What is the difference between a workers' compensation claim and a non-compensation claim?

What is the difference between a workers’ compensation claim and a non-compensation claim?

Texas is one of the few states where you don't have to carry workers' compensation insurance. There are employers in Texas that don't have workers' compensation insurance. it gets confusing because the employer may carry insurance and they may tell their employees that it's workers' compensation insurance but it's what we call an occupational benefit fund. It's a form of the insurance but it doesn't have the same protections that workers' comp has and it's not regulated by the state of Texas. In those situations, an employer can very well retaliate against an employee. The employer can do anything basically what they want to you. They just can't fire you for certain federal and protected things such as race discrimination, sex discrimination, those kinds of things but they can go and retaliate against someone if it is a non-Texas workers' compensation fund. If it's one of these occupational benefit plan type of situations. That's why it's important to talk to a lawyer so the lawyer can look at things and see just what kind of a case is this.

Can I sue my company for causing my injury?

Can I sue my company for causing my injury?

Unfortunately in Texas, if your employer carries workers compensation insurance, your only rights of recovery are through workers comp. That means that you can’t sue your employer for causing your workers' compensation injury. There are certain times when maybe you can’t sue your employer for causing your workers' compensation injury, but if someone else somehow did something wrong that caused your injury, you may have a claim against that third party. That’s why it’s important to talk to a lawyer and in particular, it’s good to talk to a workers compensation lawyer who knows both general personal injury law, as well as more specialized workers compensation law. Those cases are going to require someone that knows both of those things and knows how to navigate the law, both for general personal injury, as well as for the workers' compensation so that you can get the maximum recovery possible. In our offices, I've handled both the general personal injury type claims as well as of course, the workers' compensation claims.

Can the company I work for fire me for filing a workers' compensation claim?

Can the company I work for fire me for filing a workers’ compensation claim?

If you feel threatened by your company because you want to follow workers' compensation claim, don’t feel threatened. In Texas, it is illegal for a company to retaliate both against an individual who gets hurt on the job, as well as to retaliate against any other person who assists someone who’s been hurt on the job. For instance, if you get hurt on the job and you want to report your claim, absolutely do that. Also, if you need your witness statements, if you need to talk to other people to have them support any aspect of your claim, they don’t need to worry about being fired as well because it is illegal in Texas for a company to retaliate against someone for anything related to a workers compensation claim. It’s very important whenever you get injured on the job, the first thing to do is report the claim. The second thing you need to do is contact a lawyer immediately to get advice on things.

Can I just get a settlement and be done with it?

Can I just get a settlement and be done with it?

I get asked all the time, "Can I just take a settlement and just be done with this workers' comp insurance company?" In Texas, you can't do that. In Texas, when your employer carries workers compensation insurance, that protects them such that your only rights are through the workers' compensation system. The Texas Workers Compensation system does not allow for settlements. At the end of your case, you're going to get an impairment rating. That impairment rating is going to pay you three weeks pay for every 1% of impairment. Now at the end, what you can do is you can say, "I want to accelerate all of my benefits. I want to get my benefits paid in a lump sum." But I never ever, ever advise clients to do that. Because is you do that, another one of the things that you have to do, is you have to waive all entitlement to future benefits. Why would you waive a lifetime of medical care and also potential future income benefits all for a quick lump sum payment of just a few days or weeks worth of benefits?

I have been injured on the job, what do I do?

I have been injured on the job, what do I do?

When you're injured on the job, the most important thing for you to do is to report the claim. Now, most companies have a lot of peer pressure on their workers. Like they'll have some type of a policy that says if there's no lost time, people get bonuses and that sort of thing. And so there's a lot of peer pressure on you to not report that claim. But you need to report the claim. Certain time deadlines start whenever you report the claim. But also, certain time deadlines can affect you so that your claim can be barred if you don't report that claim timely. And so it's very important, whenever you get injured on the job, the first thing you do is report the claim. The second thing you need to do is contact a lawyer immediately to get advice on things.

How long do I have to make a claim?

How long do I have to make a claim?

When you get injured on the job, you've only got 30 days to let your employer know that you got injured on the job. So it's very, very important when you get injured you let somebody know immediately. Most kinds of personal injury cases in Texas, you've got two years in order to do something about your personal injury. On workers' comp, you only get 30 days. After you let your employer know within the 30 days, you're limited to only one year to let the insurance company know. 

Special Session Activity

Lawmakers to target Austin's worker protections on construction projects...(story by Texas Tribune)

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What to Do If You Are Injured on the Job

 Thousands of people are killed every year on the job, and multitudes of others suffer serious injuries. On-the-job injuries account for huge losses of time and productivity, but if you’re hurt at work, these concerns are secondary to your own. These injuries can prevent you from working, result in lost wages and even land you in bankruptcy thanks to high medical bills. Fortunately, there are workers compensation protections, and this is how you can become eligible. 

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Occupational Diseases at Cruising Altitude

One of my favorite Twitter feeds to follow is that of @Heather_Poole. Ms. Poole is a flight attendant and best-selling author of "Cruising Altitude: Tales of Crashpads, Crew Drama and Crazy Passengers." I enjoy her tweets because in addition to random tweets about travel and life on a commercial airliner, Ms. Poole takes the time to tweet about issues that are important to society. She may be tweeting pictures of her latest travel destination one minute, the next she is tweeting about human trafficking or airline safety or women's rights. Unfortunately, the issue that has taken up most of her tweets lately is that of flight attendants getting sick on the job. What appears to have happened is the uniforms that crew members are required to wear are making flight attendants sick. In workers compensation parlance, we call this an occupational disease.

Everyone is familiar with workers compensation that pays for "specific event" injuries--the ones where a worker slips and falls or has equipment dropped them from above or is involved in a car wreck in a company vehicle. But if you develop a disease from being exposed to a toxin, you can collect workers compensation benefits the same as if you sustained a specific event trauma. So, if you worked as a sandblaster, for instance, and over many years you are breathing in silica and dust particles, or if you are a welder breathing in welding fumes over many years, you may be entitled to compensation for chronic obstructive pulmonary disease (COPD). But these conditions are relatively easy to prove because the of the existence of scientific studies. Most occupational diseases, on the other hand, are exceedingly difficult to prove thanks to the impediments set forth by the court system and the Texas Division of Workers' Compensation.

To recover workers compensation benefits for an occupational disease, it is not enough to show that an injured worker was exposed to a toxin at work--the worker must also prove that the exposure is the cause of the individual's disease. So, for example, a person could work at a feed lot where cow birds are leaving droppings everywhere and if those bird droppings make the worker sick, that worker, working a minimum wage job, will have to be examined at a specialized hospital and tested for an occupational disease. Or another example might be a clean up crew that is contracted to go onto military bases and clean up the lead bullets from the firing range--then a worker gets lead poising. Another example would be at your local hospital where the housekeeping crew comes in to remove soiled linens and change the sheets--only sometimes the crew is accidentally exposed to harmful bacteria. These are all examples our office has encountered. They are also representative of the main problem with occupational disease cases. These cases are difficult to prove and usually occur in individuals the least able to afford to pay for testing.

It would seem that proving that the exposure to a toxin is the cause of a person's disease is common-sense approach to dealing with occupational injuries. But this over-reliance on medical proof eliminates other common sense approaches. The main common sense approach would be looking at other similarly situated employees. For instance, if everyone hired to clean up a firing range suddenly came down with lead poisoning, what are the odds that this didn't happen at work? If a bacterium is often found in hospitals but rarely found outside hospitals, what are the odds that more than one hospital employee sent to clean up a room would contract a disease from a particular bacteria exposure? Isn't there a place for looking at the workers as a class and asking about rates of incidents among them?

When you look through Ms. Poole's twitter feed, you see one account after another account, after another account, of flight attendants having allergic reactions to their uniforms. Their reactions are similar: hives, trouble breathing, swollen glands, sore throats. Under current Texas law, each individual flight attendant has to prove that for each person, they are sick from toxins found in their uniform and not from catching something from a fellow passenger or just getting sick at home. Ms. Poole found that the industry spent one million dollars on a study to determine that their uniforms were not hazardous to flight attendants' health. Think about the unfair bargaining power of the industry and their insurance companies versus each individual flight attendant. The industry has the resources to pay for studies saying there is nothing harmful in the uniforms. And yet, the numbers say that this just isn't true. In Texas, though, junk science beats common sense in a court room--because junk science can be bought if you have a million dollars.

 

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.

www.vox.com/2016/3/7/11172330/wage-theft-day-laborers 

 

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