I was discussing a case this morning with a gentleman who sustained an injury that was serious enough that he cannot go to work.  His job requires a lot of heavy lifting and physical labor, and his back injury is just too painful for that kind of work.  The insurance carrier had denied his claim so he was sitting at home with no medical treatment and no monetary benefits to help him get through this time that he is unable to work.  After we discussed his case and what should happen from this point forward, he indicated that he was not sure if he wanted to pay an attorney to help him or not.  He had heard that the Division of Workers' Compensation provides free representation through the Ombudsman program. 

Many injured workers are concerned about the cost of an attorney to handle their case, and they should be.  However, the cost of not having an attorney could be dramatically higher.

If the insurance carrier has denied the claim, the case needs to be pushed forward through the benefit review conference and contested case hearing process.  These are legal proceedings.  The BRC is a mediation and the CCH is an administrative trial of the case.  At the BRC, many insurance carriers will send their lawyers in to handle the case.  The ones that don't will send experienced adjusters who do nothing but attend these mediations every day representing the insurance company.  At the CCH, at least 90% of the time the insurance company will be represented by an attorney.

There is a reason why the insurance companies hire lawyers to represent them in these cases.  It is because that gives them the best chance of prevailing against the injured workers.  This is because the attorneys know the law, evidence and procedure.  The attorney knows how to spot the issues in a case that can change how the case is viewed by the parties and the judge.  Attorneys understand the details of a matter, and the technical issues that can sometimes be raised to automatically defeat the opposing side. 

If the insurance companies have learned that they have the best chance of defeating injured workers by sending their attorneys, why would an injured worker choose not to use an attorney themselves?  Section 404.105 of the Texas Workers' Compensation Act states that an ombudsman is not allowed to provide legal representation to an injured worker.  The ombudsmen will tell injured workers that they are not representing them, but merely assisting them to present their claim to the Division.  All they do is assist, they do not represent.  Look at the statutory requirements to qualify as an Ombudsman:

§ 404.152.  DESIGNATION AS OMBUDSMAN; ELIGIBILITY AND
TRAINING REQUIREMENTS; CONTINUING EDUCATION REQUIREMENTS.  (

 (b)  To be eligible for designation as an ombudsman, a person
must:         
(1)  demonstrate satisfactory knowledge of the requirements of:            
  (A)  this subtitle and the provisions of Subtitle C that relate to claims management;
  (B)  other laws relating to workers' compensation; and                     
  (C)  rules adopted under this subtitle and the laws described under Subdivision (1)(B);
(2)  have demonstrated experience in handling and resolving problems for the general public;
(3)  possess strong interpersonal skills; and                                
(4)  have at least one year of demonstrated experience in the field of workers' compensation.

The statute does not impose any requirement that an ombudsman be educated.  Ombudsman, according to this statute, are not even required to be high school graduates.

How about this:  Section 404.151 of the Texas Workers' Compensation Act only requires an ombudsman to meet with an injured worker to discuss their case for 15 minutes before a hearing!  How is this person supposed to help an injured worker if all they know about a case is what can be learned in 15 minutes?  How can all of the technical and procedural issues be found in 15 minutes?  How can someone even talk to an injured worker and feel like they know what has been going on with the claim in only 15 minutes?  How can this person even read and understand all of the medical records in your case in only 15 minutes?  How can someone do all of the above in only 15 minutes?

What about legal research?  Did you know that people who are not attorneys are forbidden by law to give legal advice?  Therefore, legal research is not necessary for an ombudsman because they cannot give you any advice based on that research!

When something as important as your physical well-being and the financial crisis that usually accompanies a workers' compensation claim is at stake, why would anyone choose to alllow an Ombudsman to "assist" them in a fight against the attorneys that insurance company money can hire? 

This is especially true since the Texas Workers' Compensation Act makes attorneys so affordable for injured workers.  The Act provides that unless the injured worker obtains monetary benefits from the insurance company, the attorney does not have to be paid.  The only way an attorney who represents injured workers' can get paid is if the injured worker gets benefits!  If your claim is denied, an attorney can represent you and you do not have to pay the attorney if the case is lost.  But, if you win, the legal fees are limited to a maximum of 25% of your benefits.  If you got in a car wreck and hired an attorney to represent you in that matter, the attorney fee would be at least 33%, with most attorneys charging a minimum of 40% if the case has to be litigated.  But in a workers' compensation case, the fee can never be more than 25%!

People don't think twice about hiring an attorney in a car wreck case for 33% of the recovery.  Why would you think twice about hiring an attorney for 25% in a work comp case?  Based on this comparison, the work comp attorney is a bargain!

Finally, always remember that the work comp dispute resolution process is a legal proceeding.  You would not agree to have surgery at the hands of someone who did okay dissecting frogs in junior high but who has not obtained a medical degree and the experience and judgment necessary to do the operation.  That frog was dead.  Likewise, you should not entrust your legal case that is going into litigation to someone without the education, experience and judgment necessary to take your case through the legal process.

As I often tell people who come in to see me, the question is not whether you need to hire an attorney or not.  The only question is whether you want to hire me or somebody else.  No matter which attorney you decide to hire to "represent" you (not to "assist" you), hire somebody!

Just a short note about using foreign language witness statements in a contested case hearing:  any such statement will not be admitted into evidence unless it is submitted with an english translation.  Most likely, the translation will need to be from a translation service that can verify to the Division that it accurately translated the document.