Abuse of Drug Testing by Carrier Doctors

As the Olympics draws to a close, it is appropriate to compare the drug-testing done for Olympic athletes versus those done to Texas Workers.

Many states, including Texas, have a provision that creates a rebuttable presumption of intoxication when someone tests positive for drugs or alcohol.

However, a new use of drug testing is gaining in prominence in Texas Workers Compensation law that is an abuse of the workers’ compensation system.

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Lost Wages: Temporary Income Benefits

When you're injured on the job and you file a workers compensation claim, the first set of income benefits that you should receive is called Temporary Income Benefits ("TIBs'). ​Once you miss more than 7 days of work due to your injury, then your entitlement to TIBs will begin. They can last up to 104 weeks.


Remember, these income benefits are meant to replace your lost wages from being unable to return to work because of your work-related injury. But often times, you may not begin actually receiving your TIBs because your employer's insurance carrier doesn't believe you were injured on the job. The only way to resolve this problem is to take your matter up with the Texas Department of Insurance-Division of Workers Compensation ("Division"). And until you have resolved your nonpayment of benefits with the Division, you won't receive any of your lost wages.

Hiring legal counsel at this stage in the process is crucial. Without your regular income, bills start to pile up and it's difficult to make ends meet. With the help of an attorney who is board certified in workers compensation law, you'll receive the best legal guidance while moving through the workers compensation's complex system of administrative rules.


Qualifying for Supplemental Income Benefits or SIBS

Few things are worse than when you’re injured on the job and unable to continue to support your family because you’re unable to return to work. There could be many reasons for not being able to return to work, such as your employer is unwilling to accommodate your work-duty restrictions imposed by your doctor or your employer has simply terminated your employment. 


Under the Texas Workers Compensation Act, workers compensation insurance companies are required to provide financial and medical support to employees injured on the job. Employees will have their reasonable and necessary medical bills covered and receive income benefits to offset their wages.


In cases of severe work-related injuries, an employee may be paid for ongoing disability after the most common types of benefits have been exhausted. This is called Supplemental Income Benefits (SIBs). SIBs are paid on a monthly basis. SIBs are based on a complicated formula that an attorney can assist an injured employee to calculate. 



An injured employee must apply and qualify for SIBs on a quarterly basis, about every 3 months. For the first quarter only, the Division of Workers’ Compensation (DWC) makes the SIBs eligibility determination. On all subsequent quarters, the employer’s workers compensation insurance carrier makes the determination. If the injured employee is denied by the insurance carrier or DWC, the injured employee has the right to pursue his or her entitlement to SIBs for that quarter through the dispute resolution system of the Texas DWC.

The important period for qualifying for SIBs is called the “Qualifying Quarter.” Whether an injured employee is eligible depends on the circumstances during the 13 weeks before the beginning date of the SIBs determination. If an injured employee qualifies during the qualifying quarter, then he or she becomes eligible to receive payment during the supplemental income benefits quarter.


In determining eligibility under SIBs, an injured employee must show that as a direct result of a work-related injured he or she:

1.      Received an impairment rating of 15% or more; and

2.      Is unable to return to work because of the impairment, or has returned to work but is earning less than 80% of his or her pre-injury average weekly wage because of the impairment; and

3.      Did not take a lump sum payment of impairment income benefits; and

4.      Met specific work-search requirements based on Texas Workforce Commission standards or is actively participating in a vocational rehabilitation program.

From the date of the injury, SIBs continue to be paid in each quarter that an employee applies and is approved until the employee demonstrates long-term employment by going 4 consecutive quarters without being entitled to SIBS or until a total of 401 weeks (approximately 7 1/2 years) of income benefits have been exhausted on the claim.


Often, an injured employee's SIBs application will be denied because they missed a deadline or failed to meet some SIBs requirement. Many injured employees think that a denial means they will no longer receive benefits. But this denial only applies to that particular quarter of SIBs to which the employee applied. The injured employee can still meet the requirements for the subsequent quarters of SIBs. It’s important to note that an injured employee will permanently lose entitlement to SIBs if the injured employee does not apply or applies and is rejected for four consecutive quarters. 

For all workers compensation needs, especially ensuring proper compliance with the SIBs qualifying requirements, it is better to have an attorney that is board certified in Texas Workers Compensation Law for representation. With proper legal representation, you can improve your chances of a favorable outcome.



Texas Workers' Compensation Insurance Carrier--Bias Re: Injured Employees

Is there any neutrality with your Texas Workers’ Compensation Insurance Carrier when resolving a disputed claim between you and your employer? If your employer’s insurance carrier is allowed to choose an attorney, then why wouldn’t an injured worker also want to choose an attorney?

The Texas Department of Insurance, Division of Workers’ Compensation or TDI-DWC has helpful information for Texas citizens who are injured on the job. Under TDI-DWC’s “Employee Frequently-Asked Questions," the following question and answer is posed:

Do I need an attorney to assist me with my workers' compensation claim?
You are not required to have assistance from an attorney; however, you do have the right to obtain the services of one at any time. The attorney may attend dispute resolution proceedings with you and may present your evidence and your side of the dispute.

But the real question is if your employer is allowed to hire an attorney, should you (the injured employee) also hire an attorney to represent you? When you begin working for a company that carries workers’ compensation insurance, you would normally feel protected because you have insurance for work-related injuries. You might initially feel safe under your employer’s coverage and have a sense of comfort that your employer is looking out for you.

But do you still feel this way when 6 months after you’re injured at work, the following happens: you’re struggling to make ends meet because your employer’s carrier won’t pay out all or most of your benefits; your doctor releases you to work with limited restrictions but your employer won’t allow you come to work under those restrictions; and you find out later that the benefits you were being paid are completely suspended because your employer now believes you weren’t injured on the job.

So, again, do you still think your employer’s insurance carrier is on your side?

If you had any remaining doubt about the devastating impact of workers' compensation reform on the representation of injured workers, look no further than the current Texas workers' compensation system. According to the Texas Monitor, attorney representation of injured workers has decreased significantly. Under previous law, over 90 percent of injured workers were represented by attorneys in pre-hearing conferences. While in 1997, only 35 percent of injured workers at the BRC dispute level had attorney representation and 61 percent had ombudsman assistance.

Attorney representation is still high for insurance carriers, however. Even this is an understatement. In 1997 at the BRC level, 54 percent of insurance carriers were represented by counsel and at the CCH level, 85 percent of insurance carriers were represented by counsel. Injured workers by and large go unrepresented. (Note: For additional information see the Texas Monitor, vol. 3 no. 3, Fall 1998.

Will you still feel that your employer is protecting your interests when you find that not only has their workers’ compensation insurance carrier denied you the necessary workers’ compensation benefits, but that they’ve also hired a big corporate law firm to ensure that outcome? When your employer has a right to dictate their counsel, you should also have your own attorney to ensure an outcome that’s in your best interest.

The More You Know about Texas Workers Compensation Law:
As an after thought, did you know that under the Texas Labor Code Annotated, if person (i.e., Insurance Carrier) denies payments of workers' compensation benefits, the penalties range from a Class A misdemeanor to a state jail felony when person knowingly or intentionally: (1) makes a false or misleading statement; (2) misrepresents or conceals a material fact; or (3) fabricates, alters, conceals, or destroys a document. Restitution may also be ordered. [Tex. Labor Code Ann. §§ 418.001; 418.002]

Injured While Driving to Work: Implications of Texas Workers Compensation Insurance

Each day, Texas residents drive to and from work, expecting to arrive safely. On many occasions, employers may provide either (1) company-owned transportation or (2) financial reimbursement for travel expenses using a private vehicle. Both situations would be in furtherance of the responsibilities of the job and are directly connected with the performance of the employment. 

But what happens when the commute goes wrong and there’s an accident? If you become injured, who will pay for your injuries and damages? Does your employer carry workers compensation insurance? If they do carry it, are you entitled to receive benefits from your employer’s workers compensation insurance carrier?

The answers to these questions are complex and fact intensive. Not all cases are the same and not all injuries are the same. An attorney who specializes in workers compensation law will be able to assist you at every step of your workers compensation case. 

The law in Texas under the Workers Compensation Act provides for employee compensation when injuries arise out of and in the course and scope of employment for which compensation is payable. For an injury to arise in the course and scope of employment it must: (1) relate to or originate in, and (2) occur in the furtherance of, the employer's business. Travel to and from work generally does not meet this test, unless the employee's travel was pursuant to express or implied conditions of his employment. The claimant has the burden to prove that he was injured in the course and scope of his employment. (TWCC APD No. 931006) Whether an injury occurred in the course and scope of employment is a fact question that must be determined by the hearing officer. (TWCC APD No. 971607)

A recent Texas case helped clarify these legal issues. In SeaBright Inc. Co. v. Lopez, an employee was assigned to work at a remote job site. The employer provided a company vehicle but did not pay for the employee’s travel time to and from the job site. One morning, the employee was killed while driving to work with two other employees. The decedent’s wife sought benefits from the employer’s workers compensation carrier, but the insurance carrier denied the claim for benefits because the insurance carrier believed the employee was not on the job (a.k.a., the course and scope of employment) at the time of the accident.

The court concluded that the employer's business called for employing specialized, non-local work crews in constantly changing, remote locations on temporary assignments. It required employees to obtain temporary housing and travel from that temporary housing to that temporary, remote location. Based on these facts, the court held that the plaintiff had conclusively established that her husband was acting in the course and scope of his employment at the time of the accident and was entitled to benefits.

As mentioned above, not all cases are the same. But with the help from an attorney that is board certified in Texas workers compensation law, you will receive skilled and knowledgable representation. 



Employers are stealing from workers without them knowing it

I bet 75% of all the cases we look at have some form of employer theft going on. This is a serious problem in Texas. Remember, when the laws are so favorable to the companies, their greed will take over and they will try to get even more. Click this link to find out more.



Contact an attorney today and have them look over your wages to make sure you are not getting taken advantage of.


Top Ten Dangerous Jobs in America


OSHA's Top 10 Safety Violations for 2015

More Proof That Job Injuries Get Shifted to Taxpayers


As the US Supreme Court Makes It Easier for Texas Polluters, New Study Finds Increased Cancer Rates Around Ship Channel

     Today, the United States Supreme Court issued a ruling that sided with the State of Texas in attacking the EPA's ability to place limits on the amounts of mercury, acids, and other toxins may be released from industrial giants. Justice Scalia, writing for the majority, held that the EPA must consider the cost of compliance before deciding whether regulation is appropriate. The ruling is considered a major victory for polluters.

     Almost contemporaneously with the Supreme Court's decision is this study which has found higher than normal cancer rates in eastern Harris County, i.e., the area around the refineries and other industries that make up the Houston Ship Channel. While the study doesn't correlate the polluters to the causes of cancer, it is significant.

     This is all very important for workers compensation because in recent years the Texas Supreme Court has made it difficult, if not impossible, to prove in workers compensation proceedings that an occupational disease like cancer is work related. Thanks to the US Supreme Court, polluters have the green light to go on polluting. Hopefully researchers will put more effort into these studies which show higher incidences of cancer in the areas of pollution. These neighborhoods are filled with the workers of these plants. If they can't get justice before the Division of Workers' Compensation, hopefully justice will come from somewhere. I grew up near there. I have two aunts who live there. Incidentally, both have had cancer. 

National Media Examines Workers Compensation Disparities

 Two things happened this week to raise the consciousness of the public towards the inadequacies of workers compensation. First was a major piece of reporting by Pro Publica and NPR that conducted an exhaustive examination of workers compensation benefits, state by state. You can find the articles here:



The reporters chief findings:

  • Since 2003, legislators in 33 states have passed workers’ comp laws that reduce benefits or make it more difficult for those with certain injuries and diseases to qualify for them.
  • Where a worker gets hurt matters. Because each state has developed its own system, an amputated arm can literally be worth two or three times as much on one side of a state line than the other.
  • Many states, Texas among them, have not only shrunk the payments to injured workers, they’ve also cut them off after an arbitrary time limit — even if workers haven’t recovered.
  • Employers and insurers increasingly control medical decisions, such as whether an injured worker needs surgery.

As a workers compensation attorney who has been practicing since before 2003, I can attest that changes made to Texas' system that occurred after 2003 were the second such effort to reduce workers compensation benefits and make them more difficult to obtain.

Even though other states made changes to their workers' compensation schemes in part due to the success Texas has had reducing benefits, most of those states still did not take the more extreme path of reducing benefits to injured workers to the levels that Texas has done. This graphic is illustrative:

Texas Far Behind Other States in Workers' Compensation BenefitsTexas Far Behind Other States in Workers' Compensation BenefitsThose of us representing injured workers have complained for a long time that there is a race to the bottom amongst the states in what is being paid to injured workers. That race is on the verge of breaking the system. The only question is will Republicans in safely gerrymandered districts have the courage to fix the system before it breaks?

The second thing to raise some consciousness was a report put out by OSHA which can be found here:


That report states another aspect of workers compensation law that has long been complained about by those of us who represent injured workers:

The costs of workplace injuries are borne primarily by injured workers, their families, and taxpayer-supported components of the social safety net. Changes in state based workers’ compensation insurance programs have made it increasingly difficult for injured workers to receive the full benefits (including adequate wage replacement payments and coverage for medical expenses) to which they are entitled. Employers now provide only a small percentage (about 20%) of the overall financial cost of workplace injuries and illnesses through workers’ compensation. This cost-shift has forced injured workers, their families and taxpayers to subsidize the vast majority of the lost income and medical care costs generated by these conditions.

That is, the public, not the workers' compensation insurer and not the business that purchases the insurance, bears the primary burden for the costs of injured workers. This occurs through the cost-shifting of workers onto other forms of payment.

I cannot even begin to count the number of times I have heard adjusters state that a workers isn't being disenfranchised because the worker can just apply for social security disability. Likewise, we frequently have problems on cases with doctors advising injured workers to just put their injury on medicaid so that the doctor can avoid all the pre-authorization hassles that comes with workers compensation.

One problem is the race to the bottom that impacts all injured workers. The public's attitude is "As long as it doesn't affect me, I don't care. Out of sight, out of mind." But this report confirms that it does affect the public. When the system finally breaks, remember that.

Texas Fights over State-Created Firm, Texas Mutual Insurance Company

              In 1991, Texas employers sought policy writers to create polices covering employees injured on the job. To fuel this need, the Texas legislature created the Texas Workers’ Compensation Insurance Fund, the largest writer of workers’ compensation insurance. In 2001, the state changed the fund's name to Texas Mutual Insurance Company (TMIC) but maintained the same goal: to stabilize the state’s workers’ compensation system. Since its creation, TMIC has accomplished just that, consuming 40% of Texas’s workers’ compensation insurance market. Today, TMIC insures over 60,000 employers and their 1.4 million employees. Despite its success, TMIC recently announced its desire to cut ties with the state. The purpose of this blog is to explain some of the pros and cons associated with converting the state fund into a private company.  

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TX DWC Announces September Workers' Compensation Violations

         On October 20, 2014, Texas's Division of Workers’ Compensation (DWC) announced final disciplinary actions against insurance carriers, health care providers, and employers for violating the state's workers' compensation laws. Division of Workers' Compensation Announces Recent Enforcement Action, Tex. Dep’t Ins. (Oct. 20, 2014), available at http://www.tdi.texas.gov/news/2014/dwc---10---20.html.

           Since January 1, 2014, administrative penalties for these violations total $1,774,345, including $1,658,245 against insurance carriers, $65,600 against health care providers, and $1,000 against employers.

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Texas Injury Statistics by Race Go Uncollected

Access the NY Times article here: http://www.nytimes.com/2014/10/10/us/injury-statistics-by-race-go-uncollected.html?_r=0

Calling all Frackcident Victims: The Economic Benefits of Fracking do not Justify your Injuries


               According to a recent study performed by Associated Press, traffic fatalities in drilling states, including Texas, have more than quadrupled since 2004. But wait . . . hasn’t the energy boom positively impacted our country? The increased production of oil and natural gas creates job, lifts local economies, and attracts manufacturers to the United States. However, our nation’s booming economy comes with a price—a spike in traffic facilities. Large trucks and heaving drilling equipment consume the streets of Texas drilling counties, increasing traffic fatalities by 18%. 


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