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Texas appeals court reverses comp case dismissal

Posted On: Oct. 20, 2021 12:43 PM CST


A tanning salon worker who alleges she suffered a seizure after she was “verbally assaulted” by her manager can continue with her suit alleging that her employment was not covered by the exclusivity provisions of Texas workers compensation law, a state appeals court ruled Tuesday.

In partially reversing a lower court ruling granting summary judgment to the salon operators in Michelle Kaplowitz v. Lone Star Tan GP LLC; LST Austin I Ltd et al, the Court of Appeals of Texas in Houston ruled that the employer had not proved that Ms. Kaplowitz was covered by a workers comp policy, among other things.

Unlike other states, Texas allows employers to opt out of the workers comp system and not provide coverage to employees. Employees injured while working for so-called nonsubscriber employers are not restricted by exclusive remedy provisions of comp laws and can sue for damages.

Ms. Kaplowitz worked at Palm Beach Tan in Cedar Park, Texas. She alleges she suffered an injury after the store manager lost her temper and “verbally assaulted” her triggering a nonepileptic seizure – which she was susceptible to after a previous brain injury – causing her to fall and hit her head.

The store is operated as a franchise by Lone Star, which is affiliated with LST, court records say. Ms. Kaplowitz said she was employed by Lone Star and was told by the person who trained her that she was not covered by workers comp.

The defendants argued that Ms. Kaplowitz was employed by both Lone Star and LST and that both were covered for workers comp.

According to court papers, Ms. Kaplowitz’s hiring packet listed Lone Star as her employer and only LST was listed on the workers comp policy.

“Lone Star has not come forward with a workers compensation policy that lists Lone Star as an insured, nor has LST come forward with conclusive proof that Kaplowitz was its employee at the time of the alleged injury,” the appeals court ruled. “While Lone Star and LST argued they were co-employers and were both workers compensation subscribers, the record does not conclusively establish those facts.”

The case was remanded for further proceedings.

Lone Star’s lawyer could not immediately be reached for comment.