Tuesday, November 10, 2015

The Recovering Worker is Sued

Just when I thought I had heard it all, a Texas story (which originally appeared in the Texas Tribune) recently made me stop and think. A teacher, Ms. Hammond, in Texas worked in a facility for at-risk youth near Austin, Texas. In 2011, she was on duty when the dorm "erupted into a full-fledged riot." In the mayhem that followed, Teresa Hammond witnessed a variety of poor behavior.

Ms. Hammond saw a student running past, and she "grabbed the shirt" in an attempt to stop him. The "momentum nearly yanked her arm out of its socket and drove her left knee into the ground." She came away from the incident with a "fractured knee and nerve damage in her shoulder and arm."

She is no longer employed. She was "medically discharged by the Texas Juvenile Justice Department in June 2012." She is receiving "food stamps" and the occasional "overdue child support" while she applies for social security disability benefits (a program that is scheduled to be bankrupt in mere months).

There are those who would tell you that her situation is not unheard of in the world of work-related injuries. There is at least a perception that injured workers can come to rely on federal benefits. But that is not a universal conclusion; there are varied views on the interactions between workers' compensation and other benefit programs. But the perception has driven the development of processes for the protection of Medicare's interests when workers' compensation cases are settled. 

But Ms.Hammond's story is interesting because of the procedural process described. The Texas "risk management office" is described as an "obscure agency charged with insuring thousands of state employees when they are injured on the job." According to the author, it has "paid most of her medical bills." There has been litigation regarding some workers' compensation benefits, and the office has contested "the extent of her injuries - and whether they all occurred on the job."

There have been allegations that some of her complaints, such as the nerve damage in her upper extremity are not related to the work injury, but are "degenerative." There have also been disagreements as to when she achieved maximum medical improvement (MMI). The Administrative Law Judge (ALJ) "determined that the nerve injuries were 'caused, enhanced, accelerated or worsened by" the work injury. The ALJ determined MMI, and ordered the payment of some measure of benefits. The claimant "had declared victory."

In Florida, such a trial decision might be appealed for consideration by the Florida First District Court. Texas presents another procedure though. In a "last-ditch" effort to avoid liability, the Office of Risk Management reportedly has filed a lawsuit against the injured worker, "asking a district court to overturn the administrative judge's ruling." The article says that when this occurs, "the odds are stacked against injured workers." 

There is a measure of expense associated with any litigation. The article explains that according to the Texas Supreme Court, state agencies are not liable for "paying attorneys' fees in such cases - even when they lose." Conversely, if the agency wins the court case, the injured worker could be "liable for court costs." If the agency wins, the worker may have to pay litigation costs, but if the worker wins, the agency does not pay such costs.

The article says that the agency does not often file lawsuits like this one, but the case regarding Ms. Hammond is not unprecedented. The author questions whether the small number of such suits results from a conscious decision of the agency or because "workers (are) winning fewer cases at the administrative judge level." However, no data is provided regarding whether more such court cases were historically filed. The article provides no support for the representation that "fewer" recent cases involve injured workers prevailing as compared to some time in the past. 

The defendants in these cases, the injured workers, "face major obstacles in finding legal help" with defending these lawsuits. The article concludes that this is because the agency is not liable for attorney's fees if it sues a recovering worker and loses. Texas has a law to "discourage frivolous lawsuits," but that law does not apply to the state agency because of "sovereign immunity." So, unless the recovering worker has resources to pay an attorney, "attorneys representing workers in such cases often can't get paid." More accurately, attorneys can't get paid by the state.

There are instances in which attorneys take such cases with no expectation of payment, This is what we call "pro bono." Despite the reputation of lawyers in the community, and all of those lawyer jokes you hear, there are a fair number of attorney hours donated to such pro bono causes every year. According to The Florida Bar, almost 2 million pro bono hours were provided in Florida last year alone. Ms. Hammond has been lucky that publicity of her case attracted a pro bono attorney. One might feel the same about anyone who benefits from any of those Florida pro bono hour donations.

There are those who are critical of the procedural setting that is in motion in a case like Ms. Hammond's. Some apparently blame the Texas Supreme Court for its interpretation of the "frivolous lawsuits" law. Others apparently blame the Texas Legislature for not changing the law that the Supreme Court interpreted, which prevents attorney fee liability against state agencies. These critics, believing the Court has misconstrued the law, think the legislature should amend the law to define a different result, making the state liable for such fees. 

As an aside, I wondered as I read about the use of "frivolous," in the article. It notes that Texas has a law to "discourage frivolous lawsuits," but that it may not discourage lawsuits by state agencies due to immunity. But does the fact that a case is filed, but is lost, make that case "frivolous?" The article provides no further guidance on what is "frivolous" in Texas. 

An interesting story from Texas. 

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