LAW OFFICES OF RICHARD PENA | AUSTIN TX | WORKERS COMP | PERSONAL INJURY

Questions and answers

With over thirty years of experience handling workers' compensation claims, attorney Richard Pena and his team have the tenacity to fight for the medical care and financial compensation that you are entitled to.

Here are some common questions that we have received from injured Texas workers
after they’ve been hurt on the job and are looking for answers.

The Initial Stages: I just got hurt at work…what do I do?

Do I have to hire a Workers’ Compensation attorney?

Do you have to? No. But should you? Absolutely!

It is recommended that you contact a lawyer that regularly handles Workers’ Compensation as soon as possible. It is not mandatory, but it is advisable. The law is complicated and as soon as the Carrier gets notice of your injury they work up your case. Many times their resources are in motion, including their lawyers, in an effort to minimize your benefits and medical treatment. Some injured workers try to go it alone without realizing that they are missing important deadlines and it is not unusual for the Carrier to make the decision to limit or deny your medical treatment or benefits early in the case.

It is not unusual for injured workers to seek the help of my law firm after they have missed important deadlines or after their case is practically lost. The attorney fee is set by state law and requires the approval by the Division of Workers’ Compensation. You do not pay anything out of your pocket, but rather no more than 25% is deducted by the Insurance Company and forwarded to the lawyer if the fee has been approved. If you are not receiving benefit checks from the Carrier, the lawyer is working for you without getting paid.

Below are some areas that are critical in your case. In Texas Workers’ Compensation cases, one misstep can greatly damage your case:

Do you know what your average weekly wage is?
Do you know whether your weekly checks are the right amount?
What will you do if the Insurance Company reduces or stops your checks?

Often the Insurance Companies will dispute your:

Wage Rate
Ability to Return to Work
Maximum Medical Improvement
Impairment Rating
Right to Change Doctors, and
Even "that you did not get hurt at work"
The extent of your injury.
Medical treatment.

There is also an issue of your checks being sent to you in a timely manner.

Is my employer required to file a Workers' Compensation claim for me?

In most cases, it is your responsibility to give your employer Notice of your injury and to file a Notice of Injury (DWC-41) within one (1) year of that the injury's occurrence. Our law office files this form for our clients upon accepting the case.

The employer should also notify the Insurance Company of the injury. It is not mandatory in Texas for an employer to carry Workers’ Compensation insurance to cover your injuries. Sometimes it is difficult to determine if there is Workers’ Compensation coverage or what to do if there is not, but this is also something we can help with.

What happens if I don’t file for Workers’ Compensation?

If you don’t report a Texas work injury to your employer within 30 days of the injury, the workers’ compensation Insurance Company (insurer) generally has the right to deny your benefits claim. If this happens and they prevail, neither the employer nor insurer will end up being responsible for covering any of your medical costs or for paying disability benefits if more than 30 days pass without a report of the injury to the employer. Different rules may apply for an occupational disease or repetitive injury.

According to the Texas Labor Code sections addressing workers’ compensation procedures, failure to report will result in a denial of benefits unless:

●   The employer, the insurer or anyone eligible to receive notice of a work injury has actual knowledge that the injury happened.

●   The Division of Workers’ Compensation determines that “good cause” exists for the injured employee’s failure to report the injury in a timely manner.

●   The employer or the workers’ compensation insurer does not contest the claim and agrees to provide benefits even though the injured worker did not meet the deadline.

It can be difficult to show that you had a good cause for a delay in reporting an illness or injury. If you want to try to argue for coverage even when you have missed the deadline, you need to speak with an experienced workers’ compensation lawyer who can help you to make a compelling and thoughtful appeal.

Can I sue my employer?

Generally no, if you are covered by your employer’s Workers’ Compensation policy. But, if someone other than your employer or the employer’s workers caused your injury, you may have a 3rd party cause of action against that company. If that is your situation and someone other than your employer caused your injury, let us know immediately.

Also, you may be able to sue your employer if you were not covered by workers' compensation and you can demonstrate your employer's negligence, carelessness or wrongdoing was the direct cause of yourgetting hurt on the job.

There are also other non-employers you may sue after a work injury or death in Texas.

How can I find out if my employer has Workers’ Compensation? How can I find out if my employer has workers’ comp?

Workers’ compensation is an insurance program managed by the State of Texas. It provides pay and medical and income benefits to employees who have a work-related injury or illness. Not all Texas employers provide workers' compensation insurance, but most do.

Your employer must have workers' compensation insurance for you to get benefits.

You can find out if your employer has workers’ comp insurance by contacting DWC (Department of Workers' Compensation) directly.

Can my employer fire me after a Workers' Compensation injury?

Employers cannot fire you for making a workers' compensation claim, or for hiring a lawyer on your workers’ compensation case. However, the employer can fire you for a number of other reasons and we recommend you not give the employer a cause for the termination.

We also recommend that you accept a restricted duty offer of employment by the employer even if it is a different job position. We stress to our clients NOT to resign as that will likely cut off future TIB payment by the workers’ compensation company.

What can I do if I was terminated after reporting my Workers' Compensation injury?

In Texas, it is illegal for your employer to fire you merely for reporting a workplace injury or filing a workers’ compensation claim. In some situations, your boss’s decision to let you go may have nothing to do with your accident, for example, if the company is laying off many people.

However, you may be a victim of retaliation and wrongful termination, if:

You are fired while receiving medical treatment.
You experience discrimination.
Your boss blatantly violates the terms of your contract.

Additionally, your firing may be unjust if it is based on a disability.

The laws in Texas give the employer wide latitude in firing employees. Although it is usually difficult to prevail in a Wrongful Termination case, you should feel free to consult with an employment lawyer who handles these types of cases.

Why would my Workers' Compensation claim be denied?

The employers’ workers’ compensation insurance company (insurer) denies cases for many reasons. It is not unusual for the insurer to deny a workers’ compensation claim by alleging that:

the injury did not happen on the job
the injuries are pre-existing and not the result of the work accident
the injuries claimed are degenerative and pre-existing
medical records do not support an on-the-job injury
and anything else that they may construe in their favor

Also, be aware that often the claim itself is not denied, but the extent of the injury is.

For example, it is not uncommon for a lumber MRI to show a bulging or herniated disc, and the insurance company accepts only a lumbar strain or sprain. This is important because it dictates the amount of treatment you get. Once we had a client with a traumatic brain injury that the insurance company said was only a head contusion. The insurer may also deny the claim by asserting the injured worker did not give notice to the employer within 30 days or did not file a Notice of Injury with the Division of Workers’ Compensation within one (1) year.

Be aware that most cases have denials at some point along the process.

Entitled to Benefits: Can I still get paid if I got hurt at work and can’t work right now/anymore?

Doctor: Can I go to the doctor when I get hurt at work?

Disputes: I want to dispute my ‘Workman's Compensation’ case...

Recourse, hearings & others: Why is the Workers' Compensation system in Texas so confusing?

If you still have a question feel free to contact us.
We are happy to assist you by phone, text, or email.
We’re glad to talk, even if only to help answer your questions.

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