In today’s economy many people are concerned that if they report injuries after an on the job accident that they may lose their job. People generally question the meaning of Texas being a “Right to Work” state. Right to work generally refers to laws that deal with the use of unions in negotiations with the employer. Under Texas Labor Code Title III, Texas holds that individuals or groups may bargain with their employers for their employment status. So, Right to Work, in reality is the right of your employer to fire you at any time. If you are not a union worker, there may be a collective bargaining agreement that protects you.
However, the Texas Labor Code §451 states that an employer may not discriminate against or fire an employee for filing a workers compensation claim in good faith, hiring a lawyer to represent them for their claim, starting the hearing process for a claim or testifying in hearing about a claim.
Therefore, your employer may not discriminate against you, or fire you for pursuing your Texas Workers’ Compensation claim.
Employment in the last 20 years has changed greatly. In the past you finished school, found a job and then worked until you retired at the age of 65. In today’s market, employees are laid off with every down turn of the economy. Others have jobs where they are permanently employed through a temporary service or are called independent contractors.
When an injury occurs at work, who is your employer? Most modern companies are actually a number of companies handling different aspects of the business. The first thing to do is to look at your pay stub. Most will have the name of the payer. This is a good start on establishing the actual name of your employer.
The Texas Division of Workers’ Compensation defines employer as a person who makes a contract of hire, employs one or more employees, and has workers’ compensation insurance coverage. However, when there are multiple potential employers, you may run into problems that some are subscribers to the Texas Workers’ Compensation system and some are not. Finally, the law defines an independent contractor not just your employer calling you one.
Many workers are now employed by Temp Services. If you work for a temp service, file the claim against them. If you find out that they are a non-subscriber to Texas Workers’ Compensation (they have an alternative form of insurance), you can possibly file a claim against the company that the temp service sent you to.
When deciding which company is liable for your claim, the Division of Workers’ Compensation will look at who had the right of control over the employee’s activities. The Borrowed Servant Doctrine is when you work for one employer, but get injured while under the control of another of another company. This will allow you to receive benefits from the employer controlling your activities.
In general an independent contractor is not an employee. However, the determination is not made by the employer. The Texas Division of Workers’ Compensation will determine if the employer had a right to control the details of the work performed.
To be considered an independent contractor, it must be shown that the person:
1) acts as the employer of any employee of the contractor by paying wages, directing activities, and performing other similar functions characteristic of an employer-employee relationship;
2) is free to determine the manner in which the work or service is performed, including the hours of labor of or method of payment to any employee;
3) is required to furnish or to have employees, if any, furnish necessary tools, supplies, or materials to perform the work or service; and
4) possesses the skills required for the specific work or service.
The IW has the burden of proof to establish that he/she was an employee of the employer for purposes of the Act at the time the injury occurred. However, you should always use an attorney familiar with workers’ compensation issues. If you have any questions about your workers’ compensation contact, call the Dallas office of The Morris Law Firm at (214)357-1782 or via email at email@example.com.
If you have a compensable workers’ compensation claim in Texas, it never actually closes. Workers’ compensation claims handle the medical and the indemnity (payments to you) separately.
You can receive disability payments (TIBs) while you are unable to earn your full wages for up to 104 weeks or until you are certified at Maximum Medical Improvement (MMI), whichever happens first.
After that, you will receive benefits for any impairment you have (IIBs). You receive three weeks of payments for each point of impairment. Hopefully, you are working at the same time because there payments are not disability payments.
There are additional benefits for serious injuries. You can look at our additional posts to learn about these benefits.
Medical benefits are defined under the Texas Labor Code as payments for health care reasonably required by the nature of a compensable injury and intended to:
- cure or relieve the effects naturally resulting from the compensable injury, including reasonable expenses incurred by the employee for necessary treatment to cure and relieve the employee from the effects of an occupational disease before and after the employee knew or should have known the nature of the disability and its relationship to the employment;
- promote recovery; or
- enhance the ability of the employee to return to or retain employment.
Although your indemnity benefits will not likely last three years, your medical benefits do not end until you have completely recovered from the effects of your injury.
Daniel L Morris, The Morris Law Firm, (214)357-1782, firstname.lastname@example.org