On average, a Texas worker is 12 percent more likely to be killed on the job than someone doing the same job elsewhere, according to a Dallas Morning News analysis of federal data. That translates to about 580 excess workplace deaths over a decade. Construction has contributed mightily to Texas’ booming economy. And the state’s construction sites are 22 percent deadlier than the national average. Government and industry here have invested relatively little in safety equipment, training and inspections, researchers say. And Texas is one of the toughest places to organize unions, which can promote safety.
President Obama has recently issued an executive order that is being hailed as "the most important workers' rights reform of the last 20 years." Additionally, it is a beginning step at curbing the abuses of arbitration clauses. We still have a long way to go in this country, but these steps create ripples...
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In a previous post, I gave an overview of the problem with the state of the intoxication defense in workers' compensation law in Texas--that it prevents people from recovery, even when their injury had nothing to do with testing positive for drugs. Again, I want to stress that everyone wants to maintain a drug free workplace. I have lost two family members in incidents caused by a drunk driver -- a cousin and an uncle -- in separate events. So, I tend to take a hard view towards injuries caused by intoxication. But that doesn't mean I think insurance carriers should be excused from covering injuries that they have legally contracted to cover.
Currently, the Division of Workers' Compensation takes the position that the rebuttable presumption shifts the burden of proof in a workers compensation case. This is contrary to the law of rebuttable presumptions found in virtually every other legal context. In fact, it is contrary to the law as set forth by the Texas Supreme Court.Continue Reading...
I haven't been able to update my blog because I had been sent a cease and desist letter from the DWC informing me that I was in violation of Texas Labor Code Section 419.002(a) because I had used the words "Texas Workers' Comp" in this blog's URL.
Well, today my lawyer filed suit against the DWC in federal court. You can view my petition here:
I'll keep people posted on the progress as the case develops.
Recently, I won a workers compensation jury trial on whether or not my client was intoxicated at the time of his injury. Intoxication cases are extremely difficult to win due to both the definition of intoxication and the way that the Division of Workers Compensation decides intoxication cases. There is a strong public policy in favor of maintaining a drug free workplace. However, the Texas Constitution guarantees all persons the right to seek legal remedies for injuries that were not their fault. This is the first of a few posts I plan on making which point out that in our rush to crack down on drugs, the Division and even the courts of the State of Texas have failed to follow the law.Continue Reading...
Well, this blog has gone neglected for quite a while. Not by choice, but due to my health. A few months ago, I was driving to a continuing education seminar roughly five hours away. I was running late and so I never stopped for a snack or a beverage. Shortly after I arrived at the seminar, I noticed I had developed a minor cough. In the following weeks, that cough turned more serious and culminated in my being hospitalized for a week in critical condition with blood clots that nearly killed me. I am still on blood thinners which affect my energy level, but its time to have enough energy to work on this blog. And what better subject that to discuss the compensability of injuries occurring while driving to and from someplace for work. Yesterday, the Texas Supreme Court addressed this very issue in the case of Leordeanu vs. American Protection Insurance Company, 2010 WL 4910133.
For the attorneys that follow this blog, in a decision that should surprise no one, the Texas Supreme Court refused to review the decision in Texas Mutual Insurance Co. vs. Vista Community Medical Center, LLP. Practitioners will recall that this is the Austin Court of Appeals decision from 2008 that invalidated the stop-loss exception.
Hospitals that treat workers' compensation patients in Texas are reimbursed under the state's workers' compensation in-patient fee schedule.The 1997 fee schedule, which was repealed in 2008, included a stop-loss exception. Under the stop-loss exception, hospitals could be paid more than the fee schedule if they met certain criteria. The dispute between Texas Mutual and Vista centered on those criteria. Texas Mutual argued that the stop-loss exception should be applied to admissions involving charges of more than $40,000 and "unusually extensive services." Vista countered that the exception applied to all admissions for which they charged more than $40,000.
The stop-loss rule has since been repealed. However, many fee disputes remained outstanding under the old rule.
With all the discussion over Arizona's tough stance on undocumented aliens, a renewed interest has been undertaken regarding Texas' stance on these aliens in a workers' compensation context.Continue Reading...
When injured on the job be sure and follow these steps:
- Immediately report the injury to your supervisor. Make sure that the injury is properly logged or recorded by your supervisor.
- Request medical attention for your injury and take note of the names of the doctors who are treating you. Remember, you are not required to see a company doctor.
- Make sure to get contact information from any witnesses. If possible, use your phone to take photographs of the accident site. Take photographs of your injuries as well, both before and after treatment.
- Do not sign anything, or give any recorded statements, until you have spoken with an experienced workers compensation lawyer. You may be signing away your rights without even knowing it.
- If you are injured, stop working until released to work by your doctor. Additional labor could severely aggravate your injury. If your doctor releases you to light duty, you do not have to return to work unless your employer agrees in writing to abide by your doctor's restrictions.
- Contact an experienced workers compensation attorney as soon as possible after your injury.
Larson's Workers' Compensation Reporter, the premier name in workers' compensation legal reporters, has issued their list of the top ten most bizarre or unusual workers compensation cases in 2009. Among the highlights:
An Illinois man was awarded benefits for a displaced fracture through the right femoral neck when he attempted to dislodge a bag of potato chips from a vending machine for a female worker by giving the machine a "shoulder block."
A Missouri court upheld a denial of death benefits to the beneficiaries of a workers comp fraud investigator who was killed in a car wreck on the job. Alcohol and speeding were determined to be the causes.
Its important to remember that these lists are sensational by nature and not indicative of most workers compensation claims. Nevertheless, they do make for interesting reading, especially for those of us in the field of workers' compensation law.
A new study by the Cambridge, Mass. based Workers Compensation Research Institute (WCRI) shows that Texas has major deficiencies in the amount of benefit payments and the overutilization of insurance carriers on cost containment efforts.
Medical costs per workers’ compensation claim in Texas were stable in 2007, following several years of dramatic decreases. However, in several key areas Texas showed key areas of poor performance in workers compensation, according to a new study by WCRI.
The study, Monitoring the Impact of Reforms in Texas: CompScope™ Benchmarks, 10th Edition, said that afte 2006, Texas medical costs per claim were 19 percent lower than the typical study state for claims with more than seven days of lost time. Fee schedule decreases combined with increased management of medical care by payors through utilization review and other means were behind the decline.
At the same time, though, WCRI reported that medical cost containment expenses per claim continued to grow rapidly in Texas, even after medical costs began to decline. At an average of $2,818, Texas had the highest medical cost containment expenses per claim among the study states in 2007/2008, 37 percent higher than typical. This means that even though the state legislature enacted reforms to contain costs, insurance carriers were aggressively seeking to reduce legitimate costs even further.
The study noted that indemnity benefits per claim rose ten percent in 2007, largely due to a nearly 25 percent increase in the maximum benefit for statutory weekly temporary total disability. But, despite this significant increase in the maximum benefit, the percentage of workers whose benefits were limited by the maximum was 17 percent, more than double the percentage in the typical study state. Thus, Texas lags far behind other states in calculating the maximum benefit paid under workers comp.
The study also found that from 2002 to 2006 indemnity benefits per claim decreased 9 percent overall, largely the result of a decrease in the duration of temporary disability. Since 2002, WCRI said the average duration of temporary disability for injured workers in Texas declined by more than three weeks for claims at an average of 36 months of experience, likely related to the decrease in medical utilization under HB 2600 and payor focus on managing medical care.
In addition, the study said Texas had lower permanent partial disability/lump-sum payments compared to the typical study state.
The Workers Compensation Research Institute is a nonpartisan, not-for-profit membership organization conducting public policy research on workers’ compensation, health care, and disability issues. Its members include employers, insurers, governmental entities, insurance regulators and state administrative agencies in the U.S., Canada, Australia and New Zealand, as well as several state labor organizations.
Texas is an employment at-will state. What this means is that your employer can fire you at any time for any reason because your employment is at the will of the employer. However, there are situations where your employer cannot fire you. Often times when a workers' compensation claim is filed, the injured employee is worried about his/her job and rightfully so, since the employment is at-will. But here are some things to watch for to use as leverage in keeping your job:
- Race/Sex/Age/Religious Discrimination - you cannot be fired for one of these reasons.
- Public Whistleblowers - you cannot be retaliated against for blowing the whistle on a public employer.
- Refusing to commit a crime.
- Jury Service - You cannot be fired for missing work for jury duty.
- Subpoena Compliance - You cannot be fired for missing work for obeying a subpoena to appear in court.
- Military Duty - You cannot be fired for missing work for military duty.
- Voting - You cannot be discriminated against for voting.
- Union Membership - You cannot be denied employment based upon union membership.
- Because Your Employer has been given a Child Support Withholding Order.
- Agricultural Laborer Protections - Agricultural workers cannot be discriminated against for seeking information or working with authorities regarding hazardous chemicals in use.
- Handling Hazardous Chemicals - Likewise, anyone who handles chemicals of more than 55 gallons or 500 pounds is protected.
- Nursing Home Workers - nursing home employees are protected from reporting abuse and neglect that takes place in the facility.
- Health Care Facility Workers - You are protected from reporting abuse, neglect, illegal, unethical or unprofessional conduct of persons associated with health care facilities.
- And finally, you cannot be fired or discriminated against for filing a workers' compensation claim.
If you have been fired and you believe one of these exceptions to the at-will nature of you employment applies to you, then you should seek out a lawyer as soon as possible.
The new maximum and minimum weekly benefit rates for 2010 have been published. The rates can be found here.
The Office of Injured Employee Counsel was created by the legislature to better assist injured workers in the handling of their workers compensation claims than had been had previously by an ombudsman program administered by the Division of Workers Compensation. When the current workers compensation system was created, ombudsman worked within the Division to assist injured workers. This created problems for insurance carriers as it gave the ombudsmen access to files and information that insurance carrier attorneys might not have access to. In addition, the ombudsman program was overseen by personnel within the Division of Workers Compensation. Because the Division has to maintain impartiality, the ombudsman program suffered because there was no incentive to help injured workers. Excellence in customer service was valued over the results obtained for the claimant.
When the changes were passed by the legislature creating the Office of Injured Employee Counsel, what was lost on the legislature was the fact that the ombudsmen were not advocates, they were there to assist workers. The legislature explicitly stated that the office's purpose was to advocate for workers as a class, but anyone could see that the office would not distinguish between advocating for workers as a class and merely assisting workers individually.
So, with an office that is advocating for workers individually, what do you do when your customers have competing interests? This is exactly the problem confronted by our office recently. We took over a death benefits file for a claimant-beneficiary who had previously used the services of the Office of Injured Employee Counsel. However, while our client was the spouse of the deceased, another claimant emerged claiming to be common-law married to the deceased during a period when our client and the decedent were separated. When these two women were both "assisted" by the Office of Injured Employee Counsel, it was comical to see the notes taken by their office. One ombudsman would write that she had recommended woman number one to get a piece of evidence to establish her claim. Then, a second ombudsman, assisting woman number two would see that notation in the file and recommend that her customer go get some evidence to refute that piece of evidence. And around and around this went--until one of these women came to us for representation.
You see, despite how easy it is to trash lawyers, we do have rules that we must follow regarding conflicts of interest. These rules make sure that a client's secrets and a client's strategies remain confidential. This is one of the reasons why hiring a lawyer is important. Not only is a lawyer trained in the law and knows the law--a lawyer has certain rules to follow that insure that what you tell a lawyer stays private. And when you go to a lawyer, all lawyers have file systems in place to guarantee that you do not hire a lawyer who is already working for the other side on your case. Your lawyer is your advocate, no one else's. And what you tell a lawyer is confidential--the other side doesn't find out until your hearing date what your trial strategy is. Isn't that the way it should be?