Workers Compensation Hot Topics

Transcription

1 Workers Compensation Hot Topics Proposed Workers Compensation Legislation Current Status of Firefighter Presumption Cancer Claims Secondary Employment for Police Officers an other City Employees Common Law Marriage and Workers Compensation Fatalities

2 Workers Compensation Bills that could possibly impact Cities House Bill 473 Joe Moody, Democrat State Representative from El Paso Employer cannot terminate first responders before maximum medical improvement unless designated doctor says the person is unable to work. House Bill 1983 John Wray, Republican State Representative from Waxahachie Post Traumatic Stress Disorder (PTSD) for First Responders Limited to single event, Diagnostic and Statistical Manual of Mental Disorders by the American Psychiatric Association, Diagnosis must be from a physician.

3 House Bill 2054 Rene Oliveira, Democrat State Representative from Brownsville Death Benefits to include annual increase for consumer price index published by the Bureau of Labor Statistics and used by the Social Security Administration House Bill 2055 Rene Oliveira, Democrat State Representative from Brownsville Eligible spouse entitled to receive death benefits for life and removes the remarriage lump sum payment and applies to all fatalities, not just first responders

4 House Bill 2082 Dustin Burrows, Republican State Representative from Lubbock First Responder Liaison in the Office of Injured Employee Counsel to assist first responders in their respective workers compensation claim. House Bill 2119 Kyle Kacal, Republican State Representative from College Station 2015 Legislative session adopted first responder surviving spouse to get lifetime death benefits regardless of remarriage. This bill applies regardless of the death or if spouse remarried. Bill attempts to make this apply retroactively.

5 House Bill 2326 Nicole Collier, Democrat State Representative from Fort Worth On Extent of Injury disputes, a medical causation narrative report addressing the dispute is created by the treating doctor to explain the connection between the workplace accident and a diagnosed injury and the insurance carriers is required to pay for this report. Senate Bill 1895 Larry Tayor, Republican Senator from Friendswood The Division of Workers Compensation Commissioner shall refrain from assessing administrative penalties solely for failure to comply with electronic data interchange requirements after good faith efforts to comply

6 Current Status of Firefighter Cancer Presumption Claims Presumption Adopted in the 2005 Legislative session Applies to Firefighters, EMTs, and Volunteer Firefighters Heart Attacks, Strokes, Cancer and other illnesses Cancer as determined by the International Agency for Research on Cancer (IARC) based in Lyon, France IARC first published Monograph 98 in Three types of cancers are more prevalent in firefighters than the ordinary public: Prostate, Testicular and Non-Hodgkin s Lymphoma TMLIRP has disputed cancer claims and DWC dispute resolution process began hearing cancer disputes in 2015.

7 Dallas, Houston, McAllen, Bedford and Stephenville claims were the first cases to go to contested case hearing. These five claims are the first to get into District Court. TMLIRP has two claims in litigation. LeMaster report is discussed in the IARC Monograph. 20 types of cancer are listed in the LeMaster report that IARC addressed based on research done all over the world on firefighter cancer. IARC concluded that only these three types are substantiated in the research. Chapter 607 of Texas Government Code states: This section applies only to a type of cancer that may be caused by exposure to heat, smoke, radiation, or a known or suspected carcinogen as determined by the International Agency for Research on Cancer.

8 City of Dallas claim was first heard at contested case hearing. The hearing officer ruled that the type of cancer was not one of the three cancers determined by IARC. DWC Appeals Panel reversed the hearing officer s decision and stated that if the IARC Monograph mentioned one of the 20 cancers in the LeMaster report, then one of those 20 cancers are compensable for workers compensation. TMLIRP and others disagree with this position. The language in the Government Code is the issue that needs to be ruled on by the Appellate or Texas Supreme Court. The Courts will need to decide this issue as a matter of law. It will take time to get these lawsuits into the Appellate courts and possibly the Texas Supreme Court.

9 Secondary Employment for Police Officers and other City Employees Typical scenario: Off duty police officer is being paid by the secondary employer. The secondary employer directs and controls the activities of the off duty employee. The employee is not required to work the secondary job but volunteers to do this for extra income. If the off duty employee gets injured while working for the secondary employer, the City s workers compensation coverage would not apply because the secondary employer is the employer responsible for workers compensation. The Exception to this statement is that a police officer has the authority to make an arrest if a felony or breach of the peace occurs that would put the officer in course and scope of the City if within the jurisdiction of the City. If outside the City s jurisdiction, the officer would be covered for the injuries by the State of Texas.

10 The facts of each accident will determine if the City s workers compensation will apply. The common misconception is that the City s workers compensation will cover any injury that occurs during this secondary employment. If the off duty officer trips and falls during this secondary employment, the City s workers compensation would not apply. The secondary employment should have workers compensation coverage to cover these types of accidents, but many times, the secondary employer does not have workers compensation coverage. Examples include parks employees getting paid to be present when a facility is rented out. The entity or persons renting out the facilities pays the off duty parks employee by the hour or day. If the City wants these employees to be covered by the City s workers compensation coverage, the employees should be on duty for the City. The entity or persons renting out the facility should reimburse the City for these costs.

11 Many off duty employees do these secondary jobs for the extra income without realizing the exposure of getting injured and that these injuries would not be covered by the City s workers compensation policy. Group health policies don t cover on the job injuries. Cities need to have personnel policies that address secondary employment for all types of secondary employment. City employees working these secondary employment should get approval in advance from the City. The policy needs to address injuries that may occur while working these secondary employment. Cities should have contracts with these secondary employment that addresses workers compensation. The best way to cover these types of secondary employment is for the City to pay the employees and consider these employees on the job for the City. Overtime pay and Fair Labor Standards Act apply to these situations.

12 Common Law Marriages Surviving spouses of first responder fatalities get lifetime death benefits. The remarriage clause was removed by the legislature in the 2015 session. TMLIRP has had two first responder fatalities where the issue of whether the deceased was in a common law marriage.

13 Elements of a Common Law Marriage in Texas Agree that they were married Represent to others that they were married. Have lived together as spouses in Texas, no time limit is specified. Cynthia Sinatra v. The Estate of Francis W. Sinatra, Jr. 13 th Court of Appeals, Corpus Christi, 2016 Texas Supreme Court denied Writ March 31, 2017