HERBERT & EBERSTEIN
Been injured on the job and filed a worker's compensation claim?
What if your employer doesn't have insurance? How will you get help with your medical bills?
You may be permitted to pursue a claim outside of the workers' compensation system.
If you’ve been hurt on the job, you may be required to file a workers’ compensation claim prior to receiving benefits and compensation for your injuries. However, if your employer does not have workers’ compensation insurance, you may be permitted to pursue a claim outside of the workers’ compensation system. Here’s some important information about injuries on the job.
What is Workers' Compensation?
In Texas, workers’ compensation is an insurance program that will pay for some of your medical bills and replace some of the money that you lost because of a work-related injury or illness.
Texas has a governing agency called the Division of Workers Compensation which oversees workers’ compensation programs in Texas. The Division helps resolve workers’ compensation disputes and makes sure employers and injured workers follow the workers’ compensation laws and rules.
Unlike some other states, employers in Texas are not required to carry workers compensation insurance, subject to a few exceptions. Generally, if an employer does have workers compensation coverage, this means that the employer has bought insurance coverage with an insurance company that pays for medical treatment for injuries on the job and other benefits to injured workers.
If an employer has workers’ compensation coverage, then an injured worker is limited in the amount and type of compensation they may receive for work related injuries. These limits are set by the law. Under workers’ compensation law in Texas, an injury or illness is covered if it was sustained in the course and scope of employment, i.e., while furthering or carrying on the employer’s business.
If an employer decides to not purchase workers’ compensation coverage, then this leaves the employer open to potential personal injury lawsuits by their employees for on-the-job injuries. This is explained in further detail below.
Because an injured worker’s remedies vary depending on the employer’s status as a subscriber or non-subscriber of workers’ compensation coverage, it is vital that an injured worker speak with a knowledgeable and experienced attorney as soon as possible after a work-related injury and illness.
Injured Worker’s Rights Under Workers' Compensation
If your employer has workers’ compensation coverage, then you have certain rights under the worker’s compensation system in Texas:
- You have the right to hire an attorney to help you with your workers’ compensation claim.
- You may have the right to receive medical and income benefits regardless of who was at fault for your injury, with certain exceptions.
- You may have the right to receive medical care to treat your workplace injury or illness for as long as it is medically necessary and related to the workplace injury.
- You may have the right to receive income benefits for your work-related injury.
- You may have the right to dispute resolution regarding income and medical benefits.
- You have the right to choose a treating doctor in the workers’ compensation insurance company’s network.
- You have the right for your workers’ compensation claim information to be kept confidential.
Injured Worker’s Responsibilities under Workers’ Compensation
Under Texas workers compensation system, you also have some responsibilities as an injured worker, such as:
- You must tell your employer within 30 days if you have a work-related injury or illness. If you do not timely report your injury or illness, you may be barred from pursuing a workers’ compensation claim.
- You must also report your injury top the Division of Workers’ Compensation within one year. You can do this by sending the DWC 041 form to the Division.
- When you see a workers’ compensation doctor you must tell the doctor how you were hurt and if it was work-related.
- You must let the Division and the insurance carrier know about any changes in your pay or changes in the work you do.
- Also, let the Division and the insurance carrier know if there are any changes in your mailing address or phone number.
Benefits and Compensation under Workers' Compensation
Income Benefits will replace some of the money you lost because of your work-related injury or illness. The amount of income benefits you will receive is based on your average weekly wage before the injury. The average weekly wage is calculated based on the amount of money that your employer said you received in the thirteen weeks before you were hurt. The average monthly wage may also include other things that your employer pays for, like health insurance for example. If you receive income from other sources and you want to have that considered as part of your average weekly wage, you must complete additional forms and submit documentation of the other source of income.
Temporary Income Benefits are another type of income benefits you may receive under workers’ compensation. You may receive these benefits if you miss more than seven days of work because of your injury. You get paid each week if you qualify for these benefits, and the amount is equal to 70% or 75% of your average weekly benefits. If you return to work in a light-duty capacity, but you make less money than you made before you were hurt, you still might be able to receive temporary income benefits. Temporary income benefits has a maximum and minimum benefit amounts which are set by law. By law, you are only able to get temporary income benefits for up to 104 weeks.
Impairment Income Benefits are benefits you may receive if you have permanent damage to your body as a result of the work-related injury. Once you have reached maximum medical improvement, the doctor may recommend that you undergo an impairment rating, which is an examination to determine if you have any permanent impairment as a result of the work-related injury. If the doctor has found that you have permanent impairment from your injuries, then you may receive additional compensation for a set period of time after you are released from the doctor.
Supplemental Income Benefits are paid to you if you have a lot of permanent damage to your body because of the work-related injury and you still haven’t gone back to work after your impairment income benefits end. These benefits are also paid if you have gone back to work but you now make less than 80% of what you made before the injury. There are additional requirements that you must meet before qualifying for this type of benefit.
Vocational Rehabilitation Benefits are benefits provided for training for a different job if you cannot return to your employment.
Lifetime Income Benefits are paid when you have certain serious injuries, like complete blindness, loss of several limbs, or severe brain injuries. These benefits are 75% of what you made each week before your injury, with a 3% cost of living increase each year.
Medical Benefits pay for the cost of treatment for your work-related injuries. If your claim is in a health care network, then you must see a provider within the network. A doctor or health care provider should not send you a bill for a treatment-related workers’ compensation claim. Medical treatment will be paid by the workers’ compensation insurance company when the treatment is reasonable and necessary. Often, what is “reasonable and necessary” is a source of contention between the injured worker and the workers’ compensation insurance company.
What if Your Employer Does Not Have Workers' Compensation Insurance?
Workers’ Compensation is a no-fault system and was designed to be a trade-off or compromise between the injured worker and the employer. The workers’ compensation system provides for the resolution of workers’ compensation claims outside of formal litigation. The major benefit for the injured worker is that workers’ compensation is a “no-fault” system, meaning that the compensability of a workers’ compensation claim does not require the injured worker to prove fault. In exchange for these benefits, injured workers give up their right to file lawsuits in common law against their employers.
In Texas, however, employers are not required to have workers compensation insurance. By not having workers’ compensation insurance, employers lose some legal protections, like immunity from lawsuits by injured employees. Therefore, if you have been injured as a result of a workplace accident, and the injury was caused by the negligence of your employer or a coworker, then you have the ability to pursue a personal injury claim directly against your employer. This claim is not affected by the caps and limits of a workers’ compensation claim.
Texas workers’ compensation law can be complicated and will vary depending on whether your employer has workers’ compensation insurance. Your employer and the insurance company may be more focused on closing your claim and getting you back to work than providing you the benefits you deserve under Texas law. Therefore, if you have been hurt on the job, you should seek legal counsel from a Texas work injury attorney as soon as possible.
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