Avoid big mistakes and protect your rights by understanding these basic things about getting hurt on the job.
How Texas Workers’ Comp Works
Texas’ law doesn’t serve injured workers well. The system is designed to help employers (not employees). You’d think it’s practically illegal to get hurt on the job. But, you can protect yourself. Here’s what you need to know if you find yourself in a battle with your employer.
Do Texas Employers Have to Carry Workers Compensation?
No. Texas is actually the only state in the nation that doesn’t require employers of a certain size to carry the coverage. About ⅔ of Texas employers do have the insurance. This means ⅓ don’t and you can include major corporations and small businesses alike in that ⅓.
How Do You Know if Your Employer Carries It?
Texas law requires your employer to post a sign in either your break room or a common area that notifies you whether they carry it or not. However, many employers don’t do this. You can call the Texas Department of Workers’ Compensation at 1-800-252-7031 to check.
How Long do You Have to Report an Injury in Texas?
Report your injury immediately: Don’t delay one second, unless circumstances prevent you from doing so. You should even call your job from the emergency room, if you’re able (no joke). If your employer does not subscribe, which is legal in Texas, they may have an insurance policy that requires you to report your injury within 24 hours. If your employer is a “non-subscriber,” as they’re called, and they won’t accept your report, shoot a video of yourself ASAP so you have a documented record, and fax form 41 to the Texas Department of Insurance. If you experience a minor injury that could turn into something big down the road, but you can work right now, report the injury but don’t file a claim.
Can You Choose Your Own Doctor for Workers’ Comp in Texas?
If your employer is NOT a subscriber, you do have the right to choose your own doctor. However, many doctors don’t take Workers’ Comp because insurance companies make it difficult to get paid. Call the doctor in advance to confirm they’ll see you if you have the coverage.
When you talk to the doctor, describe your injuries to the finest detail. Err on the side of too much rather than too little. Do so for both your past and present injuries. Once the doctor completes taking notes, ask to look at them. Why? Because doctors make mistakes and errors of omission sometimes which can lead to you losing your claim in the future (it happens). If the doctor won’t let you look, ask them to read their notes to you and make sure you make clarifications if needed.
Why Should You Collect Witness Information?
Make sure you collect witness information. Texas’ law puts the burden of proof on you, the employee. If your claim comes down to your word against your employer’s, witnesses make the difference in a won or lost claim.
Why Should You Still Perform Your Duties if You Can?
It really stinks, but honestly, the system is set up to keep you on the job. If you just sit back, this can lead to severe financial difficulty ahead (bankruptcy, foreclosure, car repossession). Your employer may also find a way to fire you if they can prove you took time off unnecessarily. Go back to your job, even at light duty, if possible. If your employer tries to make you perform duties which push you beyond set restrictions, tell your doctor. Your doctor can then increase your restrictions or request your employer keep you within your restrictions again (which increases the credibility of your case).
Can You Quit Your Job While Seeking Texas Workers’ Comp Insurance?
You can. But only if your claim is through the Texas Department of Insurance. In that case, you have a claim with your insurance carrier and not your employer. If your claim is made through your employer, you will lose your potential benefits if you quit your job.
Does It Offer Death Benefits to Surviving Family Members?
Surviving family members may be able to recover death benefits for someone who loses their life on the job. It’s complicated and messy, but possible.
Can You Recover Compensation if You File Your Claim More than 30 Days after your Injury?
Your chances of doing so fall to almost zero. It’s extremely important that you report your injury as soon as possible after your accident. This includes even if you experience a minor injury you can easily perform through. You don’t need to file a claim for benefits with minor injuries. But you should report the injury, just in case it turns into something worse months later. Plus, if your case goes to court, employees who promptly report their injuries look much more credible to judges and juries.
Can Your Employer Fire You if You Report Your Injury?
If your employer subscribes to Workers’ Comp, they cannot fire you for being hurt on the job. However, if they can prove you engaged in misconduct unrelated to your injury, they can fire you. If your employer does not a subscriber, they have almost total control. They can literally fire you the second you report your injury, and for exactly that reason, without fear of any specific legal consequences for doing so.
If Your Employer is Not a Subscriber What Can You Do?
If you run into difficulty, you can always run your claim by a personal injury lawyer because they offer free consultations and can help you understand how to protect yourself and recover fair compensation for your injuries. You can file a personal injury lawsuit against the company, or possibly against a contractor, coworker, or the business owner, to possibly recover compensation for your injuries. If you do file a lawsuit, recovering money for your injuries can still be tough. Whether your employer offers it or not, it’s a wise idea to at least run your claim by a personal injury attorney. At least then you can be sure you get fair treatment.
When Can Independent Contractors Get Texas Workers’ Comp?
You can never get it if you’re an independent contractor, right? Not quite. There is one situation where you can. If you’re an “independent contractor” in name only. For example, your company calls you an “independent contractor” and has you sign a W9, but they really treat you like an employee.
It’s actually common. It happens in the trades a lot. And it’s getting more common with office employees because of the explosion in remote working.
The IRS doesn’t like it too much because it gets companies out of paying taxes, while depriving workers of their rights. For example, a Government Accountability Office report says the IRS missed out on $1.6 billion in tax dollars in 1984. It was $3.664 billion in 2015. On top of that, a Department of Labor report suggests up to 30% of employers misclassify their workers today.
It’s a problem the government wants to pay a lot of attention to. In their reports, they don’t feel this is a problem done in error. They believe most businesses do it on purpose to avoid paying taxes.
How Do You Know If You Are Really an Employee?
- Work for just one employer
- Have their hours set by their employers
- Are controlled and directed by the employer
- Complete tasks in the way the employer requests
- Physically perform their duties at their place of employment
Basically, there’s a clear relationship of authority. The employee does not come in as an outside expert to assist the employer like an independent contractor would.
Compare That to How an Independent Contractor Works
- They set their own hours
- Provide services to multiple companies
- Work from their own office
- Have a high degree of independence or autonomy (do not take direction primarily from an employer)
- Take responsibility for costs incurred while performing the job
So, the employer doesn’t determine if you are a contractor or employee. Federal law does.
They can call you what they want, and treat you how they want. But they’ll have to pay stiff penalties if you’re really an employee, but act as a contractor.
That’s the Only Situation where Contractors Can Get It
If you think you’re being treated like an employee, you first have to establish you are in fact one. And then you can go through the workers’ compensation process.
Does It Cover Telecommuters in Texas?
Telecommuters suffer workplace injuries too – but do Texas employers have to cover them?
A construction worker falls off some poorly built scaffolding. He breaks his leg and severely sprains his ankle. A truck driver hits another employee. He’s bruised and battered, but thankfully he’ll be okay.
You work at a computer from home all day. Your wrists hurt too badly to keep typing. Or your back is too sore to sit in an office chair, so you need to see the doctor.
Everyone thinks of construction site injuries as one of the most common types of workers’ compensation injuries.
But what about the growing telecommuting force?
This chart shows 1.8 million people telecommuted to their job in 2005. That number doubled to slightly more than 3.6 million in 2014, accounting for 2.5% of our nation’s total workforce.
And that trend’s expected to grow explosively over the next 10 years.
So there’s going to be more telecommuting injuries. When they happen, who’s going to be responsible for covering them – you or your employer?
In General, Texas Workers’ Comp is Responsible for Your Injuries
Say you trip over the garbage and sprain your ankle at home. Or you take an awkward step while walking down the stairs and jam your wrist as you catch yourself.
Neither are serious injuries. But you have to go to the doctor to get them checked out, and to speed your recovery a little.
Is workers’ comp responsible for these injuries, even though they happened in your own home?
“Yes” say courts. Even though your employer has no control over your home, you can claim the benefits if you were acting in the interest of the employer and on the clock at the time of the injury.
The same goes for the wrist and back injuries we talked about earlier. However, employers can limit their liability by establishing policy regarding home-based employment.
Personal Business is Not Covered
Now, let’s say you have the exact same situations as you did in #1 above. You trip over the garbage, or you take an awkward step down the stairs.
But, you were going to get a cup of coffee that you made. Since that’s a matter of personal business and not a work-related task, those injuries are now not covered by the insurance.
If you experience those injuries because you were going to get paper from the printer for a job related task, then they’re covered.
What Tests Determine Workers’ Comp Coverage if Hurt at Home?
In simple Plain English, here’s what courts and judges look at to see if your job accident injuries should be covered by it:
- Did the injury happen during normal working hours, and was it in a place designated as a work area?
- Were you doing job-related tasks when the injury happened, or were they personal tasks?
- Does the employer have a clearly written policy for telecommuting safety?
Law often is complex and confusing. But in the case of telecommuting injuries and workers’ comp, it’s pretty clear.
Hope that helps. And make sure to call an attorney if your employer is disputing the work-relatedness of your telecommuting injuries.
What injuries qualify for Workers’ compensation in Texas?
Not all on-the-job injuries are covered (more on that in a second), but most are. Generally, if you’re doing something related to your employment, and you get injured, you should be covered by it.
Anything at your physical workplace should be covered. If you’re injured while traveling for your job, or if you’re at a conference, or you run to the office to pick up supplies, those injuries are covered too. Those tasks were done clearly as a part of your employment.
But It Doesn’t Cover All Job Injuries
Say you and some buddies decide to goof around with a nail gun on the job. You accidentally shoot yourself in the foot. Because you were behaving irresponsibly, you’re injuries likely won’t be covered.
Any situation where you choose to act in violation of company policy puts you at risk for not getting covered. Coming to your job intoxicated, hurting yourself on purpose, picking fights with other employees, or committing a felony while on the job, greatly jeopardize your ability to recover compensation.
Does It Cover Your Depression?
Mental pain and suffering gets tricky in the legal world. In Texas, however, the law is abundantly clear. The mental trauma must be traceable to a specific time, place, and cause.
So in this case, given the fact that your depression did not arise from a single specific event, workers’ comp likely wouldn’t cover it.
However, if your depression arose because you witnessed someone killed on the job, then you have a stronger case.
Who Has the Burden of Proof?
You, the injured party, does.
If you believe you have experienced “mental trauma” as a result of an incident, you must show:
- The mental trauma results from a definite time, place, and event
- It must have happened within the scope of employment
- The trauma did not result from a legitimate personnel action
So those are some of the ins and outs of compensable job injuries. If your employer disputes the validity of your injuries, contact Mullen & Mullen in Dallas today.
Shane V. Mullen is an attorney licensed by the State of Texas for the general practice of law, and the Managing Partner at Mullen & Mullen Law Firm in Dallas, TX. His firm focuses exclusively on personal injury law and has been in business for 40 years (since 1983). Before becoming a lawyer, Shane worked for his father as an accident injury claims investigator.