WHAT REMEDY?

Remedy search

On  Oct. 16, 2014 I blogged that the Texas Legislature should define the duty owed by a w.c. carrier to an injured worker due to the wholesale abrogation of the duty of good faith and fair dealing established by the Ruttinger decision. We haven’t touched on the why. Injured workers are without their paychecks, have to borrow money to make up for the shortfall between wages and comp benefits, and see their hard-earned credit begin to erode.

Ruttinger holds that the Workers’ Compensation Act

“effectively eliminates the need for a judicially imposed cause of action outside the administrative processes and other remedies in the Act.”

Ruttinger, 381 S.W.3d at 451. Let’s take a look at what administrative processes are due to an injured worker, and what remedies inure to the worker as a result.

There are quite literally no administrative processes available to an injured worker for poor or bad faith claims handling.

“Section 415.002 [Texas Workers Compensation Act] lists twenty-two administrative violations by an insurance carrier…”

Vause v. Liberty Ins. Corp., 2014 WL 6687598 (Tex. App. Nov. 26, 2014).

Agreed. But where does the money go if a Texas w.c. carrier is fined for one of the 22? If you guessed not to the injured worker—you were correct. The fines go to the DWC, and the Division is authorized to fine carriers or other system participants for administrative violations.

So what Ruttinger really stands for is the SCOTX’s judgment that the administrative agency is better qualified than private litigants to investigate and bring action for bad faith claims handling. But the aim of Aranda and other cases was to forge a remedy for a one-sided equation—the injured worker has no remedy except for going through a (now delayed) benefit review process, to obtain the benefits that he or she would have gotten anyway. There is no remedy other than the righting of a wrong. There are no fines that go to an injured worker to compensate for the bad faith claims handling.

More insult to injury. You do get a report every quarter on what the DWC is doing with your complaint. Texas Labor Code Section 402.023(e).  I think Texans deserve the judgment of a jury on damages instead.

Past due notice