GQ Corner
Q. The claimant recently terminated the representation of his attorney, but has since retained a new one. I now owe additional indemnity benefits and have approved fee orders for both attorneys. Under the circumstances, do I pay the fees to the old attorney first even though he no longer represents the claimant?
A. Yes. You should pay the fees in sequence beginning with the earlier ones from the first attorney. Note: Rule 152.1(e) specifically provides that the action of discharging an attorney does not defeat the right of the attorney to claim a fee.
Q. The claimant lacerated his hand while participating in a pumpkin carving event at work. The event was purely voluntary, and the employees who elected to participate did so with pumpkins and tools they brought from home. Is there a reasonable basis to deny the claim?
A. Yes. While compensability questions of this nature are extremely fact-intensive and must be evaluated on a case-by-case basis considering the totality of the applicable circumstances, it would appear that you have a reasonable basis to deny the claim by way of the affirmative defense to liability codified in Texas Labor Code Section 406.032(1)(D) referable to injuries arising out of voluntary participation in an off-duty recreational, social, or athletic activity. That provision establishes that a carrier is not liable for compensation in connection with such injuries unless the activity is a reasonable expectancy of or is expressly or impliedly required by the employment. The courts have further considered and balanced other factors, including whether the employer derives some benefit (other than the health or morale of the employee) from the activity, and whether the injury occurred on the employer premises while the employee is required to hold himself or herself in readiness for work. Mersch v. Zurich Insurance Co., 781 S.W.2d 447 (Tex. App.-Fort Worth 1989, writ den’d). Ultimately, the compensability question is one of fact for the Hearing Officer to resolve. See Appeals Panel Decision (APD) 971330.
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