Texas Injury Lawyers Blog

Published on: May 20, 2014

Texas Court of Appeals Upholds Lower Court Ruling Denying Injured Worker Lifetime Benefits

Recently, the Texas Court of Appeals affirmed a lower court ruling that an injured worker could not receive lifetime workers compensation benefits.

In Menchaca v. Insurance Company of the State of Pennsylvania, Vincente Menchaca was injured on the job in 1994. Though he received workers compensation disability benefits, he was denied lifetime benefits despite claiming that he had total loss of use in both hands at or above the wrist. Menchaca went through the workers compensation administration review process before he brought a lawsuit against his employer’s workers compensation insurance carrier, the Insurance Company of the State of Pennsylvania (ICSP). In the lawsuit, he sought court review of the Texas Department of Insurance Division of Workers’ Compensation decision that he was not entitled to lifetime benefits. After the trial court sided with the Insurance Division, Menchaca appealed.

ICSP filed a motion for summary judgment, arguing that there was no genuine issue of material fact that Menchaca’s hands still possessed “substantial utlity,” and that his ability to gain and keep employment did not depend on the loss of use of his hands. ICSP offered previous testimony from Menchaca stating that he worked for two different attorneys since he left ICSP’s client, and that he stopped working for the second one due to “Army-related injuries” flaring up. Menchaca also allegedly admitted that he walked with a cane using both hands, could write, had a driver’s license, and lived alone, suggesting that whatever his injuries, he could still lead an independent life. Menchaca responded by objecting to the opinion testimony and medical report of ICSP’s medical expert, who evaluated him in May 2010. The trial court ruled in ICSP’s favor, and Menchaca again appealed.

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Published on: May 9, 2014

Texas Department of Transportation Launches a Share the Road Campaign to Spread Awareness of Motorcycles

By Carabin Shaw

To cut down on the number of motorcycle accidents, especially fatalities, the Texas Department of Transportation has launched a campaign called Share the Road: Look Twice for Motorcycles.

Last year, 494 motorcycle riders died in collisions and overall, there were 4,339 crashes involving other vehicles. San Antonio was the city with the most fatalities, at 37, followed by Houston with 32, Dallas with 24, Austin with 12, and Fort Worth with 11. The Share the Road campaign hopes to increase car driver awareness of motorcycles. Due to motorcyclists’ “smaller profile,” it can be difficult for drivers of other vehicles to judge the speed and distance of an approaching motorcycle. As a result, too often a driver will say that he or she never saw the motorcycle before a collision.

Part of the Share the Road campaign will be a Bike Counting Game, which car drivers will be encouraged to play with motorcycles. The game will involve one passenger in the car spotting a motorcycle and calling out to the other occupants of the vehicle. That prevents the driver of the car from going into “automatic” mode and not focusing on the other types of vehicles on the road. Motorcycle riders claim that two things they frequently see drivers do are text while driving and overall remain focused on just what is ahead of them. As a result, motorcycle riders must remain defensive at all times. Some report getting nicked and almost driven off the road by inattentive drivers.

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Published on: May 6, 2014

Texas Court of Appeals Affirms Summary Judgment Motion Against Party Injured in a Car Accident

By Carabin Shaw

Recently, the Texas Court of Appeals of the Fifth District ruled against a plaintiff who had been injured by a car accident due to the statute of limitations having elapsed.

In Weeks v. Cockrum, Terry Weeks filed a lawsuit following a car accident in September 2009, claiming that the defendant had operated her vehicle in a negligent manner. Less than two years after the accident, Cockrum temporarily left the state from June 16, 2011 to June 19, 2011. Then in September 2011, Weeks filed the lawsuit against Cockrum. Cockrum denied Weeks’s claims and argued that Weeks was barred from bringing a lawsuit by the statute of limitations. The accident had occurred on September 15, 2009, and Weeks had filed the complaint on September 19, 2011. Weeks countered that because Cockrum had left the state, a tolling provision in place extended the statute of limitations for the three days he was gone. The trial court ruled in favor of Cockrum and Weeks appealed.

The Court of Appeals first examined the state’s two-year statute of limitations, which states that the limitations begin to run in a personal injury case at the time of injury, whether or not the injured [arty was aware of the injury. At the same time, the Texas legislature also created a tolling provision that lengthened the time to file a lawsuit under certain circumstances. These circumstances include “the absence from this state of a person against whom a cause of action may be maintained.” That said, while Cockrum did leave the state, the Court of Appeals noted that Weeks never seemed to be aware of his circumstances, and there was no evidence that Cockrum could not have been served otherwise.

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Published on: April 21, 2014

While Ethan Couch Avoids Paying High Fees For His Treatment, One Family Prepares to Take Him to Trial

By Carabin Shaw

Ethan Couch continues to cause outrage after getting a judicial slap on the wrist for killing four people and seriously injuring one. However, one family hopes that bringing him to trial will force him to be accountable.

Couch receiving probation for his crimes based, in part, on his wealthy parents’ vow to shoulder the cost of a $450,000 per year treatment program. Yet now it appears that they will not need to pay that cost at all. Instead, Couch has been sent to a state hospital in Vernon, where the daily charge is $715. But Couch’s parents’ cost will be just $1,170 per month — or five percent of the overall treatment costs. As for who pays for the remaining $20,000 per month, that falls on the taxpayers.

Meanwhile, families of the victims have reached settlement agreements with the Couch family, except for that of 13-year old Lucas McConnell. Lucas and his family were dear friends with one of the victims, youth pastor Brian Jennings.

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Published on: April 18, 2014

While West, Texas Commemorates Anniversary of Factory Explosion, State and Federal Lawmakers Fail to Act

By Carabin Shaw

Residents of West, Texas recently commemorated the one-year anniversary of a major fertilizer explosion that killed 15 people, injured 200, and destroyed homes, schools, and a nursing home. One concern of many is that despite this deadly lesson, not enough has been done to implement new safety rules that would prevent a similar catastrophe from occurring.

In April 2013, a fertilizer plant that had operated for more than 50 years on the north side of town exploded, killing first responders who arrived to contain a fire in the facility. No plant workers were killed, but that may have been merely good fortune, as the Occupational Safety and Health Administration (OSHA) had fined the plant previously for improper storage of anhydrous ammonia. However, OSHA’s fine was for just $30, when it could have been for as much as $1,000. It turned out that the damage from the plant explosion would amount to $100 million.

While investigators have determined that stored ammonium nitrate caused the explosion, they still do not know what caused the fire that ignited it.

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Published on: April 11, 2014

Lubbock Recycling Company Cited For 24 OSHA Violations, 20 Serious

By Carabin Shaw

A Lubbock, Texas recycling company was recently cited by the federal Occupational Safety and Health Administration (OSHA) for numerous health and safety violations. Jarvis Metals Recycling, Inc. received 24 violations total, as well as a proposed penalty of $64,400.

The health and safety violations included exposing workers to unguarded machinery and electrical, noise, chemical, and fall hazards at the facility on Olive Avenue. Specifically, the violations consisted of failure to maintain electrical components with regard to standards for safe electrical installations; failure to guard industrial machinery; failure to install a completed guard rail system; failure to train workers about hazards posed by cadmium and lead; failure to train workers in how to avoid falling and being struck by hazards while operating powered industrial trucks; failure to prevent too much exposure to noise; failure to provide a program that would help workers retain their hearing; failure to properly store cylinders containing compressed gas; and failure to label propane that had been stored properly. Of the 24, 20 were considered to be “serious” violations, which meant that there was a substantial probability of death or serious physical harm that could have resulted from the hazard, and that the employer either knew or should have known.

Meanwhile, the four “not serious” violations consisted of failure to remove damaged slings so that they would not be used; failure to issue approved respirators; failure to establish a program that aided people’s respiration; and failure to repair stairs that had been damaged. Less serious violations were those that had an effect on the worker’s job or health, but would likely not result in death or serious harm.

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Published on: April 3, 2014

Mother From Irving, Texas Drives Drunk, Causes the Death of Two of Her Children

By Carabin Shaw

Recently, two children from Irving, Texas were killed in a vehicle crash caused by drunk driving. The tragic twist: the intoxicated person behind the wheel was their own mother.

Crystal Suniga, 30 years old, was driving her 2003 Honda Pilot SUV on a Saturday evening, near Gilbert Elementary School, when she lost control of her car. The SUV then slammed into two cars that were parked in the driveway of a nearby home, before rolling over onto its side and coming to rest against the house.

At the time, Suniga was transporting her four children, who were between the ages 10 and 16 years old. Two of her sons, ages 10 and 14, became pinned under the SUV and ended up dying at the scene of the accident. Her other two children, a 16-year-old son and 12-year-old daughter, were taken to Children’s Medical Center in Dallas. The 16-year old reportedly suffered serious injuries, while the 12-year old’s injuries were considered to be minor. Suniga suffered only minor injuries.

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Published on: March 24, 2014

Texas Court of Appeals Upholds Jury Award of Over $300,000 in Injured Construction Worker Case

By Carabin Shaw

The Texas Court of Appeals recently found an employer liable for an employee’s injuries due to its failure to maintain workers compensation insurance. As a result, the employer was required to pay the injured employee the amount of $310,607.48 for injuries sustained from a forklift accident on the job site.

In JC General Contractors v. Chavez, Teodoro Chavez worked as a laborer on a construction site for J.C. General Contractors in May 2006. Equipment for the site included a forklift with a basket attached that was used to lift workers to higher parts of the structure. On the day of the accident, the construction superintendent told Chavez to get into the basket to be listed up to take measurements. Chavez was unable to secure the basket, which was attached to the forklift by chains, because the superintendent had forgotten the key to the chain locks. While Chavez was wearing a safety harness, it was attached to the basket, not the forklift. When the basket was raised to a height between 10 and 20 feet, it fell forward and as a result, Chavez suffered a broken collarbone, bruised lungs, internal bleeding in his liver, two fractured ribs, a broken wrist that required surgery, a fractured skull, and a traumatic brain injury that resulted in memory loss and other mental issues.

Because J.C. General Contractors did not have workers compensation insurance, Chavez was not barred from filing a lawsuit. At trial, it was established that the forklift was not designed to lift laborers. However, J.C. General Contractors argued that Chavez was responsible for the accident due to his taking cocaine earlier that day. One of his coworkers testified that he saw Chavez snorting cocaine that morning, and that he was acting hyper, jumping up and down in the basket right before it fell. A blood test confirmed that Chavez tested positive for cocaine, and Chavez admitted to using it, but claimed he had done so four days prior. The trial concluded with the jury determining that Chavez’s intoxication was not the cause of the injury, but rather the superintendent’s misuse of the forklift. The jury awarded $100,000 for physical pain and mental anguish sustained in the past and to be sustained in the future, more than $135,000 for medical care, $50,000 for physical impairment, and $25,000 for lost earning capacity. J.C. General Contractors appealed.

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Published on: March 18, 2014

Intoxicated Driver Kills Three, Injures 22, After Plowing Into Crowd at South By Southwest Festival in Austin

By Carabin Shaw

In a recent tragic episode, three people were killed and two dozen injured after a car plowed into a substantial crowd gathered near an Austin nightclub while the South By Southwest festival was in progress. The driver of the speeding car was allegedly trying to evade the police.

The alleged facts of the situation began just after midnight, when police attempted to stop the driver when he was stopped by a gas station situated near Interstate 35. Then 21-year-old was Rashad Charjuan Owens who was from Killeen, Texas — whom police suspected had been drunk — got into his car and fled authorities. However, Owens went the wrong way down 9th Street in Austin’s downtown. He then blasted through barricades set up by the police and made a right turn onto Red River Street. In the process, he struck several festival goers who had been standing near the Mohawk nightclub following concert at South By Southwest. The car may have been traveling at speeds up to 70 miles per hour.

Police were finally able to reach Owens after his car ran into a taxi and was forced to stop. Owens then allegedly tried to flee the scene, but the police caught him and used Tasers to disable him in a nearby parking lot.

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Published on: March 12, 2014

Texas Court of Appeals Rules That Third Party Hospital Can Sue Employer to Pay For Employee’s Medical Care

By Carabin Shaw

Recently, the Texas Court of Appeals overturned a trial court’s judgment against the medical center that provided care to an injured worker in Hand and Wrist Center of Houston v. Maintenance Supply Headquarters.

Daniel Contreras was an employee for Maintenance Supply when he injured his hand in June 2009. The assistant operations manager took him to one clinic for treatment before being directed to the Hand and Wrist Center. The assistant operations manager then signed a letter of guarantee, which stated that the employer agreed to pay the Center the “usual and customary fees” for medical care rendered to Contraras, and that payment would be made regardless of whether the injury occurred at work, or if the patient tested positive for drugs or alcohol at the time of injury.

Contraras had wrist surgery and the Hand and Wrist Center billed the employer $3,612.62 and $19,138.30 for his care. Soon after, Contraras received notice from his employer’s workers compensation insurance carrier that his claim had been denied due to the discovery that he had tested positive for drugs at the time of injury. The denial was later upheld by the Texas Department of Insurance Division of Workers Compensation.

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