Division of Workers Compensation

In the wake of 9/11, the Texas Legislature took steps to recognize the difficulties firefighters and emergency medical technicians have in proving work-related cancer. As a result, the Texas Legislature passed what is known as the “Cancer Presumption” or Section 607.055 of the Texas Government Code, which states that if a firefighter or EMT suffers from cancer resulting in death or partial disability, that cancer is presumed to be in the course and scope of employment if:

  1.  The firefighter or EMT:
    • regularly responded on the scene to calls involving fires or fire fighting; or
    • regularly responded to an event involving the documented release of radiation or a known or suspected carcinogen while the person was employed as a firefighter or EMT; and
  2. the cancer is known to be associated with fire fighting or exposure to heat, smoke, radiation, or a known or suspected carcinogen as determined by the International Agency for Research on Cancer (IARC).

The following cancers are cancers that are known to be associated with fire fighting or exposure to heat, smoke, radiation or a known or suspected carcinogen, that we know of at this time:

  • Espophagus
  • Stomach
  • Colorectum
  • Caecum
  • Pancreas
  • Lung & Bronchus
  • Melanoma
  • Prostate
  • Testis
  • Bladder
  • Kidney & Renal
  • Pelvis
  • Brain
  • Thyroid
  • Leukemia
  • Non-Hodgkin Lymphoma
  • Multiple Myeloma

The rationale for this law should be obvious. Firefighters and EMTs at the scene of a fire are exposed do all manner of carcinogens in the air. It is taken as a badge of honor amongst firefighters to come back from a fire covered in soot and grime. But this same soot and grime gets into the body through the pores in the skin and through the lungs in the air that is breathed. It would be next to impossible for a firefighter to pinpoint exactly what exposure, on what specific day, led to the development of cancer. That is an impossible evidentiary hurdle to cross. So, instead, when a firefighter or EMT develops cancer, if it is one of these cancers–or even a similar cancer that may be related to one of these cancers–then it is presumed to have occurred on the job and it is the burden of the insurance company to prove it did not occur on the job.

As can be expected, insurance companies have cried fowl over this legislation. They pay their doctors to distort the medical findings. They claim the law is unconstitutional. When all else fails, they attack the substance of the claim under the legal guidelines. For instance, “regularly responded” has not yet been defined. So, fire fighting departments are now under strict orders to keep statistics on calls. Insurance companies will claim that “regularly responded” means responding to actual fires on most of the calls and not car wrecks or downed power lines or the many other types of calls to which firefighters are regularly called. They will also dig through the complete medical history of the firefighter. Was there a history of tobacco use? Was there a family risk factor?

The bottom line is, these cases are exceedingly complex. Even with the presumption, they are no slam dunk for the firefighter. The Texas Legislature is to applauded for taking the steps to protect fire fighters and EMTs access to workers compensation benefits. However, more work remains. Ordinarily, an insurance company that loses at the Division of Workers’ Compensation, must pay the claimant’s attorney fees if the case is appealed into district court and the insurance company loses there, as well. However, this does not apply to claims involving governmental entities. So, if the insurance company loses at the Division of Workers’ Compensation, they simply appeal into District Court by suing the cancer-stricken claimant or that person’s survivors. Then, to add insult to injury, the claimant or survivors must pay even more in attorney fees to keep what was already won at the Division. The Texas Legislature needs to add a provision to the Labor Code which forces governmental entities to pay their share of the attorney fees just like every one else. Only then, will we see cities and counties do the right thing and take full responsibility for their first responders.

One of my favorite Twitter feeds to follow is that of @Heather_Poole. Ms. Poole is a flight attendant and best-selling author of "Cruising Altitude: Tales of Crashpads, Crew Drama and Crazy Passengers." I enjoy her tweets because in addition to random tweets about travel and life on a commercial airliner, Ms. Poole takes the time to tweet about issues that are important to society. She may be tweeting pictures of her latest travel destination one minute, the next she is tweeting about human trafficking or airline safety or women’s rights. Unfortunately, the issue that has taken up most of her tweets lately is that of flight attendants getting sick on the job. What appears to have happened is the uniforms that crew members are required to wear are making flight attendants sick. In workers compensation parlance, we call this an occupational disease.

Everyone is familiar with workers compensation that pays for "specific event" injuries–the ones where a worker slips and falls or has equipment dropped them from above or is involved in a car wreck in a company vehicle. But if you develop a disease from being exposed to a toxin, you can collect workers compensation benefits the same as if you sustained a specific event trauma. So, if you worked as a sandblaster, for instance, and over many years you are breathing in silica and dust particles, or if you are a welder breathing in welding fumes over many years, you may be entitled to compensation for chronic obstructive pulmonary disease (COPD). But these conditions are relatively easy to prove because the of the existence of scientific studies. Most occupational diseases, on the other hand, are exceedingly difficult to prove thanks to the impediments set forth by the court system and the Texas Division of Workers’ Compensation.

To recover workers compensation benefits for an occupational disease, it is not enough to show that an injured worker was exposed to a toxin at work–the worker must also prove that the exposure is the cause of the individual’s disease. So, for example, a person could work at a feed lot where cow birds are leaving droppings everywhere and if those bird droppings make the worker sick, that worker, working a minimum wage job, will have to be examined at a specialized hospital and tested for an occupational disease. Or another example might be a clean up crew that is contracted to go onto military bases and clean up the lead bullets from the firing range–then a worker gets lead poising. Another example would be at your local hospital where the housekeeping crew comes in to remove soiled linens and change the sheets–only sometimes the crew is accidentally exposed to harmful bacteria. These are all examples our office has encountered. They are also representative of the main problem with occupational disease cases. These cases are difficult to prove and usually occur in individuals the least able to afford to pay for testing.

It would seem that proving that the exposure to a toxin is the cause of a person’s disease is common-sense approach to dealing with occupational injuries. But this over-reliance on medical proof eliminates other common sense approaches. The main common sense approach would be looking at other similarly situated employees. For instance, if everyone hired to clean up a firing range suddenly came down with lead poisoning, what are the odds that this didn’t happen at work? If a bacterium is often found in hospitals but rarely found outside hospitals, what are the odds that more than one hospital employee sent to clean up a room would contract a disease from a particular bacteria exposure? Isn’t there a place for looking at the workers as a class and asking about rates of incidents among them?

When you look through Ms. Poole’s twitter feed, you see one account after another account, after another account, of flight attendants having allergic reactions to their uniforms. Their reactions are similar: hives, trouble breathing, swollen glands, sore throats. Under current Texas law, each individual flight attendant has to prove that for each person, they are sick from toxins found in their uniform and not from catching something from a fellow passenger or just getting sick at home. Ms. Poole found that the industry spent one million dollars on a study to determine that their uniforms were not hazardous to flight attendants’ health. Think about the unfair bargaining power of the industry and their insurance companies versus each individual flight attendant. The industry has the resources to pay for studies saying there is nothing harmful in the uniforms. And yet, the numbers say that this just isn’t true. In Texas, though, junk science beats common sense in a court room–because junk science can be bought if you have a million dollars.

 

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.

Continue Reading Abuse of Drug Testing by Carrier Doctors

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.

   

     Today, the United States Supreme Court issued a ruling that sided with the State of Texas in attacking the EPA’s ability to place limits on the amounts of mercury, acids, and other toxins may be released from industrial giants. Justice Scalia, writing for the majority, held that the EPA must consider the cost of compliance before deciding whether regulation is appropriate. The ruling is considered a major victory for polluters.

     Almost contemporaneously with the Supreme Court’s decision is this study which has found higher than normal cancer rates in eastern Harris County, i.e., the area around the refineries and other industries that make up the Houston Ship Channel. While the study doesn’t correlate the polluters to the causes of cancer, it is significant.

     This is all very important for workers compensation because in recent years the Texas Supreme Court has made it difficult, if not impossible, to prove in workers compensation proceedings that an occupational disease like cancer is work related. Thanks to the US Supreme Court, polluters have the green light to go on polluting. Hopefully researchers will put more effort into these studies which show higher incidences of cancer in the areas of pollution. These neighborhoods are filled with the workers of these plants. If they can’t get justice before the Division of Workers’ Compensation, hopefully justice will come from somewhere. I grew up near there. I have two aunts who live there. Incidentally, both have had cancer. 

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.

Continue Reading Texas Fights over State-Created Firm, Texas Mutual Insurance Company

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:

Continue Reading $97 Million in Workers’ Comp Fraud: 2012’s Top Cases

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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).

Continue Reading Workers’ Compensation: Are you Covered?

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.

Continue Reading Texas Court of Appeals Affirms Injured Employee’s LIBS