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.

   

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.

Workers' Compensation: Are you Covered?

            Workers’ compensation is a state-regulated insurance program that pays medical expenses and lost wages of employees who are injured at work or suffer from work-related illnesses. Workers’ compensation cases are treated on a case-by-case basis, which means that employees are treated differently based on the nature and severity of their injuries.

              In Texas, the agency responsible for regulating the state’s workers’ compensation system is the Texas Department of Insurance (TDI). Within the TDI exists a smaller division, which carries the sole responsibility of processing and monitoring workers’ compensation claims, called the Division of Workers’ Compensation (DWC).

            The DWC will not compensate all employees suffering from work-related injuries. To receive benefits, employees must meet two requirements: (1) fall under their employers’ workers’ compensation coverage and (2) suffer from certain work-related injuries.

 

                                Requirement #1: Workers' Comp Insurance

              First, employees must fall under their employers’ workers’ compensation coverage. In Texas, workers’ compensation insurance is optional, so not all employees automatically receive coverage. Employers have an incentive to provide coverage because insured employers receive important legal protections, including immunity from most lawsuits brought by employees. This means that employees, generally, cannot sue their employers for work-related injuries.  Instead, employees must go through the Texas Department of Insurance and/or bring a third-party lawsuit. The purpose of employer immunity is to establish a trade-off between employers and injured employees. Injured employees give up their right to sue employers, in exchange for the right to receive workers' compensation benefits, regardless of who was at fault for their injuries.

 

                          Requirement #2: Injured in the Course of Employment

             Second, employees must suffer from certain types work-related injuries. The Texas Labor Code requires employees seeking workers’ compensation benefits suffer from injuries “out of and in the course and scope of employment.” This means that employees must sustain their injuries while working in furtherance of their employers. Determining when employees work in furtherance of their employers and when they do not is a complicated issue, which is why injured employees should contact an attorney who specializes in workers’ compensation or personal injury cases.

               Injured employees who do not contact an attorney must, at the bare minimum, report their injury to their employer within thirty days from the date of the injury, or from the date they discovered that their injury related to their employment. Failing to notify employers within thirty days can eliminate an employee’s right to obtain benefits.

 

                                   Takeaway Points for Injured Employees 

  • In Texas, the DWC, within the TDI, handles all workers’ compensation cases
  • Texas employers have the option of providing workers’ compensation insurance, so not all employees receive coverage
  • Employees seeking benefits must fall under their employers’ coverage
  • Employees must sustain their injuries while working in furtherance of their employer’s business
  • Workers’ compensation will not pay for injuries caused by self-infliction, horseplay, voluntary drug or alcohol intoxication, or injuries sustained off-duty or during social events or sporting events
  • Generally, employees have thirty days to report their injuries  
    

Texas Court of Appeals Affirms Injured Employee's LIBS

             A work-related accident can result in a lifelong injury. It can also leave you drowning in medical bills, lost income, and uncertainty about your future. Injured employees facing this situation are not alone—workers’ compensation attorneys will answer your questions and fight to obtain the benefits you deserve.

            Contacting a workers’ compensation attorney immediately after sustaining a work-related injury can help employees qualify for medical and indemnity benefits under their employers’ workers’ compensation policy. Medical benefits cover medical expenses, while indemnity benefits reimburse employees for bodily impairments and lost wages.

                                                        What are LIBs?

             Through the Division of Workers’ Compensation (Division), employees seeking reimbursement for lost wages may receive up to four types of income benefits: temporary income benefits, impairment income benefits, supplemental income benefits, and lifetime income benefits. Lifetime income benefits (LIBs) are the most substantial and sought-after benefits, for they extend from the date of injury until death. Under § 408.161 of Texas Labor Code, injured employees become eligible for LIBs after suffering catastrophic work-related injuries that create “total loss” to certain body parts. Some of the injuries listed in § 408.161 include loss of eyesight, loss of both feet, loss of both hands, traumatic brain injuries, spinal cord injuries, and certain third-degree burns.

                Successful workers’ compensation attorneys can help employees prove the loss requirement imposed by § 408.161. If proven, injured employees receive LIBs totaling 75% of their average weekly wage, in addition to a 3% increase per year, until death. For example, an employee earning $500 before his or her injury would receive LIBs totaling $375 per week (three-quarters of their weekly wage), plus a 3% increase per year, until death.

               Seems easy enough, right? Not exactly . . . Texas law permits insurance companies to refuse paying LIBs until employees prove that their injury amounts to a “total loss.” But what constitutes “total loss?” Does an employee who loses feeling in her feet, but is able to complete daily work duties qualify for LIBs? What about an employee who suffers a traumatic brain injury that makes focusing at work an impossible task? On August 27, 2014, in Texas Department of Insurance, Workers’ Compensation Division v. Roel De Los Santos, the Texas Court of Appeals sought to answer these questions by holding that Roel De Los Santos qualified for LIBs after suffering permanent loss that prevented him from maintaining employment.

                    Texas Department of Insurance v. Roel De Los Santos

                  In 1987, De Los Santos, a heavy equipment operator in San Antonio, Texas, injured his left wrist while operating machinery at work. After five wrist surgeries, De Los Santos continued to experience sharp pain that prevented him from gripping knobs at work. In 1994, De Los Santos suffered a second work-related injury while driving a motor vehicle, fracturing his right radius bone and right wrist. Between 1994 and 2009, De Los Santos underwent a right wrist fusion, carpal tunnel release surgery, ulnar nerve transposition, and regularly attended a pain management clinic.

                To prove qualification for LIBs due to injuries in both wrists, De Los Santos sought the help of a workers’ compensation attorney. The attorney promptly contacted Dr. Charles Kennedy, a board certified orthopedic surgeon, to perform a comprehensive evaluation on De Los Santos. After the evaluation, Dr. Kenney concluded that he suffered from complex regional pain syndrome (a chronic pain condition that damages the nervous system.) After submitting Dr. Kennedy’s conclusion to the Division, surprisingly, the Division denied De Los Santos LIBs, arguing that De Los Santos did not suffer a total loss in both hands. To receive LIBs, § 408.161 demands that employees suffer total loss “at or above the wrist.” Even though De Los Santos could not operate machinery at work using one hand, he could operate machinery using both hands. This method was slower and increased De Los Santos’s pain level, but it enabled him to continue working, disqualifying De Los Santos from receiving LIBs.

                 After the Division denied LIBs, the injured employee filed suit. The trial court conducted a bench trial, where it reviewed De Los Santos’s medical records and Dr. Kennedy’s conclusions. The trial court reversed the Division’s denial of benefits and entered judgment in favor of De Los Santos. The Division appealed.

               On appeal, De Los Santos’s attorney argued that Dr. Kennedy’s medical conclusions proved that De Los Santos’s limited ability to grip machinery with both hands failed to disprove that he suffered a total loss in both wrists. The court of appeals agreed. Justice Martinez, for the majority, noted that “total loss” under § 408.161 means “permanent loss of use,” demonstrating that De Los Santos remained eligible for LIBs if he suffered permanent loss in both wrists. To prove permanent loss in both wrists, Dr. Kennedy testified that De Los Santos’s two work-related accidents prevented him from gripping small objects, performing household duties, typing, and closing his hands. Based on these limited abilities, the court of appeals concluded that De Los Santos suffered permanent loss in both wrists that prevented him from maintaining any type of employment. The court awarded De Los Santos LIBs from 1994, the date of his second injury, until death.

              This case demonstrates how insurance companies can wrongly deny injured employees the medical and indemnity benefits they deserve. If you sustained a work-related injury, seek the help of a successful worker’s compensation attorney. Obtain the legal advice you need to make it through your workers' compensation claim, and get what you deserve.

Illegal Immigration and Workers Compensation

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.

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.

New Maximum and Minimum Weekly Benefit Rates Out

 The new maximum and minimum weekly benefit rates for 2010 have been published. The rates can be found here.

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.