Family Cleared to Sue Company that Declared Dead Worker not Employee

Austin, TX (WorkersCompensation.com) – A Texas family can sue a construction company over the death of a worker it said was not an employee, a Texas appellate court ruled on Thursday.  

At the center of the case is the death of Pedro Martinez, who died of heatstroke while working on a construction site overseen by Hellas Construction. In July 2019, Martinez was working on the McDowell Middle School in Hondo, Texas.  

On his third day in on the job, temperatures reached 99 degrees. In the humid conditions, it felt like 118. According to an investigation by OSHA into Martinez’s death, the 22-year-old worked for 10 hours before taking a break for lunch. The report noted there was little shade at the construction site, and only a few bottles of water.  

Around 5:45 p.m., records indicate, Martinez became overheated and ran off, hitting a fence before collapsing. His father, who was working the job site with him, rushed him to the Medina Regional Hospital. Hospital workers registered his core body temperature at 108 degrees. Despite efforts to save Martinez, including placing ice packs around his body, Martinez was pronounced dead less than two hours later. Police summoned to the hospital to investigate said his body was still hot to the touch several hours after his death.  

When Hellas Construction, Inc. learned of his death, according to court records, the company denied he was an employee.  

The family then sued Hellas, because it believed he was not an employee, and was responsible for oversight of the work site. Because they believed he was not an employee, the family never filed a workers’ compensation claim.  

In response, Hellas raised the exclusive remedy defense, claiming he was an employee. Hellas said the Division of Workers’ Compensation had the exclusive jurisdiction to determine whether or not Martinez was one of Hellas’ employees. Hellas filed a motion for abatement in the trial court, which the court ordered to allow the parties to place the case under the jurisdiction of the Division.  

However, Martinez’ family filed a motion to lift the abatement because they had never filed a claim with the division. The trial court lifted the abatement.  

Hellas appealed.  

In the meantime, Texas Mutual Insurance Co., which covered Hellas, requested a benefit review conference with the DWC over whether Martinez was considered a Hellas employee.  

Although an administrative law judge found that Martinez was a Hellas employee, as did an appeals panel, the family filed suit for judicial review and later filed a plea to the jurisdiction, asking to dismiss its own suit for judicial review. A trial judge overruled the jurisdiction plea, and the family appealed.  

On Thursday, the appeals court ruling places the tort litigation between Hellas and Martinez’s family on hold until the DWC can determine if Martinez was an employee or a contractor.  

Martinez’s death is not the first heatstroke fatality for Hellas.  

In July 2018, Karl Simmons, 30, died of heatstroke while working for Hellas. Simmons and his brother-in-law, Michael Spriggins, were working on patching soccer fields at a park east of Fort Worth.  

According to an investigative report from the Columbia Journalism Investigations, National Public Radio and The Texas Newsroom, Simmons was stirring a chemical mixture of glue, gravel and rubber on a day when the temperatures hovered in the high 90s. By early afternoon, Simmons said he was feeling sick.  

To cool off, Simmons at inside the shade of a work van. But the inside of the van was hotter than outside. When it was determined the worksite was running out of water and Gatorade, a supervisor made Simmons leave the van so he could drive to a nearby store to restock.  

Later, passersby told Spriggins that a crew member had collapsed. Spriggins found Simmons on the ground beneath a tree convulsing. According to reports, his eyes had rolled back in his head, his nose was bleeding, and he was having trouble breathing. Simmons was unresponsive.  

Spriggins called 911 and was told to put a wet towel on Simmons’s head. When he did, Simmons’s breathing steadied. First responders rushed him to the hospital, but he was pronounced dead on arrival. His body temperature was 107.1 – high enough to cause his internal organs like his heart and kidneys to shut down.  

Simmons’s wife, Precious, also sued Hellas. Her attorney, Anthony Farmer, found that according to OSHA, the company had 14 cases of heat-related illness over a 35-month period.  

The CJI/NPR report found that Hellas is one of five companies in Texas to report a death due to heat. In their reporting, they found that Hellas was one of two companies that failed to take preventive measure agree to in settlements with the U.S. Department of Labor following the deaths. OSHA records also show that agency officials meat with Hellas executives after Simmons died to explain the dangers of heat, but that within three months of Simmons’s death, another 11 Hellas employees were diagnosed with heat-related illnesses requiring medical attention.  

Martinez died a year after Simmons.  

In Martinez’s death, OSHA initially proposed a $132,598 penalty against Hellas, classifying the company’s inaction to protect employees from heat-related illnesses as “willful,” where a company either flouts the law or acts with “indifference” to worker safety.   

But, because OSHA has no heat-related workplace standard, it could not prove the violation met the “willful” standard and reduced it to five “serious” violations and a proposed fine of $66,300.