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Dealing With Your Employer

1. My employer says they have a light duty return to work program. Do I have to go back to work when I am still hurt?

If your employer offers you work that is within your restrictions, in writing, the insurance may be able to count they wages offered through a light duty job against your temporary income benefits. Howevever, such a written offer must comply with the specific administrative rule on "bona fide" offers of employment in order to be valid.

It is good to be able to work, even after an injury. If the work is appropriate to your restrictions and does not interfere with your medical care and recovery, working will help you financially (because your full wages will be more than the 70% benefits of workers' comp), your job will not be in jeopardy under the Family and Medical Leave Act, and you have a better chance of keeping an even emotional keel after the trauma of an accident. But if your employer wants you back at work, while forcing you to work outside your restrictions, or merely as a pretext to set you up for termination, then you will be walking into a trap without sophisticated legal advice.

2. I got hurt through no fault of my own and now the company is treating me like dirt. Can they do this?

The state of Texas is an "at-will" employment state, which means your employer can fire you for a good reason, a bad reason, or no reason at all.

That is, unless their reason (their "real" reason-- not necessarily what they tell you) is because you filed a workers' compensation claim, or because you are a member of a protected class (reasons of race or sexual discrimination, for example), then you can sue them for this.

If they fire you because they're just jerks, then you can't sue them for that. But you may be eligible for workers' compensation benefits if you are on "light duty" or off work due to your injury. If you're not, you may be able to file for unemployment benefits.

3. Can I be fired while on workers' compensation benefits?

Your employer cannot file you because you filed for workers' compensation, but they can let you go if you are out of work for an extended period of time and they need to get someone else to do your job. The Federal law called the Family and Medical Leave Act (FMLA) restricts when they can do this. Basically, if they are covered under the law (and not all employers or jobs are-- check with an attorney), then they cannot fire you for being out of work due to any medical condition, either yours or that of a close family member-- until they have given you at least 12 weeks to get back to work. There are complex rules about how this 12 week period is determined, when it applies, and what the penalties are, so it is wise to seek legal advice when you encounter that issue.

4. Can I sue the employer?

If they are covered by a policy of workers' compensation insurance and you are injured on the job, you cannot sue them even if their negligence caused the accident. There are exceptions (applicable in some cases where the injury results in death), and even if you cannot sue someone else who is at fault for the accident. For example, if a contractor is responsible for servicing equipment and faulty maintenance causes the accident, that servicing contractor can be sued. Or if the accident was caused by a defective product, the manufacturer can be sued. Even other contractors on the same job site may be sued, depending on the circumstances. Check with an attorney and make sure to go over the accident in great detail to make sure no possible negligent party is left out.

5. Can I sue for being terminated due to filing a workers' compensation claim?

Despite this protection, an employer can still be sued for wrongful termination if they fire you due to filing a workers' compensation claim in good faith, testifying in good faith in a workers' comp case, or if they discriminate against you for a legally invalid reason. This is called a workers' compensation retaliation lawsuit, meaning that they are retaliating against you for filing an injury report or seeking benefits and you are suing for your job, lost wages, and other damages.

6. I'm never going to be able to do my old job again. What can I do about that?

It depends. If you meet the requirements, you can apply for lifetime income benefits or supplemental income benefits. LIBS will pay you for the rest of your life. SIBS will pay you up to 401 weeks from your injury date while you try to get back into the workforce, and will pay you partial benefits during that time if you can only get a job making less than 80% of what you made before you got hurt. Often I will guide my clients to retraining programs that can prepare them for better paying light duty work.

If you are not eligible for SIBS or LIBS, then you may be eligible for unemployment compensation, Social Security benefits (SSI or SSDI), or a reasonable accommodation under the Americans with Disabilies Act (ADA) to get your old job back, but with special help to do it.

7. This idea of retraining after my injury sounds great. How does that work?

The state of Texas thinks it is really important for people to keep working. It's good for your health, you keep paying taxes, and it keeps our economy buzzing. They provide funding for a state agency (the Department of Assistive and Rehabilitative Services) that helps people with injuries or disabilities get back into the workforce.

They can pay for your tuition in a college or certification program, your tools or necessary equipment for a profession, and job placement agencies that will help you find employers who are willing to work with people who are trying to come back from medical problems.

if you are eligible for SIBS, you can get paid SIBS as workers' compensation benefits while you are getting retrained and trying to find a job. It's a bad deal to get hurt on the job, but if you can go to school for a better job for free while you recover, you should take advantage and make the most of what Texas offers.

You can find out more at the DARS website HERE.

8. My work isn't safe. I got hurt, or I think someone else might get seriously injured if something is not done.

If your workplace is dangerous, you can notify the TDI-DWC Workplace Safety Hotline at 800-452-9595. You may report an unsafe work location anonymously.