PJC General Negligence 2024

PJC 18.8

W ORKERS ’ C OMPENSATION —D EFENSES AND E XCEPTIONS

(1) persists in insanitary or injurious practices that tend to imperil or retard the employee’s recovery; or (2) refuses to submit to medical, surgical, chiropractic, or other remedial treatment recognized by the state that is reasonably essential to promote the employee’s recovery. (b) Compensation may not be reduced or suspended under this section without reasonable notice to the employee and an opportunity to be heard. See also Tex. Labor Code §§503.067, 505.057. A request and refusal to desist from the injurious practice must be pleaded and proved before the defense is available, and the burden of proof on these issues is on the appealing party. Fidelity & Casualty Co. of New York v. Shubert , 646 S.W.2d 270, 275 (Tex. App.—Tyler 1983, writ ref’d n.r.e.); Argonaut Underwriters Insurance Co. v. Byerly , 329 S.W.2d 937, 943 (Tex. App.—Beaumont 1959, writ ref’d n.r.e.); Texas Employers’ Insurance Ass’n v. Rob erts , 281 S.W.2d 104, 108 (Tex. App.—Fort Worth 1955, no writ). For the injurious-practice defense to prevail, the employee must have been advised that persistence in the injurious practice would retard or imperil his recovery. Com mercial Insurance Co. of Newark, New Jersey v. Smith , 596 S.W.2d 661, 666 (Tex. App.—Fort Worth 1980, writ ref’d n.r.e.); Aetna Casualty & Surety Co. v. Shreve , 551 S.W.2d 79, 84 (Tex. App.—Houston [1st Dist.] 1977, no writ); Utica Mutual lnsur ance Co. v. Ritchie , 500 S.W.2d 879, 884 (Tex. App.—Houston [1st Dist.] 1973, no writ); Millers Mutual Fire Insurance Co. v. Gilbert , 462 S.W.2d 112, 118 (Tex. App.— Beaumont 1970, writ ref’d n.r.e.). The Committee has no opinion on whether this defense is available to carriers and employers other than those listed in the paragraph above entitled “When to use.”

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