If you have not been able to return to work, then there is always a fear lurking about what happens after workers' compensation benefits run out.  If you have been off work for a year, or expect to be off work for a year, then you may be eligible for social security disability benefits, often referred to as SSI or SSDI.

We have been advising our clients to file for social security benefits, and that has really been a good way to provide stability for our client's future.  Though it is not easy, because we understand the workers' comp claim, the usual injury diagnoses, and how the system works, we have had excellent results helping our clients move from the Texas workers' comp system into the social security system.  Our clients like it because it gives them peace of mind.  We take care of filing the application for benefits and all of the appeals (and everybody knows that appeals are likely necessary), including the hearing.

If you are trying to figure out what to do because your workers' compensation claim is almost paid out, consider social security disability. If you have any questions, just submit them here.

At this time of year, I am commonly asked whether or not Texas workers' compensation benefits have to be reported to the IRS as wages for tax purposes.  The answer is no.  Workers' comp benefits are not taxable.  You will not need any particular form from the insurance company or your employer.  Nothing has to be reported to the IRS.  No tax of any kind has to paid on these benefits.

If you use a tax professional to complete your taxes, you should disclose the fact that you receive these benefits, but you should not have to pay any taxes on them.

This is the current state of the law.  It is subject to change each year. 

Texas workers' comp claims are either "network" claims or "non-network" claims.  If your employer subscribes to a network plan, then all treatment has to be with a doctor that is a member of the plan.  This is just like regular health insurance where you have to treat with a doctor that takes that insurance plan.  The difference is that the insurance company gets to pick what doctors are in the network in the workers' compensation arena.

One of the requirments that must be met to force injured workers to treat "in the network" is that the employer must give written notice to the employee that they have network coverage.  Most of the time, this is a form that the employee signs on the date of hire and forgets about.  Until this notice is given, there is no requirement to treat with a network doctor.

I just saw an injured worker who had been visited at home by his supervisor a week after his accident. The supervisor was asking him to sign a notice of network coverage dated for the date of hire, and another one dated for the date of injury.  The employee came to see me because this didn't feel right to him.  He had lost a couple of fingers in a press machine at work and had emergency surgery after going to the ER.  He was being told that the hospital that he went to was "out of network."

This was an attempted scam. The employer had failed to have the employee sign the notice of network coverage on the date of hire and was trying to cover itself and stay out of trouble with its insurance company.  Beyond that, if the employee had signed the notice dated for the date of hire, then he could be personally responsible for all out of network treatment costs.  That would have been thousands of dollars because he had already had surgery at the out of network hospital.

When you sign documents that clearly affect your rights in some situation, do not change the signatrure date unless you understand the consequences.  In this case, we refused to sign the notice that was back-dated to the date of injury.  We signed the notice and dated it for the date it was actually signed.  This way, the insurance company was still on the hook for the treatment.

Why was this such a big deal to the employer?  Just like with your health insurance and your car insurance, employers have deductibles that they have to pay on their workers' compensation insurance.  Sometimes that deductible is very high in the hundreds of thousands of dollars.  If this scam had worked, the employer could have gotten out of paying the deductible, the insurance carrier could have gotten out of paying the hospital, and the injured worker could have been left holding the bag, responsible for all of the medical bills himself.

If, after your injury, you are being asked to sign documents by your employer or the workers' compensatoin insurance company, you should consult with an attorney to make sure it doesn't cost you your rights under the law. 

This morning I went to a benefit review conference for a man with an injury that occurred in 1997.  He was disputing his impairment rating of 2%, even though the date of maximum medical improvement was back in 2000.  We were able to find the errors in the designated doctor report and get him a new impairment rating.  After we got the new impairment rating, the insurance company agreed that the designated doctor was wrong and signed an agreement that my client had a 12% impairment rating.  That's a big difference!  And worth 30 more weeks of benefits!

It doesn't matter how old your claim is.  If you have ever wondered whether or not you got everything you were supposed to get, or if your impairment rating was done correctly, you've got nothing to lose by having your case reviewed.  Maybe you think you got what you were supposed to get, but you are still in pain and would like some help getting additional treatment...we can discuss that as well.  I have decided to review cases for free for anyone that reads this blog.  Just give me a call at 972-644-1111. 

Texas Workers Advocates is a state-wide organization of workers compensation claimant attorneys and advocates organized in 2011 to provide information and support for attorneys, lawmakers and administrative policy makers regarding issues affecting injured workers, employers, insurance carriers and medical providers.

Recently, the TWA announced its legislative agenda for the upcoming Texas legislative session.  Click here to view the TWA press release.

A Dallas area injured worker came into my office the other day and brought up an interesting situation that I believe any reader of this blog ought to be aware of, so consider this: 

There are two HR-related actions that often accompany a Texas workers' compensation claim:  one is that the injured worker is told to file for FMLA by the employer, and the other is that the injured worker is fired.  If the employer fires you while you are out on FMLA leave, then you may have a case against the employer.

FMLA is designed to protect you from getting fired while you are out on an approved leave.  While there are some circumstances where this could happen anyway, every case is different from the next.  The FMLA is supposed to keep an employer from firing you for absences during an approved leave.  That is one of the most common reasons that Texas injured workers are terminated, in my experience.  If you have been approved for FMLA and are then terminated during the 12 weeks of protection that affords, you need to contact an attorney immediately.  You may have a claim against your employer for taking that action.

For many Texas injured workers with a back or neck injury, the largest difference in an impairment rating may come from establishing a loss of reflexes related to the injury.  When there is a spinal injury, like a herniated disc or a disc bulge, the nerves can be affected.  When the nerves are affected, this can result in a loss of reflexes.  This loss of reflex is a criterion in determining impairment ratings related to low back and cervical (neck) injuries.

There has been a lot of debate about what an injured worker has to prove in order to get this increase in the impairment rating.  A loss of reflexes is a test used to establish impairment for radiculopathy arising out of injuries to the nerves affected by the spine.  Although there are many ways to determine if a claimant has radiculopathy, the Division of Workers' Compensation has limited the test for impairment to a loss of relevant reflexes or atrophy (like when one thigh starts getting smaller than the other thigh).  So, if the doctor performs reflex testing and you don't have any, then you qualify for a higher impairment rating. This will usually at least double your impairment rating!

Insurance companies have been hiring doctors to testify that in order to get the impairment rating for the loss of reflexes, the patient had to lose ALL of the reflexes related to the nerve that was injured.  But good news for injured workers - the DWC has ruled that a total loss of reflexes is not required, just some loss is required to qualify for the higher impairment rating (See Appeals Panel Decision 111710).

If you have a back or neck injury (lumbar or cervical), then you must question any impairment rating you get, especially if you or your doctor have noticed some loss of reflexes in your arms or legs.  And as always with an impairment rating, have both your doctor and a  lawyer who is board certified in workers' compensation law review your impairment rating for errors. 

In my last post I reviewed the latest statistics showing that Texas injured workers who go to a contested case hearing to pursue a workers compensation claim using an Ombudsman only win 25% of the time.  These same statistics show that injured workers represented by an attorney win 32% more cases than those assisted by an Ombudsman.  With a little craftiness, injured workers can expect even higher odds.

These stats are based on all cases at contested case hearings with all attorneys and all ombudsmen.  It doesn't take into account individual abilities.  Some ombudsmen are better than others just like some attorneys are better than others.  While you can't pick your ombudsman (they are assigned), you can shop for the right attorney.

What should you look for?  Beyond the whole personality thing (which is important because you need to get along with your attorney and trust him/her), there are some industry considerations that should narrow your search.  First of all, you can look for a board certified attorney.  The Texas Board of Legal Specialization controls this designation.  In order to be board certified, an attorney has to meet a lot of different requirements like experience, reputation, and get recommendations.  Additionally, the attorney must pass a test that is designed to make sure he is competent in the area of law for which he seeks certification.  For instance, an attorney that is board certified in workers' compensation law must pass a test that is all about the details of workers' compensation law.  View a TBLS profile.

Another consideration is Martindale - Hubbell's rating.  An AV rating is the best rating there is.  It means the attorney has the top rating for both ability (A) and ethics (V).  View a short video about the AV Rating.   Many attorneys pay attention to this rating when hiring their own attorneys.

An additional measure of competence is the Texas SuperLawyer rating.  Click to view a SuperLawyer profile.  Every year, Texas Monthly publishes a list of lawyers for each practice area that are considered to be the best, according to their methodology.