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Tuesday, March 15, 2011

Disability & Texas Workers' Comp Claims

Texas workers' compensation law defines disability as the inability, because of a workplace injury, to earn the pre-injury wage. This means that if your injury results in a loss of earnings, then you meet the definition of disability. This might be because you cannot work at all after your injury. Maybe you can work but not full time, so you get paid less than before your injury. Sometimes injured workers are given different job duties after an injury, and it comes with less pay. In all of these situations, you would have disability. webassets/crutches.jpg

     You can see, then, that disability is not what people generally consider the word "disabled" to mean. Disability in a Texas workers' comp claim is different than disability in a social security claim. It is not necessarily about functional ability, but more about earning ability. It is an economic issue, not a medical opinion.

     There are many scenarios that result in disability. The majority of disability cases involve an inability to work at all (like the traditional concept of disability) or a release to return to work on light duty. If you cannot work at all, then you obviously can't earn wages - that's disability. If your employer won't let you work light duty, then your injury is the reason why you aren't earning wages - that's disability.

     You will have to prove that you have disability in order to be entitled to temporary income benefits. Generally, injured workers can prove disability by providing a DWC-73 - a work status report - from a doctor. This form documents your functional ability. If it says you cannot work at all, that is evidence of disability. The same is true if it documents the various restrictions you might have that would keep you from being able to do your regular job duties. Other evidence that might be considered would be diagnostic test results (MRI, EMG, x-rays), surgical records and other medical opinions about your physical condition and functional ability, as well as your job description.

     This is a general overview of the concept of disability. It is sometimes a very complicated and multi-faceted question. But if you can't work because of your injury, it is often the most important question.

10:27 pm cdt Comments

Monday, March 7, 2011

A Texas Workers’ Compensation Insurance Defense Attorney Misleads The Court

If you have been reading the Texas Workers' Compensation Blog, then you know that I often point out dishonest things that I see workers' compensation insurance companies do (read a prior post by clicking here). I’ve just dealt with another instance where an attorney for a Texas workers’ comp insurance company “misrepresented” facts to a judge in an effort to delay an injured workers’ case and get an upper hand in the litigation.

When a Texas workers' compensation claim gets to a contested case hearing, there are discovery rules that allow each side to ask written questions of the other side. These are called interrogatories. The failure to answer interrogatories timely can result in a continuance, or delay, of a case, and in the worst case could result in evidence being excluded at the hearing because it was not disclosed in the answers to the interrogatories. In this case, my client did not timely answer the interrogatories. We turned the answers in late, about ten days before the hearing. This would generally mean that if our answers contained information that was something new to the insurance company, a continuance would be in order to allow the carrier to follow up on the new information.

One of the interrogatories asked my client to list all of the doctors she had seen for the past ten years. In our answer, we listed five doctors. Three of them were doctors who saw the claimant for the work injury, one was the insurance company’s doctor who had just examined my client but had not yet issued a report, and the fifth doctor was the claimant’s primary care doctor who she saw if she had a cold or allergies or other illnesses.

Once the insurance company attorney received these answers, he filed a motion for continuance telling the judge that we had just now disclosed five doctors and the carrier should be able to go get the records from these doctors before any hearing takes places. That sounds fair at first blush.

However, the carrier already had the records from the three doctors that had actually treated the claimant for the on the job injury. The fourth doctor was the carrier’s own doctor, so that wasn’t new information. There was only one doctor out of those five that the insurance company didn’t know about already – the primary care family practice doctor.

I filed an objection to the carrier’s request for continuance arguing that the only doctor that was unknown to the carrier was the family practice doctor who my client only sees for colds and allergy related sickness. Those records are not relevant to the Texas workers’ compensation case. I also pointed out that although the insurance company’s doctor had examined the claimant, a report had not been issued yet. It seemed more likely to me that the request to delay the case was so that the insurance company could get the report from its own doctor before the hearing that was about to take place. They needed to delay the case for that to happen.

The judge denied the carrier’s motion for continuance. I think that if the insurance company attorney had been honest in the initial request for delay, that it could have been granted. If the request had stated that our answer disclosed a new doctor that was previously unknown and the insurance company wanted to review those records, I think the judge would have allowed that. I probably would not have even objected to that request. But by telling the judge that we had disclosed five doctors from whom they needed records when that was absolutely not true, the judge then has to question the honesty of the request. I have to object because it is a misrepresentation of what my client had done. By misleading the judge, the carrier was denied an opportunity to get the additional medical records.

Nothing good comes from being exposed as dishonest in front of a judge. When it happens to a person or entity that appears regularly before that judge, the effects can be long-lasting. Those that have to lie to gain advantage will often lose the battle before ever showing up to the fight. For Texas injured workers, the lesson is to beware and be on guard for manipulative workers' compensation insurance company tricks. Beyond that, tell the truth. How else might justice be served?

12:09 pm cst Comments

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