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Texas Workers' Compensation - Questions and Answers
What is it?
Workers’ compensation is a non-mandatory state program that
requires employers to have insurance policies covering
employees for accidental work-related injuries. If you are
injured on the job, your employer or the insurance carrier
pays for your medical care and lost wages due to your injury.
Am I covered?
Not all employers (except for governmental entities who are
required by statute to insure for workers’ compensation) elect
to be covered under the workers’ compensation program in
Texas. Texas law allows employers to choose whether they will
be covered or not. Employers who choose not to be covered lose
their right to assert certain defenses if they are sued as a
result of your injury. Employers must give notice to their
employees as to whether they are covered by workers’
compensation insurance. To determine whether your employer is
covered under the workers’ compensation program you may
contact the Texas Workers’ Compensation Commission at (512)
804-4345.
What happens if I am injured at work?
You must notify your employer of your injury immediately. The
law states that you must report your injury to your employer
within 30 days of its occurrence or within 30 days of the date
that you became aware that your injury was work-related,
however, it is always better to report your injury immediately
to avoid any unnecessary delay in your treatment and benefits.
A claim of injury may be reported in several ways: requesting
and filling out a claim form to your employer; orally
notifying your employer, or having a representative - i.e.
attorney - submit the claim for you. Although you may orally
inform your employer of your injury, it is always recommended
that you get something in writing evidencing your report of
the injury.
In many instances, your employer will have you fill out a
Notice of Injury Report. When filling out this form, it is
important to be as specific as possible as it relates to the
type of pain and body part that has been affected as a result
of your injury. Many times the insurance carrier will attempt
to deny your claim if you fail to mention a body part on this
first report of injury. Furthermore, you should write down who
you reported your injury to and whether there were any
witnesses.
In addition, you are required to file a notice of injury
report with the Texas Workers’ Compensation Commission within
one year of the injury.
Can I sue my employer for getting hurt at work?
No. Recovery of workers’ compensation benefits is the only
remedy that you have against the employer. However, in cases
where the work injury results in the death of an employee, the
employee’s surviving spouse or heirs may recover exemplary
damages against the employer where the death was caused by an
intentional act or omission of the employer or by the
employer’s gross negligence.
Do I have the right to choose my own doctor?
Yes, but get help before choosing your doctor. Call our office
before choosing a doctor because your health, job and future
benefits depend upon the doctor you choose. Texas requires
that you seek medical treatment for a work-related injury with
a doctor on their approved list. This doctor is referred to as
your “treating doctor.” The treating doctor is primarily
responsible for your medical care. We have opinions about
which doctors fight for their patients and which doctors favor
the insurance company. We can help you avoid the mistake of
choosing the wrong doctor.
If your doctor tells you that they have to release you to
light duty because the insurance carrier expects it, then your
doctor may have a conflict of interest. Also, if your doctor
is reluctant to prescribe medication, physical therapy, and
request diagnostic tests such as MRI’s or EMG’s, then your
doctor may have a conflict of interest. Your treating doctor
should be willing and able to do what is medically right for
you regardless of what the insurance carrier may think. In
addition, your treating doctor must be willing to fight for
the approval of any and all reasonable and necessary medical
treatment through the Texas Workers’ Compensation Commission.
We can work with you and your doctor to appeal the insurance
carrier’s denial of recommended medical treatment by filing a
dispute through Medical Dispute Resolution.
If you have discovered that you need to change treating
doctors, contact our office so that we may assist you in
filing out your Request to Change Treating Doctor form.
What type of benefits am I entitled to under workers’
compensation?
There are four types of benefits available under workers’
compensation: Medical; Income; Death; and Burial.
Medical benefits: pays for all reasonable and necessary
medical treatment related to your work injury or illness. You
are entitled to all reasonable and necessary medical treatment
for the rest of your life as long as that treatment is related
to your work injury.
Income benefits: replace a portion of any wages you lose due
to your work-related injury or illness. There are four types
of income benefits:
1. Temporary income benefits
2. Impairment income benefits
3. Supplemental income benefits; and
4. Lifetime income benefits.
Temporary income benefits are equal to 70 percent of your
average weekly wage prior to the injury, however if you earned
less than $8.50 per hour before the injury, then your benefits
are 75 percent of your average weekly wage for the first 26
weeks. As of September 1, 2003, the state set temporary income
benefits at $537.00 maximum per week and $81.00 minium per
week.
You become eligible for temporary income benefits on the
eighth day of missed work. Benefits are not paid for the first
week of lost time unless you remain off of work for four weeks
or more due to the injury or illness.
Temporary income benefits end when you reach maximum medical
improvement or when you are physically able to earn the
average weekly wage again, which ever comes first.
Impairment Income benefits are equal to 70 percent of your
average weekly wage. You are eligible for impairment income
benefits if you have a permanent impairment as a result of
your work-related injury or illness.
Impairment income benefits begin once you reach maximum
medical improvement. For each percentage of impairment that
you receive, you will receive 3 weeks of benefits. For
example, if you receive a 5 percent impairment rating, you
will receive impairment income benefits for 15 weeks.
Supplemental income benefits are paid if you receive an
impairment rating of 15 percent or more and you have not
returned to work because of the work-related injury or illness
or you have returned back to work but are earning less than 80
percent of you average weekly wage because of the injury or
illness and you did not take a lump sum payment of your
impairment income benefits and you have tried to find a job
that matches your ability to work.
Supplemental income benefits are equal to 80 percent of the
difference between 80 percent of your average weekly wage and
the weekly wage after the injury.
Supplemental income benefits begin once impairment income
benefits end and are paid monthly as opposed to temporary
income benefits which are paid weekly.
Supplemental income benefits are handled in quarters. Each
quarter, you must send a form to the insurance carrier showing
that you are eligible for benefits. If you are eligible, your
benefits will start the next quarter.
Supplemental income benefits will end 401 weeks from the date
of the injury.
Lifetime income benefits are paid to those whose work-related
injury results in a loss of the hands, feet, or eyesight, or
if you meet the conditions of the Texas Workers’ Compensation
Act.
Lifetime income benefits are equal to 75 percent of your
average weekly wage, with a 3 percent increase each year.
Lifetime income benefits begin whenever the work-related
injury or illness causes you to meet the conditions of the
Texas Workers’ Compensation Act and are therefore retroactive.
You are entitled to lifetime income benefits for the rest of
your life.
Death benefits: replace a portion of lost family income for
the eligible family members of workers killed on the job.
A family member gets death benefits if the family member is
the spouse, dependent child or grandchild, or another eligible
family member of a worker killed on the job.
Death benefits are 75 percent of the deceased worker’s average
weekly wage and begin the day after the worker dies. The
length of time a family member may receive death benefits
depends on the family member’s relationship to the worker.
Burial benefits: pay some of the deceased worker’s funeral
expenses. For a death occurring before September 1, 1999,
burial benefits pay up to $2500 of the worker’s funeral
expenses. For a death occurring on or after September 1, 1999,
burial benefits pay up to $6000 of the worker’s funeral
expenses.
What happens if my claim for workers’ compensation is
denied?
Once your claim has been denied, you should request a benefit
review conference. If the issues in dispute are not resolved
at that time, then a contested case hearing should be
requested where you will be allowed to testify and present
witnesses.
Your employer or insurance carrier will use any reason they
find to deny or limit your claim to limit their
responsibility. If this happens, contact this office
immediately. We will work with you and your doctor to ensure
that you get all of the benefits that you are rightfully and
legally entitled to.
My doctor has recommended that I have surgery but the
insurance carrier has denied it, what can I do?
Your doctor must appeal the insurance carrier’s denial
immediately. We can work with you and your doctor to file an
appeal with the Medical Dispute Resolution Board regarding the
denial of your future medical treatment.
I received an impairment rating but it was too low, what
can I do?
To dispute an impairment rating given by an insurance
carrier’s RME doctor, your treating doctor must file a written
dispute within 7 days of receiving the report.
To dispute your own doctor’s impairment rating, you will need
to talk to your doctor about increasing it. If your doctor
refuses, then you must request a benefit review conference.
To dispute a Texas Workers’ Compensation Commission designated
doctor’s impairment rating, your doctor must write a letter
explaining why he or she disagrees with the impairment rating.
We can help you with all of the above disputes, but call us
immediately to ensure that no deadlines are missed in filing
your appeal.
How are attorney fees paid?
You only pay attorney’s fees when legal work is done on your
case. All charges for attorney’s fees are submitted to the
Texas Workers’ Compensation Commission for their review. The
Commission will determine whether the fees fall within their
guidelines. Once the Commission approves the fees, a copy of
the letter which details the charges, is sent to you for your
review. If you do not dispute the fees, the Commission will
order the insurance carrier to start deducting the attorney’s
fees from your weekly check. The amount deducted from your
check will not be more than 25 percent of your check until the
attorney fees are paid. However, if your checks permanently
stop before all approved attorney’s fees are paid, you are not
responsible for the balance.
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