File for Worker's Comp in Texas

If you're injured at work, your employer may be required to pay for your medical care as well as wages you lost while recovering from your injury. The worker's compensation process is regulated by the state through the Texas Department of Insurance Division of Worker's Compensation (DWC), provided your employer has worker's compensation insurance. However, Texas employers aren't required by state law to have worker's compensation insurance. If your employer doesn't have insurance (they're a "non-subscriber"), you'll have to file a personal injury lawsuit in state court rather than using the DWC's administrative procedures.[1]

Steps

Participating in a Benefit Review Conference

  1. Report your injury to your employer. Notify your employer as soon as possible after your injury. Under Texas law, you only have 30 days to report your injury to your employer after it happens. If you miss this deadline, you won't be able to file for worker's compensation benefits. Note that this deadline still applies even if your employer doesn't have worker's compensation insurance.[2]
    • If you have a chronic injury or illness, such as a back injury or carpal tunnel syndrome, you have 30 days from the date you figured out your injury or illness was work-related to report it to your employer. You'll need to provide a doctor's note with the diagnosis to your employer that specifies the injury is work-related.
    • If your employer has worker's compensation insurance, they will give you information about the carrier and their coverage.
  2. Complete your claim forms. Provided your employer has worker's compensation insurance, you must also report your injury to the DWC to start the claims process. The DWC has a form you can download online or pick up at a local field office. If your employer doesn't have worker's compensation insurance, you can't use the DWC claims process.[3]
  3. Consult an attorney or Ombudsman. If you are injured at work, you have the right to be represented by a private worker's compensation attorney. You also have the right to free legal assistance and representation from an Ombudsman who works at the Office of Injured Employee Counsel (OIEC).[4]
    • Consult the map available at https://www.oiec.texas.gov/contact/offices.html to find the OIEC office nearest you.
    • If you want to hire a private worker's compensation attorney, the Lawyer Referral and Information Service provided by the Texas Bar Association is a good place to start. Visit their website at https://www.texasbar.com/AM/Template.cfm?Section=Lawyer_Referral_Service_LRIS_ to get a referral.
    • An Ombudsman from OIEC will represent you free of charge. A private attorney will charge for their services, but typically you won't have to pay anything up front. Instead, the attorney will work on contingency, which means they get a portion of the money you receive.
  4. Submit your claim to a DWC field office. Once you've completed your claim form, make a copy of it for your own records and turn it in to the nearest DWC field office. You can either mail it or take it there in person.[5]
    • Texas law requires you to submit your claim to the DWC within a year of your injury. If you fail to do this, you won't be eligible for any benefits.
  5. Negotiate with your employer. Texas requires you to work with your employer and their insurance carrier to provide compensation for your injury before you seek further assistance from the DWC.[6]
    • If you're already working with an attorney or Ombudsman, they will send a demand for benefits to your employer and their carrier. If the carrier agrees to meet that demand, your medical treatment and lost wages will be covered without any additional effort.
    • If you don't have representation, you'll have to talk to the insurance representative on your own. They'll typically provide an estimate of what they think your claim is worth. You can accept this amount or reject it and tell them what benefits you believe you should get.
  6. Request a Benefit Review Conference (BRC). If you, your employer, and their insurance carrier are unable to reach an agreement on issues related to your work-related injury, the DWC will hold a BRC to attempt to resolve those issues.[7]
    • For example, your employer may assert that you were engaged in horseplay when you were injured, and for that reason your injury is not work-related. On that basis, their carrier would refuse to pay for your medical treatment or lost wages.
    • When you request a BRC, you must state specifically the issues on which you, your employer, and their insurance carrier disagree. You also must outline the steps you've taken to attempt to resolve the dispute before requesting the BRC.
  7. Exchange information with your employer. Before the BRC is held, you, your employer, and their carrier will exchange information related to your claim and the issues on which you disagree. What information is exchanged will depend on the sources of your disagreement.[8]
    • For example, if your employer or their carrier do not believe that your injury was as bad as you claim, or that the treatments you received were not required, you may have to provide them with medical records that back up the necessity of your treatment.
    • If there is disagreement about the amount you should be paid in lost wages, your employer will fill out an average wage report to show how they arrived at their figure.
    • The DWC has forms to complete for some of this information, such as wage computations. Other information, such as doctor's reports and other medical records, you'll request from your healthcare providers and copy.
  8. Go to the DWC field office for the BRC. Your BRC will take approximately 45 minutes. It may be held in person at a field office, or you may have to call in for a teleconference. If you are working with an attorney or Ombudsman, they will go with you.[9]
    • Your employer and their insurance carrier typically will not attend the BRC personally. Rather, they will be represented by an attorney.
    • If you have witnesses to support your position, you must provide a written statement from them. Live witnesses are not permitted to testify at BRCs. Have any witnesses type up a written affidavit and sign it in the presence of a notary public.
  9. Present your position at the BRC. A BRC typically opens with everyone in one room. The BRC officer will introduce themselves and explain the procedure for the conference. Then you will have the opportunity to explain where you stand on the disputed issues.[10]
    • Your employer or their insurance carrier (or their attorneys) will also present their positions. Listen carefully, and remain polite and respectful. Don't speak out or argue with them. You will have ample opportunity to discuss your viewpoints with the BRC officer.
    • The BRC officer will talk to each of you in turn and attempt to mediate a resolution of the disputed issues.
  10. Review the BRC report. At the conclusion of the BRC, the BRC officer will issue a written report that lists the disputed issues and whether any compromise on those issues was reached during the BRC. The report also may include temporary orders if disputed issues remain.[11]
    • For example, if you and your employer still disagree on whether your injury was work-related, the BRC officer may order your employer to pay your medical bills until the matter is resolved at a contested case hearing.
    • If you're working with an attorney or Ombudsman, they will discuss the report with you to make sure you understand it and agree with what it says. If the BRC report doesn't reflect your understanding, alert the officer of any disagreement you have. They will clarify or amend the report as necessary.

Attending a Contested Case Hearing

  1. Participate in pre-hearing discovery. Before a contested case hearing, you'll exchange more information with your employer and their insurance carrier. Typically, the information exchanged here is much more voluminous than what you may have exchanged before the BRC.[12]
    • The attorneys for your employer or their insurance carrier may want to depose you. A Testify in a Deposition is a recorded interview in which the attorneys ask you questions about your injury that you must answer under oath.
    • You may also have to answer written questions, or provide documents, such as medical records, to your employer or their insurance carrier. You can ask them questions as well, and get copies of documents, such as your personnel file.
    • Your employer or their carrier may require you to be examined by a doctor of their choosing. This typically occurs if there is dispute about the severity of your injury, the treatment needed, or whether your injury is work-related.
  2. File motions and subpoena requests as appropriate. During the discovery phase, you may need information or access that your employer or their insurance carrier is not willing to give you freely. When that happens, you have to ask the court to order them to comply with your request.[13]
    • For example, you may want to depose the doctor chosen by your employer or their carrier to examine you.
    • If your employer or their insurance carrier plans to use something as evidence that you don't think should be allowed, you can file a motion to have it excluded. Talk to your attorney or Ombudsman, or review the rules of evidence for contested case hearings, found on the DWC website.
  3. Go to the field office for the hearing. Contested case hearings are held in DWC field offices – likely the same field office where you had your BRC. These hearings are a bit more formal than a BRC, however, and are presided over by an administrative law judge (ALJ).[14]
    • You typically will arrive 20 or 30 minutes before the time of your hearing, along with your attorney or Ombudsman. They will exchange evidence and documents with your employer's attorney before the hearing starts.
    • In some cases, the hearing may be held over the phone rather than in person. You may also have witnesses who appear over the phone or through video teleconferencing.
  4. Testify at the hearing if necessary. In most cases, the ALJ will want to hear from you about your injury and the medical treatment you received. Your attorney or Ombudsman will ask you questions, and then your employer's attorney will also have the opportunity to ask you questions.[15]
    • Speak in a loud, clear voice, and answer the questions as completely and honestly as possible. However, avoid rambling or going off on a tangent. Answer only the question asked, and don't supply any additional information.
  5. Review the ALJ's decision. Within 10 days after your hearing has concluded, the ALJ will issue a written decision in your case. Your attorney or Ombudsman will go over the decision with you and advise you on how to proceed.
    • If the ALJ did not decide in your favor, you can appeal the decision to the DWC Appeals Panel. This is the last step in the dispute process for which you can get free help from an OIEC Ombudsman.
    • You have 15 days from the date of the decision to file a written appeal. Your appeal must include specific reasons you believe the ALJ's decision was wrong.
  6. Seek judicial review of an Appeals Panel decision. If you appeal the ALJ's decision to the Appeals Panel and you still don't get the result you believe you deserve, you can take your employer to court.[16]
    • To get judicial review, file a lawsuit in the court located in the county where your injury occurred.
    • At this point, you are no longer eligible for free assistance from an OIEC Ombudsman. Consult an attorney who specializes in worker's compensation appeals.

Suing a Non-Subscribing Employer

  1. Confirm your employer does not have worker's compensation insurance. Texas doesn't require employers to have worker's compensation insurance. If your employer doesn't have insurance, you must sue them to recover for your work-related injury.[17]
    • If you're not sure whether your employer has worker's compensation insurance, you can call the DWC at 1-800-252-7031 to find out.
  2. Report the injury to your employer. Even if your employer doesn't have worker's compensation insurance, Texas law still requires you to notify them that you were injured at work and plan to sue. You have 30 days from the date your injury occurred to report it to your employer.[18]
    • For a chronic injury, such as carpal tunnel syndrome, you have 30 days from the date you learned of the injury and that it was work-related.
    • Talk to your immediate supervisor first. They may tell you to report your injury to someone else, such as an employee in the human resources department.
    • Be careful what you say to your employer about your injury. If they ask you to put anything in writing, you may want to talk to an attorney before you do. You don't want to make any statements that might later come back to haunt you. Simply report the facts of the injury and when and where it occurred.
  3. Consult an attorney. Look for an attorney near you who specializes in non-subscriber personal injury lawsuits. Since they typically offer a free initial consultation, it's a good idea to talk to 3 or 4 different attorneys before you make your final choice.[19]
    • The Texas Bar Association has a referral service you can use to find an attorney near you who has a license in good standing. Visit https://www.texasbar.com/AM/Template.cfm?Section=Lawyer_Referral_Service_LRIS_ to get started.
    • Personal injury attorneys typically get paid on contingency, which means you won't have to pay any attorney fees unless you win or settle your case. When either of those things happen, your attorney will get a percentage of your award.
  4. Organize your information and documents. Having all your information related to your injury neatly organized is the best way you can assist your attorney. Make copies of any documents you have, such as medical bills, and order everything chronologically.[20]
    • Make a timeline of everything that happened from the date you were injured to the present. Include as many details as possible, even if they don't seem relevant to you.
    • If there were any witnesses to your injury, or witnesses who helped you recover, write down their names, addresses, and phone numbers. Your attorney may want to talk to them.
  5. File your petition. The petition is the document that initiates a lawsuit in Texas state court. You explain to the court that you were injured at work, that your employer was responsible for your injury, and that your employer should compensate you.[21]
    • You'll have to provide an amount of money you think your employer should pay you to compensate you for your injury. Unlike a worker's compensation claim through the DWC, you are not limited to medical bills and lost wages. You can also recover for pain and suffering, impairment, emotional stress, and future medical care.[22]
    • Once your petition is filed with the court, it will be served on your employer and their insurance carrier (or their attorney). Your employer will file a response to your lawsuit, which will also be served on you (or your attorney).
    • Your employer also may make a settlement offer at this point. You can expect any such offer to be significantly less than the amount you demanded in your petition.
  6. Participate in discovery. Once your petition is filed and your employer has responded, you enter the second phase of the trial process. Through Participate in Formal Discovery, you will exchange information related to your injury with your employer and their insurance carrier.[23]
    • Expect to answer written questions and give documents to your employer. You also will probably be deposed by your employer's attorney. This involves answering questions in person and under oath.
    • In some cases, your employer will want you to be examined by a different doctor, so they can provide a second opinion on your injuries and required treatment.
  7. Evaluate any settlement offers. At any time during the discovery phase, your employer or their insurance carrier may renew an earlier settlement offer or make a new one. Depending on the information revealed through discovery, their settlement offer may increase.[24]
    • The closer it gets to trial, the more likely your employer and their insurance carrier are to settle, rather than face the uncertainty of trial.
    • Your attorney will advise you on the wisdom of accepting any settlement offer, but ultimately it is your decision.
  8. Proceed to trial. If you are unable to reach a settlement in your case, you'll have a full trial in Texas state court. You will likely be called to testify and questioned rigorously by your employer's attorneys regarding your injury.[25]
    • If the trial doesn't end in your favor, you may be able to appeal. Your appeal must be based on a legal error you believe the judge made.
    • In reality, very few non-subscriber personal injury lawsuits actually go to trial. The vast majority are settled before you reach this stage.

References

  1. ↑ http://www.twc.state.tx.us/news/efte/workers_compensation.html
  2. ↑ http://www.tdi.texas.gov/wc/employee/workerresources_english.html
  3. ↑ http://www.tdi.texas.gov/wc/employee/index.html
  4. ↑ http://www.oiec.texas.gov/
  5. ↑ http://www.tdi.texas.gov/wc/employee/workerresources_english.html
  6. ↑ http://www.tdi.texas.gov/wc/idr/brcinfo.html
  7. ↑ http://www.tdi.texas.gov/wc/idr/brcinfo.html
  8. ↑ http://www.tdi.texas.gov/wc/idr/documents/brcpandp.pdf
  9. ↑ http://www.tdi.texas.gov/wc/idr/documents/brcpandp.pdf
  10. ↑ http://www.tdi.texas.gov/wc/idr/brcinfo.html
  11. ↑ http://www.tdi.texas.gov/wc/idr/documents/brcpandp.pdf
  12. ↑ http://www.tdi.texas.gov/wc/idr/documents/cchproced.pdf
  13. ↑ http://www.tdi.texas.gov/wc/idr/documents/cchproced.pdf
  14. ↑ http://www.tdi.texas.gov/wc/idr/documents/cchproced.pdf
  15. ↑ http://www.tdi.texas.gov/wc/idr/documents/cchproced.pdf
  16. ↑ http://www.oiec.texas.gov/documents/pubjudrevieweng.pdf
  17. ↑ http://www.twc.state.tx.us/news/efte/workers_compensation.html
  18. ↑ https://www.avvo.com/legal-guides/ugc/texas-non-subscriber-work-accidents--injuries-101-1
  19. ↑ https://www.avvo.com/legal-guides/ugc/texas-non-subscriber-work-accidents--injuries-101-1
  20. ↑ https://texaslawhelp.org/article/personal-injury-claims
  21. ↑ https://texaslawhelp.org/article/civil-litigation-texas-basics-three-phases
  22. ↑ https://www.avvo.com/legal-guides/ugc/texas-non-subscriber-work-accidents--injuries-101-1
  23. ↑ https://texaslawhelp.org/article/civil-litigation-texas-basics-three-phases
  24. ↑ https://texaslawhelp.org/article/civil-litigation-texas-basics-three-phases
  25. ↑ https://texaslawhelp.org/article/civil-litigation-texas-basics-three-phases
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