What happens if I find a new job while on workers comp?

What happens if I find a new job while on workers comp?

In the state of Texas, they put a very, very high premium on people getting back to work as soon as possible. We have seen that when people return back to work as soon as possible, they actually have increased outcomes on workers comp and in our office, we certainly want you to have the best outcome possible and we want you to return to work as soon as possible. If your employer that you were working for when you're injured no longer has a job for you, you're free to go out and get another job.

However, you want to make sure that that job is one that is consistent with your restrictions that you might be on. You want to make sure that, that job is one that you can do, but if you do get offered a job that is within your restrictions and it's one that you can do certainly you want to take advantage of that opportunity but when you do, you also need to let your attorney know and you also want to make sure that the insurance company knows about it. But certainly you want to go out and find a job if you can, you want to work that helps you get actually a better outcome on your workers' comp when you return to workers as soon as you can.

Do I have to go to court to get workers comp?

Do I have to go to court to get workers comp?

Most people are afraid to follower workers comp claim because I think that if they do they're going to have to go to court and fight in court to get workers comp. Very few cases actually end up in court on a worker's comp case. Whenever you get injured on the job, you follow your claim for compensation, then the insurance company will process the claim, oftentimes they will accept certain parts of the claim, deny certain parts of the claim, but we don't have to fight those things by going to court, we go in front of what's called an Administrative tribunal. And you sit there in front of the judge and you just tell the judge what's happened.

It's a very informal process but it's nothing to be uptight about and nothing to worry about. Most the times it’s just you, your lawyer, the insurance company's lawyer and the judge. It does have important legal consequences for you if you don't do things correctly. That's why it's always important that you have a lawyer if you're going to be involved in any type of legal lawsuit.

Why is it so hard to get my surgery approved?

Why is it so hard to get my surgery approved?

One of the biggest problems people have with workers compensation is getting their surgeries approved. It's a continual problem because, in Texas, the insurance company uses a one size fits all approach to medical care. They use a book called The Occupational Disability Guidelines. Your doctor has to go by the treatment protocols that are in that book. It means that your medical care is more expensive. It means that it takes a lot longer for you to get treatment.

Your doctor will have to send in justification to the insurance company saying that the ODG has been followed and you've been sent out for the appropriate treatment prior to doing the more expensive option, which is always surgery. It does have important legal ramifications for you if don't do things correctly. That's why it's always important that you have a lawyer if you going to be involved in any type of legal proceeding.

Can I get reimbursed for my travel expenses to see the doctor?

Can I get reimbursed for my travel expenses to see the doctor?

In addition to your health care that the insurance company has to pay for, they also have to pay for your travel expenses for that health care. If you have to travel out of town to go see a specialist or for surgery and the Insurance company has to pay for your travel expenses. If you live in a remote part of Texas, for instance, and you have to drive two hours to go see the doctor, you don't have to bear that expense.

You collect your receipt, you make a log of your travel expenses, and the insurance company has to pay for that. That's one of the services that our office provides, is we make sure that all your travel expenses do get reimbursed anytime you have to travel or incur expenses out of pocket to get medical care.

What is considered a work related injury?

What is considered a work related injury?

A work-related injury is any injury that occurs in the course and scope of employment. The easy way to describe it is if you are doing something in the furtherance of the affairs of your employer's business, then you're engaged in the course and scope of employment. If your boss says, "Hey, why don't you go across the street and make a deposit at the bank?" and while you're walking across the street, you slip and fall, that's in the course and scope of employment. Anything that you're doing where you're furthering the affairs of your employer, you're not doing something for personal business but you're doing something for work business, that's in the course and scope of employment. If you get injured doing those things, you need to talk to a lawyer.

How long does workers comp last in Texas?

How long does workers comp last in Texas?

Workers' comp in Texas lasts the entire lifetime for the claimant when it pertains to the medical care that the claimant receives. In other words, for your entire life, the workers' compensation insurance company is supposed to pay for all your medical pay that you need for your injury. It's different when it comes to the income benefits that you receive. Your income benefits only last up until the time that you return back to work, and then once you return back to work, you get something called an impairment rating, and you get paid three weeks’ pay for every 1% for the impairment, and even that is kept. So most people with workers' comp claims will get paid their benefits somewhere around one to two year, but then they do get medical care for the rest of their life. But we all know insurance companies want to wrap claims up, and they don't want to be paying on something for the rest of your life. So the insurance company is going to be doing everything they can to try and get your benefits cut off, which is why you need to see an attorney to make sure that you get the maximum amount of benefits that you are entitled to.

Can a car accident be a workers' compensation case?

Can a car accident be a workers’ compensation case?

Sometimes in certain situations, when you're driving to and from work, if you're involved in a car wreck, that is a workers' compensation claim. For instance, people who have places of business that are frequently changing, the common example is a plumber or an air conditioner repair man, those types of things. People that drive for work but they've got their company truck, they keep it at home, and they just drive from their house, those could be an on the job injury, if you're involved in a car wreck, driving to and from different customer locations. It's important that you talk to a worker's compensation lawyer to look at, investigate what exactly happened, so that that way, if it is a workers' compensation claim, you can make that claim.

What happens to my workers compensation if I test positive for drugs or alcohol?

What happens to my workers compensation if I test positive for drugs or alcohol?

Often times, someone gets injured on the job and they're forced to do a urinalysis or a blood test and it tests positive for some type of an illegal substance. When that happens, their claim is denied. So the question arises, what do I do now? Well, it's important that you talk to a lawyer if you've tested positive for any kind of illegal substance, because just because you've tested positive, doesn't mean that your claim is barred. But what that does is is it shifts the burden of proof on a worker's comp case so, that the injured worker has to not only prove their claim, but the injured worker also has to prove that they had the normal use of their physical abilities and their mental abilities at the time the injury occurred. There can be some very important things with respect to your case, so it's very important that you talk to a lawyer if your claim is denied for testing positive for any kind of illegal substance.

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. 

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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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.

 

 

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. 

 

 

Top Ten Dangerous Jobs in America

 

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:

www.propublica.org/article/photos-living-through-california-workers-comp-cuts

www.propublica.org/article/the-demolition-of-workers-compensation

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:

www.dol.gov/osha/report/20150304-inequality.pdf

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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$97 Million in Workers' Comp Fraud: 2012's Top Cases

               Workers’ compensation fraud occurs when individuals intentionally make false representations to obtain or to deny workers’ comp benefits, which reimburse employees injured on the job.

             Individuals committing workers’ comp fraud carry many faces—employees, employers, and healthcare providers all qualify as potential violators. Employees become violators when seeking benefits by misrepresenting their injuries, employment status, or treatment. Alternatively, employers commit workers comp fraud not to receive benefits, but to avoid responsibility. Employers often seek to avoid responsibility by underreporting employee payrolls and avoiding premiums. Last, health care providers, such as doctors, counselors, and pharmacists, become violators by duplicating bills, billing patients for improper services, and receiving payments from multiple insurance carriers for the same treatment.

2012’s Top 10 Cases

             In 2012, the top ten workers’ comp fraud cases cost America $97,446,500. Below is a short description of each case and its damages:

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What to Watch For if You Are an Independent Contractor

According to a New York Times article, the feds are cracking down on employers that classify employees as independent contractors. 

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What To Do When You Are Injured On The Job

When injured on the job be sure and follow these steps:

  1.  Immediately report the injury to your supervisor. Make sure that the injury is properly logged or recorded by your supervisor.
  2. 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.
  3. 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.
  4. 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.
  5. 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.
  6. Contact an experienced workers compensation attorney as soon as possible after your injury.

Top Ten Most Unusual Comp Cases in 2009

 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.

Why Workers Comp is Important

Texas is the only state that doesn't make workers compensation insurance mandatory for at least some employers. This is a shame, because workers' compensation insurance is beneficial to both employees and employers as Sally Spooner, a school teacher, and the Cody School District, her employer, recently found out.

The Cody School District is the local school district in Cody, Wyoming. Recently, the district decided to discontinue providing workers compensation insurance for their employees as the superintendent and school board felt that $175,000.00 in annual premiums was not a good way to save money for the district. They couldn't have been more wrong. One of their teachers, Sally Spooner, slipped and fell and ended up having to have her right let amputated just below the knee after suffering serious injuries. Now, this incident will likely cost the district far in excess of what they would have paid in annual workers' comp premiums.

This incident illustrates the give and take of the workers' compensation system. For employers, workers' compensation insurance protects them from the big money judgments for pain and suffering, loss of future earning capacity, loss of consortium, disfigurement, etc. Typically, workers' compensation claimants recover their medical expenses, lost wages and some kind of future impairment benefit. They downside for the employer is that workers compensation is no-fault insurance. Thus, even if an employee is injured through no fault of the employer, the insurance compensates the claimant. For the claimant, obviously they receive benefits without having to prove fault--and typically those benefits start being paid very quickly versus the length of time it would take if you had to prove negligence in a court of law. However, the injured claimant gives up the right to sue their employer for their employer's negligence in causing the injury. Thus, the injured party cannot recover the big money damages that we often hear about in the news. Thus system serves both parties equally. But more importantly, providing workers' compensation insurance for employees is the right thing to do. Just look at the comments to the hyperlinked article about Ms. Spooner, above, to see what I mean.