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

Case No. 05-19-01013-CV
Regular Panel Decision
Dec 01, 2020

Luxottica of America Inc. F/K/A Luxottica Retail North America Inc. and EyeMed Vision Care LLC, Gutman Vision, Inc., Alex Gutman, and Milana Gutman v. Jeffrey Gray, Dawn Gray and Brave Optical, Inc.

The case is an interlocutory appeal from the Fifth District of Texas at Dallas concerning the denial of motions to dismiss filed by Luxottica of America Inc. and EyeMed Vision Care LLC (Luxottica Appellants), and Gutman Vision, Inc., Alex Gutman, and Milana Gutman (Gutman Appellants). Jeffrey Gray, Dawn Gray, and Brave Optical, Inc. (Gray Appellees) sued the appellants for claims including conspiracy to commit fraud, alleging that the appellants failed to disclose crucial information during negotiations for the purchase of two Pearle Vision optical stores. Specifically, appellees claimed appellants withheld the fact that EyeMed had terminated its contract with Gutman Vision due to fraudulent billing practices prior to the sale. Appellants moved to dismiss under the Texas Citizens Participation Act (TCPA), asserting their communications were protected. The trial court denied these motions by operation of law. The Court of Appeals affirmed the denial, concluding that the appellees' claims were based on the appellants' alleged failure to disclose information or misrepresentations, rather than on communications protected by the TCPA's rights of free speech or association.

fraudconspiracyTexas Citizens Participation ActTCPAinterlocutory appealbusiness disputenondisclosureEyeMedLuxotticaPearle Vision
References
20
Case No. MISSING
Regular Panel Decision

Ogden v. Matrix Vision of Williamson County, Inc.

In this workers' compensation case, plaintiff Roberta Ogden sustained injuries on January 11, 1986, while working for defendant Matrix Vision. She sought treatment from Dr. David W. Gaw, who diagnosed a soft tissue strain but consistently found no permanent impairment despite her persistent pain. Ogden filed a workers' compensation complaint on April 25, 1989, over three years after the accident. The trial court dismissed her claim, ruling it was barred by the one-year statute of limitations, as her injury manifested more than a year before the filing, and subsequent voluntary payments did not revive the expired statute. The Supreme Court of Tennessee affirmed the trial court's judgment, agreeing that the claim was time-barred.

Statute of LimitationsWorkers' Compensation LawAccrual of Cause of ActionMedical DiagnosisSoft Tissue StrainPermanent ImpairmentVoluntary PaymentsTolling StatuteAppellate ReviewInjury Date
References
11
Case No. 2017 NY Slip Op 01454
Regular Panel Decision
Feb 23, 2017

Sokolovic v. Throgs Neck Operating Co., Inc.

This case involves an appeal concerning hold harmless and indemnity agreements. The Supreme Court, Bronx County, initially granted Vision Healthcare Services' motion to enforce a hold harmless agreement and Throgs Neck Operating Company, Inc.'s motion for summary judgment on its contractual indemnity claim against Vision. The Appellate Division, First Department, affirmed these orders. The court held that the plaintiff was obligated to hold Vision harmless from Throgs Neck's indemnification claim due to a hold harmless agreement executed during settlement. It further clarified that a nurse provided by Vision to Throgs Neck remained Vision's general employee, thereby triggering Vision's contractual indemnity obligation, despite being considered a special employee of Throgs Neck for the purpose of Throgs Neck's liability to the plaintiff.

hold harmless agreementcontractual indemnityspecial employeegeneral employeestaffing agreementsettlement agreementsummary judgmentnegligenceagency liabilityappellate review
References
3
Case No. NO. 03-06-00631-CV
Regular Panel Decision
Mar 26, 2009

Samuel Campos v. Texas Property & Casualty Insurance Guaranty Association for Reliance National Indemnity Company, an Impaired Carrier

Samuel Campos, an employee, was injured on the job, leading to disputes over his impairment rating and reimbursement for travel expenses. The Texas Workers’ Compensation Commission affirmed a designated doctor's 6% impairment rating and denied travel expenses, which Campos challenged in court. The case involved the Texas Property & Casualty Insurance Guaranty Association (TPCIGA) because Campos's employer's insurer became impaired. Initially filed in Winkler County, the case was transferred to Travis County, where TPCIGA was granted summary judgment. The Third District Court of Appeals reversed the summary judgment, ruling that the Workers' Compensation Act's specific mandatory venue provision, which places venue in the county of the employee's residence at the time of injury (Winkler County), overrides the Guaranty Act's general venue provision, which would place it in Travis County. The court remanded the case with instructions to transfer it to Winkler County.

Workers' CompensationVenue DisputeMandatory VenueStatutory ConstructionTexas Labor CodeTexas Insurance CodeImpairment RatingTravel Expenses ReimbursementJudicial ReviewAppellate Procedure
References
12
Case No. MISSING
Regular Panel Decision

Newman v. Tropical Visions, Inc.

The Chief Justice concurs with the majority's opinion except for its holding that a release signed by Mrs. Newman waived Tropical Visions' liability for gross negligence. The Chief Justice argues that under existing Texas case law and public policy, gross negligence cannot be waived, citing *Smith v. Golden Triangle Raceway* which held such a release void. The opinion emphasizes that gross negligence and simple negligence are distinct and separable issues in Texas, requiring different proofs of mental state and character of the act. It further asserts that actual damages can be awarded for gross negligence, serving as a predicate for exemplary damages, and notes exceptions where actual damages need not be recoverable for punitive damages. The dissent draws an analogy to worker's compensation claims where gross negligence claims survive despite waivers for ordinary negligence. The Chief Justice concludes that public policy forbids the waiver of gross negligence, and the appellees failed to establish a defense of release for the gross negligence claim as a matter of law because 'gross negligence' was not explicitly mentioned in the release.

WaiverGross NegligenceOrdinary NegligencePublic PolicyReleaseExemplary DamagesActual DamagesSummary JudgmentTexas LawContract Law
References
16
Case No. 03-06-00404-CV
Regular Panel Decision
Mar 06, 2007

Johnnie M. Charles v. Texas Property and Casualty Insurance Guaranty Association, on Behalf of Phico Insurance Company, an Impaired Carrier

This case involves a restricted appeal filed by Johnnie M. Charles from a trial court's order dismissing her cause without prejudice. Charles initially appealed a Texas Workers' Compensation Commission decision regarding her impairment rating. After a venue transfer to Travis County, her case was dismissed for failure to pay filing fees. A nunc pro tunc order was later issued to correct a clerical error in the cause number of the original dismissal order. Charles appealed, citing errors in the dismissal, the lack of a court reporter, and the original hearing. The appellate court affirmed the dismissal, ruling that Charles's challenges to the original dismissal were untimely and that no error occurred in the nunc pro tunc order, which merely corrected a clerical error without altering the original judgment's substance.

restricted appealdismissal without prejudicenunc pro tunc orderclerical errorwant of prosecutionappellate jurisdictiontimeliness of appealTexas Rules of Civil ProcedureTexas Rules of Appellate Procedureworkers' compensation
References
13
Case No. ADJ8954364
Regular
Jul 06, 2015

MARK FINNEY vs. ZURICH INSURANCE, PATRIOT RISK SERVICES

This Workers' Compensation Appeals Board case, ADJ8954364, involved applicant Mark Finney seeking reconsideration of a decision that denied permanent impairment from a left eye injury. Finney argued he had developed glaucoma and sustained vision loss due to the injury. The Workers' Compensation Judge found no substantial evidence that the glaucoma was caused by the injury, nor was there sufficient evidence of specific vision loss as defined by the AMA Guides. Therefore, the petition for reconsideration was denied, upholding the original decision that while future complications could arise, there was no current permanent impairment.

Petition for ReconsiderationDeniedPermanent ImpairmentLeft Eye InjuryGlaucomaVision LossAMA GuidesPrimary Treating PhysicianBilateral Vision LossMyopic Astigmatism
References
1
Case No. 03-08-00483-CV
Regular Panel Decision
Mar 19, 2010

Texas Property and Casualty Insurance Guaranty Association for Reliance National Insurance Company, an Impaired Company v. Doris J. Toberny

Doris J. Toberny, an exhibit decorator, injured her back on the job in May 2000, leading to spinal-fusion surgery that also corrected pre-existing scoliosis. Initially, her employer's insurer, Texas Property and Casualty Insurance Guaranty Association for Reliance National Insurance Company ('the Company'), paid for the surgery. However, in December 2001, the Company disputed the claim, asserting the injury was only a lower back strain and not the cause of her scoliosis. After a designated doctor assigned Toberny a 25-percent impairment rating in 2002, the Company paid supplemental income benefits for eight quarters. Three years later, in September 2005, the Company sought to dispute her impairment rating and discontinue benefits, claiming her pre-existing conditions were not compensable. The Division of Workers’ Compensation and the district court found that the Company had waived its right to contest the impairment rating under former rule 130.102(g) due to late dispute filing, and affirmed Toberny's 25-percent impairment rating and entitlement to benefits. The Texas Court of Appeals affirmed the trial court's judgment, upholding the validity of rule 130.102(g) and the finding of waiver, thus confirming Toberny's impairment rating and attorney's fees.

Workers' CompensationImpairment Rating DisputeSupplemental Income BenefitsWaiver DoctrineCompensability of InjuryExtent of InjuryJudicial Review of Agency DecisionTexas Appeals CourtAdministrative Rule ValidityMaximum Medical Improvement
References
12
Case No. MISSING
Regular Panel Decision

Joe Ballard v. Arch Insurance Company and Transforce Inc.

Joe Ballard, an employee, appealed a summary judgment that favored his employer, Transforce, Inc., and its insurer, Arch Insurance Company, in a workers' compensation dispute. Ballard claimed a work-related left eye injury aggravated his pre-existing glaucoma, leading to vision loss. The Carrier Parties argued the vision loss stemmed from the pre-existing condition, not the injury. The core issues on appeal included the qualifications of the designated doctor, Dr. Philip Rothenberg, and whether factual disputes existed concerning the injury's extent, Ballard's date of maximum medical improvement (MMI) of January 25, 2011, and his zero percent impairment rating. The appellate court affirmed the trial court's decision, concluding that Dr. Rothenberg was qualified and that no genuine fact issues precluded summary judgment on the extent of injury, MMI, or impairment rating.

Workers' CompensationSummary JudgmentImpairment RatingMaximum Medical ImprovementGlaucomaEye InjuryCausationDesignated DoctorMedical EvidencePre-existing Condition
References
19
Case No. 2016-03-0413
Regular Panel Decision
Oct 05, 2017

Dodson, Deborah v. LHC Group

Deborah Dodson, an employee of LHC Group, injured her left ankle and right knee in May 2015. She underwent knee surgery and was placed at maximum medical improvement by Dr. Johnson. She later developed small fiber neuropathy, and despite a referral, faced difficulties obtaining a neurologic impairment evaluation. The Court granted Ms. Dodson's request for a neurologic impairment evaluation, either by Dr. Butler or another neurologist, referring Dr. Butler to the Penalty Program for failure to provide an impairment opinion. However, the Court denied her claim for additional temporary total disability benefits, finding she reached MMI on March 23, 2017, when Dr. Butler ceased active treatment.

Workers' CompensationNeurologic Impairment EvaluationTemporary Total Disability BenefitsMaximum Medical ImprovementSmall Fiber NeuropathyPain ManagementExpedited HearingMedical TreatmentImpairment RatingPenalty Program
References
3
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