The Morris Law Firm Blog

October 3, 2012

Texas Workers Compensation Types of Claims

Filed under: Workers' Compensation — Tags: , , , , , , , , — The Morris Law Firm 702 S. Beckley, Dallas, Texas, 75203 (214)357-1782 @ 8:36 pm

If your employer is a subscriber to the Texas Workers Compensation system, you are very limited in the claims arising from a work related accident.  However, if you are injured at work, you should immediately have your case reviewed to see what potential claims you may have.

Workers’ Compensation:

Your first claim is always against your employer’s workers compensation carrier.  There are different types of benefits so make sure you are aware of all the types of benefits for which you may be entitled.

Motor Vehicle Accident:

If you are injured as the result of a motor vehicle accident, immediately consult with an attorney that can handle both workers compensation and personal injury claims.  You may have claims including claims against the other driver, your under insured motorist insurance, any underinsured motorist policy purchased by your employer for you, your personal injury protection insurance.

Third Party Liability:

If you are at a job site that has multiple employers and you are injured as the result of another employer’s negligence, you may have a claim against that employer.

Wrongful Termination:

Texas is a “Right to Work” State.  This means that you can be terminated for any reason.  However, you the Texas Labor Code protects people regarding a workers compensation claim from discrimination and/or termination.

Social Security:

If you have missed more than one of work due to your compensable injury, file for Social Security Disability or Social Security Insurance.  If your claim is denied make sure that you consult with an attorney within the appeal period.

Gross Negligence:

Employers that subscribe to the Texas Workers Compensation system are exempt from claims of negligence.  But, they are not protected from claims of Gross Negligence resulting in death.  The beneficiaries of workers’ killed as the result of a compensable injury, may have a gross negligence claim against the employer.

Always be aware of your rights after work related injury.  Have your case reviewed to see that your rights are being protected and the proper claims are being pursued.

Daniel L Morris  The Morris Law Firm (214)357-1782 info@themorrisfirm.net

July 16, 2012

TEXAS WORKERS COMPENSATION PURPOSE OF DESIGNATED DOCTOR APPOINTMENTS

Filed under: Workers' Compensation — Tags: , , , , , — The Morris Law Firm 702 S. Beckley, Dallas, Texas, 75203 (214)357-1782 @ 6:56 pm

The Texas Department of Insurance, Division of Workers Compensation has recently changed some of the purposes and the procedures for the use of designated doctors in dealing with injured workers in the system.  See http://www.tdi.texas.gov/wc/rules/adopted/documents/ddrulesm0712.pdf

Under Texas Administrative Code §270.1, a party may request a designated doctor to resolve questions about the following:

(1) the impairment caused by the injured employee’s compensable injury;

(2) the attainment of maximum medical improvement (MMI);

(3) the extent of the injured employee’s compensable injury;

(4) whether the injured employee’s disability is a direct result of the work-related injury;

(5) the ability of the injured employee to return to work; or

(6) issues similar to those described by paragraphs (1) – (5) of this subsection.

Under the new rule, the Division of Workers Compensation shall deny a request for a designated doctor if the insurance carrier has denied the compensability of the claim or otherwise denied liability for the claim as a whole and the dispute is not yet resolved.  However, a Benefit Review Officer (BRO) or a Hearing Officer (HO) may appoint a designated doctor may order an injured employee for the reason of causation that would require an expert medical opinion expert medical opinion would be necessary to resolve a dispute as to whether the claimed injury resulted from the claimed incident.

Any denial of the request for a designated doctor must be in writing and explain why the request was denied.

Daniel L Morris, The Morris Law Firm, PLLC (214)357-1782

April 18, 2012

Complex Regional Pain Syndrome in Texas Workers’ Compensation Cases

I first started handling Texas Workers’ Compensation claims in 1996.  During my first year of practice, a lady walked into the office that had been diagnosed with Reflex Sympathetic Dystrophy (RSD).  The insurance carrier had accepted injuries to her bilateral hands and wrists, but they were disputing the RSD.

At that time it was difficult to even find doctors that were able to treat her symptoms, let alone assist with the causal connection to her compensable injury.  It required a lot of research into how to help her.  Since then we see a few of these cases per year.

Reflex Sympathetic Dystrophy (RSD) is also known as Complex Regional Pain Syndrome (CRPS) or Causalgia.  It is a chronic progressive neurological condition that can affect your skin, muscles, joints and bones.

Reflex Sympathetic Dystrophy generally arises from limb that has been injured.  This is true even from what appear to be minor sprain/strain injuries to an extremity.

The symptoms include:

-          Burning pain                                                   -Extreme sensitivity

-          Skin color changes                                       -Skin temperature changes

-          Muscle Spasms                                                -Tremors

-          Weakness                                                        -Migraine headaches

-          Excessive sweating

Reflex Sympathetic Dystrophy is difficult to diagnose.  A thorough history and neurological examination should be done.  The medical provider should note if mild sensory stimuli produces severe pain.  The examination should include notation of swelling and vascular reactivity, overgrown and grooved nails, stiff or weak joints and atrophy.

To be found compensable, you must prove by a preponderance that the RSD/CRPS naturally resulted from the compensable injury.

Daniel Morris

The Morris Law Firm, PLLC

(214)357-1782

info@themorrisfirm.net

April 12, 2012

Texas Workers’ Compensation Income Benefits

When a Texas worker is injured in the course and scope of their employment (their employer must be a subscriber), there is an insurance policy that covers their injuries.  This insurance policy pays 100% of the medical care for necessary and reasonable medical care.  In addition, injured workers receive payments for disability and their impairments.

Types of Benefits:

Temporary Income Benefits:

Temporary Income Benefits (TIBs) are paid weekly to the injured worker prior to being placed at maximum medical improvement, when the worker is unable to earn the same income they received prior to the accident.  Temporary Income Benefits are generally paid at 70% of the pre-injury average weekly wage.  Make sure the amount includes any fringe benefits received from your employer.

Impairment Income Benefits:

Impairment Income Benefits (IIBs) are benefits you receive after you are found to be at maximum medical improvement.  When an injured worker is found to be at maximum medical improvement, they are also given an impairment rating from 0-100%.  For each point of impairment, the injured worker receives three weeks of Impairment Income Benefits.  The benefits are not for disability, they are paid even if the worker is working full time.

Supplemental Income Benefits:

Supplemental Income Benefits (SIBs) are paid to injured workers that receive an impairment rating of at least 15% and are not capable of returning to their previous type of employment.  Supplemental Income Benefits are paid monthly to injured workers who are completely unable to work, are actively engaged in seeking employment, are currently in a full time DARS approved program or are currently earning less than 80% of their pre-injury average weekly wage.

Lifetime Income Benefits:

Lifetime Income Benefits (LIBs) are generally paid weekly to injured workers who have an injury to their head that results in what the Division of Workers’ Compensation defines as incurable insanity or permanent imbecility.  Additionally, an injured worker may be entitled to Lifetime Income Benefits if they loss one of the following:

1)      The loss of use of both feet at or above the ankle;

2)      The loss of use of both hands at or above the wrist;

3)      The total loss of sight in both eyes; or

4)      Certain combinations of the above.

Death Benefits:

Death or Beneficiary Benefits are paid to dependents of a worker who dies as a result of the compensable injury.  This may be due to the results of the accident, treatment or medications taken for the effects of the accident.

Daniel L Morris, The Morris Law Firm, PLLC

(214)357-1782

info@themorrisfirm.net

March 2, 2012

RECORDED STATEMENTS IN TEXAS WORKERS COMPENSATION CLAIMS

Filed under: Workers' Compensation — Tags: , , , , , — The Morris Law Firm 702 S. Beckley, Dallas, Texas, 75203 (214)357-1782 @ 9:46 pm

A colleague of mine recently asked if injured workers in Texas Workers Compensation claims are required to provide a recorded statement to the insurance company.  This is an interesting question.

When they get a notice of a claim, many insurance companies perform what they call a three prong investigation.  The investigator contacts and gets a statement from the injured worker, the medical provider and the employer.  In most cases they take a recorded statement from the injured worker.  If the injured worker is not available it may be weeks after the accident.

Although we generally allow recorded statements of our clients, it is not mandatory that you do so.  The recorded statement is to help the investigator gather facts to make a determination of your claim.  Your statement could affect the compensability of your claim, the accepted conditions or if you have disability.  If they have told you that your claim is already being denied, all you are doing is providing them an opportunity to collect evidence against you.

If you allow the investigator to take a recorded statement there are a few keys that you should follow:

a)      Make sure you are alert and clear headed at the time of the statement (shortly after accidents, many are affected by medications);

b)      Give a clear statement as to how you were injured and ALL the body parts

c)      Anything you don’t know or remember, answer that you don’t know or remember;

d)     Ask them to explain any question you don’t understand;

e)      Answer all questions truthfully, especially in regards to your history of injuries and treatment; and

f)       Stay polite, you do not help your cause by arguing with the investigator.

Always remember that a Texas Workers’ Compensation claim is a legal matter.  Anything information you provide can be used by the insurance company.  When making a legal determination, always have advice from a competent professional.

The Morris Law Firm, (214)357-1782 info@themorrisfirm.net

November 19, 2010

Texas Work related Compensable Injury

Filed under: Accidents, Workers' Compensation — Tags: , , , , , , — The Morris Law Firm 702 S. Beckley, Dallas, Texas, 75203 (214)357-1782 @ 10:10 pm

If you are injured at work in the state of Texas, how will you be taken care of? Your employer may carry workers’ compensation insurance, or they may be a non-subscriber to the workers’ compensation system. Deciding how the claim will be handled is like a course in journalism. You need to ask: who; what; when; where, why and how the injury occurred.  Hurt at work, work related injury, texas work injury, denied claim, work injury, work accident, hurt at work, Texas Department of Insurance, work injury, hurt at work

Who: For a person to be covered under the employer’s workers’ compensation policy, the person must be an employee, an independent contractor that is under the control of the employer, a borrowed servant or a have a relationship on the insurance that would include the injured worker.
What: What happened to the worker to cause injury? Injury means damage or harm to the physical structure of the body, or a disease or infection naturally resulting from the damage or harm. Pain in itself is not considered an injury. There must be some form of diagnosis indicating an injury. Some injuries are clear at the time of the accident (i.e. broken arm, hurt back or head injury). However, other forms of injury (i.e. RSD, a herniated disc, psychological conditions or neuropathy), may not become manifest for years after the injury.
When: Compensable injury means an injury that arises out of and in the course and scope of employment. To be considered in the course and scope of employment, an injured worker must show that the accident occurred while performing activities furthering the business of the employer. The activities can include such things as a company picnic, injuries while at break or injuries entering or leaving the employer’s property.
Where: An injured worker will have their injuries covered even if not on the clock when you are in an area controlled by your employer.
Why: The Texas Workers’ Compensation system does not look at fault or negligence. As long as the injury did not occur as a result of the workers’ willful attempt to injury themselves or another, while in a state of intoxication or while the worker was involved in horseplay.
How: There are specific event injuries, occupational diseases and repetitive motion injuries. Work related injuries can include aggravations of a pre-existing condition. Additionally, the employment need not be the sole cause of the injury. You must establish that the employment is a producing cause of the injury.
Bottom line is that if you are injured at work, talk to the Morris Law firm at our Dallas office. We can be reached at (214)357-1782, or by email at info@themorrisfirm.net. We can help you with the answers you need.

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October 22, 2010

MMI & IR under the New Rules

Filed under: Workers' Compensation — Tags: , , , , , , , , , — The Morris Law Firm 702 S. Beckley, Dallas, Texas, 75203 (214)357-1782 @ 4:17 pm

MMI & IR:
A claimant’s first certification of maximum medical improvement (MMI) and impairment rating (IR) may be done by the treating doctor, a treating doctor referral, the designated doctor (DD) or a post DD required medical examiner (RME). There are ninety (90) days to dispute a certification, after a party receives a copy of the DWC-69 (by verifiable means). If not disputed, it will become final, unless the claimant meets one of the statutory exceptions found under Texas Labor Code §408.123(f):
(f) An employee’s first certification of maximum medical improvement or assignment of an impairment rating may be disputed after the period described by Subsection (e) if:
(1) compelling medical evidence exists of:
(A) a significant error by the certifying doctor in applying the appropriate American Medical Association guidelines or in calculating the impairment rating;
(B) a clearly mistaken diagnosis or a previously undiagnosed medical condition; or
(C) inadequate treatment of the injury before the date of the certification or assignment that would render the certification or assignment invalid; or
(2) other compelling circumstances exist as prescribed by commissioner rule.

In the past a certification could be disputed by filling out a DWC-32 requesting a DD for MMI and IR. Or, in a case where the certification came from a DD, a party could fill out a DWC-45 stating that they dispute the MMI and/or IR. No hearing was necessary to stop the ninety (90) days from running. The party then had time to prepare their evidence as to what the proper MMI and IR should be.
Letters of Clarification:
In cases where a DD provided the certification, either party could file the DWC-45, and then request that the Division of Workers’ Compensation (DWC) send a letter of clarification (LOC) to the DD, requesting that he review additional evidence or respond to a question.
However, in July of 2010, the DWC decided that the parties were abusing the LOC process and started denying all LOCs. The official policy from the DWC is that LOCs will be allowed in a limited fashion. But, thus far even when the DWC directs the wording, the LOC is denied. We will have to see over the next few months, what areas the DWC will allow a LOC to be sent.
If a LOC is denied, a party may request a Benefit Contested Case Hearing (CCH). In the CCH, a Hearing Officer will decide if a party is allowed to have a LOC sent.
New Rules:
Beginning October 1, 2010, the DWC amended Rule §141. With the changes to the Rule, disputing a certification has become more complicated. To stop the ninety (90) days from running, a party must request a Benefit Review Conference (BRC) by providing a complete DWC-45 disputing the MMI and/or IR. For the form to be considered complete there must be:
1) sufficient evidence to support the party’s position; and
2) evidence of attempts to resolve the issue prior to requesting the hearing.
Under the amended Rule, the ninety (90) days will continue to run until a completed DWC-45 is filed. Benefit Review Officers (BROs) have the duty of deciding if a DWC-45 is complete or not.
Disputing a DD:
In the past, the report of the DD was given presumptive weight. A party needed the great weight of the medical evidence to overcome that presumption. However, Tex. Lab. Code §408.125(c) now states:
(c) The report of the designated doctor shall have presumptive weight, and the division shall base the impairment rating on that report unless the preponderance of the other medical evidence is to the contrary. If the preponderance of the medical evidence contradicts the impairment rating contained in the report of the designated doctor chosen by the division, the division shall adopt the impairment rating of one of the other doctors.

So even though the DD is given presumptive weight, the certification may be overcome by the preponderance of the evidence. This opens the door to dispute ratings from DDs that clearly have a bias. If the DD ignores or improperly uses the AMA Guides to provide the IR, the certification may be overcome by a report that properly applies the AMA Guides.
When assisting a claimant to dispute a DD, you should always have an alternative DWC-69. If the claimant has not reached statutory MMI (104 weeks after the accrual date of disability), the alternative DWC-69 can state that the claimant has not reached MMI.
When the claimant presents their case at a CCH, the Hearing Officer will have to decide which certification to use. If there are problems with the certification from the DD and the claimant’s certification is done properly, it greatly increases the odds in the claimant’s favor.
Removing a DD:
Finally, if the DD has a disqualifying association pursuant to Rule §181.21(a)(2), the DD can be removed from the case. Many times claimant’s legal representatives are unaware of the businesses relationships that a DD may have with an insurance carrier. If the medical provider is aware of any such relationship, they should inform the injured worker. Rule §181.21(a)(2) states:
(2) Disqualifying association–Any association that may reasonably be perceived as having potential to influence the conduct or decision of a doctor, which may include:
(A) receipt of income, compensation, or payment of any kind not related to health care provided by the doctor;
(B) shared investment or ownership interest;
(C) contracts or agreements that provide incentives, such as referral fees, payments based on volume or value, and waiver of beneficiary coinsurance and deductible amounts;
(D) contracts or agreements for space or equipment rentals, personnel services, management contracts, referral services, or warranties, or any other services related to the management of the doctor’s practice;
(E) personal or family relationships;
(F) a contract with the same workers’ compensation health care network that is responsible for the provision of medical benefits to the injured employee; or
(G) any other financial arrangement that would require disclosure under the Labor Code or applicable Division rules, the Insurance Code or applicable Department rules, or any other association with the injured employee, the employer, or insurance carrier that may give the appearance of preventing the designated doctor from rendering an unbiased opinion.

In addition to the disqualifying association, a DD may be removed for being non-responsive or not following the medical guidelines.

June 12, 2010

Work Injury 101 (What do you need to know and do after you’re injured)

Filed under: Uncategorized, Workers' Compensation — Tags: , , , , , , — The Morris Law Firm 702 S. Beckley, Dallas, Texas, 75203 (214)357-1782 @ 4:01 pm

You’ve just been hurt at work. What happens now? How serious is your injury? Do you need medical attention? Are you going to miss time from work as a result of the injury? Does your employer have insurance to cover you? Who will pay your bills?
These are all important questions that you should ask yourself. When something happens, many of us try and down play what is going on. We’ve all had a pulled muscle that gets better over the weekend. We tell ourselves “by Monday I will be feeling fine and ready to go back to work.” But, what if this is not the case. You need to go through the proper steps to avoid complications.
The first thing to do is to report the incident to your supervisor. Even if you do not feel the need to seek medical attention, the sooner you report the injury, the fewer problems you will have in the future. Many companies will have you fill out an incident/accident report. If it wasn’t serious, no harm no foul. However, it turns out to be something that requires medical attention, you have it documented.
If you require medical attention, what type of insurance does your employer have? The State of Texas is the only state in the U.S. that does not require companies to be subscribers to workers’ compensation. If your company is a subscriber, your case will be handled through the Texas Department of Insurance (TDI), Division of Workers’ Compensation (DWC). If they are a non-subscriber, your company may have an Employee Retirement Income Security Act (ERISA), an Accident/injury policy or your employer may have no insurance at all. Each of the types of insurance has its own benefits and problems. You should always consult an attorney to get an understanding of how to handle your claim.
If your injuries require medical attention, finding the right doctor is one of the most important things you can do. Many employers will attempt to send their workers to a clinic select by the employer. Why do they do this? Whose interest will the company doctor have, yours or your employer’s? You need to select a doctor that will aggressively diagnose and treat you, to get you well and healthy as soon as possible. You do not need a doctor that will try and save money at the expense of your health. We can help you find a doctor in your area that will provide the proper medical treatment for you injuries.
If you need to miss time from work, the benefit plan will determine how you are to be compensated. If your company is a subscriber, the Texas Labor Code will determine what that rate will be. If your company is a non-subscriber, the policy may give a rate of compensation. If your company is a non-subscriber, you may have a cause of action against your employer for negligence.  In the Dallas or Fort Worth area, Contact the Morris Law Firm, PLLC to make sure you are receiving all the benefits to which you are entitled.

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