Luis Cristain sustained an injury at work. His employer, Hunter Buildings and Manufacturing, fired him soon after he fell from scaffolding. Eight days later and a few days after filing a claim for worker’s compensation benefits, the employer moved him to a position where he would be supervised by Kevin Edmonds. Mr. Edmonds had already been scrutinizing Mr. Cristain’s performance. Now, he would have direct supervision.

The job was a new job, which did not otherwise exist before. Cristain went from being a general helper to a “Flow Monitor,” a job for which he had no training or experience. Immediately, Edmonds accused Cristain of taking unnecessary breaks. Three days later, the supervisor gave the worker a written warning for allegedly not picking up some paperwork. Mr. Edmonds investigated the scaffolding incident and found Cristain at fault.

Two weeks after the accident, Mr. Edmonds met with Mr. Cristain about the scaffolding fall and fired him. Mr. Edmonds claims Mr. Cristain became loud and profane at the meeting.

Mr. Cristain filed suit for worker’s compensation retaliation and age discrimination. The district court denied the motion for summary judgment. At trial, the court initially denied the defendant’s motion for judgment as a matter of law. But, when the employer renewed the motion for judgment as a matter of law, the court granted the motion in regard to the worker’s compensation claim. It let the age discrimination claim proceed to the jury. The jury found for the defendant on the age claim.

On appeal, the Fifth Circuit panel noted that proximity in time can support a showing of worker’s compensation retaliation. The Texas caselaw notes proximity of weeks or months will support a filing of retaliation. Here, Mr. Cristain was fired two weeks after his injury. That is a “stark temporal proximity,” said the appellate court. The employer did not follow its own internal procedures for disciplining a worker. It skipped steps. Supervisor Edmonds openly suggested Cristain did not truly suffer an injury. During trial, the employee presented evidence of other workers who submitted worker’s compensation claims. Of eleven such workers, two were fired within 30 days of the injury and four others were terminated within 90 days of their injuries. Too, the employer’s explanation for the termination shifted over time. These facts amounted to “considerable” evidence supporting his claim, said the court.

The panel reversed the granting of the motion for judgment as a matter of law in regard to worker’s compensation reprisal claim. The Court then ordered a new trial regarding that claim. See the opinion in Cristain v. Hunter Building and Manufacturing, LP, No. 17-20667 (5th Cir. 11/14/2018) here.

Unlike Texas, some states still have a viable worker’s compensation system that produces valuable benefits for workers. One such state is California. So, as we might expect, the worker’s compensation docket is much more competitive than here in Texas. One defense firm sought an extra edge. It allegedly hacked into online stored legal files for worker’s compensation claimants. At a hearing in California, the defense firm pulled out the intake packet for one claimant, Hector Casillas. The packet included the retainer agreement the claimant signed with his lawyer. The defense lawyer was asked by the judge how he obtained the packet. The defense lawyer offered a various explanations and then finally said he did not know.

Hector Casillas and the law firm has now filed a class action lawsuit accusing the defense firm, Knox Ricksen, four attorneys, a claims service company, and two insurance company employees of unlawfully hacking into attorney-client files. See ABA Bar Journal report. In a separate lawsuit, the same law firm, Reyes and Barsoum, filed suit in Los Angeles alleging the same defense firm obtained more than 30,000 files when it hacked into files stored with HQ Sign-up Services, Inc. Reyes and Barsoum used HQ Sign-up to store confidential files.

Wow. That is taking “zealous” advocacy way too far….

The arbitration system is harmful to employees. ERISA is often harmful to employees. So, what happens when a case involves both arbitration and ERISA? Mucho harm to employees. That is the subject of a NPR report that address the ERISA law and worker’s compensation. See NPR report. As the report explains, Kevin Schiller was a building engineer for Macy’s in Texas. After 21 years with Macy’s, he suffered a bad fall at work. He suffered a Traumatic Brain Injury. For some time, the injury remained undiagnosed. He experienced bad headaches, memory loss, disorientation and extreme sensitivity to bright light. Macy’s thought he was faking it. One doctor said he was psychosomatic. Other doctors told him they were there to observe him, not treat him.

Like many employers in Texas, Macy’s opted out of the state worker’s compensation system. It relied on private, employer provided medical insurance. Mr. Schiller, however, could not get treatment. No one believed he had an actual illness. He lost his job, his house and his pickup. He spent $90,000 of his own money seeking treatment and eventually was diagnosed with TBI.

Because Macy’s employees were required to sign a mandatory arbitration agreement, his appeals for ERISA benefits were heard by arbitrators who were paid by Macy’s. Not surprisingly, he lost his early appeals. Eventually, in a separate proceeding, he was awarded Social Security Disability benefits.

[All I can say is big deal. Social Security disability benefits generally amount to less than $15,000 per year. So, he went from $80,000 to about $12,000 per year.]

Eventually in his appeals, he succeeded, sort of. An arbitrator did eventually award him $713,000. But, that was only because he had the resources to obtain fair and impartial medical opinions. Too, he would have received at least twice that in a lawsuit against his employer, said Ted Lyon, a Dallas attorney. Since, he was injured at the age of 52 and he would have worked until he was 65, Mr. Lyon thinks $5 million would have been possible with the right jury. He means that because of how Mr. Schiller was treated by his employer and the long delay, a jury might have awarded millions of dollars.

Much of the $713,000 award went to legal and medical bills. The rest remains in a trust. But, as Mr. Schiller adds, most of the award will be gone before he is gone.

20 years ago, Kevin Schiller would have filed a worker’s compensation claim. He would have received very little benefits, but he would;d have receive medical coverage and a very reduced income for a few years. The policy since 1901 or so has been that if an employer does not have worker’s compensation, that it can be sued for negligence. Personal injury lawsuits or worker’s compensation was always the choice for employers in the state. Now, they have a third choice: medical insurance plans that can be corrupted to avoid paying anything.

And, medical insurance, unlike worker’s compensation, pays nothing to replace lost income. Worker’s compensation would pay some small amount as lost income.

Now, with the opt-out provisions we have in Texas, the Kevin Schillers gets little to nothing. Jeff Dahl, a San Antonio lawyer, explains. The ERISA statute was originally passed on 1974 to protect fringe benefits. But, it has now become a “shield” for the employer.

National Public Radio and Propublica have been running a series on worker’s compensation systems in various states. One such state is Texas. Billy Shawn Walkup worked for Tysons Foods in Vernon, Texas. Tyson is self-insured, meaning they do not carry worker’s compensation insurance. Instead, the company itself pays for the medical care of workers injured on the job. Billy Shawn was one such worker. He fell on wet stairs at the Vernon plant in 2011. He sustained injuries to his back. About two weeks after the fall, a manager approached him with a waiver and asked him to sign it. The waiver would prevent any lawsuit against Tyson. Wanting to protect his job, Billy Shawn signed the waiver. He continued working with restrictions. The pain worsened and he missed too many days. So, the company fired him. Tyson, did, however, continue paying for his medical care for another year.

But, then his doctor determined that he had multiple disc potrusions and numbness in his legs. The numbness would cause him to collapse on occasion. So, Tyson sent him for a so-called independent medical exam. The doctor, selected by Tyson, was a 77 year old doctor who had once been disciplined for not documenting a physical exam. After a 35 minute exam and reviewing his medical records, the doctor found that his back was simply strained. No further medical care was necessary. Tyson cut off Mr. Walkup’s medical benefits. The doctor did not return Propublica’s attempts to discuss the Walkup case.

Billy Shawn now gets around with a cane a motorized wheelchair. He has applied for social security disability benefits and hopes to get surgery someday.

And, of course Tyson Foods lobbied in Texas for the law that allows employers tho offer a waiver after an injury. Previously, a waiver could not apply to prior injuries. Under the old law, the sort of waiver signed by Billy Shawn would not have applied to any injury incurred before the date of the waiver. But, in 2005, a deal was struck in which an injured worker could have ten days to see a doctor and then decide whether to sign  a waiver. The problem with that law, however, is that many injuries do not manifest themselves until long after ten days. This was Tyson’s law and it worked when the corporation needed it.

Tyson Foods is headquartered in Arkansas. Arkansas is where the worker’s compensation reform train first started back in the 1990’s. Now, Texas and Arkansas are seen by worker’s compensation opponents as the models of so-called reform. But, as I have heard from many workers, the worker’s compensation system in Texas is now heavily weighed in favor of the employer. Billy Shawn found that out the hard way.

See Propublica report.

There are some areas in which Texas does not want to be the national leader. But, Texas is the national leader in work place deaths. The state had 524 work place deaths in 2014. That was an increase from the 508 deaths in 2013. Texas has been the national leader in work place deaths 11 of the last 14 years.

The next highest state in 2014 is California, which has a larger population that our state. California had 334 work place deaths last year. In the 2010 census, California had 35 million people, compared to Texas’ 25 million. So, despite having about a 40% larger population, the no. 2 state had some 30% fewer deaths.

Texas is the only state not to require worker’s compensation coverage. See Texas Tribune report. I am sure there is a connection. Without worker’s compensation, some employers may lack financial incentive to focus on safety as they should. A very young man once came to see me because he had been fired from his job after he sustained a serious injury at a bar. He was very concerned about his medical bills. The bar was supposedly self-insured and it refused to pay the young man’s hospital bills. He was afraid his father, who lived out of town, would be upset with him. Before I could decide to accept his case or not, he lost control and went to the bar and took a hostage or two. He ended up in jail.

Such is the state of worker’s compensation in Texas.

The Texas worker’s compensation system has been broken for many years, ever since the state passed a pack full of so-called reforms in the late 1980’s. Now, we learn that Texas Mutual Insurance Company, one of the largest providers of worker’s compensation insurance in the state, has a sweetheart deal with the Travis County District Attorney’s Office. Texas Mutual refers cases to the Travis County D.A. In return, Texas Mutual pays the salaries of prosecutors and investigators within the DA’s office. As Roy Kyees found out when he was prosecuted for alleged worker’s compensation fraud, the prosecutor and investigators essentially accept whatever cases Texas Mutual refers. Mr. Kyees won his criminal case for alleged fraud. He then sued Texas Mutual for malicious prosecution. He settled his case for less than $10,000. See Texas Tribune report.

According to the news report, many insurance companies enter into deals like that with District Attorneys in various states. But, in all other states, the insurance companies enter a pooled arrangement in which their funds are pooled and then contributed to the D.A. These units prosecute complicated fraud claims, for which the local D.A. lacks resources. When Ronnie Earle first signed the contract with Texas Mutual, the agreement was to prosecute major fraud cases, not low dollar cases like worker’s compensation claims. Typically, worker’s compensation claims may involve only some $5,000 in restitution. But, unaware of the contract terms, the Travis County D.A. unit prosecutes any and all claims referred by Texas Mutual. It truly is justice for hire. The unit is called the Travis County Worker’s Compensation Fraud Unit.

I have only infrequent first-hand contact with worker’s compensation claimants. But, when I do, I notice 1) it is extremely hard to find a lawyer who represents claimants and 2) the worker’s compensation rates are incredibly low. For someone injured in the cause of his/her employer, it is very difficult to live on half your former income. And, often the claimant has to fight with the doctor’s hired by the insurance company to obtain that one-half income.

The Worker’s Compensation Fraud unit has never taken a case against Texas Mutual itself. Nor has it ever prosecuted a case involving an insurance company other than Texas Mutual. Yes, that sounds a lot like justice for hire.

Mr. Kyees settled his claim with Texas Mutual for less than $10,000. He refused to agree to a provision that would have kept the agreement confidential. Today, Texas Mutual says the system worked the way it should have. The prosecutor dropped the case when Mr. Kyees’ lawyer produced a letter showing he had had indeed reported his income from a new job. But, the scary part is that the senior prosecutor says she would not have dropped the case. The senior prosecutor says she had actually told the junior prosecutor not to drop the case against Mr. Kyees.

In February, 2015, the Texas Supreme Court ruled that persons cannot sue worker’s compensation companies for malicious prosecution. See that decision in In Re Crawford and Co., No. 14-0256 (Tex. 2/27/15) here. The decision is per curiam, meaning it was not even assigned to an author. So, there will be no more lawsuits like Roy Kyees’ lawsuit. Texas Mutual can enjoy virtual immunity from future disregard of the facts of a case.

I first wrote about this issue here.  John Gibson, a lawyer in North Texas, picked a name for his blog, www.texasworkerscomplaw.com.  The Texas Department of Insurance, Workers Compensation Division, sent him a "cease and desist" letter accusing him of violating a state statute that forbids the use of "texas" and "workers compensation" in connection with advertising.  The statute apparently dates back to the days when workers compensation was a lucrative area and some lawyers sought to advertise their expertise in workers compensation law.  Now, of course, few Texas lawyers accept workers compensation cases.

Mr. Gibson sued the state.  He argued the department’s actions violated the First Amendment.  The district court found in favor of the Division of Workers Compensation (DWC).  

But, on appeal, the Fifth Circuit in New Orleans  agreed with Mr. Gibson.  A panel of three judges found the state did not make a "serious" attempt to tailor the statute to avoid First Amendment concerns.  The court recognized that a domain name could constitute commercial speech  if the name is used "almost exclusively" for commercial purposes.  See ABA Bar Journal report.  The Fifth Circuit found that the name of the blog was not necessarily a solicitation.  Even if it is a solicitation, the blog and domain name are not necessarily related to Mr. Gibson’s law practice.  Mr. Gibson does practice workers compensation law.  But, his blog is not "directly" related to his practice.  So, attorney solicitation cases do not apply.  The court seemed to appreciate the "informational" aspect of a blog, as opposed to web sites which are more like advertising. 

The Fifth Circuit also found that there is nothing inherently deceptive about the domain name, so it is subject to First Amendment protection.   See Fifth Circuit opinion here.  A state could still regulate speech that is not inherently deceptive if the state can show a carefully tailored state interest.  But, said the court, the state of Texas could not make such a showing. 

The Division of Workers Compensation had also argued that the public could confuse the DWC with the blog.  But, found the court, DWC did not offer sufficient briefing of that sort of possible confusion. The appellate court remanded that portion of the case back to the lower court for further factual findings regarding the constitutionality of the state statute. 

Many laypersons people are familiar with the retaliation part of Title VII of the Civil Rights Act of 1964.  That anti-retaliation provision prohibits retaliation against someone who opposes discrimination.  Title VII is a federal statute.  Texas is an at-will state.  But, even so, Texas does have a few state anti-retaliation statutes.  

Texas prohibits reprisal against an employee who reports abuse or neglect of a resident at a nursing home.  Texas Health & Safety Code Sec. 242.133.  Such a lawsuit must be filed within 90 days of the alleged reprisal.  

An employee is protected against being ordered to commit an illegal act.  This claim is known as a Sabine Pilot claim, after Sabine Pilot v. Hauck, 687 SW 2d 733( Tex. 1985).   The refusal to commit an illegal act must be the sole cause of the termination.  I previously discussed an important case regarding the Sabine Pilot action here.  

An employee is also protected because he/she served on a jury.  Texas Civil Practice & Remedies Code Sec. 122.001.  An employee who believes he/she has suffered retaliation due to jury service has two years in which to bring such a claim.  The damages are limited, but still, this statute does offer some protection.  

Also, state or local government employees are protected if they report violations of law by their employer.  See Texas Government Code Sec. 554. The good faith report of the violation of law would need to be made to an appropriate law enforcement agency. This statute is known as the Texas Whistle Blower Statute.  It is only available to government employees. 

While this list is not completely exhaustive, these are the few protections we Texas employees have which actually have some teeth.  

 

Worker’s compensation protects employees who suffer on-the-job injuries.  The worker’s compensation scheme was devised back in the 1920’s and 1930’s as a way to prevent lawsuits against employers.  The intent was to provide some modest level of compensation for workers who get injured.  In return, employees would give up the right to file personal injury lawsuits against their employer.  Employers would then avoid unpredictable lawsuits which could result in large verdicts.  

Over time it became necessary to provide incentives for employers not to take action against employees who file worker’s compensation claims.  The Texas Labor Code provides for a lawsuit based on worker’s compensation retaliation.  See Sec. 451 of the Texas Labor Code.  If a worker suffers reprisal for filing a worker’s compensation claim, then that worker can sue the employee for retaliation. 

In recent years, the Texas courts have limited the worker’s comp protections.  In the 1990’s, for example, the Texas Supreme Court addressed the situation concerning employers who are not enrolled in the Texas Worker’s Compensation System but who do have some sort of health insurance for workers who get injured.  These employers are considered to be "self-insured" for purposes of worker’s comp insurance.  Would such employers be subject to the anti-retaliation provision?  No, said the Texas Supreme Court.   Such employers are not included in Sec. 451.  That is, if an employer is self-insured, they can fire an employee who files a on-the-job injury health claim.  Firing such an employee would not be retaliation under Sec. 451.  See Texas Mexican Railway Co. v. Bouchet, 963 S.w.2d 52 (Texas 1998). 

Now, the Texas Supreme Court has held that local governmental subdivisions are not covered by Sec. 451 either.  In fact, they have overruled their prior decision to the contrary, City of La Porte v. Barfield, 898 S.W.2d 288 (Tex. 1995).   In this new decision, the Supreme Court has found that Sec. 451 did not waive governmental immunity, after all.  See Travis Central Appraisal District v. Norman, No. 09-0100 (Tex. 4/29/2011).  The Court bases its decision on some amendments to Sec. 504, a companion article, which, in the view of the Court, retracted prior waiver of governmental immunity. 

Governments must waive immunity to be sued.  That is a precept as old as the United States.  So, now, according to the Texas Supreme Court, the state legislature did not waive governmental immunity.   Government workers can now suffer retaliation if they pursue their right to file a worker’s compensation claim.  

A Lubbock, Texas lawyer has filed suit against against the Texas Department of Insurance, Worker’s Compensation Division because the Texas Dept. of Insurance sent him a "cease and desist" letter.  The TDI had sent John Gibson a letter warning him to stop using the words "Texas" and "worker’s compensation" in the web address.  Mr. Gibson operates a web site called www.texasworkerscomplaw.com.  The TDI accused Mr. Gibson of violating a provision of the Texas Labor Code which prohibits use of the words "texas" and "workers compensation" in connection with advertising and solicitation for business.  In his lawsuit, Mr. Gibson argues this provision is unconstitutional as a violation of the First Amendment.  See Texas Lawyer report.  

I am sure that provision must date from the bad ole days of workers compensation litigation, which at one time was lucrative.  Workers compensation was the subject of much advertising as late as the 1980’s prior to so-called tort reform.  Now, very few lawyers practice workers compensation law.  More importantly, blogs have been seen by most observers as not advertising and more as an educational tool.  For example, law firm news letters are exempt from the advertising rules because they are seen as more educational than solicitations for business. This will be an interesting lawsuit as it explores the nature of blogs.