An employee of a tanning salon who alleges that she suffered a seizure after being “verbally assaulted” by her manager can sue her claim that her job was not covered by the exclusivity provisions of the accident law of Texas Labor, a state appeals court ruled on Tuesday.
By partially overturning a lower court decision granting summary judgment to operators of Michelle Kaplowitz v. Lone Star Tan GP LLC; LST Austin I Ltd et al, the Texas Court of Appeals in Houston ruled that the employer had failed to prove that Ms. Kaplowitz was covered by a workers’ compensation policy, among other things.
Unlike other states, Texas allows employers to opt out of the worker compensation system and not provide employee coverage. Employees injured while working for so-called non-subscriber employers are not limited by the exclusive remedies provisions of competition laws and can sue for damages.
Ms. Kaplowitz worked at Palm Beach Tan in Cedar Park, Texas. She alleges that she suffered an injury after the store manager lost her temper and “verbally assaulted” her, triggering a non-epileptic seizure – to which she was susceptible after a previous brain injury – causing her to fall and bang his head.
The store is franchise operated by Lone Star, which is affiliated with LST, according to court records. Ms Kaplowitz said she was employed by Lone Star and the person who trained her told her she was not covered by workers’ compensation.
The defendants argued that Ms Kaplowitz was employed by both Lone Star and LST and that both were covered for workers.
According to court documents, Ms Kaplowitz’s hiring file listed Lone Star as her employer and only LST was on the workers’ compensation policy.
“Lone Star has not presented a workers’ compensation policy that lists Lone Star as insured, and LST has not provided conclusive evidence that Kaplowitz was its employee at the time of the alleged injury,” said the court of appeal. “While Lone Star and LST argued that they were co-employers and both subscribers to Workers’ Compensation, the record does not conclusively establish these facts.”
The case was remanded for further processing.
Lone Star’s attorney could not be reached immediately for comment.