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]

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