Texas Supreme Court Declines Three Comp Cases

The Texas Supreme Court disposed of three petitions requesting review of a lower court’s decision involving workers’ comp issues last week, and granted one petition on an issue that may be of some interest to workers’ compensation system stakeholders.

The court granted a petition for review in Painter v. Amerimex Drilling, No. 16-120, and placed the case in a queue to schedule oral argument. Painter is not a workers’ compensation case, but it involves a travel issue that is regularly seen in workers’ compensation cases. And it will give the Supreme Court the opportunity to determine whether that travel issue should be treated differently from the way it would be handled in a workers’ compensation context, or similarly to comp.

In July 2007, three members of a drilling crew from Amerimex had been assigned to work the night shift on an oil and gas drilling rig at the Longfellow Ranch in Pecos County. The drilling site was remote. The company established a bunkhouse near Fort Stockton, some 30 miles from the drilling site. The Contract provides for the Driller to be paid $50.00 per day for transporting the Amerimex Crew between the drilling site and the bunkhouse as a Driver Bonus.

On July 28, 2007, after the Amerimex Crew’s shift ended, Burchett was driving the Crew from the rig site to the bunkhouse. Burchett fell asleep while driving, truck rolled over, and all of the crewmembers were ejected. Two crewmembers died.

The Division of Workers’ Compensation determined Burchett’s injuries were covered by WC “because he was paid to transport his crew to and from the worksite and the company bunkhouse. Moreover, delivering a crew to the worksite each day directly furthered the business interests of Amerimex.”

Representatives of the deceased employees sued Amerimex and the driver, Burchett. The trial court granted Amerimex’s summary judgment motion on the sole ground that Amerimex was not vicariously liable for any negligence of Burchett. The court of appeals affirmed.

Vicarious liability is the doctrine used in law to determine an employer’s liability for the actions of its employees. The Division of Workers’ Compensation found Burchett to have been acting in the course and scope of his employment for purposes of receiving benefits, while the trial court and court of appeals found that he was not acting in the course and scope of his employment for purposes of establishing Amerimex’s liability to the plaintiffs.

The court also denied petitions for review filed in two cases: Unique Staff Leasing v. Cates, No. 16-0713 and Green v. TDI-DWC, No. 16-0732.

Unique Staff Leasing presented the court with the opportunity to determine whether expert testimony is required to rebut a presumption of marijuana intoxication or whether an injured worker can satisfy that burden using mere lay testimony. The court declined to grant the petition, thus refusing to reverse the court of appeals decision that held the presumption could be rebutted using only the claimant’s non-expert testimony.

Green is one of a series of cases that appellate courts have considered, which involve the question of whether a claimant can couple her suit for judicial review of a Division decision and order with a declaratory judgment. The procedure opens the possibility for an injured worker to recover fee-shifted attorneys’ fees if she prevails on the merits of her claim. The courts have consistently rejected the tactic. The Supreme Court’s denial of this petition continues this trend of rejection.

Finally, the court denied a motion for rehearing to the denial of a petition for review in Pinkus v. Hartford Casualty Insurance Company, No. 16-0299. The case involves the compensability of a fatal accident that occurred while an employee was traveling in Texas on an out of town business trip. The accident occurred while the employee was driving in the evening after work to have dinner with his adult son. The court of appeals concluded that the travel to the place of the occurrence of the accident was for a personal purpose and, accordingly, that the employee’s fatality did not occur while he was in the course and scope of his employment.