Texas Law
Texas Workers' Compensation Defense Law
Workers' Compensation Defense Law
Like many other states, Texas has a workers' compensation system to compensate employees for accidental injuries occurring in the workplace. With few exceptions, all employers must carry Workers' Compensation insurance or demonstrate that they are self-insured and have the financial resources to cover any reasonably anticipated claims. Texas, like many states, has struggled with its workers' compensation program, trying to contain costs and to balance the interests of injured workers, employers, and insurers. Every businessperson with employees should have a basic understanding of his or her responsibilities under Texas's workers' compensation law. The Workers' Compensation system operates under rules substantially different from those used to settle other types of personal injury claims. For this reason, many lawyers specialize in handling only Workers' Compensation disputes, while other lawyers who routinely do personal injury work never handle Workers' Compensation claims.
Workers' Compensation: The Basics
Workers' compensation is a state program that requires employers to have an insurance policies covering employees for work-related injuries. When an employee is injured on the job, the employer or the insurance company pays for medical care and lost wages due to the injury. Though the employer (not the employee) pays the insurance premium, the cost of workers' compensation ultimately passes to the consumer in the form of higher prices for goods and services.
The notion of the employer, and eventually the public, paying for employee work-related injuries originated in Germany during the latter half of the 19th century. Among the chief proponents of a German workers' compensation program was Bertha von Krupp of the famed German manufacturer, Krupp Works. Krupp had long believed that taking care of workers was in the best interest of business and in 1884 successfully persuaded Chancellor Otto von Bismark to support workers' compensation for all of Germany.
Workers' compensation did not come to the United States until about 1910, when New York and Massachusetts adopted programs. Texas adopted its program in 1917. This program is administered by the Texas Workers' Compensation Commission.
The advent of workers' compensation relieved injured employees from having to sue their employers to collect any sort of damages. Before workers' compensation, an employee had to prove that the employer had negligently failed to provide a safe work environment. Under workers' compensation, however, employees usually collect benefits regardless of fault. That is, even if an employee is responsible for his or her own injury, the employee is covered by workers' compensation under most circumstances, as long as the injury occurred on the job. The main restriction to the program is that in most cases, workers' compensation benefits are the only form of remedy for workplace injuries. After receiving benefits, an injured employee may not sue his or her employer for further compensation.
Who Is Covered
Only employees are eligible for benefits. Broadly defined, an employee is anyone under oral or written appointment or contract for hire, or apprenticeship, working on a full- or part-time basis. This definition encompasses even resident or non-resident aliens, those who are unlawfully employed, minors, and prisoners in work programs. Not included in this definition, however, are most domestic or casual workers in private homes, certain seasonal and migrant farm or ranch workers, some professional athletes, casual laborers, and independent contractors or anyone who is not subject to the control and direction of the employer.
An employee's injury must arise "out of and in the course of employment" to be covered by workers' compensation. Basically, this means that the injury has to occur while the employee is involved in some activity directly related to his or her job. For example, an employee injured at the job site performing tasks at the direction of the employer is covered, as is an employee who is injured on a business trip, as long as the employee is engaged in employment duties. An employee is not covered while traveling to or from the place of employment, except if the employer asks the employee to perform a special duty on the way, if the method of transportation is under the control of the employer, if the transportation is provided by the employer, or if the employee is paid for the commute time. Employees also are not covered when voluntarily participating in activities outside the scope of their job. Employees injured during work breaks when no work is being performed also may not be covered, depending on the circumstances. An employee is not covered if injured while intoxicated at the workplace, if injured by another person for personal reasons not related to the job, or if his or her injuries are self-inflicted. An employee also will not be covered if injured during "horseplay" with another employee.
Available Benefits
Workers' compensation entitles an employee to all reasonable and necessary medical care related to the injury. The benefits available to workers include permanent or temporary total disability, permanent or temporary partial disability, and medical and related expenses. Benefits include visits to an approved health care provider; surgery; hospital, dental care, chiropractic, podiatric, optometric, and nursing care; psychological services; prescription drugs; and braces, crutches, and other medical supplies ordered by an approved physician.
An injured employee also may be entitled to payment for lost wages. If, as a result of the injury, the employee is unable to return to work after more than seven days, the employee is entitled to a portion of the lost income. If the disability continues for four or more weeks, the benefits are retroactive to the date the disability began. An employee also is entitled to lost wages benefits if he or she is able to work, but has suffered a permanent loss of a bodily function as a result of the injury. Benefit amounts are determined by set state guidelines and can be as high as 70 to 75 percent of a worker's salary at the time of the injury.
Injured employees unable to return to work also may be entitled to rehabilitation and training provided through the Texas Rehabilitation Commission and private providers. The employer's insurer must furnish all necessary medical care and services for physical rehabilitation. The Texas Rehabilitation Commission maintains a registry of private agencies that provide rehabilitation services. In certain circumstance, an employee who is referred for vocational rehabilitation may lose some benefits if he or she refuses to cooperate with rehabilitation efforts.
If an employee dies as result of a work-related injury, the employee's spouse and/or dependent children are entitled to death benefits of up to 75 percent of the employee's wages (with certain exceptions). Workers' compensation also provides for a burial allowance of $2,500.
The Employer's Responsibilities
Texas law allows employers to elect whether to cover their employees under the workers' compensation program. Texas, New Jersey and South Carolina are the only three states still allowing employers this election. Employers who elect not to accept the provisions of the program lose the right to assert certain defenses if they are sued. Because of this, most employers elect to cover their employees under the workers' compensation program. Employers must give notice to their employees of whether the employer is covered by workers' compensation insurance. The cost of premiums for compensation insurance is determined by factors such as the number of employees a business has, how safe the record of the workplace proves to be, and how much employees are paid. Generally, the greater the payroll or the higher the risk, the higher the premium. However, an employer may be able to lower premiums by establishing programs to provide for a safer workplace and by working with injured employees to minimize lost work time. Generally, in the case of a temporary disability, there will be no payments made for the first seven days of lost work unless the disability continues for four or more weeks, or if the employee was hospitalized for inpatient treatment.
The trade-off for an employee's relatively easy route to compensation is a limit to the amount of money that can be awarded for a work-related injury. An employer is immune from liability in a lawsuit by maintaining a workers' compensation insurance program to cover on-the-job injuries, unless the employer acts intentionally to cause injury.
Any insurance broker or attorney should be able to help a business obtain workers' compensation insurance. An employer also may seek help by contacting the Texas Workers' Compensation Commission.
Notice
If an employee is injured on the job and wishes to receive worker's compensation benefits, he or she must promptly notify the employer of the injury. The notice must be given within 30 days of the date of the injury, or within 30 days of the date it first becomes apparent that the injury or illness is work-related. Failure to meet this deadline may threaten the right to benefits. The notice may be given verbally or in writing, and may be given by the injured employee, by a dependent, or by someone else on behalf of the employee or dependent. Notice must be given to the employer or to a supervisor. Notice to a co-worker who is not part of management is not sufficient. The notice must include the name, address and phone number of the employee; date, time and place the injury occurred; a description of the circumstances and nature of the injury; names of any witnesses; name and location of the treating physician; and the name of any representative who will be acting on behalf of the employee. In order to be eligible for benefits an injured employee must also file a claim form, called a TWCC-41, with the Workers' Compensation Commission within one year of the injury or the realization that the injury or illness was work-related. Failure to file this form can result in loss of benefits, even if some benefits already have been paid.
If the injury results in the employee's absence from work for one day or more, or if the employee gives notice of having an occupational disease, the employer must report the injury or disease to the Texas Workers' Compensation Commission within eight days of receiving notice of the injury or disease. Immediately upon receiving notice of the injury, disease, or death of an employee, the employer must provide the employee or a survivor with information about the services provided by the Texas Workers' Compensation Commission, the Commission's procedures, and the employee's or survivor's rights and responsibilities under the law. The employer also must immediately provide emergency treatment if necessary. If additional treatment is necessary, an injured employee selects his or her treating physician from a list of Commission-approved doctors, and may elect to change his or her treating physician one time. A referral to another physician or to a specialist is not considered a change of doctor.
Payment of Benefits
The employer or insurance carrier is obligated to provide necessary medical treatment. Treatment that is "medically necessary" is any medical treatment that assists the employee in recovering or helps to improve the employee's condition. Usually, this treatment ranges from diagnostic procedures to physical therapy, and may include psychiatric counseling, chiropractic care, plastic surgery, medicine, prostheses and other medical supplies, travel expenses (for travel to obtain medical treatment), and attendant or custodial care.
As explained above, an injured employee is entitled to select his or her treating physician from a list of Commission-approved doctors. However, the Workers' Compensation Commission may require an employee to submit to a medical examination to determine the appropriateness of the treatment, the degree of impairment caused by the injury, the level of improvement, or other similar reasons. The employer's insurance carrier also may request that an employee submit to a medical examination at the expense of the insurance carrier for reasons similar to those stated above. If an employee refuses without good cause to submit to a required examination, benefits may be jeopardized.
Refusing to Pay Benefits
Under some circumstances, employers may refuse to pay workers' compensation benefits. An employer may refuse to pay a workers' compensation claim because he or she believes the injury was not work-related or the benefits demanded exceed those justified for the injury. An injured employee may lose the right to receive benefits if the employer has implemented a drug-free workplace program and the employee tests positive for drugs. Benefits also may be jeopardized if an employee fails to follow safety rules and consequently suffers injury.
If the employer and the employee dispute the payment of medical care or lost wages, they should first try to resolve the dispute on their own. If this is unsuccessful, they must seek relief through the Worker's Compensation Commission, which has exclusive jurisdiction over all disputes involving both insured and self-insured employers. The Commission will attempt to remedy the problem through an informal resolution process, called a benefit review conference. If the parties cannot settle the dispute during the benefit review conference, then a second proceeding will be necessary. The second proceeding may be a contested hearing or an arbitration hearing. A contested hearing is held before a hearing officer. A contested arbitration is held before an Arbitration Board Judge. In either proceeding the parties may present evidence and may give testimony. The hearing officer or arbitration judge will then issue findings and an order in the case. The findings and order of the judge or hearing officer will be reviewed by a three-member appeals panel of the Texas Workers' Compensation Commission, which may accept, reject, or modify the findings. A party not satisfied with the results of the proceedings before the Commission may apply to have the case reviewed by the district court for the district in which he or she resides. At any time during the compensation period either party may apply to the Commission for review of an award.
Other Employer Responsibilities
Employers are prohibited from discharging or threatening any employee for asserting a valid claim for workers' compensation benefits. It is illegal for an employer to refuse to hire an individual because he or she has a disabling condition from a prior injury. However, if an employee suffers an injury that is made greater because of a pre-existing condition at the time of hiring, the employer's liability is limited. The purpose of this law is to encourage employers to hire people who may have disabilities resulting from a previous injury.
Resources
For information concerning workers' compensation, contact the Texas Workers' Compensation Commission, 4000 South IH 35, Austin, TX 78704, (512) 448-7900. To obtain a copy of the Employer Forms Packet contact the nearest field office or call (800) 252-7031. For information on the Self-Insurance Program contact the TWCC Self Insurance, MS 60, 4000 South IH-35, Austin, TX 78704. For assistance in resolving a compensation claim dispute contact the TWCC ombudsman at any regional field office or call the TWCC toll-free number listed above.
For information on rehabilitation services contact the Texas Rehabilitation Commission at 4900 North Lamar, Austin, TX 78751, (512) 483-4001 or (800) 332-0913.
Employers who are unable to obtain worker's compensation through the voluntary market may contact the Texas Workers' Compensation Insurance Facility (formerly the Assigned Risk Pool) at (512) 345-1222. The state-operated Texas Worker's Compensation Insurance Funds also sells policies. Their number is (800) 955-COMP.