What should you do if you’re injured?
1. Immediately Report Injury
If you are seriously injured, reporting the injury needs to be your top priority. In Texas, an injured worker has 30 days to report an on-the-job injury to a supervisor (different for a repetitive injury like carpal tunnel). Report the injury to any supervisor or to a designated person for reporting injuries and make sure there is a written report that accurately reports the circumstances (date, time, mechanism of injury) of the accident and resulting injury. If your employer refuses to accept your report of injury and file a claim, you can report your own injury to the Texas Department of Insurance, Division of Workers’ Compensation by faxing a Form 41 to the Division of Workers’ Compensation. If you do not have internet access, the Workers’ Compensation Division can mail you a Form 41 and can be reached by calling (800) 252-7031.
Often times, workers who get injured are concerned about reporting a minor on-the-job injury due to potential retaliation by the employer. This often leads to huge problems down the road if the injury is more serious than was first thought. A great way to handle this situation is to report the injury and get a written report of injury (get a copy and make sure it’s accurate) but tell your boss that your injury is minor and you might be fine. As long as you have reported the injury to your supervisor, your employer can hold off sending the information to the insurance company or to the Division of Workers’ Compensation. In fact, you should tell your employer, “I’m injured, write it up but hold off on filing the claim until I know if it’s serious.” As long as the employer reports the injury to the Division within a year of the injury, the claim is timely as long as the injured worker has reported the claim to a supervisor or designated person within 30 days of the injury.
2. Find Witnesses
Finding a witness is often the key to a successful workers’ compensation claim. If there were no witnesses, make sure you get the names of people who came up to offer assistance. Since the employee has the burden of proof in Texas to prove that an on-the-job accident occurred, a witness can make the difference between a “he said-she said” type of situation where the worker says, “I’m injured” and the employer says, “He/she is not injured.” Often, on a non-witnessed accident, an employer will strengthen their defense by bringing several co-workers who testify no accident or injury ever happened! I have won claims even on a non-witnessed accident where a co-worker testifies who walked up shortly after the accident occurred. This person didn’t witness the actual event but testifies for example, “I heard a bang, a shout of pain and I walked up and John was writhing in pain with a board on the floor.”
3. Determine whether your employer has workers’ compensation
In Texas, an employer can go without workers’ compensation. Referred to as a non-subscriber, an employer without workers’ compensation loses any common law defenses against an injured worker and can be sued by an injured worker for negligence! While in many circumstances, an employee is better off with workers’ compensation (i.e. minor injuries, sprains/strains, etc.), if an employee is seriously injured and an employer or co-employer was negligent, an employee may be better off without workers’ compensation. Referred to as a non-subscriber, an employer without workers’ compensation typically has an ERISA plan with a Summary Plan Description to help pay for medical bills for an injured worker. The employer may also have an insurance policy if it is sued by an employee for negligence.
In Texas, one-third of all employers do not have workers’ compensation insurance. Some very notable employers, like Home Depot, Target, and Kroger do not have workers’ compensation insurance. Your employer is required by law to post a sign in a break room or common area stating whether they do or do not have workers’ compensation but this law is often ignored. To determine whether your employer has workers’ compensation, you can contact the Texas Department of Insurance, Division of Workers’ Compensation at (800) 252-7031 or you can look up your employer’s status online at The Texas Department of Insurance, Division of Workers’ Compensation website.
If your employer is a non-subscriber (does not have workers’ compensation), there are situations under Texas law when you may have a good claim and other situations when you may not have a good claim. Make sure you talk to an attorney that specializes in work injuries, particularly non-subscriber work injuries.
4. Pick your own doctor and fully report injury
Whether your employer has workers’ compensation or not, they will often try to send you to the company doctor (often Concentra, CareNow, Healthsouth, etc.). You have the right under workers’ compensation to choose your own doctor (must be in network for network claim). Make sure you choose your own doctor but call the doctor in advance and make sure that doctor will take workers’ compensation insurance (insurance companies have made it very difficult for doctors to collect money so many doctors refuse to take workers’ compensation patients). If you went to a doctor that you no longer like, a Change of Treating Doctor Form can be filed which will allow you to change your treating doctor (as long as you have a legitimate reason). This Form 53 can also be downloaded online at The Texas Department of Insurance, Division of Workers’ Compensation website.
When speaking to your doctor, make sure you accurately describe the facts of the accident and fully describe the injured body parts. Also provide an accurate history regarding prior injuries, medications, etc. It is a good idea to go back over what the doctor has written down and make sure it is correct. On several occasions, I have lost cases due to an inaccurate history or the doctor does not accurately write down what is said about the facts of the accident, date, time, mechanism of injury, and injured body parts. Ask the doctor to let you look at what is written down. If the doctor will not let you look at his notes, ask him to read them to you or go back over the accident facts, injured body parts, and history to ensure accuracy for him and for you.
5. Go back to work if you can, even on light duty
If you can work, work. If you are put on light duty and your employer has a light duty position for you to work, take it and work. Sitting back and relying upon the system to save you can often be a very frustrating position and can lead to severe financial distress including bankruptcy and foreclosure of homes and repossession of cars. However, if you are put at light duty and your employer tries to make you work outside of your work restrictions, you can go back to your doctor and inform the doctor that the employer has you working outside of your work restrictions. The doctor can then take you fully off work or increase your restrictions or simply contact the employer and request that the restrictions be strictly followed.
While it may seem like paid time off, an injured worker who unnecessarily takes off from work risks getting fired, having their claim denied and therefore delayed, and risks further retaliation by the employer. However, an employer cannot fire you or retaliate against you in any way for filing a workers’ compensation claim or hiring an attorney and any worker who feels like the subject of such retaliation may have a viable employment claim.
Obviously, there are many more steps to filing, handling and hopefully successfully resolving a workers’ compensation claim. If you are unsure whether your claim is being handled fairly or not, it is always a good idea to get a second opinion from an attorney who handles workers’ compensation.