I know that most of the Texas Workers’ Compensation news seems to limit benefits and injured workers’ rights within the system. However, once in a while a ray of light shines in and gives us a glimmer of hope. One of these recent rays was provided by the Texas Workers’ Compensation Appeals Panel.
In Appeal No. 110670, the Division of Workers’ Compensation found that “it is impossible for a claimant to have reached MMI, since he has only had a minimal trial of post-operative care.” In this case, the Appeals Panel overturned the findings of a designated doctor in finding maximum medical improvement, prior to the injured worker attending a pre-authorized chronic pain management program. This allowed the injured worker to continue to receive Temporary Income Benefits (TIBs), while off work.
It is nice to see that in spite of all the forces trying to push injured workers out of the system prior to substantial recovery, there are still avenues for the injured worker to claim the statutory benefits for which his labor paid the insurance premiums.
It’s hard being an injured worker in Texas. In 1991, the Texas Legislature took away the injured workers’ right to file a law suit for damages against your employer (if they are a subscriber). In 2005, they created medical networks for treatment took away the injured workers’ ability to treat with their own doctor. Now with decisions like City of Larado v. Garza, and Transcontinental Ins. Co. v. Crump, the Division of Workers Compensation is placing a greater burden on injured workers’ when establishing the extent of their injuries.
The burden of proof work Texas Workers Compensation cases is a “Preponderance of the Evidence” which means the great weight of the evidence or more convincing then the evidence the opposes it. The burden basically means more likely than not.
However, on injuries beyond a sprain/strain, there now must be medical evidence establishing that the injury was a substantial factor in bringing about the injury, without which the injury would not have occurred. The “Substantial Factor” language is new even though the work related accident does not need to be the sole factor, but only one of the producing causes of the condition.
If your insurance carrier is disputing the extent of your workers compensation injury, make sure that you have a causation letter establishing your injuries to the work related accident. You must have this prior to the Benefit Contested Case Hearing. When you are in the Benefit Contested Case Hearing let them know that your burden is still only a preponderance of the evidence and not a greater one.
In today’s economy many people are concerned that if they report injuries after an on the job accident that they may lose their job. People generally question the meaning of Texas being a “Right to Work” state. Right to work generally refers to laws that deal with the use of unions in negotiations with the employer. Under Texas Labor Code Title III, Texas holds that individuals or groups may bargain with their employers for their employment status. So, Right to Work, in reality is the right of your employer to fire you at any time. If you are not a union worker, there may be a collective bargaining agreement that protects you.
However, the Texas Labor Code §451 states that an employer may not discriminate against or fire an employee for filing a workers compensation claim in good faith, hiring a lawyer to represent them for their claim, starting the hearing process for a claim or testifying in hearing about a claim.
Therefore, your employer may not discriminate against you, or fire you for pursuing your Texas Workers’ Compensation claim.