Uncover the Truth of What Happened: A Second Bite at the Apple?

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I’ve been puzzling over the reports of Nurse Pham’s lawsuit against her employer’s holding company. I haven’t seen the suit and I sympathize with her plight as expressed to CNN: there are a lot of things to pay for that workers compensation won’t.

However, I think that Nurse Pham is about to meet the dreaded workers compensation bar.

This is the rule that w.c. is your sole remedy for an on the job injury—as to your employer.

As usual, Texas law puts a slight twist on this. Texas is the only state in the union which explicitly preserves a gross negligence cause of action against the employer for an on the job injury:

it appears that only one jurisdiction allows such claims,

and it does so because the workers’ compensation statute explicitly authorizes it. See Tex. Labor Code Ann. § 408.001(b) (West 2011) (authorizing gross negligence claims for punitive damages only)….

Sridharan v. U.S. Army Corps of Engineers, 2012 WL 6757537, at *4 (D. N. Mar. I. Dec. 28, 2012).

The Barnes case, cited in Sridharan, does seem to give w.c. claimants, claiming gross negligence a second bite at the apple, assuming they didn’t have to prove any element of causation (i.e., a cause) in their original compensation action. Presumably Nurse Pham has just passively received benefits and there has not been any issue with her compensation action. Nonetheless, the employer and insurance carrier have a right to rely on her acceptance of benefits as a tacit approval.

But if her strategy is to sue the parent because the parent company of the hospital is not her employer, think again:

“Mary’s application for and acceptance of workers’ compensation benefits estopped appellants from denying Delta Steel’s workers’ compensation coverage, from contesting the applicability of the exclusive remedy provision of section 408.001(a), and from pursuing a negligence claim against Delta Steel.”

Little v Delta Steel Inc., 409 S.W.3d 704, 716 (Tex. App. 2013), reh’g overruled (Sept. 19, 2013).

Ironically, her best argument may be that the Texas W.C. Act is constitutionally infirm, in that it no longer provides a true quid pro quo for the waiver of her action at law against the hospital. She said in her interview:

I’m facing a number of issues with regard to my health and my career and the lawsuit provides a way to address them…

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