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

Case No. 04-15-00433-CV
Regular Panel Decision
Sep 17, 2015

Texas Commission on Environmental Quality & Post Oak Clean Green, Inc. v. Guadalupe County Groundwater Conservation District

This is an opening brief from the Texas Commission on Environmental Quality (TCEQ) and Post Oak Clean Green, Inc. (Post Oak), appealing the denial of their plea to the jurisdiction by the 2nd 25th Judicial District Court, Guadalupe County. The case concerns the Guadalupe County Groundwater Conservation District's (the District) suit seeking a declaration that Post Oak's proposed landfill violates District Rule 8.1, even though Post Oak's permit application is still under review by the TCEQ. Appellants argue that the District's claim is not ripe, is impermissibly redundant of judicial review remedies, and that the District lacks standing due to a non-redressable injury. They contend that the TCEQ has exclusive or primary jurisdiction over landfill permitting and that District rules cannot supersede a TCEQ permit. The brief requests reversal of the trial court's order and dismissal of the District's suit.

Environmental LawLandfill PermittingGroundwater ConservationJurisdiction DisputeAdministrative LawDeclaratory Judgment ActRipeness DoctrineStanding (Law)Exclusive JurisdictionPrimary Jurisdiction
References
195
Case No. DC-13-04564-L
Regular Panel Decision
Apr 16, 2015

in Re: Island Hospitality Management, Inc., Post Properties, Inc. and Post Addison Circle Limited Partnership

Plaintiff Jane Doe filed a lawsuit alleging sexual assault and related damages, including mental anguish. Her designated psychologist, Dr. William Flynn, conducted a mental examination. Defendants Island Hospitality Management, Inc., Post Properties, Inc., and Post Addison Circle Limited Partnership sought an independent psychological examination of the plaintiff by their expert, Dr. Lisa Clayton. The district court initially denied this motion, and subsequently denied the defendants' joint motion for reconsideration. This mandamus record documents the appellate review of this discovery dispute.

Sexual AssaultMental AnguishPsychological ExaminationDiscovery DisputeForensic PsychologyPremises LiabilityMandamus PetitionCivil ProcedureExpert WitnessTexas Law
References
59
Case No. 10-93-224-CV
Regular Panel Decision
May 18, 1994

Subsequent Injury Fund of the State of Texas (Formerly the Second Injury Fund) v. Larry Milligan

The Subsequent Injury Fund appeals a judgment awarding Larry Milligan lifetime benefits for injuries sustained at work. Milligan suffered two ankle injuries in 1987 and a third in 1989, leading to the total loss of use of both feet. He sued the Fund for lifetime benefits after settling with the workers' compensation carrier. The jury found permanent, total loss of use of both feet. The Fund challenged its statutory liability for lifetime benefits and the court's refusal to submit a jury question on total and permanent incapacity. The appellate court affirmed, finding the first issue unpreserved and the second resolved by a statutory conclusive presumption of total and permanent incapacity for the loss of both feet.

Workers' Compensation LawSubsequent Injury FundLifetime BenefitsTotal Permanent IncapacityAnkle InjuriesStatutory InterpretationAppellate ReviewJury InstructionsConclusive PresumptionOccupational Injuries
References
6
Case No. No. 08-07-00346-CV
Regular Panel Decision
Feb 24, 2010

W.C. LaRock, D.C., P.C. D/B/A Auto & Work Injury Clinic and Maria Del Carmen Gallardo/Rosemary Smith v. Rosemary Smith/W.C. LaRock, D.C., P.C. D/B/A Auto & Work Injury Clinic and Maria Del Carmen Gallardo

Rosemary Smith, an El Paso Police Officer, sued W.C. LaRock, D.C., P.C., d/b/a Auto & Work Injury Clinic, and its employee Maria Gallardo, alleging negligence after a physical therapy session aggravated a prior back injury. The City of El Paso, Smith's worker's compensation subrogee, joined as a plaintiff. The jury found Gallardo negligent, awarding Smith $488,000, which the trial court reduced to $339,983.58. Both parties appealed. The Court of Appeals found the expert testimony on causation insufficient to establish that Gallardo's therapy proximately caused Smith's reherniation, as the expert only stated it was "possible." The court reversed the trial court's judgment.

Medical MalpracticeNegligenceCausationExpert TestimonyPhysical TherapyHerniated DiscSpinal SurgeryProximate CauseLegal SufficiencyAppeal
References
33
Case No. MISSING
Regular Panel Decision

Zapico v. Bucyrus-Erie Co.

This case addresses post-trial motions concerning the liability of Atlantic Container Lines (ACL), a stevedore, to Bucyrus-Erie Co., a truck-crane manufacturer and third-party plaintiff. The central issue is whether ACL enjoys immunity from contribution or indemnity claims under 33 U.S.C. § 905, following a jury finding that both Bucyrus-Erie's negligent manufacturing and ACL's incompetent employee (Antonio Fuet) equally contributed to the injury of Adolfo Millan and death of Joseph Zapico, ACL's employees. ACL argued it was immune as a compensation-paying stevedore and lacked an indemnity agreement. The court found that Bucyrus-Erie's claim was not 'on account of' the employee injury, but rather for partial indemnification based on ACL's implied warranty of workmanlike performance or a quasi-contractual theory. The court concluded that extending third-party benefits or apportioning damages based on fault would not violate statutory immunity and would be equitable, especially given manufacturers' lack of control over stevedoring functions and increasing strict liability. Therefore, ACL's motion for judgment in its favor was denied, Bucyrus-Erie Co.'s motion to amend its pleadings was granted, and Celia Zapico's motion to strike the jury's finding of contributory negligence was denied.

Stevedore LiabilityMaritime IndemnityLongshoremen's ActThird-Party ClaimsProduct Manufacturer NegligenceEmployee IncompetenceContribution LawWarranty of Workmanlike PerformanceFederal Civil ProcedurePost-Trial Litigation
References
14
Case No. MISSING
Regular Panel Decision

Johnson v. Second Injury Fund

Walter Johnson, who had previously lost vision in his right eye, suffered an injury at work resulting in the loss of vision in his left eye, leaving him totally and permanently disabled. He received benefits from Texas Employer’s Insurance Association and the Second Injury Fund. Johnson and his wife then sued Texas Industries, Inc. for negligence. Both TEIA and the Second Injury Fund intervened, seeking subrogation rights. The trial court denied the Second Injury Fund's claim to subrogation, but the court of appeals reversed. The Texas Supreme Court reviewed whether the Second Injury Fund is subrogated to Walter Johnson's rights in his personal injury suit. The Court concluded that subrogation is a legislative creation and the statute funding the Second Injury Fund explicitly enumerates funding methods without including subrogation. Therefore, the Supreme Court reversed the court of appeals' judgment and affirmed the trial court's decision, denying subrogation for the Second Injury Fund.

SubrogationSecond Injury FundWorkers' CompensationStatutory InterpretationExpressio Unius Est Exclusio AlteriusTotal DisabilityPersonal InjuryTexas Supreme CourtFunding MechanismsLegislative Intent
References
9
Case No. MISSING
Regular Panel Decision

Second Injury Fund v. Martinez

Vera Martinez, an injured worker, sought compensation after a workplace injury combined with a pre-existing condition resulted in total permanent incapacity. The Industrial Accident Board initially awarded her limited compensation. Martinez appealed this decision, filing suit against her compensation carrier and, over seven months later, against the Second Injury Fund. The appellate court addressed whether the statutory 20-day period for filing suit after appealing an Industrial Accident Board decision applies to claims against the Second Injury Fund. The court held that this jurisdictional prerequisite applies, and because Martinez failed to timely file suit against the Second Injury Fund, the trial court lacked jurisdiction over the Fund. Consequently, the judgment against the Second Injury Fund was reversed.

Workers' CompensationSecond Injury FundTexas LawJurisdictionTimelinessStatutory InterpretationAppellate ProcedureIndustrial Accident BoardPermanent IncapacityPolio
References
10
Case No. MISSING
Regular Panel Decision
Mar 01, 2006

Sanchez v. City of New York

The Supreme Court, New York County, denied plaintiffs’ motion to vacate a settlement pertaining to an infant plaintiff's emotional injuries. The appellate court unanimously affirmed this denial. Plaintiffs, including the infant's guardian, claimed they only discovered the true extent of the infant's emotional injuries, including post-traumatic stress syndrome, in the summer of 2005 following an examination by a social worker. However, the court found that these psychological injuries were known from the case's inception in 2001 and were appropriately considered when the settlement was agreed upon in December 2004. Evidence, including a 2001 psychiatric evaluation, confirmed the infant's diagnosis of post-traumatic stress disorder prior to the settlement agreement.

Settlement DisputeInfant's RightsPost-Traumatic Stress DisorderVacating SettlementCompromise OrderPsychological HarmSearch Warrant ExecutionAppellate AffirmationParental GuardianJudicial Discretion
References
2
Case No. MISSING
Regular Panel Decision

Second Injury Fund v. American Motorists Insurance Co.

This case addresses whether a 1971 amendment to Texas workers' compensation law (Article 8306, Sections 12c and 12c-l) permits an insurance carrier to be reimbursed from the Second Injury Fund when an employee's total and permanent incapacity results from a combination of general, rather than specific, injuries. The trial court had granted a $16,000 judgment for the carrier, American Motorist Insurance Company, but the Second Injury Fund appealed. Citing the precedent set in Second Injury Fund v. Keaton, the appellate court clarified that the 1971 amendment did not expand the fund's liability beyond specific injuries. The court emphasized that legislative intent to alter this established rule was not evident in the amendment. Consequently, the appellate court reversed the trial court's judgment, ruling against reimbursement for general injuries.

Second Injury FundWorkers' CompensationGeneral InjuriesSpecific InjuriesReimbursementStatutory InterpretationArticle 8306Vernon’s Ann.Civ.St.Appellate ReviewLegislative Intent
References
6
Case No. M2004-01683-WC-R3-CV
Regular Panel Decision
Sep 22, 2005

Larry Hopper v. Oshkosh B'Gosh And State of Tennessee, Department of Labor, Division of Workers' Compensation, Second Injury Fund

Larry Hopper, employed by OshKosh B’Gosh, sustained a back injury in 1996 and settled the workers' compensation claim for 20% vocational disability in 1997. After losing his job, he sought to reopen the settlement, filing a motion for reconsideration against the Second Injury Fund only. The trial court granted this, increasing his vocational disability by 30% and assigning liability to the Second Injury Fund. On appeal, the Special Workers’ Compensation Appeals Panel reversed the trial court's decision, finding that the Second Injury Fund's liability is limited to subsequent compensable injuries, not the initial injury for which reconsideration was sought. Therefore, Mr. Hopper’s claim against the Second Injury Fund for a first injury reconsideration was deemed to lack standing and was dismissed.

Workers' CompensationSecond Injury FundVocational DisabilityReconsideration of SettlementStatute of LimitationsSubject Matter JurisdictionAppellate ReviewStatutory ConstructionPre-existing InjuryEmployer Liability
References
11
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