It is axiomatic that the Texas Workers’ Compensation Act establishes recovery of workers’ compensation benefits as “the exclusive remedy of an employee covered by workers’ compensation insurance coverage … against the employer … for the death of or a work-related injury sustained by the employee.” Tex. Lab. Code § 408.001(a). Nonetheless, we have encountered numerous efforts by Plaintiffs to avoid exclusive remedy by arguing that notices were not properly posted, opportunities to opt out were not provided and benefits were not paid. We have typically seen these arguments put forth on behalf of parents who are trying to maintain suit as to subscribing employers in contravention of Section 408.001(b) of the Texas Labor Code, and by surviving spouses and heirs of the body that want to maintain negligence claims and claims of the estate as to subscribing employers. We were apparently not the only ones who were facing such claims, as the Texas Supreme Court again found it necessary to hold that the issue turns solely on the employer’s subscriber status.
In City of Bellaire v. Johnson, 400 S.W.3d 922 (Tex. 2013), Magnum Staffing Services furnished a temporary worker named Elbert Johnson to the City of Bellaire. The City paid Magnum, who in turn paid Mr. Johnson. Without input or participation by Magnum, the City set Mr. Johnson’s work schedule, gave him his assignments and supervised his work. Magnum provided Mr. Johnson with workers’ compensation coverage, and the City was required by Tex. Lab. Code § 504.011 to provide workers’ compensation coverage to its employees. The Court held that Mr. Johnson met the definition of employee.
Mr. Johnson brought suit against the City after losing an arm while riding on a garbage truck. The City filed a plea to the jurisdiction and motion for summary judgment, asserting governmental immunity based in part on exclusive remedy under Tex. Lab. Code § 408.001(a). The trial court dismissed the case, but the court of appeals reversed and remanded, concluding that the exclusive remedy bar did not apply unless Johnson was actually covered, as distinct from being legally required to be covered, and the evidence did not establish that he was. The Texas Supreme Court reversed the judgment of the court of appeals and rendered judgment, holding that an employee cannot argue that his subscriber-employer has done what the law prohibits (cover some but not all of its employees); rather, the employee is covered as a matter of law, and any dispute by the carrier over whether it agreed to provide such coverage under the policy’s terms is with the employer.
City of Bellaire may not prevent claimants from filing barred claims as to our clients and other subscribing employers, but the case will constitute clear and significant support for our efforts to see such claims dismissed via Special Exception, Plea to the Jurisdiction or Motion for Summary Judgment.