Workers' Comp 22.3

Injury

damage or harm to the body as well as any disease or infection resulting from the damage and harm. Occupational diseases included

what department has primary responsibility for promulgating rules that pertain to worker’s compensation

The Texas Department of Insurance - Division of Workers’ Compensation (DWC)

2 ways to obtain workers’ compensation insurance

licensed insurance company or self-insurance

Occupational Disease

a disease arising out of and in the course of employment that causes damage or harm to the body, including a repetitive trauma injury. Includes diseases or infections that naturally result from the workplace disease - NOT something that the general public is exposed to

Course and scope of employment

includes any kind of activity an employee performs while furthering the affairs or business of the employer

Compensable Injury

An injury that arises out of and in the course and scope of employment for which compensation is payable under the state workers’ compensation law

Disability

The inability to obtain and retain employment at wages equivalent to the employee’s preinjury wage

Maximum Medical Improvement

The earlier of 2 years (104 wks) or whatever date, based on medical probability, at which further medical improvement can no longer be reasonably anticipated

Intoxication

a condition characterized by the absence of normal use of mental or physical faculties resulting from the voluntary introduction into the body of certain substances including alcohol, drugs, abusable paint, etc (prescriptions and inhalants/absorption incidental to employee’s work excluded)

Exclusive Remedy

workers’ compensation benefits

*only exception is exemplary damages by surviving spouse/heirs of employee whose death was caused by intentional act or omission on part of the employer

Subrogation

The net amount recovered by a claimant in a third-party action must be used to reimburse the insurer for benefits that have been paid for the compensable injury

Covered employee

each person in the service of another under a contract of hire, whether express or implied, oral or written

are all employer’s required to obtain workers’ compensation insurance coverage

Aside from public employers, NO - but those who don’t obtain can be sued without the common law defenses

Employee right to sue deadline

Employees have 5 days upon hire to elect to retain the right to action (sue) - they retain all defenses available under common law and the statutes of the state

when is an insurer liable for compensation of an employee’s injury

When the employee is covered by the workers’ compensation law and was injured through the course and scope of employment, regardless of fault or negligence

3 types of health care covered by workers compensation

healthcare that:

1- cures or relieves effects from the injury

2- promotes recovery

3- enhances the employee’s ability to return to or retain employment

*Everything must be approved/recommended by the employee’s treating doctor

What doctors can you use when using workers comp

doctors on the DWC approved list

Average weekly wage

computed based on average wage of the 13 consecutive weeks immediately proceeding the injury

Income benefits

paid weekly and begin accruing 8th day after the disability began

Temporary income benefits

Entitled to employees who did not attain maximum medical improvement so now make less than they did before disability

Temporary Income Benefits Calculation

70% of the difference between their average weekly wage and what they are able to learn after the injury

*If made less than $10/hr, benefits are 75% of difference for first 26 weeks

Impairment Benefits

begin the day after employee reaches maximum medical improvement day

*Equal to 70% of average weekly wage

*Employee receives 3 weeks of benefits for each percentage of impairment they are given on rating scale

Supplementary Income Benefits

Available for impaired employees whose impairment income benefits have expired

*Must have impairment rating of 15% or more and either not returned to work or returned at less than 80% of weekly wage

Supplementary Income Benefits Calculation

80% of the difference between 80% of your average weekly wage and any wages earned after the work-related injury

Vocational Rehabilitation

DWC refers employers to TWC (Texas Workforce Commission) for treatment if they could return to work earlier by receiving vocational rehab. If employee refuses services, they lose entitlement to supplementary income benefits

Lifetime income benefits (7 eligible injuries)

1- total and permanent loss of sight in both eyes

2- loss of both feet at or above the ankle

3- loss of both hands at or above the writst

4- loss of 1 foot and 1 hand

5- injury tot he spine resulting in permanent and complete paralysis in either both arms, both legs, or 1 arm/1 leg

6- injury to the skull resulting in incurable insanity or imbecility

7- 3rd degree burns over at least 40% of body requiring grafting or that cover the majority of either both hands or one hand and face

Lifetime income benefits calculation

Paid at 75% of the employee’s average weekly wage until the employee’s death

Subsequent injury fund

pays the lifetime income benefits portion when a subsequent injury combined with previous injury makes employee eligible for lifetime income benefits (insurer pays only for 2nd injury, and fund pays the lifetime portion)

Death Benefits

75% of the employee’s average weekly wage and the lesser of the actual costs of reasonable burial expenses or $10,000

Notice of injury requirements

Must notify within 30 days of injury or date you discover occupational disease related to employment or else employer is relieved of liability

Claim filing time period requirement

Claims must be filed no later than 1 year from when the injury occurred or occupational disease linked to employment

What must the employer report to their insurer within 8 days

1- notice from an employee of any injury resulting in the absence of an employee for work for more than 1 day

2- notice from an employee of an occupational disease

Injury Report

must be delivered to the injured employee when it is made to the insurer. Is NOT considered to be an admission by or evidence against an employer or insurer. Contains the employees rights and responsibilities

Payment of Benefits time requirement

insurer must begin paying benefits within 15 days of receiving written notice of injury

At what point does an insurer waive their right to contest compensability

60 days after notification of the injury

Texas Mutual Insurance Company purpose

1- serve as a competitive force in the marketplace

2- guarantee the availability of workers comp insurance in Texas

3- serve as an insurer of last resort

Texas Mutual Insurance Company organization

9 members, 5 appointed by government and 4 elected by policyholders