GQ Corner

Q. I have an employee, an EMT, who was discussing politics with another employee. Based on the police report and statements from employees, the injured worker was the instigator of an ensuing conflict that evolved into a physical altercation. He continued calling the other employee a derogatory name until that employee got angry and punched the injured worker in the face. The injured worker fell backwards, hitting his head on the table and then the floor. He was admitted to the hospital, where he remained overnight until his release the next day. Per the injured worker, his diagnosis was a concussion. The employee who punched him was fired and he was subsequently arrested on a criminal assault charge. Can I deny the claim based on horseplay? 

A. The horseplay defense likely would not apply, but there is a separate liability defense that you may raise under Texas Labor Code Section 406.032(1)(C) because the claimed injury arose out of the act of a third person intended to injure the employee for personal reasons and not directed at the employee as an employee or because of the employment. The statute provides that the carrier is not liable for compensation when it can prove this with sufficient evidence. Note that before disputing a claim of this nature on that basis, you should also explore and consider the potential for common law liability. Depending upon coverage considerations, it may be more prudent to handle under workers’ compensation. 

Q. I have a claimant that was off work due to a work injury beginning on January 2, 2020 and the insured does not accommodate light duty. We initiated temporary income benefits, and the injured worker’s employment was terminated for cause on January 6, 2020. May I suspend TIBs based on that?  

A. You have no argument against disability following the termination unless the evidence is such that but for the termination for cause, the claimant would have been able to return to her former job at some point following that termination. As the employer was not accommodating her restrictions at the time of her termination, fighting disability thereafter without a release to full duty would not be worthwhile.