Workers´ Compensation Basics The Texas workers´ compensation system is the method by which covered workers are compensated for work-related injuries or illnesses. An employer´s insurance company or certified self-insurance plan pays scheduled benefits for work-related injuries, even if the injured worker´s negligence contributed to the accident. Texas law does not require workers´ compensation. However, your customers may require you to carry it.
The 79th Texas Legislature enacted workers' compensation reform through House Bill 7. Key provisions were effective September 1, 2005, including the merger of the Texas Workers' Compensation Commission with TDI.
It is very important that an employer understand the Family Medical Leave Act (FMLA.) An employer who has 50 or more employees is subject to this Act. To be an eligible employee, one must have worked for the employer for at least one year or over 1250 hours. FMLA entitles one up to a total of 12 weeks of unpaid leave during any 12-month period because of a serious health condition.
An employee may elect, or the employer may require, the employee to substitute accrued paid vacation, personal leave, or sick leave during this period of time. When the employee returns to work, the employer must return the worker to his former position or an equivalent position, with equivalent employee benefits. Usually, when a worker takes FMLA leave, he does not get paid. However, "paid time off" or vacation pay or sick pay may be given if the employee has earned these benefits.
If an injured worker takes the Family Medical Leave and cannot return to work after the twelve weeks expire, generally the employer does not then have an obligation to rehire the worker at a later date. In other words, the employer is not required to hold the job open indefinitely.
There are very strict requirements concerning when the FMLA applies and how it is determined. A thorough understanding of the requirements and specifics of the FMLA is essential. There is a close relationship between the Family Medical Leave Act, the Americans with Disabilities Act, and the workers' compensation system, in returning injured workers to work. The employer must always have a good understanding of how these laws work together and how to meet the legal requirements.
*This section is provided as a reference tool only. Benefit rates as well as State agency contacts, phone numbers and addresses may change periodically and are not guaranteed. Please send notification of any changes to support@workerscompensation.com
Americans With Disabilities Act (ADA)
The Americans with Disabilities Act (ADA) applies to all employers who have fifteen or more employees. Whether or not an injured worker is subject to protection under the ADA after the workers' compensation injury depends upon the type of injury sustained and whether or not he has a permanent disability. The definition of disability for workers' compensation and the ADA is construed differently by the laws and courts. Determining whether an individual who has a workers' compensation injury is also disabled under the provisions of the ADA can sometimes be a difficult and confusing situation. Since the ADA is relatively new and the courts are still interpreting this problem, it is wise to seek legal advice if in doubt. Generally speaking, an employer cannot refuse to hire an injured worker with a disability if the worker can perform the essential functions of the job either with or without reasonable accommodations. However, this does not mean the employer has to keep the job open indefinitely. Company guidelines established before the accident are generally very helpful.
Tips for Determining Employee versus Contractor Status
It is always a difficult problem to determine who is an employee or contractor and preventing those hired as contractors from being employees, or vice versa. Some of the major factors to be considered are as follows:
1. The extent to which the worker has unreimbursed visit expenses. Independent contractors are more likely to have unreimbursed expenses than employees. Employers should not routinely approve reimbursement requests for business-related expenses, because this could be used as evidence of employee status.
2. The extent of the workers' investment. An independent contractor often has a significant investment in the facilities he or she uses in performing services for someone else. One of the most significant investments is office or work space. employers should not provide tools, equipment, or supplies to individuals who are hired as independent contractors.
3. The extent to which the worker makes services available to the relevant market. If the worker does the same work for other companies, it's a key indicator of independent contractor status.
4. An employee is generally paid by the hour, week, or month. Independent contractors are usually paid by the job.
5. An independent contractor usually makes a profit or loss on the job. Employees receive paychecks whether the company they work for makes money or not.
6. Does the employer provide employee-type benefits such as insurance, pension plans, vacations, or sick days? Independent contractors do not usually provide this type of benefit.
7. Workers who are hired on a permanent basis are usually considered employees. If a worker is hired with the expectation that the relationship will continue indefinitely, this shows generally an employer/employee relationship.
Employee Information
Finding And Choosing An Attorney
Although there is no law which says you need to hire a lawyer, in practical terms and regardless of how you feel about attorneys, it is difficult to handle a workers' compensation case on your own. With trained adjustors working for the insurance companies who have lawyers at their everyday disposal, hiring a qualified attorney is essential. Unless your case is extremely simple, a good lawyer is important to protect your rights. Trying to handle your own case may save you a penny but cost you a pound in the long run.
Hiring a lawyer is critical in any of the following situations:
The employer denies you were injured on the job
The carrier has denied benefits
You cannot get medical treatment
You are not getting paid
The adjustor promises benefits or care which never arrives
An attorney for the employer or insurance company contacts you and wants to take a deposition
You want to sue a third person- You begin to represent yourself and you encounter someone on the other side who is particularly difficult and is trying to take advantage of your lack of legal expertise
These are but a few of the situations which arise and should make you consider hiring an attorney. Remember, the more problems you encounter, the more you probably need representation.
Workerscompensation.com makes finding and choosing a lawyer easy. To find a qualified attorney, go to your city and search and review the attorneys listed. Many have links to their firms where you can peruse the information or you can call or write to the attorneys and request they provide you with written or oral information about their credentials. Call or write and make an appointment. We only list attorneys who practice in the area of workers' compensation and who have experience in this field. Remember, the hiring of a lawyer is an important decision that should not be based solely upon advertisements. Before you decide, ask the lawyer to send you free written information or view their Website about their qualifications and experience.
Choosing a lawyer is a personal matter. A lawyer generally has 19 years of formal education and must have passed a difficult exam to be able to practice law. This training combined with his legal experience constitutes his education. His education and experience are primary considerations along with the proven ability in the field of workers' compensation. Board certification shows that the practitioner has a high degree of experience and ability. Because there is a continuing relationship between the lawyer and the injured worker as a client, the personal nature of the relationship must also be considered.
Most workers' compensation attorneys work on a contingency basis. That is, if they do not get you money, they do not charge you. In addition, in many situations, the employer/carrier may have to pay any fee or costs.
Employee Information
Finding And Choosing A Medical Provider
Knowing and understanding medical providers is very important to your recovery. The more you know about the people treating you, the better you will understand the recovery process. Workerscompensation.com makes finding, researching and choosing a physician or medical provider easy. Just scroll for the type of physician and then select your city. You will then find a list of recommended physicians in the particular specialty in your area. These are all physicians who have treated injured workers and who are familiar with the workers' compensation system in your area.
Choosing a physician is a personal matter. However, you may first need to obtain prior authorization before seeing a particular physician of your choice. (See Authorization.) A medical doctor usually has at least twenty years of formal education, plus several years of hands-on experience, while completing his internship and residency. This education and experience in treating your particular problem should be a primary consideration. Board-certification shows a higher degree of training and experience and is an important factor to consider.
Before you decide which doctor to choose, you need to know what type of doctor to look for. Today's doctors are very specialized and limit their practice to one or two areas. Below is a general outline of some of the types of physicians who treat workers' compensation and how and what they do.
Family or general practice physician: Usually a physician who is on the front line of treatment. When you are initially injured, he can treat your injuries in the beginning and prescribe the necessary medications. He is often the primary care physician and may make referrals to other specialists.
Orthopaedic physician: Generally diagnoses and treats disease and injuries to the bones or joints. Some specialize in backs, necks, knees, hands, shoulders and surgery to these areas. Highly trained in surgery to these areas.
Neurosurgeon: Generally diagnoses and treats injuries to the brain, head, neck, back and neurological problems relating to these areas. Highly trained in surgery in these areas.
Neurologist: Generally diagnoses and treats injuries to nerves and diseases affecting nerves. This doctor, highly trained in testing procedures, does not do surgery.
Physiatrist: Generally treats injuries and problems which are not surgical in nature or people who have had surgery and need rehabilitation. This doctor does not do surgery.
Physical Medicine and Rehabilitation: Generally treats injuries and pain and related problems with medicine and rehabilitative techniques.
Pain Management Specialist: Generally treats pain and related problems of a chronic nature with medicine and some invasive surgery.
Psychiatrist: Generally diagnoses and treats mental injuries and problems associated therewith. May refer to psychologist for testing or counseling. A psychiatrist is a medical doctor and can prescribe medication.
General Surgeon: Generally diagnoses and treats injuries which need surgery and are not in the orthopaedist or neurosurgeon's expertise.
Ophthalmologist: Generally treats and diagnoses problems and injuries to the visual senses.
Cardiologist: Generally treats and diagnoses heart problems.
Chiropractor: Generally treats and diagnoses spinal and soft- tissue injuries of a nonsurgical nature. Renders therapy to treat problems resulting from a lack of normal nerve functions. Employs manipulation and adjustments to body structure.
Psychologist: Generally diagnoses and treats mental and behaviorial problems or depression or psychological or psychiatric problems from injuries. Highly trained in testing procedures and counseling.
Employee Information
Denial Of Benefits
It is not unusual for the insurance company to file a Notice of Denial indicating that they are disputing your entire claim for benefits or various portions of your claim for requested benefits. If your claim or any request for benefits is denied, the insurer should notify you in writing by filing a Notice of Denial and set forth the reasons your benefits are denied. Sometimes a letter or phone call to the insurer will solve the problem but, if not, you should consider seeing an attorney, if you have not seen one already.
Employee Information
Social Security
In addition to workers' compensation benefits, you may also be entitled to other benefits, such as Social Security. Social Security benefits are different from workers' compensation benefits. In order to receive Social Security benefits, an individual must show that he has a disability which is total in nature and that total disability is expected to last for at least a year or more. Periods of temporary total disability which are shorter than a year will not qualify an individual to receive Social Security disability benefits.
Generally speaking, if a person is unable to work anywhere anyhow as a result of his disability, he will be entitled to Social Security disability benefits. You should apply for Social Security disability benefits at your local Social Security office. Usually, your attorney in your workers' compensation case will also represent you in your claim for Social Security disability.
If you are entitled to Social Security disability benefits, there are various offsets between the Social Security and workers' compensation laws which reduce either your Social Security benefits or your workers' compensation benefits.
Social Security provides benefits for seriously injured workers and their families. To qualify for Social Security, you must show that you have a physical or mental impairment and the impairment must be expected to last at least 12 months. The impairment must prevent you from doing any substantial gainful work activity.
If you receive Social Security benefits, monies that you receive from workers' compensation may be credited against your Social Security benefits or vice versa. If you settle your workers' compensation claim after you have received Social Security benefits, Social Security may want an offset of the benefits it pays you against your workers' compensation benefits. It is very important that you take this into consideration before you settle your workers' compensation case. There is language that is designed to minimize the amount of credit for Social Security you may take against the workers' compensation award.
Employee Information
Insurance Adjuster
Assuming that you do not have an attorney, your primary contact will be either your employer or what is commonly referred to as a claims or insurance adjuster. The adjuster's job is to stay informed of your medical condition, working condition, and to ensure that the interests of their company is protected. As a matter of practicality, they work for the insurance company and they are not going to be able to tell you your rights or explain what is to your advantage. Your responsibility is to be aware of your rights and to assert them.
A good relationship with your insurance adjustor is important and it is likely that you may have one or several adjustors who work on your case. The adjuster is the one who will decide when and whether or not you get benefits to which you may be entitled and, obviously, it is important that you have a good relationship with them. Remember, working with an insurance adjuster is a two-way street and just as they need to be cooperative, polite, etc., you need to be the same.
While the insurance adjuster has the primary responsibility to handle your claim, provide benefits and deal with you in good faith, many times the adjuster has information supplied by the employer or they may suspect you of trying to receive benefits to which you are not entitled. While the insurance adjuster has a duty to deal with you in good faith, they do not have a duty to advise you in matters which are in your best interest. If you do decide to hire an attorney, remember that it is your attorney's job to deal with the adjuster and you should not talk with the adjuster after you hire an attorney.
Your first contact with the insurance company will probably be by letter or by a phone call from your adjuster. The letter will advise you generally whether the insurance company is accepting or rejecting your claim or whether it needs additional time to investigate the claim. Adjusters usually contact the injured worker as soon as possible and try to take a statement from the worker concerning the facts of the accident and what other information they might feel is relevant. Whenever the insurance company or adjuster takes a statement, the most important thing is to tell the truth. As long as you stick to the truth, you will not have to worry about giving conflicting statements, nor give the insurance company a reason to suspect that you are not telling the truth.
Employee Information
Insurance Company's Role
The insurance company has some primary and interrelated responsibilities to the injured worker. These are to promptly handle all claims, provide benefits and to deal with you in good faith. They hire insurance adjustors to deal with the injured worker. Insurance companies are not allowed to use tactics that are frivolous or solely intended to cause unnecessary delay in paying your benefits and, if they do, they may incur penalties, expenses and attorney's fees as a result of a delay.
Employee Information
Insurance Company's Role
The insurance company has some primary and interrelated responsibilities to the injured worker. These are to promptly handle all claims, provide benefits and to deal with you in good faith. They hire insurance adjustors to deal with the injured worker. Insurance companies are not allowed to use tactics that are frivolous or solely intended to cause unnecessary delay in paying your benefits and, if they do, they may incur penalties, expenses and attorney's fees as a result of a delay.
Employee Information
Dealing With Your Employer
Most employers do not like to pay workers' compensation premiums, but they understand that they want to have protection and insurance for their workers injured on the job. Employers generally are fearful of workers who have been injured on the job because they feel their premiums will increase or the employee will take advantage of the benefits available.
Most employers are generally concerned for workers who are injured on the job and want to ensure that the injured worker receives care. Unfortunately, there are some employers who are not concerned with these things and this may present problems for the injured worker. An employer can either help or hinder an employee's case and this is especially true at the very beginning. The more aware you make your employer of the injury and the facts surrounding the accident or injury, the more inclined the employer will be to help the injured worker with the case. On the other hand, if the employer is not concerned about reporting the accident or ensuring benefits are paid or suspect of the injury, the employer may not give good information to the insurance company or may slant the information so that the insurance company is suspect of the claim and delays payment of benefits while they investigate the claim thoroughly.
Some employers who are hostile may attempt to intimidate or coerce the injured worker for filing a claim. This can result in all types of problems for the injured worker and the injured worker may be able to sue the employer who retaliates or coerces him because he has filed a claim for workers' compensation benefits.
Generally speaking, an employer has a duty to post notices of your legal rights under the workers' compensation law and advise with this posting that injured workers have the right to receive medical benefits and other indemnity benefits if they are injured on the job. They are also required to provide the name of the insurance company and provide medical care when notified of an injury on the job.
It is always better if you try to communicate with your employer concerning the facts of the accident, the medical situation, and the problems you are encountering as a result of any injury or disability.
Employee Information
Dealing With Your Employer
Most employers do not like to pay workers' compensation premiums, but they understand that they want to have protection and insurance for their workers injured on the job. Employers generally are fearful of workers who have been injured on the job because they feel their premiums will increase or the employee will take advantage of the benefits available.
Most employers are generally concerned for workers who are injured on the job and want to ensure that the injured worker receives care. Unfortunately, there are some employers who are not concerned with these things and this may present problems for the injured worker. An employer can either help or hinder an employee's case and this is especially true at the very beginning. The more aware you make your employer of the injury and the facts surrounding the accident or injury, the more inclined the employer will be to help the injured worker with the case. On the other hand, if the employer is not concerned about reporting the accident or ensuring benefits are paid or suspect of the injury, the employer may not give good information to the insurance company or may slant the information so that the insurance company is suspect of the claim and delays payment of benefits while they investigate the claim thoroughly.
Some employers who are hostile may attempt to intimidate or coerce the injured worker for filing a claim. This can result in all types of problems for the injured worker and the injured worker may be able to sue the employer who retaliates or coerces him because he has filed a claim for workers' compensation benefits.
Generally speaking, an employer has a duty to post notices of your legal rights under the workers' compensation law and advise with this posting that injured workers have the right to receive medical benefits and other indemnity benefits if they are injured on the job. They are also required to provide the name of the insurance company and provide medical care when notified of an injury on the job.
It is always better if you try to communicate with your employer concerning the facts of the accident, the medical situation, and the problems you are encountering as a result of any injury or disability.
Employee Information
Doctor Decides Need For Time Off
Your doctor has the responsibility of determining whether or not you, as the injured worker, should remain off work. It is not up to the employer, injured worker, attorney or adjustor. If you disagree with a doctor's opinion concerning your return to work, you may seek a second opinion.
Employee Information
Handling My Own Case
The determination of whether or not you decide to try and handle your own case is a very personal matter. Workers' compensation is a very complicated and complex type of procedure. Although it is meant to be self-executing, in many situations, it is always important that you take steps to ensure that your rights are protected. You should keep good records, be careful when dealing with the insurance company, know the rules and regulations as well as you can and remember to seek the services of an attorney if you feel you are running into a problem. Most attorneys will talk with you during the initial consultation free of charge and, during that conversation, you can discuss with them your understanding of what you have to do and how to get it done.
If you feel you can handle your own case after discussing the matter with an attorney, you should try and do so. On the other hand, if it becomes clear after talking with the attorney that the matter is beyond your expertise, it is always better to hire a professional to represent you.
Employee Information
Hearings
In workers' compensation, there are several types of hearings which may be scheduled in your case. The first is usually a pretrial hearing in which the attorneys for each side go before the judge and discuss the issues to be heard at a final hearing. These pretrial hearings usually consist of attorneys filling out a pretrial form which they submit to the judge who then sets a date and time for the final hearing. Injured workers do not usually go to pretrial hearings if they are represented by counsel.
Motion hearings are those matters brought before a judge when either side feels it is necessary to resolve a matter in dispute. Matters which may be brought on motion are motions to produce, motions for protective order, motions to compel and other matters which the parties have not been able to resolve and need the judge's ruling or approval to the procedure the parties want to use. In most cases, motion hearings are not evidentiary hearings but arise because an issue occurs between the parties of a procedural nature which must be resolved by a judge prior to the hearing.
Employee Information
Mediation
Mediation is a dispute-resolution method that relies on the open exchange of information, ideas and alternatives to help individuals resolve their difficulties outside of court. It has proven to be an especially cost-efficient tool for resolving disputes in the workers' compensation arena. It is a process which is usually ordered by the court and which requires the injured worker and the employer/carrier to attempt to mediate or resolve the case or the issues between themselves, without the judge's involvement.
Mediation usually requires all parties to be in attendance and is a process which is voluntary in nature. Although all parties' presence is required and is mandatory, coming to some agreement is not mandatory. The mediator is an impartial person who does not favor one side over the other and matters which are brought before the mediator in private conference cannot be disclosed to the other side without permission. The mediator attempts to try and get the parties to come to some type of conciliatory agreement. Resolving the issues or possible settlement of the case almost always means that the employer/carrier is paying money to the injured worker. Since no case is 100% guaranteed to each side to win or lose, each side comes to a mediation with a set of facts and arguments to help try and resolve the conflict.
If the parties cannot agree to resolve or settle the issues at mediation, the case proceeds to a hearing and the judge is not informed of any of the matters brought out at the mediation. Mediation is a time-saving opportunity for both sides to work out any difficulties before proceeding before a long and drawn out hearing before a judge which can result in an appeal. Your involvement at mediation can be as much or as little as you desire and normally, the attorneys present each separate side to the mediator and the mediator goes back and forth trying to get the parties to reach some type of agreement.
Employee Information
Your Deposition
Under the rules of practice in this state, each side in a lawsuit has the right to take your sworn testimony, or deposition, before trial. This testimony is recorded in shorthand, video taped or tape-recorded and is transcribed for future use in the lawsuit. Present in the deposition will be your lawyer as well as the person recording your testimony and the opposing attorney, who will ask the questions. Other people, such as insurance company representatives or the other parties to the lawsuit, may also be present if they wish. The deposition will be taken either in a lawyer's office or at some other designated place.
It is difficult to predict how long the deposition will take, but it generally lasts from one to two hours. The deposition will usually cover the following areas, depending upon the nature of the case:
Your personal history and background, including your education, training, skills, job experience, medical history and any prior litigation in which you have been involved;
The facts of the case;
The damages and injuries and how they were calculated, including any out-of-pocket expenses paid; and
The medical treatment or care you have received, the complaints you now have, your ability to take part in daily activities, the effect of your injuries on your work and hobbies, and a complete history of illnesses and injuries you have suffered before and after the date of the accident.
Your deposition, properly given, will assist everybody a great deal in handling your case, either in reaching a settlement or at trial. How you act at the deposition: your attitude, appearance and the truthfulness of your answers, can help or hurt you.
Remember that opposing counsel will usually see you for the first time at the deposition. It is important that you impress the other side's attorney with how good a witness you will be.
Employee Information
Pain And Suffering
Because workers' compensation is a "no fault" system, one of the areas that was given up by employees for receiving workers' compensation benefits was the right to recover for damages due to "pain and suffering." Since the employee can recover even if the accident was due to his own negligence, pain and suffering are eliminated from all aspects of workers' compensation benefits. Simply put, you cannot recover pain and suffering as a result of your workers' compensation injury. You can recover pain and suffering if you have a claim against a third party and you should refer to that section herein.
Employee Information
Pain And Suffering
Because workers' compensation is a "no fault" system, one of the areas that was given up by employees for receiving workers' compensation benefits was the right to recover for damages due to "pain and suffering." Since the employee can recover even if the accident was due to his own negligence, pain and suffering are eliminated from all aspects of workers' compensation benefits. Simply put, you cannot recover pain and suffering as a result of your workers' compensation injury. You can recover pain and suffering if you have a claim against a third party and you should refer to that section herein.
Employee Information
Occupational Disease
Occupational disease must result from the nature of the employee's condition rather than from a specific job. Occupational disease is compensable if:
1. A condition peculiar to the occupation causes a disease;
2. The employee contracts a disease during the employment in the occupation;
3. The occupation presents a particular hazard of the disease; and
4. The incidence of ordinary diseases of life is substantially higher in the occupation than in the public.
Since many occupational diseases take years to reveal themselves, the employee may have had many jobs from different employers in the same occupation. It is not necessary to decide which employer the employee originally contracted the disease as the employer whose job last injuriously exposed the employee will be found to be liable.
Occupational disease is defined as a disease which is due to causes and conditions which are characteristic of and peculiar to a particular trade, occupation, process or employment, and to exclude all diseases of life to which the public is exposed, unless the incidence of the disease are substantially higher in a particular trade, occupation, process or employment than for the general public.
Employee Information
Understanding Legal Forms
Legal forms are a simple means of communicating necessary information to a court and to the other parties. They generally serve two functions. The first is to ask the court to do something and the second is to provide the court with information it needs to decide whether to give you what you are asking for. Many of these forms are self-explanatory in that they state precisely what information needs to be filled out in each section. It is not absolutely necessary that you use a typewriter or computer to fill in the forms, although typing is preferred by the court and division and gives much more professional appearance than handwriting. If typing is not possible, then the forms should be printed and your writing should be able to be easily read. After the papers have been filled out, it is usually necessary that they be filed with the Division or with your local workers' compensation judge with a copy going to the other side.
Many of the forms can be filed by mail and the forms can also be presented to the Division or directly to the workers' compensation judge.
Employee Information
Your Day In Court
If you are headed for a trial or hearing before a judge, you should understand that this experience is not going to be pleasant. Everybody's expenses go up, your stress level soars and, when it is all done and over, you still have no guarantee you will like the judge's decision. A trial is about winning and losing and not about compromise or cooperation. Both attorneys will do whatever they can do to present their client's position in the most favorable light. Be prepared to be bashed. Don't be surprised if the insurance company has surveillance films of you or tries to bring out negative information concerning what you can do or what you have done in the past. It is your attorney's job to make sure that he uses the same tactics against the opposing side. Hearings are taken very seriously by the parties.
Before you go to trial, you should make certain that you really want to go to trial and that you have thought long and hard about the risks that you run by going to trial. Remember, the judge may not view everything the same way you do and never assume that just because you have a strong case that you will automatically win. You have to ask yourself such questions as does the risk of losing outweighs the benefits you may receive by going to court? Are you better off compromising?
Despite all the problems or negative things that may come about as a result of the trial, sometimes, it is your only and best option. Many times the carrier is unwilling to compromise or concede that you have any further entitlement to benefits and, as such, the only method left is to go before the judge and let the judge decide.
When preparing for a trial, remember that this is a very time-consuming type of work for your attorney. Your attorney will review and gather all of the information related to your case and take necessary depositions of physicians or other witnesses whose testimony will be relevant to the issues before the judge. Your attorney should have a good trial strategy. You should remember that your attorney gathers a lot of information by using the formal discovery process which involves taking depositions, requesting medical reports, requesting other documents or using other types of discovery to find out everything he possibly can before trial. Usually, doctors are not called on to testify but have their depositions taken ahead of time. You can find out what the doctors will want or how the doctors will testify by reviewing their depositions and looking at their notes.
When you finally get to court (after waiting several days or months), your attorney will already have had several discussions with the judge and the other attorney. In the court room, you will sit with your attorney at a table directly in front of the judge, or at a long conference table with the judge at the end and the opposing parties on the other side. It is understood that you will probably be nervous about what to expect but chances are that you have already been to the same office where the hearing/trial is going to be held. The case usually moves along slowly and has many stops and starts, so be prepared to "hurry up and wait."
The hearing will consist of opening statements by each side. Then the injured worker's attorney will present his case with witnesses who will be cross-examined and then there will be redirect examination. After the injured worker has presented his case, the employer will present its case using the same procedure as the injured worker. The injured worker may have an opportunity to rebut some of the information or evidence provided by the employer.
The judge who hears your case is responsible for ensuring that you get a fair trial and that the attorneys or parties follow the appropriate trial procedure. The judge will also rule on any objections the attorneys may make to the introduction of evidence and if the attorneys get into a disagreement or there is some problem in the court room, the judge will step in.
During the trial, a judge listens to the testimony and the attorneys' statements and will review all exhibits that are entered into evidence. The attorneys will ask questions, but the judge may also ask questions or the witnesses and will almost certainly take notes, although sometimes a court reporter may be present. it is always good that you find out as much as possible about the judge prior to any hearing. Most judges have certain reputations for the kind of court room they run and the way the tend to rule on certain issues. If your attorney is not familiar with the judge, you should talk to other attorneys who are to help you better understand how your case will be presented.
After all this, each side has closing arguments and then the judge rules. Depending upon the complexity of the case, the judge may issue a decision right away or may take days or months in which to return a decision.
When you get to trial, remember that you should always tell the truth and answer the questions asked in a straight-forward and truthful manner. Appearances do count so you should wear something simple and understated and try to be as clean and neat as possible. Although you may be angry or fearful, you should always try and be polite and listen attentively. When called as a witness, remember to answer the questions in as few words as possible, pause before you answer the question, compose yourself if a question unnerves you, sit up straight and keep your hands folded. Do not be rude or sarcastic or argumentative and try to not give dirty looks or expressions of exasperation.
After the hearing is concluded, it may take a few days or several months before the judge renders a decision. Your attorney cannot speed this process up and it is important to realize that the judge will and should consider all evidence that was brought before him.
Commissioner's Message to Concerned Texas Insurance Consumers
On
July 13, a number of concerned Texas consumers sent an email to Commissioner
Kitzman suggesting several potential solutions to the challenges facing the
Texas insurance market. Commissioner Kitzman reviewed the suggestions with her
staff, and on August 6, she sent the following message to the consumers.
Dear Concerned Texas Insurance Consumers,
Thank you for your email of July 13, 2012. I, too, am interested in
commonsense, market-based solutions that could provide immediate relief for
homeowners in the form of lower insurance premiums and TDI continually seeks to
identify and/or develop effective approaches to this challenging issue. With
respect to your specific proposals:
1. Empower consumers to generate real price competition by
requiring carriers to offer a standard policy, allowing consumers to make
meaningful apples-to-apples comparisons.
I wholeheartedly support enabling consumers to better understand what they
are purchasing. When I joined TDI almost a year ago, I noted that while our
website contained a lot of information, much of it was hyper-technical,
legalistic, jargon-heavy or otherwise difficult to understand. One of my major
initiatives has been to provide better, more useful, meaningful and intelligible
information to consumers so that they can make informed decisions. We are
currently developing an interactive educational tool to assist consumers in
understanding common homeowners policy coverages and features. Of course, these
coverages and features can vary from company to company. Our tool will include
a comparison of the top five homeowners insurers’ policy forms to the “standard”
coverages and features. It is important that consumers obtain company specific
information and explanation from the company or the company’s agent prior to
completing the purchase. This type of service is one of the primary functions of
an insurance agent.
We have conducted a survey of other states and have found no state that
requires insurers to offer a standardized policy form, so we are unable to
determine whether this practice would lead to lower insurance premiums. Despite
the absence of a standardized policy form, our review of policy form filings
indicates that most policy terms, conditions, coverages, and features are
substantially similar. As mentioned above, our interactive educational tool will
identify the more common variations.
TDI does not have the authority to require insurers to offer a particular
policy form without legislative action.
2. Stop insurance companies from shifting more of the burden onto
consumers by continually raising deductibles.
Except for the coastal area, Texas has a very competitive homeowners
insurance market in terms of the number of insurers actively writing policies,
many of which offer lower deductibles. Some consumers choose higher deductibles
in order to receive a lower premium. Robert Hunter, former Texas Insurance
Commissioner and current Director of Insurance for the Consumer Federation of
America, has stated that “[consumers] should be happy their deductible is higher
as long as the premium goes down” (Washington Post, October 21, 2011).
TDI reviews the effect of deductible changes on premiums to ensure that
appropriate offsets are made. TDI believes consumers are best served when they
have a variety of insurance products and options from which to select based on
their personal circumstances. TDI does not have the authority to prohibit higher
deductibles without legislative action.
3. Make the market more transparent for consumers by requiring
insurance companies to clearly state what is and is not covered, disclose the
true dollar-amount of deductibles, and provide easy access to review the current
policy and endorsements in effect.
Insurance policies are legal documents and the policy language ultimately
controls what is covered and what is not covered. An insurance agent can be very
helpful in assisting consumers in understanding coverage provisions and
determining what is best for their individuals needs. Additionally, the
interactive tool referred to above will include illustrations of various
coverage scenarios, including common misperceptions.
I agree that a stated dollar amount deductible is more easily understood than
a percentage, and we were already planning to initiate rule-making to require
that this information be displayed on the policy declarations page.
The Office of Public Insurance Counsel (OPIC) provides information on each
insurers’ policy forms and endorsements. (http://www.opic.state.tx.us/policy-comparisons/homeowners-2?view=opic&insurancetype=2/)
What we do not have at this time, however, is a comprehensive picture of which
policy forms are actually being marketed and sold by each insurer. TDI is
exploring possible changes to the Texas Statistical Plan for Residential Risks
to better reflect the current market.
4. Standardize insurance rate filings so that carriers are
required to give all relevant information and justifications for rate hikes with
their initial filing.
Article 2251.101 of the Texas Insurance Code requires insurers to file all
rates, applicable rating manuals, supplementary rating information, and
additional information as required by the Commissioner. While TDI has not had
any problems obtaining all the information necessary to review rate filings to
ensure that rates are compliant with the law, we are working on making this
process more efficient and consistent. Earlier this year, I instructed TDI
actuaries to develop rate filing templates that insurers can use to provide
information in a standardized format. Drafts of these templates were made
available online in May of this year. There will be a stakeholder meeting later
this month to solicit feedback on these templates. In addition, TDI will be
making changes later this year to its administrative rule regarding rate filing
requirements that should provide more specificity to the information that
insurers need to submit in their rate filings
5. End exotic off-shore reinsurance arrangements that allow
insurance companies to pad their profits.
Off-shore reinsurance is the only catastrophe reinsurance available at this
time. Without reinsurance, insurers would be required to hold more capital for
the policies they write, which could lead to higher premiums. TDI reviews the
reinsurance component of all rate filings to ensure that they are justified.
When outliers are noted, additional information is requested and reviewed.
6. Rein in excessive underwriting profits and administrative costs
from insurance companies.
Texas’ actual underwriting profit results have varied greatly over time,
depending mostly on the existence or absence of catastrophic weather events. As
the chart below illustrates, residential property insurers in Texas have not
made underwriting profits, on average, for the last 20 years. In fact, their
average loss has been over 9%. Acquisition costs are the only component of
administrative costs that are broken out separately and Texas appears to have
higher acquisition costs than most other states. TDI is researching this matter
further.
7. Require insurance carriers to rely on legitimate long-term loss
experience when estimating weather-related risks. One bad storm does not
justify a steep rate hike.
Homeowners’ rates should reflect a long-term view of catastrophic events. TDI
reviews all rate filings specifically to ensure that insurers are not using loss
experience from a single event to justify a rate increase going forward.
Additionally, Section 551.107 of the Texas Insurance Code prohibits insurers
from using weather-related claims to surcharge policyholders.
8. Closely review the entire market to ensure current rates are
justified.
TDI reviews all rate filings for compliance with the Texas Insurance Code,
which provides that rates may not be excessive, inadequate, unreasonable or
unfairly discriminatory for the risks to which the rates apply. In addition to
TDI’s review, OPIC and other interested parties may obtain a copy of a filing,
request additional information from the insurer and/or request a hearing.
I hope the information provided above gives you greater insight into the
challenges of the Texas homeowners insurance market. I believe many of your
ideas have merit and we will be moving forward as outlined above. I appreciate
your interest and thank you for writing me.
Texas Department of Insurance Working Meeting – TLTA Informal Rate
Proposal
October 10, 2012 – 9:30 a.m. In Room 225, Tower 2, Hobby
Building
Purpose: TDI will hold an informal public meeting to discuss and receive
stakeholder input on the Texas Land Title Association’s informal rate proposal
for title insurance premium rates.
Background: TLTA provided TDI with an informal draft rate proposal on
September 13, 2012. To streamline the rate-setting process and to promote
transparency, TDI, TLTA, and the Office of Public Insurance Counsel would like
to work on the informal rate proposal with interested stakeholders. We invite
the public to attend and participate in the working meetings. We request that
meeting attendees limit their discussion to the posted matter. If you wish to
make written comments, please email them to marianne.baker@tdi.state.tx.us
by October 8, 2012.
Agenda: I. Welcome and Antitrust Statement
II. Discussion / Comments
III. Wrap-Up
Contact: Texas Department of Insurance Property and Casualty
Section Personal and Commercial Lines Office Marianne Baker 333
Guadalupe St. Austin, TX 78701 Phone: 512-322-2267 Fax:
512-490-1014 Email: marianne.baker@tdi.state.tx.us.
Subscribe to Federal Health
Care Reform Resource Page via eNews.
Click on the E-mail Page Link icon on the top right to share this page with
your friends, family, and colleagues.
(En Español)
President Obama signed the Patient Protection and Affordable Care
Act of 2009 -- the federal health care reform bill -- into law on March 23,
2010. The purpose of the law is to provide accessible health care coverage for
an estimated 32 million Americans who are currently uninsured, and help people
who already have health insurance retain their coverage.
Some of the
law's provisions were effective in 2010, while others will be phased in through
2020. Lawmakers and federal and state regulators are working to adopt the laws
and rules necessary to implement health care reform. Please visit this site
regularly to check for updates and new information.
The Laws HR 3590
PDF (Patient Protection and Affordable Care Act HR 4872 PDF (Health Care and Education
Reconciliation Act)
Note: For additional information about Texas
insurance options, please visit www.TexasHealthOptions.com
. Some companies licensed to write health insurance in Texas may not be listed
on HealthCare.gov. To verify if a company is licensed in Texas, check TDI's Company Lookup.
The information below shows the federal health care reform implementation
date and particular groups impacted. Please be certain to read all the
information, including the FAQs, for federal health care reform changes in the
coming years.
2013
Wealthier individuals and families
For individuals earning more than $200,000 per year and couples earning more
than $250,000 per year, Medicare payroll taxes will increase.
2014
Uninsured
Health care coverage will be required for U.S. citizens and legal residents.
The tax penalty will be $95 or 1 percent of taxable income in 2014; $326 or 2
percent of taxable income in 2015; $695 or 2.5 percent of taxable income in
2016; and adjusted according to income every year after. There are exceptions
for religious objectors, those who can't afford coverage, individuals below the
tax-filing threshold, and various others.
States will create insurance marketplaces, known as "exchanges," for people
and small businesses to buy coverage. U.S. citizens and legal residents who are
not incarcerated would qualify to buy coverage in an exchange. States can expand
their exchanges to provide coverage for large employers in 2017.
Premium subsidies will be available for individuals and families with
incomes between 133 percent ($14,404 for individuals and $29,326 for a family of
four) and 400 percent ($43,320 for individual or $88,200 for a family) of the
federal poverty level.
States will be required to expand Medicaid to individuals under age 65
(children, pregnant women, parents, and adults without dependent children) who
are up to 133 percent of the federal poverty level. There was an option for
states to expand Medicaid in 2011.
People with health insurance
Insurers may not deny you coverage because of preexisting conditions.
Similar provisions prohibiting insurers from denying coverage to children with
preexisting conditions began in 2010.
Insurers must accept everyone who applies for coverage when they apply
during a defined enrollment period.
Insurers can only base premiums on age, tobacco use, geographic area, and
whether coverage is for an individual or a family.
Insurers may not deny coverage because of a person's health status, medical
condition, claims experience, medication history, genetic information, or
disability.
Businesses
Large employers who don't offer employee health care coverage will pay
$2,000 for each full-time worker who receives a tax credit for health insurance
through a state exchange.
Tax credits for small employers increase to 50 percent (35 percent for
nonprofits) of the health care premiums the business pays.
Businesses with more than 200 employees must automatically enroll employees
in a health insurance plan. Employees can opt out.
Texans who have been without coverage for at least six months and who have a
preexisting conditions may obtain coverage through a high-risk health insurance
pool run by the federal government. The federal risk pool, called the
Pre-Existing Condition Insurance Plan (PCIP), is temporary until exchanges
become effective in 2014. The federal risk pool website is www.pcip.gov or call the toll-free number
1-866-717-5826.
People with health insurance
Insurers may not arbitrarily cancel your coverage when you get sick, except
in cases of fraud. Insurers may not impose lifetime coverage limits and, until
2014, may not set annual limits below certain levels.
Insurers must cover preventive services with no co-payments or
deductibles.
Children and young adults
Children who don't get health care coverage from their employers may stay on
their parents' plans until age 26.
Insurers may not deny coverage to a dependent child under age 19 because of
preexisting conditions. The same will be true for adults and dependent children
age 19 and older beginning in 2014.
Medicare beneficiaries
Eligible beneficiaries with Part D coverage who enter the "donut hole" in
2010 can receive a one-time $250 rebate to pay for prescription drugs that were
purchased while in the donut hole. The donut hole is the period of time during
which some Medicare prescription drug plans won’t contribute anything toward
your prescription costs.
Seniors with Part D coverage in the donut hole began receiving a 50 percent
discount on brand-name drugs in 2011.
Co-payments and deductibles for preventive services were eliminated in 2011.
Read the Centers for Medicare and Medicaid Service's publication Your Guide to
Medicare's Preventive Services for more information.
Businesses
Businesses with 25 or fewer full-time employees that pay for at least 50
percent of premiums and pay average annual wages below $50,000 may be eligible
for a tax credit of up to 35 percent (25 percent for nonprofits) of the premiums
the business pays. The credits increase in 2014. Small businesses can claim a
tax credit for a refund in 2010, 2011, 2012, and 2013 and for any two years
after that.
Insurance companies
For small group and individual plans, insurers in 2011 were required to
start spending at least 80 percent of revenue from premiums on medical services
and programs directly related to improving health care quality. The amount
increases to 85 percent for large group plans. Insurers that fail to meet the
minimum payment requirements must provide refunds to enrollees.
For answers to general insurance questions or for information on filing an
insurance-related complaint, call the Consumer Help Line
between 8 a.m. and 5 p.m., Central time, Monday-Friday, or visit our website
TDI accepts and reviews written complaints against insurance companies, HMOs,
insurance agents, adjusters, and fully insured or fully funded health benefit
plans (health plans purchased by an employer from an insurance company or
HMO).
For information on filing an insurance-related complaint, visit our website
or call the Consumer Help Line between 8 a.m. and 5 p.m., Central time,
Monday-Friday. Insurance Complaint Forms
English Online
Form
Easy Print Form RTF Format | PDF Format
En Español En
linea Forma | RTF Format | PDF Format
Opportunities for Public Input on Federal Health Reform Issues
Essential Health Benefits
Next Steps
HHS has not yet provided clear guidance on the process
for states to submit a benchmark plan. However, they have communicated an intent
to solicit public comment following the September 30 deadline. For states that
have not yet submitted a selected benchmark plan, HHS will post the default plan
(BCBSTX Best Choice PPO) for public comment. TDI continues to analyze the
benchmark plan options to assist leadership with this
decision.
Updated Analysis
TDI has released an updated analysis
of Essential Health Benefits benchmark plan options, which includes the
following changes:
As requested by stakeholders, certain components of
mental health services (psychological testing) and outpatient rehabilitation
services (physical / occupational / speech therapy) are listed in more
detail
Quantitative limits for certain services are now on
the chart, rather than limited to footnotes
The analysis incorporates 13 additional benefits, in
order to include all services listed in HHS’s template for EHB
submission
Cost estimates of the potential state responsibility
for mandated benefits not covered by each benchmark plan option have been listed
by mandate and by plan
TDI has also posted new
resource documents, including HHS’s templates for EHB submission and a decision
tree summary of TDI’s analysis.
TDI Cost Estimate Summary
Any mandate missing from the selected
benchmark plan may impose a cost to the state beginning in 2014
TDI estimated the cost associated with each
benchmark plan option based on missing mandates; assumed that under pending
federal rules mandated offers would not be considered mandates
Cost estimates based on two data points:
reported industry experience and actuarial analysis
TDI surveyed four issuers
(comprising 73 percent of the individual market and 85 percent of the small
employer market) and received PMPM estimates of the cost of each mandate
TDI requested an actuarial analysis from Milliman of the PMPM cost of
each mandate, based on their proprietary data
Milliman also provided enrollment projections
for the individual and small group markets, with and without the Medicaid
expansion, for 2014 and 2015
Estimate data was combined and weighted.
Issuer reported data was weighted by relative market share; the result was given
a 50 percent weight, with Milliman estimates comprising the other 50
percent.
The Texas Department of Insurance
hosted a public forum on Essential Health Benefits on Tuesday, August 28.
Together with 122 stakeholders in attendance, and 114 listeners on the phone, we
enjoyed an open discussion about the benchmark selection process, Texas’
Essential Health Benefits options, and the impact of this decision. To assist
the discussion, TDI provided an analysis of the ten benchmark plan options
dictated by HHS. In addition to input provided in person, TDI has received
written comments via email. Comments are still being accepted and may be
submitted to Amy.Einhorn@tdi.state.tx.us
Workers' Compensation Health Care Network Report Card Published
AUSTIN – The Texas Department of Insurance (TDI) Workers’ Compensation
Research and Evaluation Group has published the annual report card on the
performance of Workers’ Compensation Health Care Networks as required under
Chapter 1305, Texas Insurance Code.
The report card is the sixth to be published since TDI certified the initial
networks in early 2006. Contained in the report card is a comparison of network
and non-network claims on a variety of measures, including health care costs,
utilization of care, satisfaction with care, access to care, return-to-work
outcomes, and health outcomes. The 2012 report card also compares the
performance of certain political subdivision networks authorized under Section
504.053, Texas Labor Code, with networks certified by TDI and non-network
claims.
Overall, networks certified by TDI continue to show improvements in a variety
of measures, including medical costs, return-to-work outcomes, and health
outcomes, compared to previous report cards. Networks generally produced better
return-to-work and health outcomes compared to non-network claims. Non-network
claims continued to have lower average medical costs than network claims, but
cost reductions in networks have closed that gap from 17 percent in 2011 to 7
percent in 2012.
Data used to measure performance of the networks includes: workers’
compensation medical billing and payment data collected by TDI for injuries that
occurred between June 1, 2010 and May 31, 2011; results of a survey of these
injured employees conducted by the University of North Texas Survey Research
Center; and results from a February data call issued by TDI to 30 networks.
Currently, certified Workers’ Compensation Health Care Networks offer services
in 250 Texas counties.
The network report card is posted on the agency website at: http://www.tdi.texas.gov/reports/wcreg/documents/2012_report_card.pdf.
Information on the networks certified by TDI, their service areas, and
contact information can be found at http://www.tdi.state.tx.us/wc/wcnet/index.html.
