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Texas Workers' Compensation Law: Frequently Asked Questions

Listed below are some FAQ's (Frequently Asked Questions) regarding Texas Workers' Compensation Law.  Reading these questions and answers can be helpful before you meet with the attorney, but if you wish to contact Alan Tysinger now, click here for full contact information or send an email to alan@alamoinjurylaw.com.  Or just call (210) 446-0713 today.


1. I've been injured on the job.  What do I do next?

First, report the injury to your supervisor and make sure a written claim is filed with the insurance, or at least that you have proof of when you reported the injury (such as a note, email, text message, or letter) and when the employer received it.

Two, seek medical attention! Not only is this important for your health and recovery, documenting the injury early and often is important as medical evidence to prove both that you are hurt and how it happened.  A good attorney can help you find a doctor that will not only give good medical care, but document your claim properly with the insurance company and fight hard for treatments and testing to be approved in a timely manner.

Three, file a claim with the Texas Department of Insurance, Division of Workers' Compensation. This must be done within one year of the injury date.  You can do this online HERE.  It is always wise to consider legal counsel before filing a claim because the wording of a claim is very important, and the insurance will always try to use the language in your injury claim against you.

2. My boss says I can't file workers' comp because I waited more than 24 hours to file a claim.  Is this true?

Not at all.  Either out of ignorance or malice, many supervisors will try to discourage you from filing a claim if you did not report it immediately.  Often company policy may require you to report the injury in 24 hours, or before the end of your shift, but Texas law makes no such requirement and company policy will not keep you from meeting the legal requirements to get benefits.

Texas law requires that you report your injury to the employer (meaning someone in a supervisory capacity over you) within 30 days from the date of injury.  In a typical "accident" case, where the injury results from a specific event (such as a car wreck, a slip and fall, or a lifting injury), that means thirty days from the date of the event.  

The 30 day reporting deadline is usually construed very strictly by insurance companies.  However, there may be some legally recognized exceptions to the thirty day requirement in your case.  

The law provides that if your injury was very minor, you can be excused for "trivializing" the injury.  But that does not extend your deadline to report the injury indefinitely.  You still must report the injury immediately once it becomes clear the injury is serious.

If your injury results from repetitive activities, overuse, or bad ergonomics at your workstation, your 30 days to report the injury runs from the date you know, or reasonably should have known, that you had an injury related to work.  This is a dangerous trap for many employees, as most will want to wait to confirm with certainty either the diagnosis or that it is truly work-related.  The law does not allow an employee who knows he or she has a medical condition related to work to wait until a firm diagnosis is established to report the injury, or until receiving a formal report from a doctor stating that fact.  It is always best to report the injury early and withdraw the claim later if medical testing shows the work was not a factor in the injury.

Even if you fail to file within 30 days, there can be legal loopholes that will allow you to get compensation regardless.  It is important to seek an attorney's assitance to determine if such a provision applies to your case, but it is never wise to rely on this if at all avoidable.
 
3. How do I file a claim?

You may file a claim with the Texas Department of Insurance, Division of Workers' Compensation, by printing and filling out a form DWC-41.  You can download that form HERE. Once completed, you must file this form with the local field office of the TDI-DWC.  Find the closest field office HERE.

Or you can mail the form to this address:

Texas Department of Insurance, Division of Workers' Compensation
7551 Metro Center Drive, Suite 100 MS-93
Austin, TX, 78744-1645

Or, you may complete the online injury report through TXCOMP.  Link HERE. When you complete this form, it automatically registers a claim with the TDI-DWC system and
generates a "DWC number" that the state uses to identify and track your claim.  You will need this number when dealing with the TDI-DWC.  If you file without an attorney, you will need to provide this number to him.

Please note this files a claim with the state of Texas but you still must notify your employer.  A good way to do that is hand-delivering, mailing, emailing, or faxing a copy of your DWC-41 or a printout of the online report through TXCOMP.

4. 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.  

5. My adjuster is unreasonable, won't return my calls, and denies everything.  What can I do?

Insurance adjusters believe they are reasonable people just doing their jobs.  I am sure that in many cases, this is true.  However, you must remember that their entire job is to put up with people (individuals, state regulators, healthcare providers, and attorneys) all day long who are asking them for money.  Too many of them quickly pick up the habit of seeing every injured person as a lazy, shiftless enemy.  They will use every opportunity to deny or delay benefits, distort your words, and discourage you from seeking additional treatment or benefits.  This is what they get paid to do.

This is why it is often necessary to employ the services of an attorney.  Workers' compensation in Texas runs through a labyrinth of rules, deadlines, forms, and hearings.  You must make it more hassle to pay you the benefits or provide you the necessary medical care than the adjuster is willing to endure.  That takes time, know-how, and patience.  An attorney can work with you and your doctor to provide evidence to the adjuster that will sway things in your favor and avoid a hearing, or proceed to a hearing to obtain either an agreement or an order to pay benefits when the adjuster is unwilling to do so without escalating the case further.

6. 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.

7. 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.

8. 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.

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.

9. What about wrongful death. Can I sue for wrongful death if the company has workers' compensation?

If your loved one was killed on the job, you have my sympathy.  You are likely eligible for death benefits from the workers' compensation insurance, and you may be able to sue the employer for causing the death through gross negligence. In layman's terms, that means if the employer knew about the dangerous situation that caused the death, or was indifferent to it, they can be sued by the heirs of the deceased worker.  Check with an attorney to proceed quickly in such cases.

10. How do I know if I am eligible for death benefits?

You are eligible for death benefits if you are the eligible beneficiary of someone who sustained a compensable injury resulting in death.  That means either the person died on the job or sustained an injury and later died from the effects of that injury (such as complications from surgery or the side effects of medications taken for the injury).

11. How do I file a claim for death benefits?

You must file a form DWC-42 or apply online at TXCOMP.  Link HERE.  
Send the completed DWC Form-042 to the TDI-DWC at the following address:

Texas Department of Insurance, Division of Workers' Compensation
7551 Metro Center Drive, Suite 100, MS-94
Austin, Texas, 78744-1645

The application for death benefits should include proof of beneficiary status (such as death certificate of the worker, marriage certificate for a spouse, or birth certificates for children).  Parents, grandchildren, or other dependents may be eligible in some cases and proof of financial dependent status should be provided.

Like an injury claim, a death claim must be filed within 1 year, with some exceptions.

12. What are medical benefits and how do I get them?

Medical benefits are 100% payment by the insurance company for any treatment for a compensable injury through an appropriate healthcare provider.  This can include physical therapy, surgery, medications, diagnostic testing, psychological counseling, injections, hospitalization, and other medical care.

Medical care, except in emergency situations, is generally paid by the insurance company when it is given by or at the referral of your primary treating doctor recognized under the claim and either preapproved as medically necessary or reviewed later for payment after the service is performed.

Generally, you cannot seek medical care on your own, outside the workers' compensation system, and get reimbursement for your costs.  Exceptions may apply.

13. I'm hurt and in pain.  How can I find a doctor who will treat me for my injuries?

In Texas, you have the right to choose your own workers' compensation doctor.  In a case where your employer is not part of a "workers' compensation healthcare network," you may choose almost any doctor willing to treat you under Texas workers' compensation law.  In cases where your employer does have coverage through a workers' compensation heathcare network, your right to choose a doctor is limited to doctors within the network, and even there, you can only make your own choice of doctor once without special circumstances.  To find out, ask your lawyer or, if you do not have an attorney, inquire with the insurance carrier or employer.

Many of the doctors in healthcare networks work for medical clinic chains such as Concentra or Texas Medclinic.  Often you will find that those doctors, though very personable themselves, must avoid conflict with the insurance companies and employers that keep them supplied with patients.  Very often they will avoid confronting an insurance adjuster about a denied claim even when the medical proof is quite strong because they cannot risk getting involved.

When seeking medical care through a network, it is important to have the counsel of an experienced attorney who knows how to select a doctor that will work for your best interest.  There are also exceptions to the network requirements that may allow you to select your own doctor even when your employer has chosen to be covered through a network.

If your claim is not part of a network, you can look for a treating doctor (primary doctor) or specialist HERE.  Keep in mind that an experienced lawyer will know the reputation of many doctors in the area who practice occupational medicine.

If your claim is part of a network, you or your attorney may obtain a list of network doctors through the insurance company.  

For Texas Mutual Insurance, a list of network providers can be found HERE.

For Travelers Insurance and its related companies, a list of network providers can be found HERE.

For Liberty Mutual Insurance and its related companies, a list of network providers can be found HERE.

14. My doctor has taken me off work due to my injury.  I have received no benefits and my bank account is draining fast.  What can I get to replace lost wages?

You are eligible to receive workers' compensation "temporary income benefits" (TIBS) if you meet certain requirements.  Generally, those will be that (1) the insurance company has accepted your injury as compensable (i.e. covered and benefits are payable) (2) you are unable to do enough of your regular work or any light duty work offered in writing by the company to make the wages you earned before you got hurt and (3) you have not reached maximum medical improvement.

If any of those requirements is not met, you may be eligible for other benefits, either through workers' compensation or other sources.  Check with an attorney to find out how.

15. What income benefits am I entitled to when I am hurt at work?

There are several categories of benefits.

The first and most common is temporary income benefits (TIBS).

TIBS are payable when you have a compensable injury, are disabled, and have not reached maximum medical improvement.

TIBS are payable when you are unable to obtain and retain employment due to a compensable injury, you have not reached maximum medical improvement as certified by a doctor, and you do not have your salary continued by the employer.  TIBS are paid at the rate of 70% of your pre-injury average weekly wage in most cases.  If you receive a low hourly wage, you may receive benefits at 75% for a period of time.

16. I'm not just disabled from my work where I got hurt.  I had a second job and my injury keeps me from working there, also.  I'm losing pay from both jobs.  What can I do?

If you had a second job when you got hurt and you are eligible for income benefits of any kind, you can request that the insurance company factor in the wage rate from your second job to your benefits.  

This applies even if you never lose time from that second job-- because your second job will increase the rate at which (for example) impairment income benefits are paid.  

In order to get the insurance to pay those benefits, you must collect specific wage information on a form (DWC-3ME) that must be certified by someone who works for that employer.  If you had a second job working perhaps as a contractor, the insurance still may have to add those wages to your benefits, but you are likely to face a battle from them, since they may assume your request is fraudulent unless presented with solid proof.

17. How will I get paid?

The payment schedule varies by benefit type, but the insurance company will generally pay you weekly benefits while you are disabled and eligible for TIBS.  

These benefits are paid by check that should be sent not later than the last date it is supposed to cover.  The insurance company does not need to ensure that your check arrives at a certain time of the week or month.  They are not responsible for postal delays.  Often the adjuster may forget to issue your check.  If this happens frequently, you may want to report the violation to the TDI-DWC.

If you are eligible for benefits over an extended period of time, you can request payment by direct deposit.  The insurance carrier will require bank information in order to process this request and it may take weeks to set up.  You may also ask to be paid monthly.

If the insurance carrier is ordered to pay you past due benefits by a hearing officer, they have a deadline specified in the law and they must pay promptly, plus interest, all benefits ordered.  If they fail to pay what the hearing officer orders, you can sue them and collect all benefits due, plus interest, plus a penalty, and attorney's fees.  Check with an attorney if you believe the insurance has shorted you in paying benefits.

If the insurance carrier agrees to pay you by written agreement approved by the TDI-DWC (usually on a form DWC-24), they have 5 business days to cut you a check unless agreed otherwise.  As always, that refers to the date of mailing, not the date you receive payment.

18. What are the different income benefit types?

There are four basic types: temporary income benefits (TIBS), impairment income benefits (IIBS), supplemental income benefits (SIBS), lifetime income benefits (LIBS) and death income benefits (DIBS).

SIBS are paid if you have at least a 15% impairment rating, the impairment benefits have expired, and you meet the filing criteria for a given thirteen week "qualifying period."

LIBS are paid when you have a severe injury that fits into one of several special categories written into the law.  

19. How are Impairment Income Benefits determined and paid?

IIBS are paid when you have reached maximum medical improvement and are paid based upon your assigned impairment rating.

20. How are Supplemental Income Benefits determined and paid?

SIBS are paid if you have at least a 15% impairment rating, the impairment benefits have expired, and you meet the filing criteria for a given thirteen week "qualifying period."

21. How are Lifetime Income Benefits determined and paid?

LIBS are paid when you have a severe injury that fits into one of several special categories written into the law.  

22. How are Death Income Benefits determined and paid?

DIBS are paid when you are an eligible beneficiary of a worker who either died on the job, sustaining a compensable death, or died as a direct and natural result of the original compensable injury.

23. What about funeral expenses in a death claim?

If the death is compensable, the insurance carrier will pay or reimburse burial expenses as provided by statute.

24. I've been told my "case is closed" and I can't see a doctor anymore.  Can they do that?

By law, every workers' compensation claim comes with lifetime medical care for the compensable injury.  That is, any medical condition or diagnosis that is either accepted by the insurance carrier or ordered as compensable by a hearing officer or judge comes with lifetime medical care.

However, lifetime medical care does not mean a "blank check" for your doctor to do whatever he wishes.

All healthcare providers must prove that the treatment they are requesting is both for a covered diagnosis and meets standards of evidence-based medicine for medical necessity.  In plain language, that means they have to show the treatment is both for a medical condition that is related to the injury and that the medical treatment is shown in the relevant medical literature to benefit patients in your situation through a proven track record of success.  If your injury has resolved or there is no longer any treatment available that will benefit you, then your right to lifetime medical treatment is effectively over.  But the insurance carrier cannot prevent you or your doctor from trying to prove that your injury has not resolved and you still need help.

Often, the insurance company will try to make it seem that no treatment is necessary even when you are still in pain and your doctor is hard at work trying to help you.  They may request a doctor to either give you a physical examination or review your medical records.  In either case, the doctor will issue a report that will guide the insurance adjuster in evaluating your medical bills and the doctor's requests for treatment.  

When the doctor physically examines you, this is called a "required medical examination."  The insurance company has certain rights to require you to submit to an examination by a doctor of their choice.  Your attorney can determine if you must submit to the request or if the insurance company is attempting to go beyond what the law allows in forcing you to submit to unnecessary evaluations.

When the doctor merely reads your past medical records and offers a report, this is called a "peer review."  The insurance carrier has the right to send your records for a doctor to review, but it is important to determine if all the relevant records were sent, if the information provided to the doctor was otherwise accurate, and how this doctor's report is being used against you.  

Regardless, you do not have to let the insurance doctor have the last word in your case.  Your doctor and attorney can work together to request a hearing if that doctor's opinion is blocking important medical care.

25. 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.

26. 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.

27. What happens if the insurance company denies my claim, or refuses to pay benefits I request?

If you and the insurance adjuster can't agree on what should be paid, you can request a hearing through the dispute resolution process.

28. What are the steps in that process?

There are several stages.  The first is you are required to document efforts to try to work it out with the insurance before you can request a hearing.

If that fails, you can request a benefit review conference (BRC) on a form DWC-45.

It will take about a month for that first hearing to take place.  It is an informal meeting with an employee of the TDI-DWC (Benefit Review Officer) who mediates the dispute between you (with your attorney present) and an attorney from the insurance company.  There is no record taken and no testimony under oath.  The issues and evidence are discussed and a plan for moving the case forward should be the goal.

If you and the insurance representative can agree, the agreement on benefits is reduced to writing, sometimes there on the spot, and signed to finalize what the insurance must do and what you are giving up, if anything, in exchange.  This agreement is binding in most circumstances and requires careful advice and consideration.

If you cannot reach an agreement, the case may be reset for another BRC or set for a final contested case hearing before a workers' compensation hearing officer, an attorney trained by the TDI-DWC to hear workers' compensation disputes.

A contested case hearing takes place approximately two months later.  This is a formal hearing with a record made (sometimes by a court reporter, otherwise by audio recording).  An interpreter can be requested in case of a language barrier for a party or witness.

Not later than 15 days from the date of the hearing, any evidence and witness information must be exchanged to the other party.  The hearing officer may exclude evidence not timely exchanged.

Not later than 10 days prior to the hearing, a subpoena for the appearance of any witness must be requested.  A subpoena duces tecum for the production of records carries the same deadline.

The hearing officer may permit witnesses to appear by telephone.  This should be requested well in advance to ensure proper acommodation.

Documentary evidence (such as witness statements, claim documents, and medical records) must be prepared and catalogued for easy and comprehensible review by the hearing officer in order to make sure that all relevant evidence is brought to the hearing officer's full attention.

Applicable decisions from the Texas Supreme Court, courts of appeals, TDI-DWC Workers' Compensation Appeals Panel should be cited at the hearing to ensure that the decision conforms with relevant precedent.  Statutory provisions from the Labor Code and rules from the Administrative Code will also be helpful.  Often it is advisable to prepare copies of legal precedent for review by the hearing officer and opposing attorney.

29. Do I need an attorney to assist me with my workers' compensation claim?

The law does not require you to have an attorney to help you.  But it is your right to retain an attorney if you wish.  If you do not hire an attorney, you can get free assistance from a non-attorney "ombudsman" through the TDI-DWC.  They do not represent you and they do not give legal advice.  Their job is to help you represent yourself.  Attorneys are highly trained, licensed by the Supreme Court of Texas, and often better able to advise you and plan for the long-term effects of decisions you make early on in the case.  They are able to pursue cases into court when necessary, which ombudsmen cannot do.  And an ombudsman cannot give you legal advice covering other legal issue that may be effected by your workers' compensation case, such as unemployment benefits, Social Security benefits, third party personal injury cases, wrongful termination, FMLA violations, and employment discrimination.

30. How much can an attorney charge?

All attorneys in workers' compensation in the state of Texas are limited by law to what they can charge.  An attorney can charge no more than $150 per hour, plus expenses, for services related to your workers' compensation case. The insurance carrier will pay your attorney through a separate check by deducting 25% of each workers' compensation payment you are due to pay the attorney until the attorney's fees are paid in full or your benefits expire, whichever comes first.

In layman's terms, all that boils down to this.  If you are not getting paid workers' comp benefits, your attorney is not getting paid.  If you do get workers' comp benefits, your attorney can collect up to 25% of each payment based upon a bill for time and expenses that must be approved by the TDI-DWC.  Your attorney can never get more than 25% of what you get, but does not automatically get 25% of your benefits.  And if your benefits run out while you still owe your attorney money, you do not have to pay the rest of the fees out of your own pocket.

31. I got a letter telling me I have to go to a designated doctor examination. What is that? Do I have to go?

A designated doctor is a doctor selected by the TDI-DWC (not the insurance company) to examine you, review your records, ask you questions, and provide an opinion on issues surrounding your case.  For example, the doctor may be asked to address whether you are disabled, what diagnoses should be included in your claim, whether you have reached your maximum medical improvement, and what your impairment rating is.

You are required to attend an examination with a designated doctor if properly ordered by the TDI-DWC.  An attorney can challenge the order for an examination if there is a legitimate dispute over whether the DWC properly ordered the examination.  For example, the evaluations may have been requested too frequently, or the evaluation may be on an issue that was already addressed by the doctor.  In some rare cases, the doctor you are assigned may be unqualified for the job.

If you do not have permission from a hearing officer not to attend the examination, you must do so or face an administrative penalty (fine), plus the loss of temporary income benefits until you finally attend the evaluation.

If you have good cause for failing to attend the examination, you can challenge the denial of benefits at a hearing.  

32. 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.

Please note that this website is for informational purposes and use of this website does not create an attorney-client relationship. The information presented at this site should not be construed as legal advice or the formation of a lawyer/client relationship.

Contacting this firm by email, internet messaging, or in any form does not establish an attorney-client relationship and messages containing confidential or time-sensitive information should not be sent.

Alan Tysinger is not your attorney and no attorney-client relationship exists unless and until both client and the attorney have agreed for professional services after appropriate interviews and conflict checks.

Readers of this information should consult with an attorney who has the opportunity to review the law and the facts of their specific case prior to relying on any information on this website.