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.

   

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.

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.