If you’ve been hurt on the job in Texas and need to use the workers compensation system there, veteran Dallas attorney John Collins wishes you luck.
Not only is Texas the only state in the U.S. that doesn’t require private employers to carry workers compensation insurance or a private equivalent, Collins says the Texas Department of Insurances’ Division of Workman’s Compensation is notoriously difficult to navigate for workers who aren’t satisfied with how their claims were handled, which is 5-8% of the time in recent years.
“First and foremost, it is a byzantine, Kafkaesque system from the claimant’s standpoint,” said Collins, who has dealt with workers comp cases throughout his 55-year legal career. “It has tricks, traps, procedural gimmicks that you cannot imagine, and it is impossible to explain to a client or another lawyer or, quite frankly, a court. It makes you yearn for the Internal Revenue Code.”
How to File a Workers Comp Claim in Texas
If you are injured on the job or become ill because of your job, you must first tell your employer, then report your injury to the Division of Workers’ Compensation using DWC Form-041 . To do that, complete and submit this interactive form (or, if seeking death benefits, this one) and send it to:
Texas Department of Insurance
Division of Workers’ Compensation
7551 Metro Center Dr., Suite 100
Austin, TX 78744-1609
You may also call the division at 800-252-7031 to have a paper copy of DWC Form-041 or Form-042 mailed to you.
You are required to tell your doctor how you were hurt and whether the injury is work-related; send in the appropriate form to DWC; provide your current address, telephone number and employer information to DWC and the insurance carrier; and inform DWC and the insurance carrier if there is a change in your employment status or wages.
Deadlines for Texas Workers Comp Claims
- Employees must tell their employer within 30 days of the date they were hurt. Missing this deadline might mean missing out on benefits.
- Employers must file an Employer’s First Report of Injury or Illness with the injured worker’s insurance carrier and the injured claimant within eight days after the employee’s absence from work or receiving notice of an occupational disease.
- Employees have one year to report the injury to the DWC.
- For occupational diseases, employees must tell their employer within 30 days of the date they first knew their injury or illness might be work-related and file a claim with DWC within one year of that date.
- Those seeking death and burial benefits must send a completed Beneficiary Claim for Death Benefits (DWC-042) to DWC within one year following the employee’s date of death.
How to Appeal a Claim Denial
If you have a dispute concerning benefits from an injury or illness and discussing it with the insurance carrier’s adjuster does not solve it, you may ask for dispute resolution through the DWC. The parties are required to make efforts to resolve the dispute before seeking dispute resolution.
You are allowed to have an attorney advise and represent you throughout the process. If you don’t have an attorney, the Office of Injured Employee Counsel (OIEC) will provide an ombudsman, a specially trained OIEC employee, who can assist you free of charge. You may request ombudsman assistance by calling 1-866-393-6432.
The process has several potential steps.
“There are some claims that are very small, non-serious injuries that probably get handled expeditiously, and in cases where you have a paraplegic or something like that, there’s usually no dispute,” Collins said. “But there are a lot of claims that fall in between those parameters that have to go through the system, and it is just frightening.”
Benefit Review Conference
It begins with a benefit review conference (BRC), an informal meeting held at a local DWC office where you discuss the disputed issues with someone from the insurance company in front of a DWC benefit review officer. If the dispute is resolved, you and the insurance carrier may sign a written agreement.
If the BRC does not resolve the dispute, the injured employee and other parties may agree to resolve the dispute through arbitration instead of proceeding to a contested case hearing. At arbitration, an independent arbitrator chosen by DWC hears both sides of a dispute and makes a decision. The decision of the arbitrator is final and cannot be appealed.
Contested Case Hearing
If all of the parties do not choose arbitration, a formal contested case hearing is the next step. A DWC administrative law judge decides the disputed issues that were not resolved at the BRC and issues a written decision and order.
DWC Appeals Panel
Any party that disagrees with the administrative law judge’s decision may ask the DWC Appeals Panel to review the decision. There is no hearing; parties describe their position in writing, which the panel reviews along with the administrative law judge’s decision and the contested case hearing record. The panel will issue a written decision, which is the final step in the DWC’s dispute resolution process.
If a party disagrees with the Appeal Panel, they may appeal to a court of law for a decision.
Attorney Fees for Workers Comp in Texas
Should you hire representation, the attorney’s fees will be deducted from the income benefit payments the DWC orders. An attorney can charge a maximum of $200 per hour, plus expenses, on your workers’ compensation claim, and attorney’s fees can be no more than 25% of your benefits. For help finding an attorney, you may contact the State Bar of Texas www.texasbar.com or 1-800-252-9690.
Eligibility for Workers Comp in Texas?
As previously noted, not all employers carry workers comp insurance. The web-based news organization Texas Tribune, in a 2014 investigative series, reported that more than 500,000 people have no occupational benefits when injured on the job. More than million Texas workers get private occupational insurance from employers, plans that aren’t regulated by the state. Only 41% of such plans include death benefits, the Tribune reported. Roughly 81% of Texas employers have state-regulated plans.
Employers must inform new employees in writing that they carry workers compensation insurance upon hire. The written notice must inform employees of their right to reject workers compensation coverage and retain right to sue for damages, though few choose to, Collins said.
The DWC provides a search function to find out whether a particular employer has workers compensation coverage. Likewise, some employers are required to report if they elect not to obtain workers’ compensation insurance coverage. For a downloadable list of non-covered employers see the Non-Subscriber download file. It also is possible to verify if a company is a certified self-insurer in Texas.
If you can’t find the insurance coverage information you seek, call 800-252-7031 or 512-804-4345 in the Austin area for assistance.
What to Do If Your Employer Does Not Have Workers Comp Insurance
If you’re injured and your employer has no coverage, you can sue the employer for negligence and the employer waives any common law defenses, Collins said.
For instance, employers cannot claim that the injured worker was negligent, that the worker assumed the risk of injuries or that the worker was injured by a co-worker as a defense. The employer can, however, bring evidence that the employee intentionally injured himself or was intoxicated when the injury occurred.
Benefits: What Does Workers Comp Cover in Texas?
Workers compensation benefits pay for reasonable, needed medical care to treat your work-related injury or illness, income to replace some of the money you lost due to that injury or illness, death benefits to help families replace some of the money lost when an employee dies because of such an injury or illness and burial benefits to offset some of an employee’s funeral expenses.
Your insurance carrier will pay for work-related medical treatment. The payments are made to the doctor or facility providing the medical treatment. Doctors can’t bill you for treatment of a work-related injury or illness; they may send you an information-only copy of the bill.
Can you choose the doctor? It depends. If your employer’s plan is part of a healthcare network, you must use a doctor in that network. If you get treatment from a doctor who is not in the network without getting approval from the network, you may have to pay for the treatment.
If you are not covered by a network, you can choose the doctor as long as that person is not on the list of doctors who are not allowed to provide workers’ compensation health care. TXCOMP can help you find a doctor. Should you want to change doctors, DWC must approve the change when your claim is not in a healthcare network, so you have to provide a good reason. If you or your treating doctor relocate, or the doctor becomes unavailable, you can choose another treating doctor without DWC permission.
Lost Wage Benefits
There are four types of lost wage benefits. If you have multiple jobs and can no longer work either job, can you collect lost wage benefits from both?
Temporary Income Benefits (TIBs)
If your work-related injury or illness causes you to lose some or all of your wages for more than seven days, you may be able to get temporary income benefits (TIBs). If you have more than one job, your insurance carrier can include these wages from another employer if your injury keeps you from working.
How much do you get? TIBs are 70% of the difference between your average weekly wage from your job before you were hurt and what you can earn after your injury. Your average weekly wage is the average amount of money your employer said you got each week. If you earn less than $10 an hour, TIBs are 75% of the difference. The maximum TIBs is $971 a week; the minimum is $146. To find out how much your benefit payment may be, call the Texas Department of Insurance, 800-252-7031, option 1.
After your injury, your doctor may allow you to return to work at modified duty. You may still get TIBs if you are on modified duty at lower wages.
TIBs begin once your injury or illness causes you to miss eight days from work. Benefits are not paid for the first week unless your injury caused you to lose all or some of your pay for 14 days or more.
TIBs end when you:
- Reach maximum medical improvement, which is when a health care provider determines that no further healing or recovery from your injury can be expected
- You are able to earn the average amount of money you earned before the injury
- Or at the end of your TIBs benefits period, which is 104 weeks after your eighth day of work-related disability.
Impairment Income Benefits (IIBs)
If you have a work-related injury or illness that affects your body as a whole, you may get Impairment Income Benefits (IIBs). How much you receive is determined by an impairment rating given by a health care provider, who examines your injuries and determines the percent of permanent damage. Typically, this will take place when the employee reaches maximum medical improvement.
Those who qualify receive three weeks of IIBs for each percentage of impairment. A 10% impairment rating equals 30 weeks of IIBs, 15% rating equals 45 weeks, and so on. IIBs are 70% of your average weekly wage. The maximum IIBs weekly figure is $679; the minimum is $146.
You may start getting IIBs the day after you reach maximum medical improvement. IIBs end after you have gotten three weeks of payments for each percentage point of your impairment rating.
Supplemental Income Benefits (SIBs)
Depending on the extent of your impairment, you may qualify for monthly Supplemental Income Benefits (SIBs), which the insurance carrier pays after your IIBs have ended.
Qualifying for SIBs requires:
- An impairment rating of 15% or higher
- You either have not returned to work or earn less than 80% of the average weekly wage due to the injury
- You can show you are looking for work and have not received a lump sum payment for your injury.
SIBs are calculated by taking 80% of your average weekly wage in the 13 weeks before the injury, subtracting any wages you received after your work-related injury, and multiplying by 0.8. The weekly maximum amount is $679.
How long do benefits last? It’s complicated. The maximum for all benefits is 401 weeks (except Lifetime Income Benefits). You can be on TIBs for a maximum of 104 weeks, but very few people reach that before a doctor says you’ve reached maximum medical improvement and TIBs are cut off, Collins said. According to DWC statistics, 194 people received SIBs in 2018.
To find out how much you could get, call 1-800-252-7031, option 1. If your application for SIBs is denied, you can request a benefit review conference or a contested case hearing.
Lifetime Income Benefits (LIBs)
If the work-related injuries are severe enough, you may receive Lifetime Income Benefits (LIBs). This happens if your injury leaves you with:
- total and permanent blindness
- loss of both hands at or above the wrist
- loss of both feet at or above the ankle
- loss of one foot at or above the ankle, and loss of one hand, at or above the wrist
- spinal injury that causes permanent and complete paralysis of both arms, both legs, or one arm and one leg
- traumatic brain injury resulting in incurable insanity or imbecility
- third-degree burns over at least 40 percent of the body that require grafting
- third-degree burns covering most of either both hands or one hand and the face.
LIBs are 75% of your average weekly wage, with a 3% increase each year. There is a $971 maximum amount for the first year LIBs are paid, but the maximum does not apply to the 3% yearly increase. The minimum LIBs is $146.
If you think you qualify for LIBs benefits, send a written request to your insurance carrier. The insurance carrier has 60 days to reply to your request. Your first LIBs payment should arrive no more than 15 days after your insurance carrier makes a decision. If your insurance carrier rejects your request, they must explain in writing. If you don’t agree, you may request a Benefit Review Conference to talk about decision.
When an employee dies because of a work-related injury or illness, death benefits may be paid to:
- a surviving spouse
- minor children (up to age 18)
- children less than 25 years old who are enrolled in an accredited college or university
- dependent grandchildren
- other dependent family members
- non-dependent parents (if there are no surviving eligible dependent family members)
A surviving spouse can get death benefits for the rest of their life, unless they remarry. If there are dependent children when the employee dies, the children get half the benefits, and the spouse gets the other half.
A surviving spouse who remarries will get a lump sum payment equal to two years of benefits. If there are dependent children who still qualify for the death benefit after those two years, the entire benefit will be divided equally among the dependent children (if there is more than one child).
If there is more than one eligible child, benefits are re-distributed equally among the remaining eligible children when one or more are no longer eligible. Children 18 or older must show proof of enrollment to remain eligible.
A legal beneficiary is able to get death benefits beginning the day after the employee’s death.
Death benefits, which are 75% of the deceased employee’s average weekly wage, a maximum of $971, are paid until the beneficiary no longer meets the requirements.
Benefits may also be available for to the person who paid for burial expenses. That person must contact the insurance carrier in writing within 12 months of the date of death and attach copies of all related bills. After receiving that request, the insurance carrier has seven calendar days to act. Expenses are paid up to $10,000.
Returning to Work Policy in Texas
Under workers compensation law in Texas, employers can institute Return to Work programs so that injured workers can get back on the job quickly and safely while they heal, either with changes to their regular job or in a temporary, alternate work assignment. The theory is that this benefits both employers and employees. It is designed to reduce employers’ workers compensation costs and help retain skilled workers, and that employees who don’t return to work once they are medically able are more likely to take longer to recover, need more treatment, become depressed and lose important job skills.
The obvious question for the employee: What happens to your workers comp benefits if you go back to work? In the case of Temporary Income Benefits, the weekly benefit check may be suspended while you are working, or reduced, depending on what actual wages you earn. If you return to work and later your doctor takes you back off work, your checks may be restored as long as you have disability and have not reached maximum medical improvement. Medical benefits continue as long as it is for reasonable and necessary injury-related treatment.
You will keep receiving TIBs if your doctor releases you to return to work with restrictions but your employer doesn’t have a job that meets your medical restrictions. If your employer offers modified or alternate work in accord with your medical restrictions and you decline the offer, you may lose your TIBs.
Rehabilitation programs paid by the insurance carrier may be offered. While such programs are not required, Collins said, workers receiving SIBs can be penalized if they don’t participate.
- N.A. (ND) Advisory 96-15: Reporting Occupational Diseases. Retrieved from https://www.tdi.texas.gov/wc/news/advisories/ad9615.html.
- N.A. (ND) Employer Rights and Responsibilities. Retrieved from https://www.tdi.texas.gov/pubs/factsheets/employerrr.pdf
- Root, J. (2014, June 29) Behind the Texas Miracle, a Broken System for Broken Workers. Retrieved from https://apps.texastribune.org/hurting-for-work/
- N.A. (ND) Dispute Resolution Data. Retrieved from https://wwwapps.tdi.state.tx.us/inter/perlroot/wc/systemreports/PDF/sysrpts_Dispute.pdf
- Grossman, M. (2014, October 23) Non-Subscriber Defenses. Retrieved from https://www.injuryrelief.com/texas-non-subscriber-law/defenses-allowed/