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Texas are reimbursed under the state's workers' compensation in-patient fee schedule.The 1997 fee schedule, which was repealed in 2008, included a stop-loss exception.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The stop-loss rule has since been repealed.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.

As anyone who deals with the workers' compensation system in Texas knows, the primary reason we have undocumented workers is because there are certain jobs that are so bad, no one will do them except people from third-world countries who are desperate for a better life. No amount of border patrolling or fence building will keep people out of this country as long as there is a demand for workers who will work long hours in dangerous jobs for very little pay. In Texas, these jobs are found in the meat packing industry, textile industry and in chemical plants along the Houston Ship Channel and Texas coastline. 

For instance, according to OSHA statistics, 36% of meat packing employees are injured on the job each year. In Texas, the statistics are much worse. In 1999, the Cargill meat packing plants in Plainview and Friona had a combined 62% injury rate. Most of these injuries were cumulative trauma injuries. However, the extensive use of sharp knives and hand tools, slippery floors, and the continuous need for refrigerated workplaces, as well as the need to lift and move heavy carcasses make the meatpacking plants extremely dangerous. At the same time, pricing pressures force employers to keep wages low and hours long. As a result, the vast majority of these jobs are filled with workers who have no other place to go. Is it any mystery then, why, in 2006 the federal government raided six Swift & Co. meat packing plants for hiring undocumented aliens?

So, in such a dangerous working environment, the question then arises: "What happens when an undocumented or illegal alien is injured but given a return to light duty work? Can the carrier deny the lost wage benefit or TIBS because the injured worker does not have a valid social security number?

First, an injured worker's alien status is not a complete bar to receiving workers compensation benefits. Commercial Standard Fire and Marine Company v. Galindo, 484 S.W.2d. 635 (Tex. Civ. App.—El Paso 1972, writ ref'd n.r.e.); This holding has been adopted under the current compensation act by APD 022258-s.  Second, in a case involving a meat packer, Tyson Foods, Inc. v. Guzman 116 S.W.3d 233, (Tex.App.-Tyler 2003,no pet.), the court held that not only can an undocumented alien be compensated for lost wages, the undocumented worker is also entitled to recover for lost earning capacity for the future. In other words, there is no presumption that the worker would be deported and unable to earn wages in the country of origin. However, if an employee returns to work, even at light duty, and is later terminated, laid off, or quits, and the evidence shows that the injured undocumented worker's medical condition has not changed, the worker may not establish disability if the sole reason other employment cannot be obtained is the injured worker's illegal alien status. APD 000529.

But what about the risk of deportation should an injured worker report the injury? Well, this is another reason certain employers hire illegals. In jobs such as meatpacking where the primary injury type is repetitive trauma, the outward signs of injury are hidden. These workers will simply work with the pain. However, for the worker with the courage to come forward, it is important to remember that the employer could be facing fines and penalties for hiring undocumented aliens and has no desire for the worker to be discovered. Also, should the worker hire a lawyer, that lawyer has a duty of confidentiality and will not disclose the alien's status. There may be other risks, such as the insurance adjuster reporting the alien's status. But, the injured worker should not fear at least consulting with a lawyer in the event of an injury. 

So, despite the hard stance taken against undocumented aliens, at least for now the law protects them should they get injured at work. If you or someone you know has been injured at work, seek an attorney board-certified for their experience and qualifications in workers' compensation law.

Sometimes, though, the employer may have to provide workers compensation coverage to employees in order to bid on government contracts. Or, in the construction field, a contractor may require a subcontractor to furnish workers compensation coverage for employees in order to protect the contractor. Sometimes in these situations the employer will provide workers compensation coverage but will deduct the premiums from the compensation paid to workers classified as independent contractors. In these situations, very specific rules apply for the employer to classify the workers as independent contractors. Otherwise, it is illegal to withhold workers compensation premiums from a worker's check. At our offices, we currently represent a group of employees who faced this very problem. Tens of thousands of dollars were withheld from the workers to pay workers compensation premiums.

If your employer classifies you as an independent contractor, make sure you are truly independent. Who has the right to control your work? Do you have the ability to independently profit from your work? Have you made a significant investment in equipment or supplies to perform your work? Is your work with your current employer temporary? Who sets the hours? Who sets the pay? Now, if you are truly and independent contractor, look at the check you receive and see what is taken out. If workers compensation premiums are withheld, see a lawyer to determine if it is legal for you to be required to pay the premiums from your check.

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.

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.

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.

1. Race/Sex/Age/Religious Discrimination - you cannot be fired for one of these reasons.
2. Public Whistleblowers - you cannot be retaliated against for blowing the whistle on a public employer.
3. Refusing to commit a crime.
4. Jury Service - You cannot be fired for missing work for jury duty.
5. Subpoena Compliance - You cannot be fired for missing work for obeying a subpoena to appear in court.
6. Military Duty - You cannot be fired for missing work for military duty.
7. Voting - You cannot be discriminated against for voting.
8. Union Membership - You cannot be denied employment based upon union membership.
9. Because Your Employer has been given a Child Support Withholding Order.
10. Agricultural Laborer Protections - Agricultural workers cannot be discriminated against for seeking information or working with authorities regarding hazardous chemicals in use.
11. Handling Hazardous Chemicals - Likewise, anyone who handles chemicals of more than 55 gallons or 500 pounds is protected.
12. Nursing Home Workers - nursing home employees are protected from reporting abuse and neglect that takes place in the facility.
13. Health Care Facility Workers  - You are protected from reporting abuse, neglect, illegal, unethical or unprofessional conduct of persons associated with health care facilities.
14. 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.

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?

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.

The case, titled State Office of Risk Management v. Foutz, involved a Texas Department of Criminal Justice corrections officer who witnessed the stabbing and murder of an inmate and was powerless to stop the event. As a result, she developed Post-Traumatic Stress Disorder, or P.T.S.D., and filed a workers' compensation claim. The State Office of Risk Management (SORM) is the state agency charged with handling workers compensation claims for state employees. SORM disputed the claim but requested that Officer Foutz be seen by one of their doctors. When even SORM's own doctor concluded that Officer Foutz suffered from PTSD, the Division of Workers Compensation found in favor of Officer Foutz. As a result, SORM appealed the division finding by suing Officer Foutz in state court to overturn the Division of Workers' Comp's finding. After a jury heard the evidence and ruled for Officer Foutz, the trial judge ordered the two trial attorneys to explain why they and SORM should not be sanctioned or fined for taking up the Court's time by filing such a frivolous lawsuit. After hearing their explanation, the trial judge sanctioned the two attorneys $5,000 and $3,000 and sanctioned SORM $100,000. The Court of Appeals upheld the sanctions but sent the matter back to the trial judge to explain the $100,000 sanction against SORM.

What is important about this case, besides the fact that this brings to light the misdeeds of SORM, is that in Texas you cannot sue the State Office of Risk Management for bad faith handling of a workers' compensation claim. The only way to punish SORM is through the imposition of sanctions. Thus, until the Texas Legislature changes the law to allow its own employees to seek justice when their workers claims are mishandled, we will have to rely upon the courage of judges like those in the Foutz case. Unfortunately, the trial judge in this case was retiring (which may explain his courage in assessing these sanctions). Judges in Texas are elected and are often reluctant to impose sanctions despite such egregious behavior because of the effect it might have on their re-election efforts.

Yesterday, Texas Mutual Insurance Company announced they were paying $818,000 in dividends to policy holders in the retail and construction purchasing groups. What this means is that retailers like Walmart or construction companies like Linbeck Construction, if they have workers compensation insurance with Texas Mutual, enjoyed a rebate check from Texas Mutual for the financial success Texas Mutual is experiencing. This announcement comes on the heels of a $446,000 dividend payment in November to policyholders in the manufacturing group.

Even more significant was the announcement by Texas Mutual that in the past ten years they have paid policyholders more than half a billion dollars in dividends. Those familiar with Texas politics are aware that the favorite whipping boy of the insurance industry and the Texas Legislature is the workers compensation industry. While Texas Mutual is enjoying healthy profits, in the last ten years claimants have seen increasing restrictions to their right to recover benefits.