Texas Supreme Court Hears Important Nonsubscriber Case

Texas Supreme Court Hears Important Nonsubscriber Case

The Texas Supreme Court heard arguments in the East Texas Medical Center Athens lawsuit on Feb. 18th. In this litigation, 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.”

If not overturned, the 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 precedence 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 even if the nonsubscriber is only 1% responsible.

The TAN board voted to file an amicus brief encouraging the court to hear the case. The brief was drafted on behalf of TAN by Donna Peavler of the Peavler Briscoe law firm. For a copy of the TAN brief, contact tim.conger@bravarro.com.

Oral arguments from this month’s Texas Supreme Court hearing may be viewed here.

Federal Bill Filed to Eliminate OSHA

An Arizona congressman has again filed legislation that would eliminate the U.S. Occupational Health and Safety Administration (OSHA).

Republican Andy Biggs filed similar legislation in 2021, but that bill did not get out of committee. His current bill, called the Nullify Occupational Safety and Health Administration Act, does not have any co-sponsors as of Feb. 20.

Biggs says his latest bill is an effort to support the Trump administration’s attempts to shrink the size and scope of the federal government and to stop government “meddling” in workplaces. He said workplace safety should be regulated by the states, not the federal government, and criticized what he said is OSHA’s “one-size-fits-all” workplace standards.

Biggs’ first proposal to eliminate OSHA came after the organization enacted a rule to enforce COVID vaccine requirements during the pandemic. The rule would have required employers with 100 or more employees to require that employees receive a COVID vaccination. Employees who chose not to be vaccinated would have had to wear a mask on the job and submit to regular testing. The requirements were dropped when the U.S. Supreme Court ruled it unconstitutional.

OSHA also came under attack last year when 23 attorneys general for Republican states joined an Ohio contractor in asking the Supreme Court to hear a complaint arguing that OSHA’s far-reaching authority is unconstitutional. The court did not take up the case.

Texas Mutual Reports Fewer Severe Injury Claims in 2024

Texas Mutual, the leading provider of workers’ compensation insurance in the state, says it received 13% fewer severe injury claims in 2024 compared to the previous year.

The construction industry had the most claims in 2024, with 32% of all claims, a 20% drop from 2023. Heavy manufacturing and mining were the next highest claims-generating industries, with each reporting 9% of all claims.

Other industries reporting fewer serious injuries were mining (-24%), transportation (-29%), and business services (-45%).

Despite decreases across most specific construction industries, framing contractors reported 200% more claims in 2024. More than 55% of these claims involved slips, trips or falls from heights. Increased claims for severe injuries were also reported in heavy manufacturing (14%) and hospitality (41%).

Despite the large increase in claims, the hospitality industry claims represented just 5% of all severe injury claims in 2024.

More than 40% of the severe injury claims in the hospitality industry were for employees with one to six years on the job. Most of the claims were from miscellaneous causes, which included employees collapsing due to unknown medical conditions, having a stroke, or being assaulted.

Although no motor vehicle accidents (MVAs) were reported from the hospitality industry in 2023, multiple MVA injuries were reported in 2024. All these injuries occurred after dark, and half claimed the lives of the employees.

There was no reduction in the number of burns or scalds from heat or cold in 2024, which Texas Mutual says may be attributed to a nearly 67% increase in injuries among employees with less than one year of experience who were injured by direct contact with either fire or flame.

Executive Order Requires Reduction in Regulations

President Trump has issued an executive order requiring all federal agencies identify at least 10 existing regulations or guidance documents to be repealed for every new rule, regulation or guidance promulgated.

The order also calls for the total incremental cost of all new regulations, including repealed regulations, being finalized this year to be significantly less than zero, as determined by the director of the Office of Management and Budget (OMB), unless otherwise required by law. Additionally, the Jan. 31 order requires that OMB ensure all federal agencies use standardized measurements and estimates of regulatory costs.

The executive order is an escalation from the first Trump administration’s policy of requiring two existing regulations be eliminated for every new regulation issued.

According to the order, “The ever-expanding morass of complicated Federal regulation imposes massive costs on the lives of millions of Americans, creates a substantial restraint on our economic growth and ability to build and innovate, and hampers our global competitiveness.”

Additionally, “It is the policy of my Administration to significantly reduce the private expenditures required to comply with federal regulations to secure America’s economic prosperity and national security and the highest possible quality of life for each citizen.”

The executive order is available here.

Rule to Determine if Worker Is Independent Contractor Under Review

The Department of Labor (DOL) is reassessing a Biden-era rule for determining whether a worker is an employee or an independent contractor.

The Biden rule was established in 2024 and immediately challenged in court by business groups. The fate of the rule has made its way to a federal appeals court, where the Trump administration DOL would have to defend it. However, the DOL recently won a postponement until the end of March to give it time to determine how, or if, it wants to proceed.

Most observers expect the DOL will drop its defense of the Biden rule, which had been adopted to rescind a 2021 rule from the first Trump administration, which in turn was a reversal of an Obama-era rule.

The Trump rule established five factors to be used when determining if a worker could be classified an independent contractor. It said two of the factors, the nature and degree of a worker’s control over the work and the worker’s opportunity for profit or loss, were critical determinants. The Biden rule used six factors and a “totality of circumstances approach.”

Regardless of the approach DOL takes, employers have several factors to consider when classifying workers as independent contractors, including:

  • How much control does the worker have over their own work? For example, does the company determine the worker’s schedule, supervise their performance, or control pricing for their services?
  • Does the worker have an opportunity for profit or loss?
  • Is the work performed project specific, or is it indefinite or continuous?
  • Do company employees perform the same type of services as the worker?

Survey Provides Insight on How Employees Manage Chronic Health Conditions at Work

Three out of four U.S. workers with chronic health conditions such as hypertension, heart disease, diabetes and asthma say they need to manage their conditions during work hours, yet a majority (60%) have not formally disclosed their conditions to their employer, according to a new national poll by the Harvard T.H. Chan School of Public Health and the de Beaumont Foundation.

The poll, U.S. Employee Perspectives on Managing Chronic Conditions in the Workplace, was conducted in October 2024 among a nationally representative sample of the U.S. workforce, composed of 1,010 part-time and full-time working adults ages 18 and older who were not self-employed and worked at organizations with 50 or more employees.

The poll found that 58% of workers report having physical chronic health conditions, and many workers structure their health care to account for their jobs or go without. Notably, 36% of employees with chronic conditions say they have skipped medical appointments or delayed getting care to avoid interfering with work in the past year. Almost half of those with chronic conditions say, in the past year, they felt they could not take time off work (49%) or take a break while at work (49%), even though they needed to because of their conditions.

In addition, 33% of employees with chronic health conditions say in the past year they missed opportunities for more hours or projects because of their conditions, while 25% report missing opportunities for promotion and 21% report receiving bad reviews or negative feedback as a result of their chronic health conditions.

Fewer than half of the workers surveyed say their current employer is very supportive of key measures that allow employees to manage their conditions, including allowing employees to take breaks when they feel they need it (44%) or take paid leave (44%). Fewer than four in 10 say their employer is very supportive of flexible schedules or working remotely more often if the work can be done off-site (37% and 27%, respectively).

The survey results are available here.

Survey Says Today’s Entry-Level Employees Not Quite Ready for Job

Most employees and executives believe today’s entry-level workers are not well-prepared for their jobs, according to research conducted by General Assembly, a tech talent and training solutions provider.

Fewer than half (48%) of employees — and only 12% of mid-level executives — believe today’s entry-level employees are well-prepared to do their jobs.

According to the survey, 27% of vice presidents and directors would not hire today’s entry-level employees. Neither would 23% of employed adults, including a third of baby boomers (33%).

Almost half (49%) of executives and 37% of employees selected a lack of soft skills (e.g., communication, collaboration, adaptability) as the top reason entry-level workers seem unprepared, followed by not having the right attitude (cited by 28% of executives and 30% of employees) and not having the right technical skills (cited by 13% of executives and 16% of employees).

One-third of executives (33%) and more than a quarter of employees (26%) said their employers don’t provide adequate training to new employees.

The survey also found that most employees (64%) and executives (74%) believe employees themselves should be responsible for their job readiness. However, many said that employers (63% of employees, 66% of executives) and educational institutions (53% of employees, 73% of executives) should also share that responsibility.

Additional information about the survey is available here.

Survey Shows Worker Attitudes on Advancing in the Workplace

Just 17% of workers participating in a new survey said they think their employers are invested in helping them with skills needed to advance in their careers. Additionally, three-fourths of workers leave their positions without ever having been promoted, according to the survey from ADP.

Women were less likely than men to say they have the skills necessary to advance in their careers within the next three years or that their employer invests in the skills they need to advance in the future.

The results are contained in the first study in ADP Research’s “People at Work 2025” report series.

Other key findings include:

  • The opportunity to get ahead is important, and not just for workers. When workers globally were asked to provide the top reasons why they would stay with their employer, the opportunity for career advancement was second only to flexibility in scheduling.
  • Workers who feel strongly that their employer is providing the training they need are nearly six times more likely to recommend their company as a great place to work.
  • These same workers are also 3.3 times more likely to describe themselves as highly productive and twice as likely to say they have no intent to leave their organization compared to workers who have the skills but lack on-the-job training opportunities.

ADP surveyed nearly 38,000 working adults in 34 markets across six continents. Respondents came from a variety of industries, educational backgrounds, on-site and remote work environments, and skill sets and represent a range of management and individual contributor roles, working for employers of all sizes.

Information on downloading the series is available here.

Fatal Injuries in the Workplace Double for Hispanic Workers

The number of fatal injuries among Hispanic construction workers doubled during a recent 12-year period, according to a report from the Center for Construction Research and Training. Fatal injuries among non-Hispanic construction workers increased 16.5% during the same period.

Using data from the Census of Fatal Occupational Injuries and the IPUMS Current Population Survey covering 2011-2022, researchers found 408 fatal workplace injuries involving Hispanic construction workers in 2022 — a 107.1% increase from the 197 fatalities in 2011. Non-Hispanic construction worker fatal injuries were 679 in 2022, compared to 583 in 2011.

The fatalities resulted in a fatal injury rate of 10.3 per 100,000 full-time employees (FTE) for Hispanic construction workers in 2022, compared to 9.6 per 100,000 FTE in 2011. The fatal injury rate for non-Hispanic construction workers was 8.7 per 100,000 FTE in 2022, compared to 8.8 per 100,000 FTE in 2011.

Hispanic workers continue to be a growing demographic group in the U.S. construction industry, now accounting for 34% of all construction workers, compared to 16.5% in 2000, according to the report. The highest concentrations of Hispanic construction workers in 2023 were found in drywall installation (75.2%), roofing (63.9%), and painting (62.5%).

The report says Hispanic construction workers are at increased risk of injuries, likely due to a combination of causes, including language barriers, cultural factors, and immigration-related concerns. Additionally, they are more likely to work for small employers (e.g., fewer than 20 employees), where there is often a lack of training material available in Spanish and fewer safety programs in place.

The report is available here.

New Non-Opioid Pain Management Drug Approved

A new type of non-opioid drug for acute pain management has been approved by the Food and Drug Administration (FDA) and is likely to impact the workers’ compensation industry.

The medication, suzetrigine, will be sold under the brand name Journavx. It was approved in January by the FDA for up to two weeks of pain management for acute post-surgical pain.

Journavx will cost more than generic drugs often used for pain management. The drug’s manufacturer, Vertex Pharmaceuticals, says patients should receive an initial dose of 100 mg, followed by twice-daily doses of 50 mg, and has set a wholesale price of $15.50 per 50 mg pill, or $420 for a two-week course.

Journavx reduces pain by targeting a pain-signaling pathway involving sodium channels in the peripheral nervous system, before pain signals reach the brain. It is the first drug to be approved in this new class of pain management medicines. Opioids dull the sensation of pain in the brain and often give the patient a sense of euphoria, which can lead to addiction. Journavx does not give the user euphoria or a sense of being high, leading doctors to say patients aren’t likely to become addicted.

It is the first non-opioid drug approved for pain relief since Celebrex was approved in 1998.

The most common adverse reactions in study participants who received Journavx were itching, muscle spasms, increased blood level of creatine phosphokinase, and rash. Journavx is contraindicated for concomitant use with strong CYP3A inhibitors. Additionally, patients should avoid food or drink containing grapefruit when taking Journavx.

Texas News

Reuters
Exclusive: Tesla Cited by U.S. Regulators Over Worker’s Death 
Federal regulators have cited Tesla (TSLA.O), opens new tab for violating workplace safety rules in connection with the electrocution of a worker last summer at its Austin, Texas, auto-manufacturing plant. Click here for full article.

NCCI
Texas – Legislative Activity
As part of our efforts to provide information on workers compensation legislative activity, NCCI identifies and monitors relevant workers compensation-related bills in all jurisdictions and the federal government. Click here for full article.

State News

Insurance Journal 
Florida Contractor in Fatal Fall Incident Sentenced for Workers’ Comp Fraud
A Florida framing contractor has been sentenced to 48 months in prison and millions of dollars in fines and restitution after he failed to obtain workers’ compensation insurance and ignored safety practices, leading to deadly consequences. Click here for full article.

Lexington Herald Leader
KY House Gets Business-backed Bill That Would Weaken Worker Safety Protections
Kentucky would weaken its workplace safety protections to make the state more “business friendly” under a bill backed by the Kentucky Chamber of Commerce that’s advancing to the House floor. Click here for full article.

Insurance Journal
Maryland Report Says Many Workers Misclassified, Costing $59M in Comp Premiums
Worker misclassification in Maryland is widespread, leaving thousands of workers without injury protection and depriving insurance companies of more than $58 million in workers’ compensation premiums each year, according to a new report from a state task force. Click here for full article.

Baltimore Fishbowl
Report Finds Widespread Fraud by Employers Misclassifying Workers
A new report on workplace fraud in Maryland found that thousands of workers have been misclassified by employers, potentially costing those workers overtime pay, health insurance coverage, workers’ compensation, and more. Click here for full article.

SHRM
NY Expands Workers’ Compensation Coverage for Work Stress Claims
Lisa M. Griffith and Samantha DeRuvo examine a New York law meant to support employees facing job-related mental health issues and how it will affect employers. Click here for full article.

Rochester First
Gov. Hochul Signs Amendment to Retail Worker Safety Act
Governor Hochul signed an amendment to the Retail Worker Safety Act. The Retail Worker Safety Act requires employers to develop programs to prevent workplace violence through training programs and the installation of panic buttons at local businesses. Click here for full article.

Business Insurance
Editorial: Stress Law Puts Comp to the Test
Workers compensation adjudicators in New York will have their work cut out as they seek to assess the validity of mental stress claims under a recently enacted law. Click here for full article.

Tennessee Comptroller of the Treasury
Workers’ Compensation for Local Government Entities in Tennessee
During the 2024 legislative session, the General Assembly passed legislation requiring the Comptroller’s Office to conduct a study of the workers’ compensation insurance market for local government entities in Tennessee. Click here for full article.

Insurance Journal
Virginia County Trash Collector’s Workers’ Compensation Claim Thrown Out
When the garbage truck stopped, the worker stepped down from the metal step on the back of the truck to run and retrieve a trash can. When his feet hit the ground, he heard a pop in his leg, felt pain in his knee, knelt for a moment in pain, then stood up and continued work. Click here for full article.

General News

AP News
States Absorb Big Increases in Medicaid for Sicker-than-expected Enrollees after COVID-19 Pandemic
States are absorbing substantial increases in health care costs for the poor, as they realize that the people remaining on Medicaid rolls after the COVID-19 pandemic are sicker than anticipated — and costlier to care for. Click here for full article.

ARS Technica
Protection from COVID Reinfections Plummeted from 80% to 5% with Omicron
With the rise of omicron came the fall of long-lasting protection from reinfection with the pandemic coronavirus SARS-CoV-2, according to a study published in Nature. Click here for full article.

Occupational Health & Safety
NSC Releases New Guidance to Prevent Common Workplace Injuries
With 2.6 million workplace injuries and illnesses reported in 2023, MSDs remain the most common workplace injury in the United States, according to the Bureau of Labor Statistics. Click here for full article.

SciTechDaily
Doctors Warn COVID-19 Could Be a Hidden Trigger for Heart Attacks Long After Recovery
A new study has found that COVID-19, caused by the SARS-CoV-2 virus, is linked to accelerated plaque buildup in the coronary arteries, increasing the risk of heart-related complications. Click here for full article.

Business Insurance
Arkansas to Consider Changes to Comp Doctor Choice, Litigation Practices
Arkansas lawmakers are considering legislation that would allow injured workers to request to switch to a doctor of their choice once per year instead of one time only and would require them to pay for legal fees related to deposing a medical examiner. Click here for full article.

CIDRAP
COVID Vaccination Saved More Than 5,000 US Lives in 7 Months in 2023-24, CDC Estimates
COVID-19 vaccination averted more than 5,000 US in-hospital deaths, 13,000 intensive care unit (ICU) admissions, and 68,000 hospitalizations in 7 months in 2023-2024, researchers from the US Centers for Disease Control and Prevention (CDC) estimated late last week in Vaccine, although with considerable uncertainty. Click here for full article.

U.S. Department of Labor
U.S. Department of Labor Terminates COVID-19 Healthcare Rulemaking
On June 21, 2021, OSHA issued an Emergency Temporary Standard to protect workers from COVID-19 in healthcare settings, which also served as a proposed rule on which OSHA requested comments. Click here for full article.

Insurance Business
Mental Health Issues and Workers’ Comp Impacts
In December, the Council of Australian Life Insurers (CALI) and KPMG, with contributions from more than 15 insurance firms, published an alarming report. Click here for full article.

Occupational Safety and Health Administration
Enforcement Stay of the COVID-19 Recordkeeping and Reporting Requirements under 29 CFR 1910.502
On June 21, 2021, OSHA adopted a Healthcare Emergency Temporary standard (Healthcare ETS) protecting workers from COVID-19 in settings where healthcare or healthcare services are provided. Click here for full article.

UPI
U.S. Influenza Cases Reach 15=year High Despite Declining COVID-19, CDC Says
U.S. medical services providers are seeing the greatest numbers of flu cases since the 2009-2010 flu season, the Centers for Disease Control and Prevention announced Friday. Click here for full article.

The Washington Post
Students Aren’t Recovering From COVID. Test Scores Are Getting Worse
Students still have not recovered academically from deep drops in test scores following the pandemic, new federal data shows. Click here for full article.

WTVR
Meet the Americans Who Still Take COVID-19 Precautions Seriously
Susan Scarbro stares down a bowling lane at the distant pins. She hears a sound that breaks her focus. Was that a cough? Will her mask protect her? Click here for full article.

Willamette Week
Purported SAIF Shooter Emailed “Threat” to Insurer, Including Employee Names and Addresses
Police and the SAIF Corp. remain close-lipped about an early-morning shooting Feb. 21 at the home of the workers’ compensation insurer’s CEO Chip Terhune. Click here for full article.