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Work Injury Compensation

Workers’ compensation is a state-regulated insurance program that covers employees who are injured while performing the tasks and duties for which they are employed. The program is regulated by the Division of Workers’ Compensation, which is part of the Texas Department of Insurance. Covered expenses include medical bills and, when the injury or illness causes the employee to lose some or all income for more than seven days, workers’ compensation policies also cover employees’ lost wages. Employers who obtain workers’ compensation insurance may do so by purchasing a workers’ compensation policy from a private insurance company, or by “self-insuring,” as long as they meet the requirements of the Texas Workers’ Compensation Act of 1989. Public employers and employers with a construction contract with a government entity are required by law to provide workers’ compensation.

An employee who is injured on the job while covered by workers’ compensation may not bring legal action against his or her employer. There are, however, some exceptions to this rule in extreme circumstances, such as in a fatal event. Workers’ compensation insurance goes into effect relatively expediently, covering a range of benefits to respond to the injured worker’s needs after an accident; but in conjunction with these benefits comes the restriction that the employer will not be subject to a lawsuit. Further, an employee who is covered by workers’ compensation, and is injured on the job as a result of a co-worker’s negligence, will in most cases receive workers’ compensation benefits, but is prohibited from bringing legal action against the co-worker.

Even accidents that appear to be clear-cut workers’ compensation cases should be evaluated for third party liability by experienced attorneys and qualified experts.

Benefits Covered

According to the Social Security Administration, 1 there are a variety of benefits beyond medical costs provided by workers’ compensation policies, including:

  • Temporary Total Disability – Most compensation cases that involve cash payments are for temporary total disability. In these cases, the worker is temporarily precluded from performing the pre-injury job or another job with the employer that the worker could have performed before the injury. Most workers who receive these benefits fully recover and return to work, at which time benefits end.
  • Temporary Partial Disability – In some cases, workers return to work before they reach maximum medical improvement and have reduced responsibilities and a lower salary. In those cases, they receive temporary partial disability benefits.
  • Permanent Total Disability – If a worker has significant impairments that are judged to be permanent after he or she reaches maximum medical improvement, the worker receives permanent total disability benefits. Very few workers’ compensation cases are found to have permanent total disabilities.
  • Permanent Partial Disability – When a worker has impairments that, although permanent, do not completely limit the workers’ ability to work, permanent partial disability benefits are paid. The system for determining benefits in these cases is complex and varies across jurisdictions.
  • Death Benefits – Compensation is generally proportional to earnings and to the number of dependents eligible as the survivors of workers who die from a work-related illness or injury.
  • Medical Benefits – Most workers’ compensation cases do not involve lost work time greater than the 3- to 7-day waiting period for cash benefits. In these cases, only medical costs are paid. “Medical only” cases are quite common in workers’ compensation, but they represent only a small share of overall payments.
Protection for Whom?

Workers’ compensation policies sometimes protect employers more than they benefit employees. They provide a firewall between catastrophically injured employees, whose lives may be permanently disrupted as a result of a workplace accident, and their employers. In some sense, employers with workers’ compensation policies purchase insurance for their own immunity.

Since the 1990s and along with rising healthcare costs, a number of states have reformed their workers’ compensation programs, making requirements ever more stringent. For instance, an employee with an occupational disease may have to demonstrate compellingly that the disease is “characteristic” or “peculiar” to the work itself. An employee with repetitive motion injuries may have to demonstrate convincingly that the injuries could not have been sustained in any circumstances beyond the job, which is extraordinarily difficult burden of proof. 2 This trend must be considered in the context of a history that values employers’ impunity over employees’ rights. 3 The main function of a skilled personal injury attorney is to protect the rights of an injured client.

Consider the following example from a Wall Street Journal case study: A restaurant worker who loses a hand during a workplace accident may be awarded just under one hundred thousand dollars to be paid out over five years by her employer’s workers’ compensation policy. 4 But the policy itself prohibits the worker from suing her employer for economic damages, such as lost wages. In 2016, The U.S. House of Representatives passed a national tort reform bill capping noneconomic damages at 250 thousand dollars. Having lost a dominant right hand significantly compromises a person’s future prospects for gainful employment regardless of his/her line of work. Yet the workers’ compensation policy insulates the employer from a thorough investigation of negligence.

Because employers who subscribe to workers’ compensation policies are nearly beyond legal reproach, it may never come to light that the restaurant worker in question was injured because her supervisor removed a safety mechanism from the machinery that she operated as part of her duties. And if she attempts to sue the manufacturer of the machine, attempting to locate culpability not with her own employer but with the tools that she was using while sustaining an injury, the manufacturer would likely argue that the supervisor who altered the machine is responsible for the alteration’s consequences, including the severe personal injury. The employee is now left with little more than the manufacturer’s confirmation that her supervisor’s improper modification of the machine that she operated at work led to the loss of her limb. And yet she cannot hold her supervisor legally accountable for her traumatic experience and the considerable loss of future earnings that will impact her family’s life for years.

House Bill 7

In 2005 the Texas Legislature enacted House Bill 7 (H.B. 7) with a number of changes to the administration of the state’s workers’ compensation program. 5 Notably, it placed the Division of Workers’ Compensation in the Texas Department of Insurance under the oversight of a Commissioner of Workers’ Compensation. While the former system had been run by a commission of employers and employees, the new Commissioner post would be appointed by the governor of Texas, making the function a political appointment. Additionally H.B. 7 established an Office of Injured Employee Counsel, administered by a Public Counsel who is also appointed by the governor. The Counsel’s function is to represent injured workers in rulemaking and dispute proceedings.

References

1 Social Security Office of Retirement and Disability Policy, Annual Statistical Supplement 2015, “Workers’ Compensation Program Description and Legislative History,” LINK.

2 Robert Weissman, “Bad Claims on Workers’ Comp,” The Nation, November 10, 1997.

3 Marland C. Hobbs, “Statutory Changes in Employers’ Liability,” Harvard Law Review 2.5 (1888): 212-230.

4 Steve Cohen, “A Trial Lawyer’s Conundrums for a Conservative Friend,” Wall Street Journal August 12, 2015. LINK

5 Texas Department of Insurance, “About Workers’ Compensation,” LINK. For information about the scope and history of Texas workers’ compensation legislation, see LINK