Have you been injured on the job?
At Perdue & Kidd, we frequently receive calls from people who have been injured on the job, asking about their rights and what they can expect from their employers and the worker’s compensation system. This article will attempt to explain some of the unique aspects of workplace injuries that occur in Texas.
Worker’s compensation insurance is insurance that is purchased by employers to cover their employees for injuries sustained while working on in the job – called “in the course and scope of employment” for that employer. Worker’s compensation insurance is what is known as “no fault” insurance, meaning that an employee will be paid for a portion of his or her lost wages and all medical expenses related to that injury regardless of fault. The employee need not prove that the employer was negligent. Further, the employee may recover even if he/she was negligent, although there are some exceptions (such as an employee may not recover if intoxicated at the time of the injury). The downside is that an employee may not recover such human damages such as physical pain, mental anguish, physical impairment, or physical disfigurement in a worker’s compensation claim. The employer benefits from worker’s compensation coverage because if an employee is injured on the job, the employee may only recover benefits from the worker’s compensation insurance carrier; the employee cannot sue the employer. The only exception is if the employee dies as a result of the incident, but the employee’s surviving spouse and children must then prove that the employer was grossly negligent. In Texas, the worker’s compensation claim is handled through the Texas Worker’s Compensation Commission as an administrative proceeding.
In every state and the District of Columbia, there is a requirement that employers carry worker’s compensation coverage. Some states require all employers, regardless of the type of entity and number of employees to have coverage. Some states require employers with certain minimum numbers of employees or revenue amounts to have coverage, but the minimum requirements in all states are so low that virtually all businesses are required to provide worker’s compensation coverage.
In New Mexico, all businesses with three or more employees are required to have workers’ compensation insurance. Coverage may be purchased voluntarily if the business has fewer than three employees. Construction businesses must carry coverage regardless of their number of employees. There are exceptions for some types of professions, such as domestic servants and real estate salespeople.
Texas is the only state in the United States that does not mandate worker’s compensation coverage. An employer may elect not to cover its employees. Those employers are commonly called “non-subscribers,” as they do not subscribe to worker’s compensation coverage. Employers that do not subscribe to worker’s compensation coverage usually base that decision on the costs. Worker’s compensation coverage can be quite expensive. However, the risk is that an employee injured in the course and scope of employment may sue a non-subscribing employer and the employer loses the common-law defenses of comparative and contributory negligence. That means that an employee recovers from his/her employer provided that the employer was negligent, regardless of the employee’s negligence. If the employee was negligent, but the employer was also negligent, the employee may recover full damages. Those damages include the human damages discussed above.
There is a trend in Texas among many large employers to become non-subscribers. Many of these are big-box retailers, grocery stores, and hospitals. They create variations of a Texas Workplace Injury Plan. To the employee, those plans look like worker’s compensation plans but they are very different. The plans usually cover medical expenses and lost wages. The primary difference is the Texas Worker’s Compensation Commission has no authority and will not require the employer to make any payments or provide medical care. Upon sustaining a workplace injury, the employee will report the injury within the company. The company will then direct the medical care, either through an in-house specialist or through what is called a third-party administrator. It is vital that the employee know that the person directing the medical care is working on behalf of the employer – NOT THE EMPLOYEE. In our experience, the goal of these people directing medical care is to get that employee back to work as quickly and cheaply as possible. They will often not approve necessary diagnostic testing, surgery, and rehabilitation. Many injuries have limited time during which medical care can help the employee or the injuries will become permanent. Additionally, most, if not all, plans have a mandatory arbitration provision. That means that if you decide to file a lawsuit either to recover medical expenses not approved or covered, or to recover your human damages, the employer will require that the case be heard by an arbitrator rather than a jury. The statute of limitations is two years, meaning that an employee must file suit/arbitration within two years from the date of the incident. It is imperative that an injured employee contact a qualified attorney such as those at Perdue & Kidd because these are complicated proceedings which usually benefit the employer.
Finally, if an employee is injured on the job through the negligence of a third-party, an employee may be entitled to recover worker’s compensation benefits and sue the negligent third-party. We often see this arise in situations where the employee works for a contractor at a refinery or plant, or works for the refinery or plant and is injured because of the negligence of a contractor.
There are other systems in place for employees injured while working for railroads and working either offshore or on navigable waters. We will address these injuries in another blog.
At Perdue & Kidd, we have extensive experience in representing employees who are injured on the job. We have tried these lawsuits in court and have arbitrated these cases when mandated by the employer’s plan. If you are injured on the job, please contact us as soon as possible so that we may protect your rights.
Today we live in a social media world. Anything that you do can be posted on just about any site. People will post their food selections, their vacations, and all sorts of other things. If you go read someone’s Facebook posts you may think that these people have these spectacular lives and they go on vacations all the time. The reality is, folks are just like you and me. However they are just posting the good things of their lives.
Social media can be a great detriment if you have a personal injury claim because the other side is always going to be looking for your Facebook posts, looking for your Instagram posts, looking for anything that they can use against you. If you get injured in a car wreck and six months later you are still in pain but you go to a birthday party and you are sitting there trying to enjoy yourself and you smile for a picture and it gets posted on social media. The insurance company will use that picture to say that you are not hurt. The insurance company will say that you are out enjoying yourself just because of that one picture. It’s not fair but it happens. My suggestion to you is, if you are involved in a crash or an incident in which you you have suffered injuries DON’T post them on Facebook or any social media. You may intend them to be a display of how badly you are hurt but they will always be used against you.
The Sleep Research Society and the American Academy of Sleep Medicine published a study that evaluated how having the symptoms of insomnia can increase the odds of experiencing a fatal accident. Participants in the study had to report whether they had experienced any of the following:
- Difficulty falling asleep
- Problems getting restful sleep
- Trouble staying asleep
Researchers then followed the participants over a lengthy period of time. They discovered that people who reported experiencing all three symptoms were almost three times more likely to suffer a fatal injury than people who had no signs of insomnia. Further, people who had difficulty falling asleep were more than twice as likely to lose their lives in a fatal accident than people who had no trouble getting to sleep.
Drowsy driving, according to the National Highway Traffic Safety Administration, is responsible for more than 1,000 fatalities every year. People who are exhausted tend to have slower reaction times and an inattention to their surroundings. According to a study from the National Institutes of Health, insomniacs are far more likely to be involved in a fatal accident than people who are rested. In the study, 9 percent of people admitted to falling asleep behind the wheel and 4.1 percent said their exhaustion led to a car accident.
Experts recommend pulling over at the first hint of drowsy driving in order to avoid a tragedy.