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Judgments from two Texas appellate courts on the same day on separate cases were recently made in nonsubscribers’ favor.

In Lupe Holdings, LP, et al. v. Sanchez, the First Court of Appeals ruled that a Harris County trial court erred when it denied a motion to compel arbitration between an injured worker and his nonsubscriber employer. The injured worker claimed he suffered an on-the-job industry injury on Aug. 1, 2018, and sued his employer on July 31, 2020, the last day before the expiration of a two-year statute of limitations for injury claims set forth in an arbitration agreement signed by both the company and the worker. In response, the employer filed a motion in March 2021 to compel arbitration, pursuant to the arbitration agreement.

The appeals court ruled on July 21, 2022, that the arbitrator, not the trial court, is the appropriate entity to determine if the employer’s motion to compel arbitration was filed within the agreed-upon time frame in the arbitration agreement.

Meanwhile, the Second Court of Appeals that same day affirmed a trial court’s order in Arrow Personnel, LLC, et al. v. Grant, that there is no reason for the case to proceed to a jury trial.

The case involves a staff leasing agency and nonsubscriber that had contracted with a manufacturing company that is a subscriber to the Texas Workers’ Compensation System. The agreement specifically called for the staffing agency to provide employees while the manufacturing company retained control of the workplace and provided necessary safety measures.

A worker provided by the staffing agency was injured when he was struck by steel I-beams falling from a forklift/conveyor system operated by an employee of the manufacturing company. Although the injured employee was an employee of the staffing company, the nonsubscriber successfully used the “right to control” test to argue that their client did not owe a duty to provide a safe workplace or have control of the liability-producing aspects where the staffing company did not provide task-specific training, supervision or equipment and did not control the property or task instructions. The manufacturing company also successfully barred claims against them filed by the employee pursuant to the Exclusive Remedy Rule.

Both cases were handled by Jerry Fazio of Owen & Fazio, P.C.

The Texas Department of Insurance, Division of Workers’ Compensation, designated Insurance Services Offices as its data collection agent for claim EDI release 3.1 data.

Insurance Services Office, Inc., a wholly owned subsidiary of Verisk Analytics, will bill insurance carriers, other than governmental entities, to recover the costs associated with collecting claim data for DWC.

According to DWC, the costs for the first year of data collection include the following:

• One-time startup costs allocated across Texas insurance carriers and certified self-insured employers and certified self-insured employer groups total: $368,350. These costs include trading partner profile registration and certification, programming, certification, website setup, and billing setup and coordination.
• First-year ongoing support costs allocated across Texas insurance carriers and certified self-insured employers and certified self-insured employer groups total: $458,850. These costs include staffing positions, infrastructure costs, insurance carrier support, report development, and EDI intake and pre-editing.
• Subsequent-year ongoing support costs allocated across Texas insurance carriers and certified self-insured employers and certified self-insured employer groups: Verisk will bill each insurance carrier, including certified self-insured employers and certified self-insured employer groups, a percentage of these costs based on fiscal year 2021 accepted claim EDI transaction volume. The 2021 transaction volume is at info/faq. Verisk will bill for future ongoing support costs based on the previous year’s accepted EDI transaction volume, plus an additional 3% annually.

Verisk will bill for half of the $368,350 one-time startup costs immediately after insurance carrier registration. Verisk will bill for the remaining half of their one-time startup costs and the cost of the first year of ongoing support costs on or after July 26, 2023, which is the Texas claim EDI release 3.1.4 implementation date. All insurance carriers or insurance carrier groups must register their billing contact information with Verisk as soon as possible.

Information about the registration and billing processes is available here.