A. WORKERS'COMPENSATION:
1.SUBROGATION:
b.Texas Workers' Compensation Ins. Fund v. Serrano, 962 S.W.2d 536 (Tex., February 13, 1998): The Court held that Tex. Labor Code § 417.002(a), which requires that a workers' compensation carrier be reimbursed out of any third party recovery by the claimant for all benefits paid for his injury, does not limit reimbursement to only those benefits that were reasonable and necessary. The court stated that since the claimant received the benefit of all amounts paid, the carrier was entitled to reimbursement without proving that the amounts paid were reasonable and necessary.
b.Houston General Ins. Co. v. Campbell, 964 S.W.2d 691 (Tex. App. - Corpus Christi, January 29, 1998, review requested): The court held that a workers' compensation carrier had a subrogation interest in the settlement proceeds received by an employee for medical malpractice committed in the course of treatment for a compensable injury which aggravated her condition.
2.COMPROMISE SETTLEMENT:
Cigna Ins. Co. of Texas v. Rubalcada, 960 S.W.2d 408 (Tex. App. - Houston [1st Dist.] January 15, 1998): The court held that a compromise settlement agreement would not be set aside on grounds of mutual mistake between the claimant and the insurer where the claimant, who suffered a new injury on a treadmill he was using as part of his medical treatment for his original injury, did not offer any evidence of mutual mistake but only of his unilateral mistake in failing to foresee a new injury for which the claimant would lose his right to recover by signing the compromise settlement agreement.
3. JUDICIAL REVIEW:
a.Benavidez v. Travelers Indem. Co. of Connecticut, 960 S.W.2d 422 (Tex. App. - Austin, January 23, 1998, review requested): The court held that the requirements of Tex. Labor Code §§ 410.252 and 410.253, that a copy of the petition for judicial review of the appeals panel decision must be filed with the Texas Workers' Compensation Commission (TWCC) within forty days after the decision of the appeals panel is filed with the division of hearings, is jurisdictional.
b.Adkins v. Ector County Independent School District, 969 S.W.2d 142 (Tex. App. - El Paso, May 7, 1998): The court held that Tex. Labor Code §§ 410.252 and 410.253, which set a forty-day time limit for filing a petition for judicial review of a final decision of the TWCC appeals panel, is subject to the "mailbox rule," which allows for the enlargement of time for the filing of documents which are sent by first class United States mail.
c.Continental Cas. Ins. Co. v. Functional Restoration Associates, 964 S.W.2d 776 (Tex. App. - Austin, March 12, 1998, review requested): The court held that Tex. Labor Code § 410.251, which grants judicial review of TWCC appeals panel decisions, does not also grant judicial review of decisions of the TWCC's Division of Medical Review. However, the court held that since the hearing officer's decision affected the carrier's vested property interests, by ordering the carrier to pay medical providers, there was an inherent right of appeal to determine whether the carrier had been afforded due process and whether the hearing officer's decision was supported by substantial evidence or was arbitrary and capricious.
4. BAD FAITH:
Storebrand Ins. Co. v. Employers Ins. of Wausau, 139 F.3d 1052 (5th Cir., May 7, 1998): The court held that an insurance carrier assigned by the Texas Workers' Compensation Insurance Facility to service an insured employer's workers' compensation policy cannot be held liable as an insurer for breach of the duty of good faith and fair dealing since the Facility, not the carrier, is the insurer.
5. NONSUBSCRIBER:
Castillo v. American Garment Finishers, 965 S.W.2d 646 (Tex. App. - El Paso, March 5, 1998): The court held that payments made by a nonsubscribing employer under an accident policy covering on-the-job injuries do not constitute a collateral source, so that the employer is entitled to receive an offset in the judgment for those amounts paid under such a policy. The employer was also entitled to a credit against the entire judgment for wage benefits it paid to its employee. However, the employer was not entitled to a credit for medical benefits paid against the amount of past medical expenses awarded to the employee, as the award for past medical expenses did not include recovery for the medical bills paid by the employer but included only the amount of past medical and hospital care which the employer never paid.
6. WRONGFUL DISCHARGE:
a.Texas Mexican Railway Co. v. Bouchet, 963 S.W.2d 52 (Tex., February 13, 1998): The Texas Supreme Court held that employers who are nonsubscribers to the Texas Workers' Compensation Act cannot be sued for violating Tex. Labor Code §451.001, which prohibits an employer from discharging or in any other manner discriminating against any employee because the employee has in good faith filed a workers' compensation claim, hired an attorney to represent him in a claim, instituted in good faith any workers' compensation proceeding, or has testified or is about to testify in any such proceeding.
b.Castor v. Laredo Community College, 963 S.W.2d 783 (Tex. App. - San Antonio, January 28, 1998): The court affirmed a summary judgment for an employer dismissing the plaintiff's claim for retaliatory discharge for filing a claim for workers' compensation benefits where the employer presented evidence of a nondiscriminatory reason for the plaintiff's termination, insubordination, and the plaintiff did not present any evidence to disprove or controvert his employer's stated reason for his termination. The court also held that the plaintiff's affidavit testimony indicating his belief that his workers' compensation claim contributed to his discharge was no more than a mere conclusion and was not proper summary judgment proof.
B. WRONGFUL DISCHARGE/DISCRIMINATION:
1.Montgomery County Hospital District v. Brown, 965 S.W.2d 501 (Tex., March 13, 1998): The court held that an at-will employment cannot be modified by an employer's oral assurances that an employee whose work is satisfactory will not be terminated without good cause or as long as his work is satisfactory, when there is no agreement on what "good cause" means.
2.Austin v. HealthTrust, Inc., 967 S.W.2d 400 (Tex., April 14, 1998): The Texas Supreme Court refused to create a judicial exception to the employment-at-will doctrine by recognizing a cause of action for whistleblowers in private employment, reasoning that it would be unwise to expand the common law because to do so would eclipse more narrowly crafted statutory whistleblower causes of action.
3.City of Odessa v. Barton, 967 S.W.2d 834 (Tex., April 14, 1998): The Texas Supreme Court held that a city employee was not entitled to sue the city for breach of contract damages based upon his termination when an employment manual, stating that he could not be discharged in the absence of just cause, limited the employee to an administrative review of adverse employment decisions. The Court stated that because the plaintiff continued his employment after the city promulgated the manual, he accepted administrative review as his exclusive remedy for challenging adverse employment decisions.
4.Southwestern Bell Mobile Systems, Inc. v. Franco, _____ S.W.2d _____, 41 Tex. Sup. Ct. J. 930 (Tex., June 5, 1998) (not yet reported): The Texas Supreme Court held that wrongful termination of employment is not so "extreme and outrageous" that, without more, it will support a finding of intentional infliction of emotional distress.
5.Franklin v. Enserch, Inc., 961 S.W.2d 704 (Tex. App. - Amarillo, February 6, 1998): The court held that Tex. Labor Code § 21.051, which prohibits employers from discriminating on the basis of sex, did not prevent a male employee from claiming that he was discriminated against merely because he was a male. The court further held that a genuine fact issue existed, precluding summary judgment for the employer, as to whether the employee was a victim of sex discrimination in his employment, in view of evidence that the employee was transferred from his clerical position to manual labor, and his supervisor told him that a woman had been hired to perform his clerical chores because women were more efficient in the office and were in general better suited to perform clerical work.
C. SEXUAL HARASSMENT:
SIGNIFICANT DECISION:
1.Burlington Industries, Inc. v. Ellerth, 118 S.Ct. 2257 and cert. denied, 118 S.Ct. 2365 (June 26, 1998) and Faragher v. City of Boca Raton, 118 S.Ct. 2275 (June 26, 1998): The U.S. Supreme Court held that an employer may be vicariously liable to its employee under the anti-discrimination provisions of Title VII for a hostile work environment created by a supervisor with immediate or successively higher authority over the employee; but that the employer may raise an affirmative defense as to the reasonableness of its conduct in seeking to prevent or correct harassment and to the reasonableness of the employee's conduct in seeking to avoid harm, for example, the employee's failure to take advantage of any preventive or corrective opportunities provided by the employer or the employee's failure to avoid harm otherwise.
2.Garcia v. Schwab, 967 S.W.2d 883 (Tex. App. - Corpus Christi, April 2, 1998): The court affirmed a summary judgment in favor of an employer in a suit brought under the Texas Commission on Human Rights Act, Tex. Labor Code § 21.051, which is modeled on Title VII of the Federal Civil Rights Act. The plaintiff's evidence revealed that her supervisor had engaged in repeated incidents of ill-mannered or undesirable behavior but failed to demonstrate that her working conditions were so severely degraded and fraught with discriminatory hostility or abuse as to warrant liability under the Human Rights Act, especially where she presented no evidence that she voiced any objections to her supervisor that she was uncomfortable with his conduct.
3.McMillon v. Texas Dept. of Ins., 963 S.W.2d 935 (Tex. App. - Austin, February 26, 1998): The court affirmed a judgment on a jury verdict in favor of the plaintiff's employer in a suit brought under the Texas Human Rights Act alleging that the employer unlawfully discriminated against the plaintiff by subjecting her to sexual harassment, where the evidence reflected that the employer took prompt remedial action upon its receipt of the plaintiff's complaint by quickly investigating her allegations, putting the offending worker on administrative leave during the investigation, demoting the offending worker and transferring him to another division, and requiring that worker to attend sexual harassment awareness training and to review the employer's policies regarding sexual harassment.
4.Perez v. Living Centers-Devcon, Inc., 963 S.W.2d 870 (Tex. App. - San Antonio, February 18, 1998, review requested): The court held that the Texas Commission on Human Rights Act is not the exclusive remedy for employment discrimination and did not preempt the plaintiff's common law causes of action against her former employer for sexual harassment, negligence, assault and battery, intentional infliction of emotional distress, and invasion of privacy. The court noted that the Human Rights Act only bars an employee from pursuing both a nonstatutory cause of action against her employer and an employment discrimination claim arising from the same facts through the administrative review system established under the statute.
D. AMERICANS WITH DISABILITIES ACT:
1.McConathy v. Dr. Pepper/Seven Up Corp., 131 F.2d 558 (5th Cir., January 7, 1998): The court held that an employee was judicially estopped, by her statement in an application for social security disability benefits that she could not see how she could hold a management position or any position even on a part-time basis, from arguing that she was a qualified person with a disability under the Americans with Disabilities Act ("ADA"). The court held that assuming that the plaintiff had a cause of action for hostile work environment harassment under the ADA, her employer did not engage in such harassment when her supervisor became angry with the employee when she approached him regarding her need for additional surgery, told her that he would no longer tolerate her health problems, and complained that it was inappropriate for her to make extensive use of health benefits because of her position as benefits manager.
2.Cornyn v. Speiser, Krause, Madole, Mendelsohn & Jackson, 966 S.W.2d 645 (Tex. App. - San Antonio, February 11, 1998, review denied): The court held that the plaintiffs were estopped from maintaining a discrimination action against their employer under either the ADA or the Texas Human Rights Act because they applied for workers' compensation and long-term disability benefits, which required them and their health care providers to certify that they were unable to work and that, in several circumstances, they were totally disabled. The court stated that the mere application for and receipt of disability benefits should not estop a plaintiff from maintaining an ADA claim. Rather, the court should consider the substance of the representations made by the plaintiffs and their agents in seeking disability benefits.
3.Norwood v. Litwin Engineers & Constructors, Inc., 962 S.W.2d 220 (Tex. App. - Houston [1st Dist.] January 29, 1998): The court held that there was an issue of fact, precluding summary judgment for an employer in a suit for disability discrimination brought by a former employee under the Texas Human Rights Act, based upon the ground that the employee was not "disabled" within the meaning of the Act, where there was evidence that the employee's diabetes caused him to lose consciousness, appear inebriated, become incoherent and act belligerently, and that his vision was impaired, he had circulatory problems, and lacked feeling in his extremities. The court also held that there was a fact issue raised regarding whether similarly situated employees were also terminated during a general layoff, where the employer terminated the disabled employee approximately two weeks after he suffered a diabetes-related insulin reaction at work.
E. ERISA:
1.Spacek v. Maritime Association, 134 F.3d 283 (5th Cir., January 22, 1998): The court held that an ERISA plan administrator did not abuse its discretion in applying a plan amendment to a retired pension plan participant, which eliminated the employee credit hour requirement so as to result in the suspension of the participant's early retirement benefits. The plan's amendment provision unambiguously established that the participant's early retirement benefits were not contractually guaranteed at a higher level than ERISA required.
2.Fallo v. Piccadilly Cafeterias, Inc., 141 F.3d 580 (5th Cir., May 29, 1998): The court held that an ERISA plan beneficiary was entitled to an eleven-month extension of his health insurance coverage beyond the initial eighteen-month post-termination period mandated by COBRA, notwithstanding that he failed to comply with the requirement of COBRA and of the plan that he obtain a social security disability determination by the end of the initial eighteen-month period in order to receive an extension. The plan's summary plan description (SPD) did not include a time requirement for obtaining a disability determination, and the participant met the SPD's requirements by obtaining a social security disability finding that he had been disabled during the eighteen-month initial period and by notifying the plan administrator within sixty days of that determination.
3.Gulf Coast Alloy Welding, Inc. v. Legal Security Life Ins. Co., _____ S.W.2d _____, 1998 WL 265124 (Tex. App. - Houston [1st Dist.] May 21, 1998) (not yet reported): The court held that ERISA did not preempt an insured employer's claims against its insurer for breach of contract and other causes of action arising out of the insurer's refusal to reinstate a work place accident insurance policy which both parties agreed was an employee welfare benefit plan. The court reasoned that the employer's causes of action dealt specifically with an area subject to traditional state regulation, i.e., the commercial dealings between parties to a contract, and that the same causes of action and claim would exist if the insurance policy were not an ERISA plan. The court also noted that the potential economic impact that the suit might have on the administration of an ERISA plan was insignificant.