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Access over workers' compensation decisions, including En Banc, Significant Panel Decisions, and writ-denied cases.

Case No. ADJ7352906
Regular
Jul 10, 2012

ANA PEREZ vs. PALOMINO JANITORIAL SERVICES, ENDURANCE INSURANCE COMPANY, FIRST COMP INSURANCE

The Workers' Compensation Appeals Board denied reconsideration of a "take nothing" finding, upholding the WCJ's decision that applicant Ana Perez failed to prove an industrial injury. The WCJ found applicant's testimony not credible due to inconsistent reporting of the injury date, mechanism, and prior medical history. The medical evidence, including a PQME report, concluded no reasonable evidence of an industrial injury existed, citing inconsistent history and denial of trauma in contemporaneous medical records. Therefore, applicant did not meet her burden of proof to establish an industrial injury.

ReconsiderationWCABWCJcredibility determinationamended claimmechanism of injuryinconsistent historyGarden Grove Hospitaldenies traumafibromyalgia
References
1
Case No. MISSING
Regular Panel Decision

Fillyaw v. City of Beaumont

Plaintiff Cynthia Fillyaw appealed a "take nothing judgment" in her workers' compensation claim against her employer, the self-insured City of Beaumont. She alleged a back injury from being startled by a snake while working as a water meter reader on October 29, 1975. Despite receiving some compensation benefits and examinations by an orthopedist and family physician, a jury found that her injury was not the "producing cause of some incapacity." Medical evidence presented by Dr. Bessell, an orthopedist, and Dr. Thomas, a family physician, largely pointed to subjective symptoms and no objective findings for disability, though a congenital anomaly was noted. The appellate court affirmed the trial court's judgment, concluding that the plaintiff failed to meet her burden of proving the producing cause of her incapacity.

Workers' CompensationBack InjurySubjective SymptomsObjective FindingsJury VerdictProducing CauseAppealMedical EvidenceCongenital AnomalySelf-Insured Employer
References
9
Case No. MISSING
Regular Panel Decision

Cearley v. Cross Timbers Production Co.

Robert Cearley, an employee under the supervision of Cross Timbers, sustained a personal injury in January 1988 while working on a Cross Timbers oil and gas lease. He claimed Cross Timbers was negligent for not providing a ladder. This appeal concerns a take-nothing summary judgment granted to Cross Timbers, which argued the borrowed servant doctrine applied. The court examined whether Cearley was a regular employee of Crown Central or a borrowed servant of Cross Timbers at the time of the accident. The summary judgment was affirmed, as Cearley's pleading that Cross Timbers controlled his work constituted a judicial admission, establishing him as a borrowed servant under the Texas Workers' Compensation Act, thereby insulating Cross Timbers from liability.

Borrowed Servant DoctrineSummary JudgmentPersonal InjuryTexas Workers' Compensation ActEmployer LiabilityControl TestJudicial AdmissionOil and Gas LeaseAppellate ReviewNegligence
References
5
Case No. MISSING
Regular Panel Decision

Lemaire v. Davis

Harry Lemaire appealed a take-nothing judgment against him, which was rendered in favor of Don J. Davis, Golden Gate, Inc., NuCorp, Inc., Cage, Hill & Niehaus, L.L.P., Ronald R. Niehaus, Hal T. Thorne, and Thorne & Thorne, Inc. Lemaire sought damages for various causes of action associated with the sale of his interest in a limited partnership, including legal malpractice, breach of fiduciary duty, and fraud. The jury found that Lemaire had released the appellees from his claims and that no attorney-client relationship existed between Lemaire and the Niehaus appellees. The appellate court affirmed the trial court's judgment, rejecting Lemaire's arguments concerning jury instructions on consideration, the definition of an attorney-client relationship, and the denial of a constructive trust.

Appellate ProcedureContract LawReleasesJury InstructionsAttorney-Client RelationshipFiduciary DutyFraud ClaimsConstructive TrustBusiness LitigationLimited Partnership
References
21
Case No. MISSING
Regular Panel Decision

Santos v. American Museum of Natural History

Guaquin Garcia died after a scaffold fall during renovations at a building leased by the American Museum of Natural History. His estate sued the Museum and the general contractor for wrongful death. The Museum moved for summary judgment, arguing it lacked Labor Law liability as it didn't own, contract for, or supervise the work. The Supreme Court denied this motion, but on appeal, the order was reversed. The appellate court found the Museum, as a lessee, was not liable under Labor Law § 240, having neither contracted for nor supervised the renovation work, and thus lacked authority over safety measures.

Wrongful DeathScaffold AccidentLabor Law Section 240Summary Judgment AppealPremises LiabilityLessee LiabilityRenovation ProjectWorksite SafetyAppellate CourtBuilding Owner Responsibility
References
2
Case No. MISSING
Regular Panel Decision

Tarango v. Liberty Mutual Fire Insurance Co.

This opinion addresses an appeal from a take-nothing summary judgment that dismissed a bad faith insurance claim denial suit due to the two-year statute of limitations. The central legal question revolves around the retroactive application of a change in the interpretation of the statute of limitations. The Appellant argued against retroactivity, citing fairness and policy. The court analyzed prior rulings, particularly Liberty Mutual Fire Insurance Company v. Richards, and disagreed with the Houston Court of Appeals' assertion of being strictly bound by general retroactivity rules. Ultimately, the court interpreted the Supreme Court's "writ denied" notation in Richards as an implicit confirmation that the general rule of retroactive application for changes in limitation interpretations should apply to all pending cases. Therefore, the trial court's judgment was affirmed.

bad faith insurancestatute of limitationsretroactive applicationsummary judgmentappellate lawjudicial interpretationinsurance claim denialTexas lawlegal precedentwrit denied
References
8
Case No. MISSING
Regular Panel Decision

Martin v. Gulf Insurance Group

Clem Cecil Martin appealed a take-nothing judgment following a jury verdict in his worker's compensation claim against Gulf Insurance Company. Martin claimed a December 10, 1985, injury to his right testicle caused, accelerated, or aggravated a cancerous condition. Gulf argued the cancer pre-existed the injury and its spread was natural. The jury found an injury occurred, requiring medical care, but it was not the producing cause of any permanent or temporary incapacity. The appellate court affirmed the trial court's judgment, resolving apparent conflicts in the jury's findings and concluding that the evidence did not show, as a matter of law, that the injury or a misdiagnosis caused Martin's incapacity.

Worker's CompensationCancerTesticular InjuryMedical CausationProducing CauseJury VerdictExpert TestimonyAppellate ReviewTexas JurisprudencePersonal Injury
References
4
Case No. MISSING
Regular Panel Decision

MacIas v. Ramos

Rodolfo Macias, a sanitation worker, and the City of Laredo, a self-insured worker's compensation carrier, appealed a take-nothing judgment in a personal injury action. Macias was struck by an automobile, and the jury found his injuries were caused by his own negligence, awarding no damages. Appellants argued the trial court erred in admitting evidence of Macias's collateral benefits, but the appellate court found this error harmless because the jury did not reach the issue of damages. Appellants also challenged the appellee's closing argument and the jury's zero damages finding. The appellate court affirmed the trial court's judgment, concluding that the jury's finding of no liability rendered the issue of compensation immaterial.

Personal InjuryNegligenceCollateral Source RuleWorkers' Compensation BenefitsJury ArgumentEvidentiary RulingHarmless ErrorDamagesLiabilitySubrogation
References
20
Case No. MISSING
Regular Panel Decision

American Home Assurance v. Texas Department of Insurance

This case concerns a tax-protest suit initiated by American Home Assurance, Birmingham Fire Insurance Company of Pennsylvania, and The Insurance Company of the State of Pennsylvania. They appealed a take-nothing judgment favoring the Texas Department of Insurance and other appellees. The core of the dispute was the constitutionality of the method used to calculate maintenance-tax surcharges for the Texas Workers’ Compensation Insurance Fund. Appellants argued the tax was a retroactive direct tax, utilized public funds for private purposes, and violated equal and uniform taxation principles. The court affirmed the trial court's judgment, classifying the surcharge as an excise tax for the privilege of doing business, upholding its public purpose, and affirming its equal and uniform application, including a tax credit for the Fund as an insurer of last resort.

Tax Protest SuitInsurance CodeConstitutional LawRetroactive TaxationPublic Purpose DoctrineEqual and Uniform TaxationFranchise TaxWorkers' Compensation FundAdministrative LawStatutory Interpretation
References
0
Case No. MISSING
Regular Panel Decision

In re Kornrich

Philip J. Shore, beneficiary of an inter vivos trust, through his guardian ad litem, sought the removal of trustee Georgina Vassiliou, Esq., for her failure to account as directed by a prior court order. Vassiliou, who drafted the trust instrument naming herself as grantor and trustee, argued that the trust terms exempted her from accounting during the beneficiary's lifetime. The court found that such a provision, attempting to render a fiduciary unaccountable, is void as against public policy, as expressed in EPTL 11-1.7, and applies equally to inter vivos trusts where beneficiaries cannot protect their interests. The court also denied Vassiliou's motion to dismiss the guardian's petition and her requests for reargument or renewal, finding them procedurally defective and lacking merit. Ultimately, the court granted the application for Vassiliou's removal as trustee and for permission to take and state her account, while denying all of Vassiliou's motions.

Inter Vivos TrustTrustee RemovalFiduciary DutyAccountingPublic PolicyEPTL 11-1.7Guardian ad LitemBeneficiary RightsProfessional EthicsSurrogate's Court
References
18
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