GQ Corner
Q: The treating doctor placed the claimant at MMI with a 15% impairment rating. Prior to receiving this certification, the adjuster requested a designated doctor on MMI and IR. Once the treating doctor’s certification was received, the adjuster initiated IIBs. Days after initiating IIBs, the designated doctor opined that the claimant was not at MMI. How do I dispute this rating?
A: The rules are unclear as to how to dispute such a rating given that a designated doctor had already been appointed. That said, you are almost certainly safe by filing a DWC-45 and requesting a BRC. However, given uncertainty in this area, in the absence of clear authority, we recommend that you file another DWC-32 disputing the IR only as the designated doctor had said that the claimant was not at MMI and you only want to dispute the 15% IR. Note, however, that neither of these procedures are necessarily going to get you an alternative and adoptable IR. Going to a BRC without something for the DWC to adopt is a waste of time and resources. Therefore, in addition to filing the DWC-45 and DWC-32, you need to exercise your right to a post designated doctor RME.
Q: A store manager is alleging mental stress – anxiety and depression, due to his job as of 5/1/2015. There was no specific incident that occurred on 5/1/15, but this was the first day he was out of work on leave of absence. A Statement was obtained from the claimant who reported stress over a period of several months relating to the general stresses of managing a store such as arranging schedules, having a busy store that is open 24 hours, and that his district manager is very demanding. In discussing with the district manager, the claimant had been having performance issues. He was to be coached the day he went out on leave. Does any of this sound compensable?
A: No. In order to establish a mental stress claim, the claimant must prove: 1) that the alleged mental trauma injury arose in the course and scope of employment; 2) that alleged mental trauma injury is traceable to a definite time, place, and cause; and that there is a 3) a causal connection between the incident causing the alleged injury and the psychological condition at issue. Additionally, the Appeals panel has held that, “Disappointment in job expectations, worry and anxiety over job loss, failure to be promoted and the like have long fallen outside the ambit of injuries sustained in the course and scope of employment.” File a PLN-1 to dispute the claim.
Q: If a worker was injured due to a tornado, would that be considered compensable or is it an “Act of God” scenario? In this case they were working on a rig in the panhandle and sought cover in a trailer and sustained injuries when the tornado hit. Are they considered at a greater risk than the general public because they are on a rig or does it matter?
A: The relevant provision is Texas Labor Code Section 406.032(1)(E) establishing that an insurance carrier is not liable for compensation if the injury arose out of an act of God, unless the employment exposes the employee to a greater risk of injury from an act of God than ordinarily applies to the general public. A Carrier is not liable for compensation if the injury arose out of an act of God, unless the employment exposes the claimant to a “greater risk of injury from an act of God than ordinarily applies to the general public.” Section 406.032(1)(E). The court of appeals has defined “act of God” as follows:
By the term “act of God” as used herein is meant any accident that is due directly and exclusively to natural causes without human intervention and which no amount of foresight, pain or care, reasonably exercised, could have prevented. The act must be one occasioned by the violence of nature, and all human agency is to be excluded from creating or entering into the cause of the resulting mischief. The term implies the intervention of some cause not of human origin and not controlled by human power. [Emphasis added]. Transport Insurance Co. v. Liggins, 625 S.W.2d 780, 782-83 (Tex. App.-Fort Worth 1981, writ ref’d n.r.e.).
The IW has the burden of proof to establish that his or her employment exposes the IW to a greater risk of injury from the act of God than ordinarily applies to the general public. Whether or not the IW’s employment exposes him or her to a greater risk of injury than the general public is a question of fact for the hearing officer to resolve. APD 002641.
The Appeals Panel has addressed at least two Tornado cases; both were automobile accidents, caused by a tornado. In the first, the AP found the injury to be compensable because the employee was a truck driver, and the employment exposes the claimant to a greater risk than the general public. The size of the claimant’s truck played a factor in the determination as well.
In the second case, the claimant was a driver’s education teacher. After terminating her instructions due to bad weather, the claimant returned the driver’s educational vehicle to the place of business and began her journey home. On the way home, a tornado caused her to have an accident. The AP found this not to be compensable because she was not at a greater risk of exposure than the general public.
Based on the above, the tornado constitutes an act of God but the case presents a fact question – on which the claimant retains the burden of proof – as to whether the claimant was at a greater risk than the general public due to the employment. The question is not whether the Act of God set a chain of events into action but whether the Act of God is the sole cause of the injury. To the extent that the injuries were caused by the employer’s property (e.g., portions of the trailer contused the claimant), then the injury would be compensable.
FOLIO
