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.
In Texas when an employer subscribes to the Texas Workers’ Compensation system, the Texas Labor Code states that the exclusive remedy (for the injury) is the recovery of the Workers’ Compensation benefits. The only exception to this statute are claims against the employer for gross negligence resulting in death.
When an employee dies as the result of a workers’ compensation accident, their spouse, dependent children and possibly parents may be entitled death benefits as the result of being a beneficiary of the deceased worker. If the accident resulting in the workers’ death resulted from the gross negligence of the employer, the surviving spouse or heirs the body have a cause of action against the employer.
You first must establish that the worker was in the “Course and Scope” of their employment when the accident occurred. Next, for the workers’ compensation claim, the person seeking benefits must establish that they are a legal beneficiary of the deceased worker. To have a separate “Cause of Action”, the surviving spouse or heir’s the body of the deceased must show that the death was caused by an intentional act or omission of the employer or by the employer’s gross negligence.
Gross negligence is an act or omission “which when viewed objectively from the standpoint of the actor at the time of its occurrence involves an extreme degree of risk, considering the probability and magnitude of the potential harm to others; and of which the actor has actual, subjective awareness of the risk involved, but nevertheless proceeds with conscious indifference to the rights, safety, or welfare of others. What lifts ordinary negligence into gross negligence is the mental attitude of the defendant . . . The plaintiff must show that the defendant was consciously, i.e., knowingly, indifferent to his rights, welfare and safety.
If one of your family members has died as the result of a Texas Workers’ Compensation accident, make sure that you do not make any agreements with the insurance company or the employer before you consult with a licensed attorney. If you have any questions about a Texas Workers’ Compensation claim, contact the Dallas office of the Morris Law Firm at (214)357-1782 or via email at firstname.lastname@example.org.
If a Texas worker suffers an on the job injury, the worker has the responsibility to report that injury to initiate their Workers’ Compensation Claim. The claim must be reported not only to the employer, but also to the Texas Department of Insurance/Division of Workers’ Compensation.
Reporting Injury to Employer: In Most circumstances an injured worker must notify their employer that they suffered a work related injury within 30 days of the injury or from the day they knew or should have known they suffered a work related injury. There are exceptions to this Rule when the work relied upon medical advice that it was not work related or when the injury was trivialized by the worker.
An injury may be reported to anyone with supervisory authority over the worker. The injury is considered reported when the employer has actual notice of the injury (ie witnessed event causing injury), the employer has written notice (ie work incident report) or the injured worker verbally notified a supervisor. The employer should notify their workers’ compensation insurance carrier.
Reporting to The Division of Workers’ Compensation: The Division of Workers’ Compensation must receive written notice of a work related injury within one year of the date of the accident. The notice requirement is met when a DWC-41 form is filled out and stamped by the Texas Department of Insurance/Division of Workers’ Compensation.
The Division of Workers’ Compensation will sent notice of the claimed injury to the injured worker, employer and their insurance carrier. This will initiate a workers’ compensation claim.
If you are dealing with an extent of injury issue, DO NOT PROCEED WITHOUTH PROPER LEGAL COUNSEL. Ask the injured workers at a field office of the Division of Workers’ Compensation how their claim went when they attempted to do it on their own.
First of all, you are limited to two Benefit Review Conferences. This places a time limit on your ability to get the medical records you will need to prove up your claim. In many cases, a designated doctor will be selected after the first hearing. Even if the designated doctor agrees with your position regarding the extent of injury, it will be of no use if the doctor does not meet all the elements required to establish causation.
You should always have a report from your treating doctor or a referral doctor which establishes the extent of injury. To meet the standard of causation, the report must state the proper diagnosis, how the compensable injury caused or contributed to the diagnosis and how the force was introduced to that part of the body.
Your attorney and doctor should coordinate with each other to make sure the working and history of the accident are consistent. Even with the heightened standard a prepared injured worker should be able to receive the needed care for recovery.
Daniel L Morris, The Morris Law Firm, email@example.com, (214)357-1782