Texas Injury Lawyers Blog

Published on: November 24, 2013

Workers’ Compensation Update Part 2: No Bad Faith in Workers’ Compensation Context – Hopper v. Argonaut Insurance Company

Two recent Texas court decisions, including the October 18, 2013, decision in Hopper v. Argonaut Insurance Company, Inc., have established that there is no common law bad faith in Texas regarding workers’ compensation claims. First, last year, in Texas Mut. Ins. Co. v. Ruttiger, the Texas Supreme Court, finding that the reforms to the Texas workers’ compensation statutes in the 1990’s provided for adequate safeguards, abolished the common-law duty of good faith and fair dealing.

In Ruttiger, Texas Mutual disputed plaintiff Timothy Ruttiger’s claims for a workplace injury because his employers reported that the injury occurred at a non work-related softball game. Though the insurance carrier eventually agreed to pay workers’ compensation benefits, Ruttiger filed suit alleging both common law and statutory bad faith causes of action because his claim was initially denied. Initially, the trial court found that Texas Mutual’s insurance adjuster acted in bad faith when it believed the employer instead of the employee, Ruttiger. However, the Texas Supreme Court disagreed and held that an injured employee could not assert a common-law claim for breach of duty of good faith and fair dealing against a workers’ compensation insurance carrier. Notably, at the time, the court did not go as far as to hold that the Texas Workers’ Compensation Act was the exclusive remedy for all work-related injuries, meaning that following that decision, workers could still bring a bad faith claim against a workers’ compensation insurer under the Texas Insurance Code Section 541.061 for a misrepresentation of the policy.

More recently, however, in Hopper v. Argonaut Insurance Company, a decision by the Court of Appeals of Texas all but eliminated a claimant’s ability to bring a bad-faith claim of any kind. In Hopper, Mr. Hopper sustained a wrist injury on the job and received workers’ compensation benefits. Several years later, he died of a drug overdose of the pain medication he was prescribed following his injury. After the deceased’s family sought workers’ compensation death benefits, the workers’ compensation insurer denied the claim for two years, challenging whether Mr. Hopper’s death was work-related and his family’s status to bring the claim.

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Published on: November 17, 2013

Texas Workers’ Compensation Law Update

By Carabin Shaw

An August 2013 court decision by a federal appeals court brings attention to the impacts of Texas being one of two states in the country that allows companies to opt out of the state’s workers’ compensation system. In the case, Mary A, Ernewayn v. Home Depot U.S.A., Inc., Mary A. Ernewayn, a Home Depot employee in Texas filed sued against Home Depot in Texas state court, alleging that the company was negligent. Ernewayn claimed she suffered neck and back injuries while operating a lumber cart in a Home Depot store. Home Depot sought to remove the case to federal court based on the fact that the company had opted out of the Texas workers’ compensation system.

In August 2013, however, a federal appeals court panel denied the company’s request to defend itself from a workers’ compensation claim in federal court. More specifically, the federal court affirmed the lower court’s finding that even though Home Depot did not subscribe to the Texas state workers’ compensation system, the state’s workers’ compensation law still limited the number of common law defenses the company could assert.

The Opt-Out System in Texas

Most states require employers to carry a workers’ compensation insurance policy to cover any costs such as lost income or medical bills should an employee become injured while at work. This means that, in most states, if someone is injured on the job, he/she can file a claim. If the claim is approved, the employee is entitled to payment of his/her medical bills and compensation to cover lost wages and disability.

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Published on: November 11, 2013

New Traffic Laws in Effect in Texas

By Carabin Shaw

As of September 1, 2013, several new traffic and driving laws went into effect in Texas. It is important for all Texans to become acquainted with the new laws, as individuals who break these laws may face fines, or even prison time. Fortunately, although the laws became effective September 1, 2013, Texas Department of Public Safety troopers are offering a grace period for most of the laws until January 1, 2014 to make sure everyone is aware of the new and amended laws.

The Texas Department of Transportation believes the new laws will provide added protection for people on Texas roadways. According to the Texas Department of Transportation, the fatality rate on Texas roadways in 2012 was 1.41 deaths per hundred million vehicle miles traveled -a 9.3% increase from 2011. In addition, the State of Texas also recently experienced an increase in the number of motor vehicle traffic fatalities. Specifically, the 2012 death toll of 3,399 was an increase of 10.82% from the 3,067 deaths in 2011.

Some new laws for which Texans should be aware include the following:

• Cell Phones in School Zones (HB 347): While Texas already prohibits cell phone use behind the wheel in school zones unless the vehicle is stopped or a hands-free device is being used, the new law expands the limitation to include all school property, including parking lots and drop off lanes. Violators of the law will be assessed fines up to $200. Notably, cell phone use is only restricted during the time a reduced speed limit is in effect, generally, directly before and directly after the school day.

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Published on: October 27, 2013

Outbreak of Salmonella Infections Across the U.S., including Texas, Linked to Foster Farms Chicken

By Carabin Shaw

According to the U.S. Centers for Disease Control and Prevention (CDC), as of October 17, 2013, a total of 338 individuals from 20 states and Puerto Rico have been infected with seven outbreak strains of Salmonella Heidelberg linked to Foster Farm’s Chicken. Forty percent of those infected have been hospitalized, with approximately 75 percent of the victims residing in California. Nine ill persons have been identified in Texas. Salmonella Heidelberg is the country’s third most common strain of Salmonella, which can result in foodborne illness if not destroyed by proper cooking and safe handling. Notably, this is not the first time in recent months that the CDC has reported an outbreak strain of Salmonella Heidelberg. In July 2013, the CDC reported that 134 individuals had been infected with the same strain also linked to Foster Farm’s chicken.

Earlier this month, officials from the U.S. Department of Agriculture’s Food Safety and Inspection Service (USDA-FSIS) issued a public health alert due to concerns that illness caused by Salmonella Heidelberg was associated with chicken products produced at three Foster Farm’s facilities in California. The U.S. Department of Agriculture (USDA) thereafter threatened to shut down these facilities, citing a risk to public health. While Foster Farms has not initiated a recall, the company is complying with the USDA’s requests to mitigate issues at the facilities tied to the outbreak. The investigation by the USDA-FSIS is ongoing.

How to know if you’ve been infected

The symptoms of the illness caused by Salmonella include high fever, diarrhea and abdominal cramping. While most of all persons infected with Salmonella develop diarrhea, fever, and abdominal cramps (usually within 12 to 72 hours after infection) that require little medical treatment, if any, some elderly individuals, infants, and those with impaired immune systems can suffer severe illnesses or death. The outbreak strains involved in these cases are resistant to several commonly described antibiotics, which means there may be an increased risk of hospitalization or possible treatment failure in infected individuals.

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Published on: October 22, 2013

Immigration Status and its Effect on the Right to Sue for Personal Injury

By Carabin Shaw

According to a recent report by the Pew Research Center, in 2012, an estimated 11.7 million unauthorized immigrants lived in the United States illegally, up from 11.3 million in 2009. The report estimates that approximately 1.75 million of these unauthorized immigrants live in Texas, accounting for 15% of the unauthorized immigrants in the U.S. Moreover, Pew stated that among the six states with the largest numbers of immigrants here illegally, only Texas had a consistent increase in illegal immigration from 2007 to 2011, due in part to its stronger economy. Since many of these immigrants are employed in high-risk occupations, they are at an increased risk to become involved in industrial accidents resulting in personal injury.

Notably, in the U.S., the court system is available to all, and undocumented immigrants have the right to sue those who injure them as a result of negligence. The 14th Amendment to the U.S. Constitution guarantees due process and equal protection of the law to both U.S. citizens and non-citizens. In fact, the term “person” under the 14th Amendment includes U.S. citizens, lawfully admitted residents, and undocumented immigrants. In addition, the Civil Rights Act ensures that all persons within the borders of the U.S. are guaranteed the right to bring lawsuits against those that cause them injury without regard to whether they are in the country legally or not. This means that a person’s immigration status should not preclude his or her right to file a lawsuit in a U.S. or Texas court to recover damages for personal injuries.

Types of Damages Available to Undocumented Immigrants

In a personal injury case the following types of damages may be available: compensation for medical expenses, lost wages or income, and mental pain and suffering. In some jurisdictions, courts have found that allowing the award of back pay and lost wages to undocumented immigrants in personal injury cases circumvents the U.S. Immigration Reform and Control Act of 1986 (“ICRA”). However, courts in Texas have repeatedly reaffirmed the proposition that Texas law does not require citizenship or the possession of immigration work authorization permits as a prerequisite to recovering damages for lost earning capacity.

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Published on: October 15, 2013

Sports and Recreational-Related Activities Contribute to Over 20% of all Traumatic Brain Injuries Amongst Children and Adolescents

By Carabin Shaw

According to the October 2013 issue of the Journal of the American Academy of Orthopedic Surgeons, falls and car accidents are responsible for most cases of minor traumatic brain injuries (“mTBI”). Notably, however, another leading cause of traumatic brain injuries (both minor and severe) is sports and recreational activities. In fact, although infrequent, the leading cause of death from sports-related injuries is traumatic brain injury (“TBI”). Furthermore, sports-and recreational activities contribute to approximately 21% of all TBIs among children and teens.

A traumatic brain injury (“TBI”) is defined as a blow or jolt to the head that disrupts the normal of function of the brain. While mTBIs may result in a concussion without loss of consciousness, more severe traumatic brain injuries can result in extended period unconsciousness, coma, and death. Unfortunately, throughout the beginning of the 21st century, the incidents of TBIs in minors have continued to increase.
According to a report published by the U.S. Centers for Disease Control and Prevention (“CDC”), from 2001 to 2009, the number of sports and recreation-related emergency room visits for TBI among persons aged 19 and younger increased 62%. In addition, the CDC reports that each year U.S. emergency departments treat an estimated 173,285 sports and recreation related TBIs. Additionally, more recently, a study from Cincinnati Children’s Hospital published on September 30, 2013, showed a 92% increase in pediatric visits to their hospital’s emergency rooms for sports-related traumatic brain injury from 2002 to 2011.

Overall, the activities associated with the most TBI-related emergency room visits include bicycling, football, playground activities, basketball and soccer.
As a result of the increase of TBIs amongst adolescents participating in sports and recreation, many states, schools, and sports leagues and organizations have created policies or action plans on concussions in youth and high school sports. In Texas, for instance, in 2011, the State legislature passed HB 2038 relating to the treatment, prevention, and oversight of concussions affecting public school students participating in interscholastic athletics. The law requires the following:

• The governing body of each school district and open-enrollment charter school with students enrolled who participate in sports appoint or approve a concussion oversight team;
• Parents or guardians of student athletes must sign a form that acknowledges receiving and reading written information that explains among other things, concussion prevention, symptoms, treatment, and guidelines for safely resuming participation in an athletic activity following a concussion; and
• Student athletes are to removed from practice or competition immediately if they are believed to have sustained a concussion during practice or competition, and the student may not be permitted to return until evaluated by a physician.

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Published on: October 14, 2013

OxyElite Pro, a Dietary Supplement Manufactured in Dallas, Texas, Linked to Liver Failure, Death

By Carabin Shaw

A 48-year old mother of seven recently passed away after taking the dietary supplement, OxyElite Pro, for several weeks. In fact, over the past 6 months, OxyElite Pro has been linked to 24 reported cases of acute hepatitis and liver failure in Hawaii. As a result, on October 10, 2013, the Hawaii Department of Health issued a request that OxyElite Pro be voluntarily removed from stores across Hawaii. That same day, the U.S. Centers for Disease Control and Prevention (CDC) requested the product be removed from stores. According to the CDC, the most commonly reported symptoms reported include loss of appetite, fever, nausea, light-colored stools, dark urine, and jaundice.

Shortly after the Hawaii Department of Health’s request, USP Labs, LLC, the manufacturer of OxyElite Pro products based in Dallas, Texas, reported that it would cease the nationwide manufacturer and distribution of the products associated with liver failure cases. Unfortunately, that does not mean the product, meant to increase energy, concentration, and metabolism, will be pulled from shelves nationwide. Rather, it is up to the retailers who purchased the products from USP Labs whether to pull the products from the shelves.

This is not USP Labs and OxyElite Pro’s first warning from the government. In 2012, the U.S. Food and Drug Administration (FDA) warned companies, including USP Labs, to stop using the geranium extract known as DMAA after it was linked to cases of increased blood pressure, shortness of breath, chest tightening, cardiovascular problems and even heart attacks. More specifically, the FDA concluded that DMAA is not a dietary ingredient and, as such, is not eligible to be used as an active ingredient in a dietary supplement. In early 2013, USP Labs agreed to settle a DMAA class action lawsuit for $2 million. Then in April 2013, USP Labs agreed to phase out products containing DMAA.

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Published on: September 22, 2013

Pedestrian Fatality Rates for the State of Texas and Various Texas Cities Grim

By Carabin Shaw

On average, a pedestrian is killed every two hours and injured every eight minutes in traffic crashes. In fact, in 2011, pedestrian deaths accounted for 14% of all traffic fatalities and made up 3% of all people injured in traffic crashes in the United States. According to data from the National Highway Safety Administration (NHTSA), there were 4,432 pedestrian fatalities reported in 2011 due to traffic accidents, an 8% increase since 2009. An estimated 69,000 pedestrians were also injured in traffic crashes. Additionally, the 2011 report by the NHTSA also revealed the following:

• 3 out of every 4 pedestrian deaths occurred in urban areas
• 70% of those killed were at non-intersections
• 70% of pedestrian deaths occurred at night
• Alcohol involvement–either for the driver or the pedestrian–was reported in 48% of all fatal pedestrian crashes
In an effort to combat the rising number of deaths over the last two years and educate communities on safety measures, the U.S. Transportation Secretary Anthony Foxx announced a new campaign, “Everyone is a Pedestrian,” in August 2013. Besides providing grants to the cities with the highest rate of pedestrian deaths, the NHTSA, together with the Federal Highway Administration (FHWA), launched a website with safety tips and resources for local leaders, officials, parents and other involved in improving pedestrian safety.

Notably, according to the NHTSA, the State of Texas is one of 22 cities in the U.S. where pedestrian deaths are greater than the national average, making Texas eligible to apply for a total of $2 million to be used for education and enforcement initiatives under the campaign. Indeed, Texas pedestrian fatalities account for 14% of the total traffic fatalities in Texas. Unfortunately, at the same time, the Texas cities of San Antonio, Austin, Fort Worth, Houston, and Dallas were also selected by the FHWA in 2011 as focus cities. Focus cities are selected based on the number of pedestrian fatalities or the pedestrian fatality rate per population. More specifically, cities are selected as pedestrian focus cities if they have more than 20 average annual pedestrian fatalities or a pedestrian fatality rate greater than 2.33 per 100,000.

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Published on: September 22, 2013

Stadium Safety Issues Emerge Again after Another Season of Football Begins

By Carabin Shaw

On September 8, 2012, opening weekend of football for the NFL, a spectator fell to his death at San Francisco 49ers stadium while attending the game. The spectator fell to his death from a pedestrian walkway outside of the stadium. Multiple witnesses told police that the victim appeared to be intoxicated at the time of his fall. That very same weekend, two fans were injured when a railing collapsed inside Lucas Oil Stadium, home of the Indianapolis Colts, during a Colts game against the Oakland Raiders. Luckily, neither of these fans were seriously injuries. Unfortunately, however, these incidents are just the latest in a series of deaths and injuries at sports stadiums across the United States over the past several years.

Recent Accidents

According to the Institute for the Study of Sports Incidents, based at the University of Southern Mississippi, since 2003 there have been more than two-dozen cases of fans falling at stadiums across the country. On August 13, 2013, an Atlanta Braves fan was killed at Turner Field in Atlanta after falling 85 feet from a fourth-level railing of the stadium onto a parking lot below. In addition, during a pre-season NFL football game this year, a Denver Broncos fan was injured when he fell 10 feet from an escalator. Finally, at Rangers Ballpark in Arlington, Texas in 2011, a spectator fell to this death from the left-field seats after trying to catch a ball tossed towards him.

Premises Liability

In addition to complying with local and states laws, all stadiums must also comply with the strict safety guidelines instituted by the International Building Code, which has been adopted by all 50 states and the District of Colombia. Among the guidelines are various railing requirements, including calls for railings in front of seats to be at least 26 inches high, and a requirement that protective railings placed in open-sided areas such as concourses be at least 42 inches in height.

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Published on: September 13, 2013

Recent Recalls Affecting Infants and Young Children in Texas and Elsewhere

By Carabin Shaw

Every year thousands of infants sustain injuries or are wrongfully killed by dangerous and defective products. In addition, deaths, injuries and property damage from consumer product incidents in general cost the nation more than $900 billion annually. Unfortunately, many of these injuries are caused by the negligence or recklessness of manufacturers and distributors, meaning that many of these injuries and deaths could be avoided.

Infants are particularly vulnerable to dangerous and defective products, including but not limited to toys, clothing, and even drugs. According to a 2011 report produced by the U.S. Consumer Product Safety Commission (CPSIA), among children younger than 5 years of age, there were an estimated 74,100 emergency department-treated injuries, associated with, though not necessarily caused by, nursery products in 2011. In addition, for the 3-year period from 2007 through 2009, the Consumer Product Safety Commission (CPSC) received reports of 341 deaths, associated with, but not necessarily caused by, nursery products among children younger than age 5. Several recalls relating to products used by infants have been reported in the past few months, including but not limited to the following:

HALO SleepSacks Recalled

On August 21, 2013, the CPSC issued a recall of approximately 27,000 HALO SleepSacks Wearable Blankets sold exclusively at Babies R Us and babiesrus.com from December 2011 through July 2013. Citing a risk of a choking hazard to infants, the CPSC advised consumers to stop using the product immediately. The recall was issued after the CPSC received six separate reports of a pink satin flower on the blankets becoming detached from the blankets. In one case, the report complained that an infant was discovered gagging on the detached petal.

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