TEXAS BREAKOUT SESSION

Transcription

1 TEXAS BREAKOUT SESSION Flahive, Ogden & Latson Robert D. Stokes, Attorney Steven M. Tipton, Attorney 8911 Capital of Texas Hwy Bldg Three, Suite 3300 Austin, TX P.O. Box Austin, TX Phone: Fax:

2

3 TEXAS BREAKOUT SESSION Flahive, Ogden & Latson Robert D. Stokes, Speaker Steven M. Tipton, Speaker REPETITIVE TRAUMA, FALLS & AGGRAVATIONS TEXAS COMPENSABILITY THEORIES Morning Session: 9:45 a.m. 10:00 a.m. Accidental Injuries v. Occupational Diseases 10:00 a.m. 10:30 a.m. Defending Repetitive Trauma Claims 10:30 a.m. 11:00 a.m. Defending Idiopathic Injuries 11:00 a.m. 11:15 a.m. Extent of Injury and Aggravation Disputes 11:15 a.m. 11:30 a.m. Turning Away from the Course of Employment Afternoon Session: 12:30 p.m. 12:45 p.m. Accidental Injuries v. Occupational Diseases 12:45 p.m. 1:00 p.m. Defending Repetitive Trauma Claims 1:00 p.m. 1:30 p.m. Defending Idiopathic Injuries 1:30 p.m. 1:45 p.m. Extent of Injury and Aggravation Disputes 1:45 p.m. 2:00 p.m. Turning Away from the Course of Employment

4

5 ci^efsbi=ldabk=c=i^qplk= tçêâéêëû=`çãééåë~íáçå=fåëìê~ååé=aéñéåëé= cä~üáîéi=löçéå=c=i~íëçå= UVNN=`~éáí~ä=çÑ=qÉñ~ë=eïóKÔ_äÇÖK=PI=pìáíÉ=PPMM=Ó^ìëíáåI=qÉñ~ë=TUTRV= mklk=_çñ=omnpov=j=^ìëíáåi=qéñ~ë=tutom= TEL FAX FOL@FOL.COM

6 cêçã=qüé=pü~êéüçäçéêë= For more than sixty years: Flahive, Ogden & Latson has defended workers' compensation claims before Texas state agencies, and state trial and appellate courts at every level. Our Statewide practice as attorneys, counselors, publishers, monitors, mentors and educators is dedicated only to the field of workers' compensation defense. Our insurance carrier clients include six of the largest workers compensation insurance groups in Texas: Chartis, The Hartford Insurance Companies, Liberty Mutual Insurance Companies, Texas Mutual Insurance Company, Travelers Insurance Companies; and Zurich Insurance Companies. We also represent a large number of mid-size and small carriers, many third party administrators, three self-insured groups, thirty-four certified self insurers, and approximately 2,500 cities, school districts, and other governmental self-insureds. Four of the firm's lawyers were honors graduates, three were editors of their law school Law Reviews, four were selected for Texas Court of Appeals judicial clerkships, and one served as a briefing attorney on the Texas Supreme Court. Seventeen lawyers in the firm have earned their board certification in workers' compensation law from the Texas Board of Legal Specialization. Five are also double or triple boardcertified specialists in other fields, including personal injury trial law, administrative law and civil appellate law.

7 cä~üáîéi=löçéå=c=i~íëçå= píéîéå=jk=qáéíçå= MANAGING SHAREHOLDER, born Temple, Texas, June 15, 1951; admitted to bar, 1981, Texas and U.S. District Court, Western District of Texas. Education: Southwestern University ( B.S., 1973 ) ; South Texas College of Law ( J.D., 1981 ).Blue Key; Pi Kappa Alpha. Member: Editorial Staff, South Texas Law Journal, ; Student Advocacy Board of South Texas College of Law, Briefing Attorney, Hon. Robert M. Campbell, Justice Texas Supreme Court Member: State Bar of Texas ( M ember, Litigation and Civil Appellate Sections ), DRI Workers' Compensation Committee, Council on Litigation Management. Martindale-Hubbell AV Preeminent TM Peer Review Rated, Board Certified in Personal Injury Trial Law, Civil Appellate Law, and Workers' Compensation Law, Texas Board of Legal Specialization. g~ãéë=ok=püéññáéäçi=fff= SHAREHOLDER Oversees Client Compliance and attorney performance, born Selma, Alabama, February 14, 1952; Admitted to Bar 1980, Texas and U.S. District Court, Western District of Texas. Education: University of Texas ( B.A., with high honors 1977 ) ; Texas Tech University ( J.D. ), Phi Alpha Delta. Assistant Attorney General of Texas, Member: State Bar of Texas ( member, Workers Compensation Section ) ; Board Certified: Workers Compensation Law, Texas Board of Legal Specialization. The College of the State Bar of Texas ( 2006-present ). Served in U.S. Army oçäéêí=ak=píçâéë= SHAREHOLDER - Client Services, born Lubbock, Texas, May 2, 1957; admitted to bar, 1982, Texas. Education: Abilene Christian University ( B.A., 1979 ) ; Baylor University ( J.D., 1982 ). Editor: The Ohio Workers' Compensation Deskbook, Managing Editor, Baylor Law Review, Briefing Attorney, Hon. Earl W. Smith, Justice, Third Court of Appeals, Member: Travis County Bar Association; State Bar of Texas. Past Chair: Texas Board of Legal Specialization; Board Certified Personal Injury Trial Law and Civil Appellate Law, Texas Board of Legal Specialization; Life Fellow, Texas Bar Foundation; Member: Ohio State Bar Association. ik=ióåéííé=müáääáéë= SHAREHOLDER Scheduling Attorney, born Georgetown, Texas, October 11, 1960; admitted to bar, 1986, Texas. Education: Southwestern University ( B.A., 1983 ) ; University of Texas ( J.D., 1986 ). Member: State Bar of Texas; Travis County Women Lawyers Association; Austin Black Lawyers Association. Board Certified: Personal Injury Trial Law and Workers' Compensation, Texas Board of Legal Specialization. pk=oüéíí=oçäáåëçå= born Athens, Texas, January 26, 1960; admitted to bar, 1985, Texas. Education: Henderson County Junior College ( A.A., 1980 ) ; University of Texas ( B.A., 1982; J.D., 1985 ). Member: Travis County and American Bar Associations; State Bar of Texas ( M ember, Administrative Law Section ) Board Certified, Administrative Law and Workers' Compensation, Texas Board of Legal Specialization. `~êäçë=^åçëí~= born El Paso, Texas, July 29, 1956; admitted to bar, 1990, Texas; 1991, U.S. District Court, Northern, Eastern, Southern, and Western Districts of Texas and U.S. Court of Appeals, Fifth Circuit. Education: University of Texas at El Paso ( B.A., 1987) ; University of Notre Dame ( J.D., 1990 ). President, Notre Dame Hispanic American Law Student Association, International Moot Court Team, Member: Houston Bar Association ( Member, Litigation Section ) ; State Bar of Texas ( Member, Committee on Opportunities for Minorities in the Profession ) ; Houston Hispanic Bar Association ( B oard Member ). ( S ergeant, U.S. Army, Attorney ). Languages: Spanish. Board Certified in Workers' Compensation, Texas Board of Legal Specialization. héîáå=bk=j~åbï~å= SHAREHOLDER Head of Litigation, born Dallas, Texas, January 29, 1959; admitted to bar 1985, Texas. Education: Baylor University ( B.B.A., 1981; J.D ). Member: State Bar of Texas. Board Certified in Workers' Compensation, Texas Board of Legal Specialization.

8 cä~üáîéi=löçéå=c=i~íëçå= `Ü~êäÉë=`K=cáåÅÜ= born Kingsville, Texas, April 12, 1966; admitted to bar, 1991, Texas. Education: Trinity University ( B.S., 1988 ) ; University of Texas ( J.D., with honors, 1991 ). Briefing Attorney to Honorable Jimmy Carroll, Chief Justice, Texas Court of Appeals, Third Supreme Judicial District, Member: State Bar of Texas. Board Certified in Workers' Compensation, Texas Board of Legal Specialization. m~íêáåá~=ek=_ä~åâëüé~ê= born Houston, Texas, November 3, 1971; admitted to bar, 1997, Texas. Education: University of Texas; Baylor University ( J.D ). Assistant City Attorney, City of College Station ( ). Member: Smith County Bar Association; State Bar of Texas. Board Certified in Workers' Compensation, Texas Board of Legal Specialization. oçó=gk=ié~íüéêäéêêói=fs= påçíí=ak=_çìíçå= born Arkadelphia, Arkansas, admitted to bar, 1994, Texas. Education: University of Arkansas at Fayetteville ( B.S.Ch.E, cum laude, 1991 ) ; University of Texas ( J.D., with honors, 1993 ). Tau Beta Phi; Gamma Beta Phi; Phi Eta Sigma; Golden Key; Phi Delta Phi. Who's Who of American Law Students, Associate Editor, The Review of Litigation; Managing Editor 1994-Present Texas Workers' Compensation Manual; Member: State Bar of Texas. Board Certified in Workers' Compensation, Texas Board of Legal Specialization.. The College of the State Bar of Texas ( 2005 present ). born, Norman, Oklahoma; admitted to Texas bar, Education: Iowa State University ( B.B.A ) ; Baylor University ( J.D. 1997). Briefing Attorney to Honorable John T. Boyd, Amarillo Court of Appeals ( ). Baylor Law School National Negotiation Team, Baylor Law School Order of Barristers, Lambda Chi Alpha Fraternity. Member: State Bar of Texas. Board Certified in Workers' Compensation Texas Board of Legal Specialization. m~ìä=_k=píçåé= born Boston, Massachusetts, August 28, 1966; admitted to bar, 1991, Texas; 1992, U.S. District Court, Northern District of Texas. Education: Vanderbilt University ( B.A., 1988 ) ; St. Mary's University of San Antonio ( J.D., 1991 ) Member: State Bar of Texas. Board Certified in Workers' Compensation, Texas Board of Legal Specialization. dêéöçêó=ak=pçäåüéê= born Galveston, Texas, October 18, 1959; admitted to bar, 1987, Texas. Education: University of Houston ( B.A., 1984 ) ; University of Houston ( J.D., 1987 ), Texas and U.S. District Court, Southern District of Texas. Phi Delta Phi. Member: State Bar of Texas. Board Certified in Workers' Compensation, Texas Board of Legal Specialization. oéäéåå~=jk=píê~åçïáíò= k~ååó=ek=fééçäáíç= born Fredericksburg, Texas, June 6, 1967; admitted to bar, 1998, Alabama, 2003, Texas. Education: University of Texas, Austin ( B.F.A., 1991 ) ; Cumberland School of Law, Samford University ( J.D., 1998 ). Member: Travis County Bar Association, State Bar of Texas, Alabama State Bar, U.S. District Court, Northern District of Alabama, U.S. District Court, Middle District of Alabama, U.S. District Court, Southern District of Alabama. Board Certified in Workers' Compensation, Texas Board of Legal Specialization. géêéãó=içêç= born New York, New York, June 10, 1978; admitted to bar 2003, Texas. Education: Emory University ( B.A ) ; University of Texas School of Law ( J.D ). Member: State Bar of Texas. Board Certified in Workers Compensation, Texas Board of Legal Specialization. born Midland, Michigan, January 22, 1972; admitted to bar, 1997, Texas. Education: Texas Christian University ( B.S. Chemistry, 1994 ) ; University of Texas ( J.D., 1997 ). Member: State Bar of Texas. Board Certified in Workers' Compensation, Texas Board of Legal Specialization.

9 cä~üáîéi=löçéå=c=i~íëçå= héîáå=pk=mçíééíé= `Üêáëíáå~=iK=j~óÑáÉäÇ= born May 31, 1971 Marietta, Georgia. Bachelor of Science Kennesaw State College 1995, member of Pi Sigma Alpha Honor Society. JD Southern Methodist University 1999, licensed to practice law in the State of Texas born Fort Worth, Texas, January 1, 1986; admitted to bar, Texas 2011, Texas. Education: The James Madison College at Michigan State University ( B.A., with honors, 2008 ). Michigan State University College of Law (J.D., cum laude, 2011 ). Member: Travis County Bar Association, State Bar of Texas. m~ãéä~=bk=máéêåé= g~åâ=tk=i~íëçåi=lñ=`çìåëéä= born New Orleans, Louisiana, January 4, 1963; admitted to bar, 1988, Texas and U.S. District Court, Northern District of Texas. Education: Southern Methodist University ( B.A., cum laude, 1985; J.D., 1988 ). Phi Beta Kappa. Recipient: Oxford University Scholar's Scholarship, 1984; Distinguished Pro Bono Service Award, Qualified Mediator, Attorney-Mediators Institute, 1995, Member: Dallas and American Bar Associations; State Bar of Texas ( Member, Mentor Committee ) ; Dallas Association of Young Lawyers; Texas Association of Defense Counsel. Board Certified in Workers' Compensation, Texas Board of Legal Specialization.. born Amarillo, Texas, December 13, 1947; admitted to bar, 1973, Texas, US District Court, Western District of Texas. Education: East Texas State University ( B.B.A., 1970 ) ; University of Texas ( J.D., 1973 ). Member: Travis County and American Bar Associations; State Bar of Texas; Texas Association of Defense Counsel; Defense Research institute; Workers' Compensation Section; ( Board Certified, Personal Injury Trial Law, and Workers; Compensation, Texas Board of Legal Specialization. ) Co- Editor, Texas Workers' Compensation Manual.

10 cä~üáîéi=löçéå=c=i~íëçå= oééêéëéåí~íáîé=åäáéåíë= fkpro^k`b=dolrmp= Ace American Chartis Clarendon Insurance Group EMC Insurance Companies Fireman s Fund Companies Great American Insurance Group Hartford Fire & Casualty Group Liberty Mutual Insurance Companies Nationwide Companies Old Republic Group Sentry Insurance Companies The Travelers Union Standard Insurance Group Unitrin Zurich Insurance Companies fkpro^k`b=`ljm^kfbp== Erk^ccfif^qbaF= Advantage Workers Compensation Ins. Co. America First Insurance Company Arch Insurance Company Bituminous Ins. Company Facility Ins. Corporation Gray Insurance Company Guard Ins. Company Indiana Lumbermens Mutual Insurance Co. Insurance Company of the West Lumbermens Underwriting Alliance Midwest Insurance Company Mitsui Sumitomo Republic Indemnity Seabright Insurance Company Texas Mutual Insurance Company XL Insurance Company `boqfcfba=pbicjfkproba== bjmilvbop= American Electric Power Company, Inc. Ascension Health Associated Wholesale Grocers, Inc. AT&T Corp. ATK Launch Systems Inc. Baptist Hospitals of Southeast Texas BP Corporation North America, Inc. Browning-Ferris Industries, Inc. Chevron Corporation Cooper US, Inc. Costco Wholesale Corporation Emerson Electric Co. FedEx Freight East, Inc. J. C. Penney Corporation, Inc. Johnson Controls, Inc. Kimberly-Clark Corporation Limited Brands, Inc. Occidental Chemical Corporation Parker-Hannifin Corporation PPG Industries, Inc. Rockwell Automation, Inc. Rohm and Haas Company Sisters of Mercy Health System Smith's Food & Drug Centers, Inc. Target Corporation Texaco Inc. The Evangelical Lutheran Good Samaritan Society Tyco International ( U S ) Inc. Tyson Foods, Inc. Union Tank Car Company Valero Energy Corporation VF Corporation clci= ^qqlokbvp=^q=i^t= dlsbokjbkq^i== pbicjfkprobap== Abilene I.S.D. Aldine I.S.D. Andrews I.S.D. Beeville I.S.D. Clear Creek I.S.D. Conroe I.S.D. Dallas County Hospital District Dallas County MHMR City of Denton Hereford I.S.D. Harris County Hospital District Hurst Euless Bedford I.S.D. Ft. Sam Houston I.S.D. Killeen I.S.D. Lamesa I.S.D. City of Lamesa Lewisville, I.S.D. City of Longview Matagorda County Metropolitan Transit Authority City of San Antonio Seguin I.S.D. South Plains School WC Program Southwest I.S.D. Texas Municipal League Intergovernmental Risk Pool Texas Public WC Program Texas WC Solutions Vidor I.S.D. Waco I.S.D. Waxahachie I.S.D. UVNN=`~éáí~ä=çÑ=qÉñ~ë=eïóI=_äÇÖK=PI=pìáíÉ=PPMMI=^ìëíáåI=qu==TUTRVÔ=mKlK=_çñ=OMNPOVI=^ìëíáåI=qu=TUTOM= qéäééüçåéw=ernof=qttjqqmr==j=c~ñw=ernof=oqnjppmm= ==bjj~áäw=ñçä]ñçäkåçã= =ïïïkñçäkåçã=

11 STEVEN M. TIPTON MANAGING SHAREHOLDER, born Temple, Texas, June 15, 1951; admitted to bar, 1981, Texas and U.S. District Court, Western District of Texas. Education: Southwestern University (B.S., 1973); South Texas College of Law (J.D., 1981).Blue Key; Pi Kappa Alpha. Member: Editorial Staff, South Texas Law Journal, ; Student Advocacy Board of South Texas College of Law, Briefing Attorney, Hon. Robert M. Campbell, Justice Texas Supreme Court Member: State Bar of Texas (Member, Litigation, Civil Appellate and Workers' Compensation Sections), Texas Ass'n of Defense Counsel, DRI Workers' Compensation Committee; Board Certified: Personal Injury Trial Law, Civil Appellate Law, and Workers' Compensation Law Texas Board of Legal Specialization. Phone: (512) ( Flahive, Ogden and Latson

12 FLAHIVE, OGDEN & LATSON ATTORNEYS AT LAW, P.C. P.O. Box Austin, Texas TEXAS WORKERS COMPENSATION to increase claimant impairment ratings through the use of agency "advisories". Most recently, Mr. Stokes was lead appellate counsel before the Dallas Court of Appeals and the Texas Supreme Court in Ins. Co. of the State of Pa., v. Muro, a case in which the Supreme Court reversed an award of Lifetime Income Benefits. ROBERT D. STOKES Bob Stokes has defended Texas workers' compensation claims for more than 25 years. He has handled administrative cases before the Industrial Accident Board, the Texas Workers' Compensation Commission, the State Office of Administrative Hearings and the Texas Department of Insurance, Division of Workers' Compensation. Most recently, Mr. Stokes was lead appellate counsel before the Austin Court of Appeals and the Texas Supreme Court in Texas Department of Insurance, Division of Workers' Compensation v. Lumbermen's Mutual Cas. Co., a case in which the appellate court disallowed a DWC effort In addition to his administrative, trial and appellate practice, Mr. Stokes heads his firm's special client projects team, where he is currently involved with such diverse issues as Performance Based Oversight review, ebilling initiatives, TPA licensing issues, audit practices, and Health Care Network concerns. Moreover, he actively monitors agency rulemaking and legislative proposals on behalf of his clients. Mr. Stokes holds a J.D. from Baylor University and is Board Certified by the Texas Board of Legal Specialization in Civil Appellate Law and Personal Injury Law. He is a past chair of the Texas Board of Legal Specialization as well as past chair of the Texas State Bar Committee on Jury Service. Presently, Mr. Stokes is a past member of the Board of Legal Specialization's Workers' Compensation Specialization Exam Committee. Mr. Stokes is presently a member of the State Bar Committee on Pattern Jury Charges.

13 Repetitive Trauma, Falls & Aggravations Texas Compensability Theories 1. Accidental Injuries v. Occupational Diseases A. "Injury" means damage or harm to the physical structure of the body and a disease or infection naturally resulting from the damage or harm. The term includes an occupational disease. B. "Occupational disease" means a disease arising out of and in the course of employment that causes damage or harm to the physical structure of the body, including a repetitive trauma injury. The term includes a disease or infection that naturally results from the work-related disease. The term does not include an ordinary disease of life to which the general public is exposed outside of employment, unless that disease is an incident to a compensable injury or occupational disease. C. "Repetitive trauma injury" means damage or harm to the physical structure of the body occurring as the result of repetitious, physically traumatic activities that occur over time and arise out of and in the course and scope of employment. 2. Defending Repetitive Trauma Claims A. The Burden of Proof. To recover for an occupational disease of this type, one must not only prove that repetitious, physically traumatic activities occurred on the job, but also must prove that a causal link existed between these activities on the job and one's incapacity; that is, the disease must be inherent in that type of employment as compared with employment generally. At a minimum, proof of a repetitive trauma injury should consist of some presentation of the duration, frequency, and nature of activities alleged to be traumatic. To simply assert that one performs a wide range of activities of unspecified duration is insufficient to establish either that the activities were repetitious or traumatic. Texas Division of Workers' Compensation Appeals Panel Decision No B. The Requirement of Expert Testimony. Lay testimony will not support the compensability of an injury that is beyond the realm of ordinary understanding. Expert testimony is required to prove the existence of and cause of a herniated Texas Compensability Theories Repetitive Trauma, Falls & Aggravations Florida Workers Compensation Institute August 2012 Flahive, Ogden & Latson, Austin, Texas 1

14 disc or of reflex sympathetic dystrophy. City of Laredo v. Garza, 293 S.W.3d 625, (Tex. App.-San Antonio 2009, no pet.) C. Analytical Gap in Expert Opinions. The claimant had not performed repetitive activity at work during the four months prior to the date of the claimed injury; the decision and order of the hearing officer rests upon the medical opinion of a doctor whose understanding of the facts is demonstrably flawed; because of the passage of time after the repetitive activity stopped until the pain appeared, medical evidence is required to prove that the injury was caused by the work, and the medical evidenced is not sufficient to do so. Texas Division of Workers' Compensation Appeals Panel Decision No (citing Merrill Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706 (Tex. 1997). D. The Rule for Carpal Tunnel Syndrome Claims. Any acceptance in this state that CTS is inherently not work-related would have to follow a fully tried case in which experts on either side were subject to cross-examination, and not merely from reading articles unilaterally selected by the carrier in support of its argument. Texas Division of Workers' Compensation Appeals Panel Decision No Defending Idiopathic Injuries A. The Originating Element. A knee injury occurring while the claimant was simply walking down the hallway during the course of a break is not necessarily compensable. We would agree that the workday should not be broken down into a minute-by-minute scrutiny of whether the precise activity being undertaken when injury occurs was, or was not, specifically directed by the employer. Nor do we endorse the concept that walking in the employer s hallway during a break could never be said to be furthering the affairs of the employer. However, the coincidental or idiopathic eruption at work of an underlying medical or degenerative condition, unrelated to any instrumentality or accidental occurrence, has been previously held not to arise out of employment for purposes of workers' compensation. Texas Division of Workers' Compensation Appeals Panel Decision No B. The Fiction of an Instrumentality of the Employer. An idiopathic fall onto the employer's carpeted floor may produce a compensable injury. The AP rejected the analogy to cases involving "ordinary diseases of life", "acts of God", and transportation to and from work. They noted: "While the rationale 2 Texas Compensability Theories Repetitive Trauma, Falls & Aggravations Florida Workers Compensation Institute August 2012 Flahive, Ogden & Latson, Austin, Texas

15 behind that provision is admittedly that an employee is exposed to no greater hazard upon roads and streets than is the general public, that analysis has not been applied in the foregoing Texas cases regarding falls." The panel rejected the argument that landing on a carpeted floor subjects the claimant to less risk than the general public, and indicated that the rationale "would be whether the surface on which an employee fell was sufficiently hard to cause the injury which ensued, since the injury must be caused by the instrumentality of the employer and not by the idiopathic or preexisting condition itself." Texas Division of Workers' Compensation Appeals Panel Decision No Extent of Injury and Aggravation Disputes A. Distinguishing New Injuries from Aggravations. A hearing officer erred when he found that the claimant's carpal tunnel syndrome was a "continuation" from a previously existing condition. The Panel reversed the hearing officer even though the Commission's own doctor found that the claimant's condition was a continuation rather than a new injury. The Panel remanded, rather than rendered. Three opinions were written. Judge Kilgore wrote that the hearing officer failed to properly analyze the case in light of the producing cause/sole cause burdens of proof. Judge Potts emphasized in his opinion that every "aggravation" does not constitute a new injury. Judge Kelley wrote separately to emphasize her view that, when a previous condition has essentially resolved, and reoccurs following a flurry of allegedly repetitive activity, she would be "hard pressed" to affirm a finding that the injury was a continuation, regardless of what the medical evidence says. Judge Kelley's concurrence contains the following fascinating statement: "I concur in remanding, although I don't think sole cause had a thing to do with this case because I believe that to be a concept related to incapacity, most comparable to ability to work in the 1989 Act, rather than whether an injury occurred." Texas Division of Workers' Compensation Appeals Panel Decision No B. New Injuries without Aggravation. The mere recurrence or manifestation of symptoms of the original injury does not equate to a compensable new aggravation injury. Rather, as we discussed in Texas Workers' Compensation Commission Appeal No , decided May 26, 1994, a compensable aggravation injury must be proven by evidence of "some enhancement, acceleration, or worsening of the underlying condition...." Of course, there need not necessarily be an aggravation for there to be a new "injury"; it is possible for a person with herniated discs to also strain their back in another Texas Compensability Theories Repetitive Trauma, Falls & Aggravations Florida Workers Compensation Institute August 2012 Flahive, Ogden & Latson, Austin, Texas 3

16 incident. The point is that you can have a simple strain superimposed on a herniated disk, without the first carrier being relieved of anything, and without the second carrier being responsible for the herniation. Texas Division of Workers' Compensation Appeals Panel Decision No C. Applying the Burden of Proof. You take the claimant as you find them. If there is a new injury, the burden of proof is that the claimant must first prove that the incident was a producing cause, i.e. a natural and direct result of his current condition. Then if he succeeds, the carrier must show that his underlying condition is the sole cause of his disability. 5. Turning Away from the Course of Employment A. Violation of Company Policies. Claimant is turning over his truck to girlfriend to drive represented sufficient violation of company policy to remove he from the course and scope of his employment. Texas Division of Workers' Compensation Appeals Panel Decision No (See also, AP Nos and for violations that, having only to do with the "manner" in which the claimant performed his work, did not remove claimant from course and scope). B. Compensable v. Non-compensable Misconduct. "When misconduct involves a prohibited overstepping of the boundaries defining the ultimate work to be done by the claimant, the prohibited act is outside the course of employment. But when misconduct involves a violation of regulations or prohibitions relating to method of accomplishing that ultimate work, the act remains within the course of employment. Violations of express prohibitions relating to incidental activities, such as seeking personal comfort, as distinguished from activities contributing directly to the accomplishment of the main job, are an interruption of the course of employment." Texas Division of Workers' Compensation Appeals Panel Decision No Texas Compensability Theories Repetitive Trauma, Falls & Aggravations Florida Workers Compensation Institute August 2012 Flahive, Ogden & Latson, Austin, Texas 4