor Code (TLC) Section 406.071. Whether the IE has presented enough evidence to establish extraterritorial coverage is a question of fact for the ALJ to resolve.
Coverage Found.
The employer is a musical production company that only has one office, which is located in Texas. The employer wanted to bring a musical production to Texas for two weeks followed by a two month tour around the country. The employer announced that auditions for the production would be held in Texas and another state. The IE resided in the other state and auditioned, was hired, signed a contract, and rehearsed for four weeks in that state. The contract of hire required the employer to provide workers' compensation insurance, and the employer paid the IE from its office in Texas. Rehearsals were moved to Texas approximately one week prior to the opening, and a two-week Texas run followed. The production next moved out of Texas and approximately four weeks into the tour, the IE was injured out of state. The injury was found to be compensable under the 1989 Act because the ALJ determined (1) that the injury would have been compensable had it occurred in Texas; (2) that the injury occurred within one year of the IE's date of hire; (3) that the IE worked in Texas for more than 10 working days prior to the injury; (4) that the IE temporarily resided in Texas while working for the employer; and (5) that the IE spent a substantial part of her working time in Texas. All of these determinations presented factual questions for the ALJ to resolve. APD 021735
Coverage Not Found.
The IE, who resided in Texas, worked as a boilermaker. He was injured while working for the employer, a union contractor, in a refinery in another state. The evidence reflected that the IE learned from the business manager of his union local in Texas of the job opportunity in the other state. The business manager had learned of the job from a union local official in the other state. In order to obtain this job, the IE had to get on the referral list for the union in the other state. The IE traveled to the union hall in that state, completed paperwork, was placed on the list, and was referred to the employer’s job site. The IE was injured approximately one week after he was hired.
The IE appeared to argue, among other reasons, that he had significant contacts with Texas because he was a Texas resident and had been advised of the job opportunity by the Texas union local. The employer had no contact with the IE in Texas; the employer had no contact with the IE’s union local in Texas; and the employer did not know the IE’s identity prior to his referral by the union local in the other state. The ALJ found that the IE was not hired or recruited in Texas to work for the out-of-state employer. Therefore, he did not have significant contacts with Texas so as to bring his injury under the jurisdiction of the Texas Workers’ Compensation Act. The AP affirmed the decision of the ALJ. APD 970361.
Effect of Compensation Paid in Other Jurisdiction.
An IE who elects to get workers' compensation benefits paid by another state may not recover workers' compensation benefits under the laws of Texas. TLC Section 406.075. In some instances, an IE may receive benefits from another state without making an election to do so. In such a case, the IE may still pursue benefits in Texas and the amount the IE received in benefits from the other state will be subtracted from the benefits paid under Texas law. See Section 406.071, APD 032459. [Cross reference: Election of Remedies (C20)]
In APD 032459, the decedent sustained a compensable fatal injury while on temporary assignment in Florida. The beneficiaries made no claim for Florida workers' compensation benefits, but the Florida IC began paying death benefits to the beneficiaries. The beneficiaries filed a claim in Texas. The beneficiaries are entitled to Texas death benefits less the benefits paid by the Florida IC because there was no election to be paid Florida death benefits.
Election of Remedies (C20)
Election of remedies is an affirmative defense raised by ICs to an IE's claim under the Texas Workers' Compensation Act. Allstate Ins. Co. v. Perez, 783 S.W.2d 779 (Tex. App.-Corpus Christi 1990, no writ). The IC has the burden of proof on this issue. APD 032585. In such cases, the IC must prove that the IE has elected to seek recovery/treatment from a source outside of the workers' compensation system, and that it would be unfair to allow recovery from two different sources for the same injury. Whether an IE has made an election of remedies in a given scenario is a question of fact for the ALJ to resolve. APD 93662. In Bocanegra v. Aetna Life Insurance Company, 605 S.W.2d 848 (Tex. 1980), the Texas Supreme Court held an election of remedies is only made as a result of an (1) informed choice (2) between two or more rights, remedies, or states of fact (3) which are so inconsistent as to (4) constitute manifest injustice. Also, the Bocanegra case makes clear that an election-of-remedies defense should be imposed sparingly, reserved for instances where the "assertion of a remedy, right, or state of facts is so unconscionable, dishonest, contrary to fair dealing, or so stultifies the legal process or trifles with justice or the courts as to be manifestly unjust." Id at 851. APD 990525.
Current Viability of the Election-of-Remedies Defense.
In Valley Forge Insurance Company v. Austin, 65 S.W.3d 371 (Tex. App.-Dallas 2001, pet. denied with per curiam opinion), the court of appeals held the election of remedies affirmative defense was abolished by Texas Labor Code (TLC) Section 409.009 because it permitted subclaims by ICs and health care providers as a means to prevent double recoveries. The Texas Supreme Court affirmed that decision for other reasons and stated it left open the question of whether TLC Section 409.009 abolished the election-of-remedies affirmative defense. Valley Forge Ins. Co. v. Austin, 105 S.W.3d 609 (Tex. 2003). See also APD 030473.
Extraterritorial Jurisdiction.
An IE who elects to get workers' compensation benefits paid by another state may not recover workers' compensation benefits under the laws of Texas. TLC Section 406.075. In some instances, an IE may receive benefits from another state without making an election to do so. In such a case, the IE may still pursue benefits in Texas and the amount the IE received in benefits from the other state will be subtracted from the benefits paid under Texas law. See TLC Section 406.075(b), APD 032459. [Cross reference: Extraterritorial injury (C19)].
In APD 032459, the decedent sustained a compensable fatal injury while on temporary assignment in Florida. The beneficiaries made no claim for Florida workers' compensation benefits, but the Florida IC began paying death benefits to the beneficiaries. The beneficiaries filed a claim in Texas. The beneficiaries are entitled to Texas death benefits less the benefits paid by the Florida IC because there was no election to be paid Florida death benefits.
Professional Athlete.
A professional athlete employed under a contract for hire or a collective bargaining agreement who is entitled to benefits for medical care and weekly benefits that are equal to or greater than the benefits provided under this subtitle may not receive benefits under the Act and the equivalent benefits under the contract or collective bargaining agreement. An athlete covered by such a contract or agreement who sustains an injury in the course and scope of the athlete's employment shall elect to receive either the benefits available under this subtitle or the benefits under the contract or agreement. TLC Section 406.095. 28 Texas Administrative Code (TAC) Section 112.402(a) lists the instances in which medical care available to a professional athlete subject to Section 406.095 is equal to or greater than medical benefits under the Act.
In Gulf Insurance Company v. Hennings, the IE, a player for the Dallas Cowboys Football Club, Ltd, sustained a neck injury during a game. The employer terminated the IE's contract in March 2001. After his termination, the IE received a payment as provided by an injury protection clause in his contract, because he was severely injured and terminated while injured or rehabilitating from his injury. He also received severance pay unrelated to his injury. Although the employer had paid medical expenses for the IE's injury, all medical benefits under the contract ceased when the contract was terminated. The IE filed a claim for workers' compensation benefits. The ALJ determined that the IE was not barred from pursuing workers' compensation benefits because his employment medical benefits were not equal to or greater than the benefits under the Act, as the IE's medical benefits had expired when the contract was terminated. On appeal the court stated the Act requires that both income and medical benefits from employment, considered separately, must each be equal to or greater than the corresponding income benefits and medical benefits available under the Act. The court held that the IE was not precluded from workers' compensation benefits in addition to his employment benefits. Gulf Ins. Co. v. Hennings, 283 S.W.3d 381 (Tex. App.-Waco 2008, pet. denied).
Liability of Subsequent Injury Fund (SIF)/ Carrier Reimbursement (C21)
If an IE is entitled to LIBs and an IC contends the SIF is liable for payment under Texas Labor Code (TLC) Section 408.162, the IC may file a petition with DWC pursuant to 28 Texas Administrative Code (TAC) Section 131.3 to request payment of LIBs from the SIF.