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

Case No. 2017-05-0177 / 85136-2016
Regular Panel Decision
Aug 16, 2017

Perry, Jr., Lonnie v. Golf Carts Fore Less

Lonnie Perry, Jr. sustained a right shoulder injury while lifting a golf-cart battery at work for Golf Carts Fore Less. After initial delays and denial by the employer and Accident Fund, Mr. Perry sought treatment with Dr. Russell McKissick, who diagnosed a rotator cuff and biceps tendon tear and causally linked it to the work incident. The court, during an expedited hearing, found Mr. Perry likely to establish causation and ordered Golf Carts Fore Less to provide medical treatment, designating Dr. McKissick as the authorized treating physician. However, Mr. Perry's requests for temporary disability benefits, a penalty, and attorney fees were denied due to a lack of evidence of complete disability and an unresolved dispute regarding his termination for alleged misconduct.

Workers' CompensationShoulder InjuryRotator Cuff TearBiceps Tendon TearMedical BenefitsTemporary Disability BenefitsExpedited HearingCausationEmployer MisconductAttorney Fees
References
5
Case No. SAC 0282406
Regular
May 09, 2008

DWAYNE BAHNSEN vs. FCI CONSTRUCTORS, INC., ARGONAUT INSURANCE

The Workers' Compensation Appeals Board dismissed the defendant's petition for reconsideration because the judge's order quashing a subpoena for personnel records was an interlocutory order, not a final determination of rights or liability. Furthermore, the Board denied the defendant's request for removal, finding no evidence of substantial prejudice or irreparable harm that would justify this extraordinary remedy. The Board agreed that the subpoena for confidential employment records was not a reasonable discovery request and that the defendant failed to demonstrate a compelling need or inability to obtain the information through less intrusive means.

Subpoena Duces TecumMotion to QuashReconsiderationRemovalInterlocutory OrderFinal OrderSubstantive RightLiabilityPrejudiceIrreparable Harm
References
9
Case No. MISSING
Regular Panel Decision

Warnke v. CVS Corp.

Plaintiff Robert Warnke, alleging age discrimination against his former employer CVS Corporation, moved to quash subpoenas issued by Defendant to his subsequent employers. The subpoenas sought extensive employment records for the purpose of a mitigation defense. U.S. Magistrate Judge A. Kathleen Tomlinson found that while Plaintiff had standing due to privacy interests, the requested information was largely not relevant or could be obtained through less intrusive means, such as tax records and depositions already provided or scheduled. The Court also noted the potential for annoyance and embarrassment to Plaintiff with his current employers. Consequently, the Court granted Plaintiff's motion to quash the subpoenas.

Employment DiscriminationAge DiscriminationMotion to QuashSubpoenas Duces TecumDiscovery DisputeMitigation of DamagesPrivacy RightsEmployment RecordsNon-Party SubpoenasFederal Rules of Civil Procedure
References
17
Case No. MISSING
Regular Panel Decision

City of Sherman v. Henry

This case addresses whether a public employee’s private, legal sexual conduct is protected under the Texas Constitution. The City of Sherman's police chief denied appellee Otis Henry a promotion to sergeant based solely on his off-duty relationship with Kelly Olson, a recently separated wife of a fellow officer. The trial court ruled in favor of Henry, finding a violation of his right to privacy under the Texas and United States Constitutions. The appellate court affirmed the trial court's judgment on the constitutional issues, holding that Henry's conduct is protected by the Texas Constitution, and the City failed to prove a compelling governmental interest achievable by less intrusive means. However, the court reversed and remanded the issue of attorney’s fees for a new trial.

Privacy RightsTexas ConstitutionPublic Employee RightsPolice PromotionOff-Duty ConductGovernmental InterestStrict ScrutinyConstitutional LawCivil Service CommissionSexual Conduct
References
54
Case No. MISSING
Regular Panel Decision

Waite v. Waite

Justice Frost writes a concurring and dissenting opinion regarding Mr. Waite's challenges to the Texas no-fault divorce statute. She concurs with the court's decision on attorney's fees and most constitutional challenges, but dissents from the court's rejection of Mr. Waite's challenge under Article I, Section 6 of the Texas Constitution, which guarantees 'rights of conscience.' Justice Frost argues that the no-fault divorce statute impermissibly interferes with religious freedom by requiring courts to evaluate the 'legitimate ends of the marital relationship,' an inquiry that she contends is inherently religious for many and thus outside the proper jurisdiction of civil courts. She advocates for applying a 'strict scrutiny' test, finding no compelling state interest to justify this intrusion and noting the availability of less restrictive alternatives for no-fault divorce.

Texas ConstitutionReligious FreedomRights of ConscienceNo-Fault DivorceMarital RelationshipJudicial InquiryStrict ScrutinyArticle I Section 6Texas Family Code Section 6.001Appellate Law
References
79
Case No. MISSING
Regular Panel Decision

Smith County Education Ass'n v. Smith County Board of Education

This case involves a constitutional challenge by Smith County public school teachers against the Smith County Board of Education's random drug testing policy. Plaintiffs argued that the policy violated their Fourth Amendment rights against unreasonable searches due to insufficient notice regarding tested substances and intrusive implementation procedures. The Court determined that while random drug testing of teachers is not inherently unconstitutional and serves a legitimate deterrent purpose, the 2007 policy, as written and implemented, was flawed. Specifically, it lacked clarity on the specific drugs being tested, included an 'any detectable amount' clause, and involved intrusive sample collection practices. Consequently, the Court found the policy unconstitutional for violating the individual plaintiffs' Fourth Amendment rights due to its lack of adequate notice and unreasonable intrusion on privacy.

Fourth Amendment RightsDrug Testing PolicyPublic Education LawUnreasonable SearchesTeacher PrivacyConstitutional ChallengeSchool Board AuthorityDue ProcessIn Loco ParentisSafety-Sensitive Positions
References
9
Case No. ADJ4106399 (SAL 0115982)
Regular
Jun 06, 2009

Nicholas Ramos vs. ANITA ZARAGOZA, TRISTAR RISK MANAGEMENT

The Appeals Board granted reconsideration and affirmed the decision that the defendant did not meet its burden to establish that the applicant earned less than $100.00 and worked less than 52 hours in the 90 days before the injury.

Labor Code section 3352(h)Labor Code section 3351(d)Labor Code section 3357excluded employeehomeowner's testimony52 hours90 daysearnings requirementclerical errorPetition for Reconsideration
References
0
Case No. MISSING
Regular Panel Decision

Claim of VanWinkle v. Harden Furniture

Claimant, a woodworker, sustained a work-related back injury and subsequently resigned from her physically demanding job after being denied a less strenuous office position. The employer challenged her temporary award of reduced earnings, arguing she voluntarily withdrew from the labor market. However, a Workers’ Compensation Law Judge and the Workers’ Compensation Board determined that her resignation was motivated by her back injury and persistent pain, supported by her treating chiropractor's advice to seek less strenuous work. The appellate court affirmed the Board's decision, finding substantial evidence in the record to support the finding that the claimant did not voluntarily withdraw from the labor market. This decision upheld the claimant's entitlement to reduced earnings benefits.

voluntary withdrawallabor marketback injuryresignationreduced earningschiropractic advicesubstantial evidenceworkers' compensation lawemployment changephysical restrictions
References
4
Case No. MISSING
Regular Panel Decision

State Division of Human Rights v. Hatch Associates Consultants, Inc.

Wanda Thompson, a Black employee, alleged racial discrimination after being laid off from her construction secretary position. She claimed she was transferred to poor field offices, received less pay than Caucasian secretaries, and was ultimately terminated, despite an "excellent" performance rating, while a less senior white employee assumed her former transit secretary role. The employer was required to hire minority workers and allegedly placed only minority clerical employees in temporary field positions. The court found that the Division of Human Rights’ determination of "no probable cause" lacked a rational basis, concluding that discrimination could be inferred from the circumstances. Therefore, the court deemed the Division's dismissal of Thompson's complaint arbitrary and capricious, reversing their decision.

Racial DiscriminationWrongful TerminationEqual Employment OpportunityAdministrative ReviewArbitrary and CapriciousProbable CauseSeniorityPay DisparityWorkplace ConditionsField Office
References
4
Case No. ADJ767882 (SAL 0102012)
Regular
Dec 14, 2020

Stella Avila vs. Sutter Santa Cruz, State Compensation Insurance Fund

Here's a summary for a lawyer: The Workers' Compensation Appeals Board denied reconsideration of an award for admitted industrial injury to the applicant's spine, psyche, and upper extremities. The applicant sought total permanent disability based on a vocational expert, while the defendant argued the psychiatric injury was not compensable due to less than six months' employment and that permanent disability indemnity should not be awarded during VRMA payments. The Board affirmed the finding that prior and current employment with the employer exceeded six months, making the psychiatric injury compensable, and deemed the VRMA issue moot due to an amended award. The Board also found the vocational experts' opinions less persuasive than those of the Agreed Medical Examiners regarding the extent of permanent disability.

ADJ767882Stella AvilaSutter Santa CruzState Compensation Insurance FundPermanent DisabilityVocational Rehabilitation Maintenance AllowanceVRMAPsychiatric InjuryLabor Code Section 3208.3(d)Gottschalks Dept. Stores v. Workers' Comp. Appeals Bd. (Garcia)
References
1
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