Lifetime Medical Coverage is a Sham

Take a look at this link from Houston's ABC affiliate, KTRK's investigative report. A police officer shot in the line of duty and years later he cannot get medical care. It is sensational because it is a police officer who is fighting to get medical care approved but his experience is no different than workers in any other field. The Texas Workers Compensation system was passed by a legislature that promised lifetime medical care but as anyone who has ever dealt with workers compensation in Texas knows, lifetime medical care is a farce. The Insurance industry is simply not set up to provide lifetime medical care to claimants.

courtesy of KTRK TV 


When a claim is made against an insurance company, the adjuster who is assigned the claim will investigate to determine the legitimacy of the claim and to determine the amount that the claim will cost the insurance company. That adjuster, either individually or together with a team, will set a number called the "reserves" for the claim. That is the amount that is estimated for the insurance company to keep in reserve to pay the claim. If an adjuster sets reserves appropriately, it is good for the insurance company because it allows insurance companies to properly allocate their resources and make good investments. When insurance companies make good investments, they make more profit. As a matter of public policy, we want insurance companies to make profits off of investments. 


The problem though, is that there is a conflict between the need to set accurate reserves and the inability to know the future medical needs. So, an adjuster will set reserves, but getting those reserves raised can be a problem. And in some insurance companies, adjusters will tell you confidentially that raising reserves can adversely affect their employment. Also, there is frequent turnover in the job of an adjuster. What happens when an adjuster sets reserves, but then another adjuster comes along years later and needs to increase reserves?


For these reasons, and more, lifetime medical care is next to impossible to get on Texas workers comp. Routinely we have clients who are looking to get social security so that they can actually get lifetime medical care for their injuries. It isn't right. It passes the cost of injuries that should be covered by insurance onto the general public. But it is what the injured people of Texas have to do if they truly want lifetime medical care.


And if you are employed like Mr. Bozeman in this story--you have to pay for the medical care out of your pocket. Hopefully you have insurance and only have to pay a deductible and co-pay. But if your insurance doesn't cover pre-existing conditions you are just out of luck.

All Work, No Pay

Take a moment to read this investigative journalism piece. Men sent to work at a chicken processing plant for "treatment" rather than go to prison. Chicken processing plants have high incidences of on the job injuries. Program participants that got injured on the job were sent to prison while the owners collected the workers compensation payments. Oh, and the husband and wife got $168,000 a year salaries and the processing company furnished someone to make $250,000 a year as a "consultant." While this was purportedly a "rehab" program, it is no different from the client stories we hear from workers in meat packing and chicken processing plants across Texas.  

 Take a moment to read this investigative journalism piece. Men sent to work at a chicken processing plant for "treatment" rather than go to prison. Chicken processing plants have high incidences of on the job injuries. Program participants that got injured on the job were sent to prison while the owners collected the workers compensation payments. Oh, and the husband and wife got $168,000 a year salaries and the processing company furnished someone to make $250,000 a year as a "consultant." While this was purportedly a "rehab" program, it is no different from the client stories we hear from workers in meat packing and chicken processing plants across Texas.  

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. 

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. 

Report the Injury Immediately

The most important thing to do if you’re injured on the job is immediately report the incident. Most people want to try to just get by without reporting their injury in hopes that they won't cause problems with their employer. This is a mistake! Each state has its own rules when it comes to worker’s compensation, but there’s always a time limit. In Texas, for instance, you have 30 days to report an injury to your employer or you could lose all rights to seek compensation.  Additionally, reporting the injury right away will minimize the possibility of your employer later claiming that you may have suffered your injury away from the job. 

Seek Medical Attention

To receive any type of compensation for your injury, you will always have to show that you were actually injured. This means you’ll need to seek medical attention for your injury. This is also important so that a potentially minor injury doesn’t turn into something more serious. And you do NOT have to go the the company doctor first (although your employer may have a policy that requires you to go to the company doctor in order to keep your job). Seek medical attention from any doctor or facility that takes workers compensation. 

File a Worker's Comp Claim

Once you’ve reported your injury, your employer has to file the appropriate paperwork to get your benefits started. If this isn’t done in a timely manner, your bills can quickly pile up as you’re unable to work. If your employer refuses to file the paperwork, regardless of their reasoning, you can typically find the right forms, such as these for Texas, online. 

Know When to Get an Attorney

You won’t always need a workers' compensation lawyer after an accident at work. Minor injuries that only keep you out of work for a day or so are typically easy claims to handle. There are a variety of instances, though, when speaking to an attorney will be in your best interest.

If your employer refuses to file your worker's compensation paperwork, for instance, a workers' compensation attorney may be the only way to ensure fair treatment.

Also, your benefit rate is controlled by your employer. If your employer is hostile to your claim, it may underreport your wages in order to lower the amount of benefits paid to you. A workers' compensation attorney will be able to audit your payroll records to make sure you are getting the most benefits you deserve.

Finally, you can sue if third parties had some involvement in your accident. 

Stay Up to Date on Current Status

Even if you don’t opt for a workers' compensation attorney, you’ll need to stay abreast of the current status of your worker's compensation claim. There are additional deadlines, such as filing an appeal, which must be met if you’re to maintain your eligibility for compensation. 

Additionally, if a worker's compensation insurer appears to be dragging their feet or purposefully trying to offer an unfair compensation package, you may be eligible for additional money. This is because insurers have a legal requirement to pay benefits in a timely manner. If they fail in this duty, they can be held liable, and the only way you’ll know if this is happening is to stay informed throughout the process.

Getting injured on the job can cause serious issues in every aspect of your life, but this doesn’t mean you have to deal with it on your own. Worker's compensation was made to support employees who are unable to work as a result of on-the-job injuries. By following the appropriate steps in every situation, you’ll ensure the best chance of receiving fair compensation.

Abuse of Drug Testing by Carrier Doctors

As the Olympics draws to a close, it is appropriate to compare the drug-testing done for Olympic athletes versus those done to Texas Workers.

Many states, including Texas, have a provision that creates a rebuttable presumption of intoxication when someone tests positive for drugs or alcohol.

However, a new use of drug testing is gaining in prominence in Texas Workers Compensation law that is an abuse of the workers’ compensation system.

As the Olympics draws to a close, it is appropriate to compare the drug-testing done to Olympic athletes versus those done to Texas Workers.

Many states, including Texas, have a provision that creates a rebuttable presumption of intoxication when someone tests positive for drugs or alcohol.

However, a new use of drug testing is gaining in prominence in Texas Workers Compensation law that is an abuse of the workers’ compensation system.

In Texas, there are two kinds of doctors who can see an injured worker besides the treating doctor and the referral doctor. Those two kinds of doctors are the Required Medical Exam doctor and the Division of Workers Compensation Designated Doctor. Normally, these doctors simply conduct an exam and render an opinion on a matter, but recently, certain overzealous doctors have started conducting drug testing of the injured worker at the end of the claim.  This is a very serious matter because these doctors are then using the test results to justify ridiculously low compensation benefits and it is not something that the legislature had in mind when they wrote the law.

A Required Medical Exam doctor or RME doctor is a doctor that sees the injured worker on behalf of the insurance company. The insurance company has to get prior approval from the Division of Workers Compensation and the insurance company can usually only request one exam every six months. The RME doctor is the only doctor allowed to examine the worker and there is no provision in the law for the RME doctor to conduct any additional tests such as drug testing. See Rule 126.5.

A Designated Doctor or DD is a doctor appointed by the Division of Workers Compensation and is appointed to serve in a supposedly neutral capacity for the State of Texas to give an opinion on certain medical issues. A Designated Doctor can perform “additional testing necessary to resolve the issue in question” and is authorized to refer the worker to other doctors for testing when the DD is not qualified to fully resolve the issue in question.  Rule 127.10(c).

What we are seeing are doctors that are performing drug testing on injured workers as part of the examination. Then, if the drug test comes back positive, the doctor is using this positive finding as a basis for claiming some other problem is the cause of the injured worker’s complaints. Usually, the doctor attacks the worker’s credibility, saying that the positive drug finding is indicative of habitual drug or alcohol abuse. Of course, the examining doctor does not take into consideration prescription medications that may be the cause of the positive drug screen. And even when the prescription medication is not the cause of the positive result, the doctor will assume the worker is a habitual drug abuser that is looking to scam the insurance company out of workers’ compensation benefits.

What does this have to do with the Olympics? The threshold for testing positive for marijuana in the Olympics is 150 ng/ml. It is set to that level because those in charge of the Olympics understand that marijuana is a recreational drug that is used by enough athletes that the cutoff threshold needs to be sufficiently high to only detect those that use drugs during competition when it would affect performance. In other words, we don’t want athletes losing out on sponsorship money and causing issues with older, more conservative TV viewers back home, just because they happened to smoke a joint a day before the competition. Because Texas workers’ compensation law allows for workers compensation judges to consider positive drug findings without regard of the amount, the stigma of testing positive for marijuana is enough cost a person thousands of dollars in workers compensation benefits. Injured workers need to consult with an attorney prior to any medical exam that is not conducted by their own doctors.

We celebrate our athletes and we tolerate their recreational use of marijuana. But for the hard working citizens of the State of Texas who get injured, usually through no fault of their own and then turn to their only remedy, Texas Workers Comp—they don’t get a medal, they get kicked to the curb.

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  

The Presumption of Intoxication, continued.

 In a previous post, I gave an overview of the problem with the state of the intoxication defense in workers' compensation law in Texas--that it prevents people from recovery, even when their injury had nothing to do with testing positive for drugs. Again, I want to stress that everyone wants to maintain a drug free workplace.  I have lost two family members in incidents caused by a drunk driver -- a cousin and an uncle -- in separate  events. So, I tend to take a hard view towards injuries caused by intoxication. But that doesn't mean I think insurance carriers should be excused from covering injuries that they have legally contracted to cover. 

Currently, the Division of Workers' Compensation takes the position that the rebuttable presumption shifts the burden of proof in a workers compensation case. This is contrary to the law of rebuttable presumptions found in virtually every other legal context. In fact, it is contrary to the law as set forth by the Texas Supreme Court.

In virtually every other legal context, a rebuttable presumption only operates to shift the burden of producing evidence. For instance, in the criminal context, a criminal defendant bears the burden to produce some evidence that a search occurred without a warrant, once that evidence is produced, the burden is on the State to show that the search or seizure was reasonable. In trademarks, a registered trademark shifts the burden to the opposing party to produce some evidence that the trademark is not valid. Once the evidence is produced, the burden of proof is on the trademark holder to establish validity. In discrimination law, the employer initially has a burden of producing evidence of legitimate, non-descriminatory reasons for their conduct, then presumption falls and the plaintiff has the burden of proof. in estate law, regarding gifts to spouses, initially there is a presumption of a gift but once evidence is produced negating that presumption, the presumption falls and no longer exists. In family law, there is a presumption in favor of naming a child's parent or parents as managing conservators. However, the presumption is rebuttable and once some evidence is produced rebutting the presumption, it falls and the parent has the burden of proof to show that their appointment as managing conservator is in the best interest of the child. I could go on and on naming various legal contexts in which Texas law treats a "rebuttable presumption" as a requirement on a party to produce evidence not meet a burden of proof. But the Texas Supreme Court has already made this very clear in a case dealing with an area of personal injury law called product liability.

The Texas Supreme Court has made very clear, in the case of General Motors Corp. v. Saenz, 873 S.W.2d 353, 358-59 (Tex.1993), that a rebuttable presumption does not shift the burden of proof.

The Court has spoken!


"The Texas Supreme Court has made very clear...that a rebuttable presumption does not shift the burden of proof"



In this case, the Court very clearly stated that a rebuttable presumption merely shifts the burden of going forward on the case to produce some evidence rebutting the presumption. Once that evidence has been produced, the presumption disappears and the case is treated as if no presumption existed.

How long workers' compensation law will continue to exist with an erroneous application of the law of rebuttable presumptions is unknown. However, as long as this continues, there will remain a problem with the constitutionality of the law that I will go into in a future post. 



Filing Suit Against the DWC

I haven't been able to update my blog because I had been sent a cease and desist letter from the DWC informing me that I was in violation of Texas Labor Code Section 419.002(a) because I had used the words "Texas Workers' Comp" in this blog's URL.

Well, today my lawyer filed suit against the DWC in federal court. You can view my petition here:


Petition Against DWC


I'll keep people posted on the progress as the case develops. 

The Presumption of Intoxication

Recently, I won a workers compensation jury trial on whether or not my client was intoxicated at the time of his injury. Intoxication cases are extremely difficult to win due to both the definition of intoxication and the way that the Division of Workers Compensation decides intoxication cases. There is a strong public policy in favor of maintaining a drug free workplace. However, the Texas Constitution guarantees all persons the right to seek legal remedies for injuries that were not their fault. This is the first of a few posts I plan on making which point out that in our rush to crack down on drugs, the Division and even the courts of the State of Texas have failed to follow the law.

The definition of Intoxication found in the Texas Labor Code, reads as follows:


(a)  In this subtitle, "intoxication" means the state of:

(1)  having an alcohol concentration to qualify as intoxicated under Section 49.01(2), Penal Code; or

(2)  not having the normal use of mental or physical faculties resulting from the voluntary introduction into the body of:

(A)  an alcoholic beverage, as defined by Section 1.04, Alcoholic Beverage Code;

(B)  a controlled substance or controlled substance analogue, as defined by Section 481.002, Health and Safety Code;

(C)  a dangerous drug, as defined by Section 483.001, Health and Safety Code;

(D)  an abusable glue or aerosol paint, as defined by Section 485.001, Health and Safety Code; or

(E)  any similar substance, the use of which is regulated under state law.

(b)  The term "intoxication" does not include the loss of normal use of mental or physical faculties resulting from the introduction into the body of a substance:

(1)  taken under and in accordance with a prescription written for the employee by the employee's doctor; or

(2)  listed under Subsection (a) by inhalation or absorption incidental to the employee's work.

(c)  On the voluntary introduction into the body of any substance listed under Subsection (a)(2)(B), based on a blood test or urinalysis, it is a rebuttable presumption that a person is intoxicated and does not have the normal use of mental or physical faculties.

It is this last paragraph, in particular the words I have bolded, "rebuttable presumption," that I want to address. According to the Division of Workers Compensation, rebuttable presumption means that the burden of proof shifts to the claimant to prove that they are not intoxicated at the time of injury. This creates a significant hurdle for the injured worker. Now, before you rush to judgment and say that the workers gets what they deserve for using drugs, keep this in mind: the injured worker loses if they test positive for drugs whether or not the drugs had anything to do with the injury or not! For instance, we won a case where a husband and father of three kids was killed in an automobile collision on the job. However, he had been feeling sick that morning and had taken one of his wife's prescription medications to help him feel better. The collision was not his fault, yet initially, his widow was denied benefits since he had tested positive for a prescription narcotic for which he didn't have a prescription. In this system, the worker loses every time unless he or she can afford to hire an expert witness to say the workers wasn't intoxicated at the time of injury.

Almost always, the injured worker will lose a case where the carrier is claiming intoxication unless the claimant can hire an expert to defeat the intoxication claim. This is because when the Division of Workers Compensation was interpreting the Labor Code, they read this "rebuttable presumption" to mean a shifting of the burden of proof. As a result, they require the injured workers to proof that they were not intoxicated at the time of injury. This is extremely difficult to do without an expert witness. Expert witnesses don't come cheaply. Thus, for an injured worker who is presumed to be intoxicated to prevail on their claim, they must go to the burden of hiring an expert witness.

In future posts, I'll explain why this reasoning by Workers Comp is wrong. I'll also explain how the current state of the law is unconstitutional. Meanwhile, if you've been injured on the job and the carrier is claiming you were intoxicated, call a lawyer for help, immediately.



Tex Supreme Court Refuses to Overturn Stop Loss Ruling

For the attorneys that follow this blog, in a decision that should surprise no one, the Texas Supreme Court refused to review the decision in Texas Mutual Insurance Co. vs. Vista Community Medical Center, LLP. Practitioners will recall that this is the Austin Court of Appeals decision from 2008 that invalidated the stop-loss exception.

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.

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.

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.

New Study Shows Major Deficiencies in Texas Workers' Compensation

 A new study by the Cambridge, Mass. based Workers Compensation Research Institute (WCRI) shows that Texas has major deficiencies in the amount of benefit payments and the overutilization of insurance carriers on cost containment efforts.

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.


When Is It Against the Law to be Fired?

 Texas is an employment at-will state. What this means is that your employer can fire you at any time for any reason because your employment is at the will of the employer. However, there are situations where your employer cannot fire you. Often times when a workers' compensation claim is filed, the injured employee is worried about his/her job and rightfully so, since the employment is at-will. But here are some things to watch for to use as leverage in keeping your job:

  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.

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.