Injured workers often feel like they face a dilemma following an injury.  They often know they need to say something so they can get some medical attention, but they often either fear for their job or have the mindset that they want to be a good “company man.”  But the worst thing any claimant can do is fail to do anything at all.  The most common thing I hear from injured workers with Texas workers’ compensation claims is that they thought the injury was no big deal and it would go away.  And then when it didn’t, they figured out why waiting to say anything was the wrong thing to do.  Once an injury occurs, there are three things all Texas injured workers must do:

 

REPORT THE INJURY IMMEDIATELY 

            Anytime an injury occurs, it should be reported to the employer immediately.  In Texas, injured workers have thirty days to report an injury to an employer, or they can lose their right to workers’ comp benefits.  Injuries have to be reported to someone in a supervisory position, or someone who works in the human resources department.  Some companies specify other types of employees to whom injury reports can be made, such as a safety manager. 

           

            Although the law allows thirty days to report an injury, it should be done immediately.  Insurance companies often deny claims simply because they weren’t reported right away.  This is especially common when injuries occur on a Friday, the injured worker is not scheduled to work over the weekend, and then comes in Monday morning and reports an injury.  In that scenario, carriers and employers often claim that the injury occurred over the weekend and not at work.  The longer the delay in reporting, the more questionable the injury seems to be.  Even if the injury turns out to be serious, a delay in reporting brings into question when the injury actually occurred and whether it was at work or not.

 

            A report to a supervisor can be verbal or written.  Obviously, a written report of injury, like an accident report, is best because it is tangible and can be used as proof that the report of injury actually occurred.  Sometimes supervisors claim that the injured worker never told them they were hurt.  In those cases, a written report comes in handy.

 

            For a report of injury to satisfy all legal requirements the claimant should notify the employer about the general nature of the injury and that it occurred at work. 

 

GET MEDICAL TREATMENT 

           
            Because so many injured workers try to wait and see if the injury will go away like most regular aches and pains do, they often fail to get immediate medical attention.  This means that in many cases there will not be any evidence of an actual injury on the date that the employee actually sustained the injury.  That is not an ideal situation if the claim has to be litigated.  Get to the doctor as soon as possible.  That way all of the acute injuries can be documented.  Make sure the doctor documents every injury that you think you have.  If your low back is the most significant injury, don’t fail to have the doctor document that your neck hurts too.

 

            If you reported your injury promptly to your supervisor, chances are that the company made you go see one of its doctors.  That is fine, but it is often a mistake to continue to treat with the company doc tor.  Consider why the company wants you to see that particular doctor.  In Texas, injured workers get to select their own doctor.  You are not required to treat with the company doctor.

 

FILE A CLAIM WITH THE DIVISION OF WORKERS’ COMPENSATION 

            If you have a Texas workers’ comp claim, you have one year to file a claim with the Division of Workers’ Compensation.  Failure to do so may prevent you from ever collecting workers’ compensation benefits.  This requirement is met by filing form DWC-041 at the local Division office.  Make sure when you turn it in to ask for a copy for your file.  The Division will put a stamp on it marking it as “received” and that will be your proof that you filed the claim.

 

            Complying with these directives will help you satisfy all of the legal requirements to have a workers’ comp claim in Texas, and it will help you set your claim up to have the best chance at avoiding a claim denial.  There are exceptions to these rules, so if you find that you have failed to follow the reporting requirements, there may still be hope.  Consult an attorney immediately.

In the last week I have met with two different injured workers from Abilene who have had trouble finding doctors and lawyers to help them.  I even agreed to represent one of them and attended the Benefit Review Conference that was scheduled.

I am willing to talk to anyone about their case, even if it is just to answer a few questions.  Give me a call toll free at (877) 644-1114 and I will see if there is anything we can do to help you.

Some people might tell you that you can't beat a designated doctor's opinion on the questions of maximum medical improvement and impairment rating when the Division of Workers' Compensation in Texas has appointed the doctor for that purpose. In a recent case against American Home Assurance Company, I was able to beat the designated doctor on both issues.

My client had an injury to his hand, with significant injury to his thumb that resulted in a ruptured ulnar collateral ligament with multiple pain diagnoses, including chronic regional pain syndrome (which was once known as reflex sympathetic dystrophy, or RSD).  The designated doctor declared that he had reached MMI with a 5% impairment rating about 8 months before the statutory MMI date (which is approximately 2 years after an injured worker begins missing work because of an injury).  The DWC even wrote the designated doctor a letter to ask him if treatment that occurred after the doctor's examination would change his opinion on MMI or the impairment rating.  The doctor simply responded that it did not change his opinion.

Once I became involved we were able to get the claimant examined by a doctor of our choice for a new certification of MMI and impairment.  This gave us an alternate MMI date and impairment rating, which you must have before litigating impairment rating issues.  If there is only one impairment rating or MMI date, then that is the only option the judge has to rule on.  If there are multiple certifications of MMI or impairment, then the judge can pick from among all of them for the one that best represents the correct impairment and MMI date based on the evidence.

In our case, we were able to prove that the designated doctor did not follow the guidelines when assigning the impairment rating that he issued.  We were also able to show that treatment after the designated doctor's exam resulted in improvement to the claimant's injury.  That means that he was obviously not at MMI when the designated doctor said he was.  Because we proved that the designated doctor did not follow the AMA Guides (impairment rating guidelines), the judge threw out his opinion.  That left only our alternate rating for the judge to choose.

The end result in our case was a higher impairment rating and a change in the choice of the maximum medical improvement date.  The MMI date was moved to the statutory date - 8 months after the designated doctor's certified date.  This meant that my client received an additional 8 months of temporary income benefits, on top of the additional impairment income benefits due because of the higher impairment rating.

Designated doctors can be beat.  It is not uncommon.  It takes some knowledge of the AMA Guides and a lot of knowledge of the applicable law.  If you are unhappy with your designated doctor's decisions, then you owe it to yourself to question whether the report was done according to the law.  Just because it comes from a doctor doesn't make it right.

 

According to the Insurance Journal, the State of Montana is currently considering a bill to prohibit undocumented aliens from receiving workers' compensation benefits.  The bill would require a workers' comp insurer to develop a verification process to determine if an injured employee is an illegal immigrant to ensure that no wage-loss or medical benefits for work-related injuries are paid to aliens.
 
The sponsor of the bill is Rep. Gordon Vance, R-Bozeman.  In an interview, Vance said the law would state that if an employer knowingly or unknowingly hired an illegal alien and it was later proved by a preponderance of evidence that they were not in the country legally then that person could not collect workers' compensation benefits. 

Notice that Mr. Vance is not concerned about companies hiring illegal aliens.  He's not concerned about companies exploiting them for cheap and heavy manual labor.  He's only concerned about those same companies then having to pay the emergency room bills when these workers get injured.  This bill does not deter illegal immigration, it provides an incentive for companies to hire more illegal immigrants - they can reduce the cost of workers' compensation by hiring employees that can't get workers' compensation.  That's a nice way to get around the State's laws.  And why not, Mr. Vance doesn't seem to care about these companies complying with Federal immigration and work laws that prohibit hiring illegal aliens in the first place.

I think if these companies are going to work undocumented workers, then they should also have to be responsible for the injuries these workers sustain in the course and scope of the employment.  The one thing that seems to be forgotten in this story is that we are all immigrants or the descendants of immigrants.  Our common denominator is that we are all human.  What a barbaric action for a government to take - to leave real-live people like this without medical care or basic necessities over a question of geography.  What about the question of humanity?  Are there any Samaritans in Montana?