Division of Workers Compensation

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.

Continue Reading The Presumption of Intoxication, continued.

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.

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.

Continue Reading The Presumption of Intoxication

The Office of Injured Employee Counsel was created by the legislature to better assist injured workers in the handling of their workers compensation claims than had been had previously by an ombudsman program administered by the Division of Workers Compensation. When the current workers compensation system was created, ombudsman worked within the Division to assist injured workers. This created problems for insurance carriers as it gave the ombudsmen access to files and information that insurance carrier attorneys might not have access to. In addition, the ombudsman program was overseen by personnel within the Division of Workers Compensation. Because the Division has to maintain impartiality, the ombudsman program suffered because there was no incentive to help injured workers. Excellence in customer service was valued over the results obtained for the claimant.

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?