TAN Moving Forward With Efforts to Reverse Adverse Court Ruling Against Nonsubscribers

TAN Moving Forward With Efforts to Reverse Adverse Court Ruling Against Nonsubscribers

The Texas Alliance of Nonsubscribers is moving forward with plans to file an amicus brief in the East Texas Medical Center Athens lawsuit in hopes of preventing an adverse lower court ruling from becoming the prevailing law in Texas.  

In East Texas Medical, the Tyler Court of Appeals struck an order designating two third parties as “responsible third parties” under the Texas Proportionate Responsibility Statute (Texas Civil Practice & Remedies Code, Chapter 33), holding that that statute does not apply to nonsubscribers because an employee’s negligence claim against a nonsubscriber is “an action to collect workers’ compensation benefits under the workers’ compensation laws of this state.” See No. 12-23-00263-CV, 2023 WL 8103959 (Tex. App—Tyler Nov. 21, 2023). The issue raised in East Texas Medical is whether a nonsubscriber may invoke the “responsible third party” provisions contained in Section 33.004 of the Texas Proportionate Responsibility Statute. This decision turns on whether Chapter 33 is available at all in a nonsubscriber negligence case. While the Tyler Court of Appeals ultimately answered that question in the negative, the tenor of the opinion suggests the Tyler Court of Appeals might not have chosen to rule as it did were it not constrained by directly applicable precedent out of that same court 25 years ago in Kroger Co. v. Keng, 976 S.W.2d 882 (Tex. App—Tyler 1998, aff’d, 23 S.W.3d 347 (Tex. 2000). After acknowledging that “the ultimate goal in any statutory construction is to give effect to the intent of the Legislature to the greatest degree possible,” the court stated, “[b]ut, we are bound by our own precedent.” The court continued, “We previously determined that a negligence case against a nonsubscribing employer is an action for workers’ compensation benefits under the TWCA.” Because “[t]hat decision has not been overruled,” the court concluded that the nonsubscribing defendant employer was barred “under the express terms of the statute” from designating two individuals as “responsible third parties” under Section 33.004.  

If not overturned, the East Texas Medical case will likely be applied by other Texas state and federal courts to bar nonsubscribers from apportioning fault not only to responsible third parties, but also to responsible co-defendants who are sued alongside the employer. The effect of such precedent on nonsubscriber litigation would be profound, as it would effectively make employers jointly and severally liable for all fault attributable to a third party or co-defendant should the fact finder (the jury or arbitrator) conclude that the nonsubscribing employer is even “1% responsible.” In practical terms, this would mean an employer would potentially become jointly and severally liable for the negligence of the employer’s vendors, customers, landlords, other premises owners, and even persons committing criminal acts against an employee.  

In fact, the ripple effect could go even further than just the Texas Proportionate Responsibility Statute. The Tyler court’s conclusion that a nonsubscriber claim is an action to collect workers’ compensation benefits potentially could prevent out-of-state nonsubscribers from removing a nonsubscriber case filed in Texas state court to federal court. If a federal court were to look to Texas state law to determine whether a nonsubscriber action “aris[es] under the workers’ compensation laws” in Texas, it could potentially conclude that based on East Texas Medical, nonsubscriber claims are never removable to federal court. See 28 U.S.C. § 1445(c) (“A civil action in any State court arising under the workmen’s compensation laws of such State may not be removed to any district court of the United States.”).  

Earlier this year, the Texas Supreme Court granted an emergency stay in the case pending its determination of whether it will hear the case. The court has requested briefing, which increases the odds it will take the case.  

TAN members are encouraged to be a part of the organization’s amicus efforts. Anyone interested in participating may contact Tim Conger (tim.conger@bravarro.com).

Report Cites Most Frequent Workplace Injuries

Overexertion and slips, trips and falls make up more than 50% of the injuries that result in workers’ compensation claims, according to a report from the Travelers Companies. The report found those two injury types were also the top drivers of claims worth more than $250,000. 

The Travelers Companies examined 1.2 million workers’ compensation claims it received from 2017 to 2021 to compile its 2024 Injury Impact Report. 

According to the report, the most frequent causes of injury were: 

  • Overexertion (29% of claims analyzed). 
  • Slips, trips and falls (23%). 
  • Being struck by an object (12%). 
  • Motor vehicle accidents (5%). 
  • Caught-in or caught-between hazards (5%). 

The 2024 report found that employees in their first year on the job continue to be the most vulnerable to workplace injuries, accounting for 35% of all workers’ compensation claims. 

This year’s analysis also uncovered increases in missed workdays due to injuries, with injured employees missing on average 72 workdays, up one day from last year’s report. 

The construction industry continued to have the highest average number of lost workdays per injury (103 workdays, up from 99), followed by transportation (83 workdays, up from 77). 

Injured small-business employees missed an average of 82 workdays, up from 79. 

Additional findings from the 2024 Injury Impact Report can be found here.

Employers Facing Higher Health Costs for Workers

Despite higher benefits costs, fewer than half of large employers — those with 500 or more employees — say they are likely to increase employee deductibles or co-pays in 2025 for health and benefits, according to Mercer’s new Survey on Health and Benefit Strategies for 2025. Instead, many said they will use high-performance provider networks or other strategies to steer employees to higher-quality, lower-cost care next year. 

After a decade in which cost growth averaged about 3% annually, the average per-employee cost of employer-sponsored health benefits rose by 5.2% in 2023, according to the survey. Employers told Mercer they expect another increase above 5% for 2024. 

According to the survey, the tight labor market and concerns about health care affordability have made employers reluctant to shift more cost to employees through plan design changes as a tactic to slow health care cost growth. However, 14% of large employers say it’s very likely they will make plan design changes such as raising deductibles or out-of-pocket maximums. Some 31% say it’s at least likely. 

Among the factors contributing to higher health benefits costs is pharmacy costs after a sudden spike in the use of certain therapies for treatment of diabetes and obesity. Glucagon-like peptide 1 (GLP-1) drugs had a notable impact on costs. The combination of the high price of these drugs — typically about $1,000 per month per patient (not counting manufacturers’ rebates, which vary) — plus the large number of patients who may benefit from them may result in substantial net new costs to many health plans. 

However, the survey found that more employers are likely to add coverage for obesity medications rather than drop it. 

The survey is available here. 

Lower Back Pain Causes Identified

Workers reporting various psychosocial, physical or organizational factors may have an increased risk of low back pain, according to a new study led by researchers from the National Institute for Occupational Safety and Health (NIOSH). 

Researchers examined results from 17,464 workers who worked more than 20 hours a week and participated in the 2015 National Health Interview Survey. The study was published online in the Journal of Occupational and Environmental Medicine. 

Researchers found that the rate of low back pain was “significantly elevated” in workers who reported having the following factors: 

  • High job demand 
  • Low control over their work 
  • Job insecurity 
  • Work-life imbalance 
  • Bullying 
  • Nontraditional work shifts 
  • Physical exertion 

Job control and nonstandard shifts were significantly associated with low back pain only among those who reported low/no physical exertion. 

More information about the study is available here.

Research Suggests Way to Encourage Workers to Reveal Disabilities

Many American workers hide their disabilities from HR, even though disclosing them could benefit both employee and employer. Now a new study identifies a simple way to make revealing a disability more likely — by tweaking the language used on disclosure forms. 

The study, led by Northern Illinois University Psychology Professor Alecia Santuzzi, found employees made significantly more disclosures when reporting a “qualifying condition” as opposed to the current choice of reporting a “disability.” 

Collecting disability-related information from employees meets legislative requirements and can foster inclusion and help employers respond to employee needs. However, the stigma associated with disability, and other factors, make it likely that few employees disclose their disability at work. 

Santuzzi and colleagues surmised that an employee would be more likely to disclose a limitation if a replacement term for “disability” were used on the disclosure form. They surveyed nearly 1,600 employed adults from an online panel who were asked to complete one of four versions of the Voluntary Self-identification of Disability (VSID), a disclosure form frequently used by U.S. employers and required for use by federal contractors. All versions of the form provided the same background information, including the definition of disability as described in the Americans With Disabilities Act. 

The original VSID provides three self-disclosure options: “Yes, I have a disability.” “No, I don’t have a disability.” And “I do not wish to answer.” 

On that form, 20% of all respondents self-disclosed a disability. But when the word “disability” was replaced with “qualifying condition,” the disclosure rate jumped to 29%. 

The study was published in the journal Group & Organization Management. Information on purchasing the study for download is available here. 

Quitting Their Jobs in 2024 Likely for One-Third of Workers, According to Survey

Nearly 3 in 10 workers (28%) are likely to quit their jobs in 2024, according to a new survey from ResumeBuilder.com. 

Among the 1,000 full-time workers surveyed in July, 28% say they are “somewhat likely” (21%) or “highly likely” (7%) to quit their jobs this year. An equal percentage of respondents (28%) report quitting one or more jobs during the Great Resignation of 2021 and 2022. 

A higher percentage of Gen Zers and young millennials say they are likely to quit versus respondents in older age groups. Of 18- to 24-year-olds, 37% are “somewhat likely” or “highly likely” to quit their jobs this year, as are 35% of 25- to 34-year-olds. 

The most common reasons cited by workers who say they are likely to quit include low pay (56%), desire for better benefits (44%), and overly stressful work (43%). 

A separate survey from Intuit QuickBooks, conducted in collaboration with Allstate Health Solutions, finds 78% of respondents said they would find a new job if their benefits package were inadequate. 

In fact, 23% of employees surveyed across small and large companies said they struggle to afford their employer-provided benefits, and most workers (62% at smaller and 66% at larger companies) think their monthly contributions are too high. 

Nearly 60% want a range of benefits options to choose from, including Health Maintenance Organizations (HMOs), Preferred Provider Organizations (PPOs), and Flexible Spending Accounts (FSAs). In addition, 50% at small and 61% at larger companies want the choice of adding supplemental benefits, including dental, vision, mental health, pet insurance and more. 

More than 9 out of 10 employees at both small and large companies connect their overall job satisfaction to their benefits. 

The resumebuilder.com survey is available here.  

More information about the Intuit QuickBooks/Allstate Health Solutions survey is available here.

Remote Work May Stifle Innovation From Workers

Remote and hybrid work arrangements may stifle innovation, according to new research from economists at University of Essex and University of Chicago. 

The research was recently published in the journal Scientific Reports and found that staff who worked in a hybrid model were less likely to come up with innovative ideas than colleagues who always worked in the office. Additionally, staff working from home tended to produce lower-quality innovative ideas than those who always worked in the office. 

The study notes that many CEOs have expressed concern that remote work suffers from a loss of intangibles that arise from in-person interactions among employees, e.g., onboarding and development of new employees, nurturing corporate culture, and fostering collaboration. 

The study followed more than 48,000 employees from a large Indian IT company during periods of working from the office, working from home, and hybrid working. Innovation is not a core part of their work, but the company has tried to instill a culture in which all employees see innovation as a key part of their job, with the company offering financial rewards to foster innovation at work. 

Employees can submit ideas about process improvements, cost-saving measures, or new products, which are then evaluated by the company and either implemented or discarded. According to the study, the quantity of ideas did not change during the working-from-home period compared to working in the office; however, the quality of ideas suffered. During the later hybrid period, the quantity of submitted ideas fell and innovation suffered, particularly in teams that did not coordinate when they worked at the office or from home. 

The study is available here.

Texas News

WorkersCompensation.com 
Texas UPS Drivers Suffer from Heat Effects with No A/C 
One UPS driver is dead and another is lucky to be alive after suffering heat emergencies, officials said. Click here for full article. 

State News

NBC Los Angeles 
They Were Diagnosed with Silicosis, then Denied Worker’s Comp 
They say they got sick from doing their job, and now they’re being denied worker’s comp benefits Or, it turns out, they’re employers may not even have proper coverage. Click here for full article. 

First Coast News 
Insurance Rates Could Go Down for Florida Businesses. Here’s How 
The National Council on Compensation Insurance is proposing a one percent decrease in workers’ comp insurance rates. If approved, the rates will start next year. Click here for full article. 

Business Insurance 
High Court Upholds Comp Award for Back Injury, Psych Condition  
Weighing conflicting medical testimony from at least four doctors, the Kentucky Supreme Court on Thursday upheld an award of benefits for a worker for a back injury with a psychological condition. Click here for full article. 

Webster County Citizen 
Proposed Federal Heat Protections for Workers Draw Praise, Skepticism  
In a typical year, Missouri workers and employers file hundreds of reports and claims related to compensation for heat-related injuries, a workplace hazard that the federal government wants to address with new safety rules. Click here for full article. 

New Jersey Law Journal 
New Law Approves Increase in Attorney Fee Cap for Workers’ Comp Cases, Reflecting 25% Limit 
A state bill was signed into law Thursday amending existing litigation to reflect a 5 percentage point increase, or a 25% limit for attorney fees for workers’ compensation cases, despite opposition from at least two New Jersey organizations. Click here for full article. 

New Jersey Business Magazine 
Workers’ Comp Contingency Attorney Fee Cap Increases to 25% 
Acting Governor Nicholas Scutari yesterday signed S2822/A3986, which raises the attorney fee cap in workers’ compensation cases from 20% to 25%, amending existing statute R.S.34:15-64. Click here for full article. 

Office of the Governor of West Virginia 
Gov. Justice Announces Workers Compensation Insurance Rates to Drop for 20th Straight Year, More Good News for West Virginia 
Gov. Jim Justice announced today that the National Council on Compensation Insurance (NCCI), West Virginia’s rating and statistical agent, has filed a proposed workers’ compensation loss cost decrease of 9.1%, effective Jan. 1, 2025. Click here for full article. 

Insurance Journal 
Cyber Risk: West Virginia OIC Plans to Dispose of Older Workers’ Comp Files 
The West Virginia insurance commissioner’s office has adopted a new policy: It will soon begin destroying workers’ compensation claim files that are 10 years old or older. Click here for full article.

General News

AP News 
Sensors Can Read Your Sweat and Predict Overheating. Here’s Why Privacy Advocates Care 
On a hot summer day in Oak Ridge, Tennessee, dozens of men removed pipes, asbestos and hazardous waste while working to decontaminate a nuclear facility and prepare it for demolition. Click here for full article. 

CBIA 
Report: New Employees Face Higher Injury Risk 
More than a third of workplace injuries occur during an employee’s first year on the job, according to a new report from Travelers. Click here for full article. 

CBS News 
Company Failed to Protect Workers Who Now Need Lung Transplants, Regulators Say 
A Chicago countertop manufacturer failed to protect its workers from silica exposure, leaving a father and son in need of lung transplants, federal labor officials said. Click here for full article. 

Chevron 
New Technologies Help Improve Worker Safety 
As a Chevron asset retirement manager, David Beckmann gets excited about new technologies that help improve efficiency in offshore operations. And he gets even more excited when they play a role in worker safety. Click here for full article. 

M Live 
Dollar General to Pay $12 Million in Fines Over Worker Safety Issues 
Dollar General has agreed to pay $12 million in a settlement with the federal government over workplace safety. Click here for full article. 

Property Casualty 360 
Secrets of Award-winning Workers’ Comp Programs 
As the nature of business and the workplace continue to evolve, PropertyCasualty360.com remains committed to elevating stories about ingenuity, collaboration and humanity in the workers’ compensation insurance and risk management sectors. Click here for full article. 

Safety + Health 
When Temps Rise, so does Injury Risk, Workers’ Comp Data Shows 
Indoor and outdoor workers have a 52% increased likelihood of injury when the mercury rises above 90° F, Colorado’s largest workers’ compensation insurer says after a recent survey of claims data. Click here for full article. 

WorkersCompensation.com 
Could Worker get Mental Health Benefits for Post-accident Depression, Anxiety? 
When an employee seeks mental health benefits under the workers’ compensation act following a physical injury at work, it’s worth considering whether the two injuries are genuinely connected. Click here for full article. 

WorkersCompensation.com 
The Ethical Imperative: Human Behavior in Workers’ Compensation Cases 
As we continue our exploration of ethics in workers’ compensation, we must consider the powerful role emotions play in our decision-making. Click here for full article. 

Newsweek 
COVID Warning as New KP.3.1.1 Variant Rises to US Dominance: ‘Buckle Up’ 
A new coronavirus variant named KP.3.1.1 has risen to dominance in the U.S., almost doubling in prevalence in just two weeks, the Centers for Disease Control and Prevention reports. Click here for full article. 

Nature 
Cohort Study of Cardiovascular Safety of Different COVID-19 Vaccination Doses Among 46 Million Adults in England 
The first dose of COVID-19 vaccines led to an overall reduction in cardiovascular events, and in rare cases, cardiovascular complications. Click here for full article. 

Financial Times 
‘Ill-ish’ and the New Rules of Working When Sick 
For HR and management experts, the key to navigating the new rules of when to work with illness is all about communication. Click here for full article. 

Johns Hopkins Bloomberg School of Public Health  
Why COVID Surges in the Summer 
Every summer since 2020, COVID rates have risen in July and August, due to a confluence of virological, behavioral, and environmental factors. Click here for full article. 

The New York Times 
This Program Provided More Than a Million Free Covid Shots. Now It’s Ending 
Clinics that care for uninsured and underinsured people say they are now scrambling to figure out how to pay for vaccines. Click here for full article. 

CDC 
Safety Precautions: Cleaning and Disinfecting for COVID-19 
Carefully select cleaners and disinfectants and application methods for use in facilities, businesses, and public indoor spaces to ensure that you can clean and disinfect safely and effectively. Click here for full article. 

NBC News 
COVID Cases on the Rise: Is it Too Late for a Vaccine?  
With Covid cases surging this summer, the upcoming rollout of updated vaccines in the fall raises an important question: Will they arrive in time to make a difference? Click here for full article. 

PBS 
COVID-19 Falls from No. 4 to No. 10 Cause of Death in U.S. 
U.S. death rates fell last year for all age groups compared with 2022, federal health officials said Thursday. Click here for full article.