In a memorandum opinion today, the Amarillo Court of Appeals ruled in favor of a woman who lost her son in a tragic on-the-job injury. The case, Texas Mutual Insurance Company vs. Rosa Mendez, Case Number 07-19-00087-CV, involved a worker at a plant that made sand used in fracking. The mechanism that transported product into a large, industrial blender was broken and the injured worker and another coworker were ordered to climb up, fifteen feet above ground level, to the top of the blender and pull product off of a forklift that had lifted the product to the top of the blender. The area at the top of the blender just had cylindrical bars guarding the mouth of the blender instead of any grating that would prevent a human from going into the machine. The worker’s foot slipped as he used it for leverage to pull the sack of product into the blender and, tragically, the worker was pulled into the blender and killed. He was survived by only his parents who filed a workers’ compensation claim as dependent beneficiaries. The insurance company, Texas Mutual, disputed the claim on grounds that an autopsy report revealed the presence of THC or marijuana metabolites in the worker’s blood. The Texas Department of Insurance, Division of Workers’ Compensation ruled in favor of Texas Mutual and the parents appealed into district court. Sadly, while the case was pending trial, the father of the worker died of a long-endured illness. A Lubbock County jury ruled in favor of Ms. Mendez, that her son did not die while in a state of intoxication and Texas Mutual appealed the case to the Amarillo Court of Appeals.
The Amarillo Court of Appeals rejected Texas Mutual’s challenge to the sufficiency of the evidence of the worker’s sobriety. Although there was much more evidence than that cited in the opinion, the Amarillo Court focused on the trial testimony of a coworker who testified that the decedent had the normal use of his mental and physical faculties at the time of the injury.
The Court of Appeals remanded the case back to the district court to address attorney fees. Although the evidence in the case showed that Mr. Gibson took the case on a contingency fee, and, because Ms. Mendez’ benefits are limited to 364 weeks, Mr. Gibson’s fee was limited to only one-third the value of what he would have been paid had he been able to collect his full hourly fee for the time spent on the case–and half of what Mr. Gibson billed in his fee went to pay case expenses and expert witness fees–the Court remanded the case to require Mr. Gibson to produce billing statements upon which the trial court could assess the contingency fee.