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Roger Davie P.C.
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I was injured at work and now I am being denied benefits.  How can that be?
The situation is always the same. A client comes to see me and says "I was hurt at work; I just received a letter from my employers’ insurance company and they say that my benefits are being denied because the injury is the result of a preexisting condition (or arthritis) or it states that you're not really injured or that your injury did not occur at work. These denial letters usually state that an out of town doctor (usually from Dallas, Houston or San Antonio) reviewed your medical records and made this determination. The client comes to see me with expectation that I can represent them and overturn this decision and force the company or their insurance company to reverse this decision and provide benefits. They are always shocked when I deliver the bad news that I cannot do anything to force the company to pay the benefits immediately that they so desperately need under the injury work plan (the one that they were promised would take care of them if they were injured on the job). The only thing I can do is to bring a claim against the company, if and only if, I can prove the employer or a co-employee was negligent.

Why is this? To understand this situation you have to understand three laws that deal with work injuries. They are the Texas Workers' Compensation Statutes (Texas Labor Code section 406.033), the Federal Arbitration Act (FAA) and the Employment Insurance Retirement Security Act (known as ERISA). These three statutes, one State law and two Federal law, conspire to deny injured workers in Texas just, fair and timely benefits. Fortunately, for many of these injured workers, they can receive just compensation, but only after they hire a competent employment lawyer and filing a legal action against their employer. So how did this injustice happen?

First, you need to understand that a huge number of employers do not buy Texas Workers' Compensation Insurance. In every other state but Texas, employers are required to have Texas Workers' Compensation. So why would an employer buy Texas Workers' Compensation if they are not required to do so? It is because when the Texas Legislature (many years ago) allowed employers to forgo buying Texas Workers' Compensation they made it a very risky proposition. That is because if an employer has Texas Workers' Compensation and a worker is injured the worker cannot sue his employer, even if the employer was negligent in causing the workers' injuries. (This is known as the Texas Workers' Compensation Bar). But if the employer does not carry Texas Workers' Compensation (they are known as a Non-Subscriber) then the employee is free to file a lawsuit against his employer if and and only if the employers' negligence caused the injury.Let me provide an example: Sally's employer has Texas Workers' Compensation and she is injured when a co-employee accidentally trips her and she falls breaking her neck. In this case Sally cannot sue here employer, but she has all the benefits of Texas Workers' Compensation Insurance purchased on her behalf by her employer. If Sally's employer did not carry Texas Worker's Compensation then she could sue her employer and recover damages for lost wages, medical expenses, pain and suffering and mental anguish. So for years, most employers carried Texas Workers' Compensation so they would not be sued and be forced to face a jury who could award massive damages against them.

So what changed? Two Federal Statutes were reinterpreted by conservative activist judges to deny employees just and fair compensation. The first law is the Employment Retirement Insurance Retirement Act (ERISA). This sweeping 1974 law was originally designed to protect employer sponsored retirement plans and health insurance plans. Unfortunately employers, with the help of Federal and State Judges, began using ERISA to regulate employer work injury plans that were put in place as substitutes for Texas Workers' Compensation. This is very beneficial to employers because under the judicial interpretation of ERISA (something that was never intended by the authors of these laws) it makes it virtually impossible for injured workers to appeal the denial of benefits. (In a later article I will cover how ERISA has been judicially interpreted to keep employees from receiving benefits for their injuries, but suffice it to say that under ERISA it is virtually impossible to win an appeal of a denial of benefits). So what happens is many employees falsely believe that they have insurance coverage for their work injury and never realize that these policies are really just a ruse (in many case) to keep the injured worker from going to see a competent employment lawyer to represent them in their work injury. In our example above if Sally was injured at work and her employer has a work injury plan she might only receive medical and lost wage benefits for two years and one month and then they cease. (I have actually seen benefit plan written this way). So Sally is happy that she is receiving benefits but after two years when the benefits stop she goes and sees a lawyer who has to inform her that she only had two years to bring a claim against her employer. In many if not most cases I see in El Paso; the employee thinks the denial of benefits is simply the end of the story and they never know that if they had gone to see a competent employment lawyer they might could have brought a suit against their employer for their injuries. So ERISA has helped give employers the right to have their own injury plans, but more importantly has allowed them to control what benefits they provide and to fool unsophisticated employees in thinking that they don’t have any remedies when their claims are denied.

But what happens if the employee does not accept the denial of benefits or the limits of benefits and does go to a competent employment lawyer? That is where the Federal Arbitration Act (FAA) a 1925 law comes in to protect the employer from paying the just compensation. It was not until very recently that this 1925 law was reinterpreted by activist employer friendly judges to apply it to the employer and employee situation. Under this new interpretation of the the FAA, an employee can be made to arbitrate their claim against the employer instead of filing a claim in a district court and having a jury trial. These arbitration agreements are extremely unfair to injured workers because they deny them the right of a trial by jury. Instead, the employer pays for a third party to decide the case (usually a lawyer). It is extremely hard for this lawyer to hold for the employee when he or she is being paid by the employer. However, going to arbitration is better than no remedy at all. While arbitration is an unfair situation for employees, having a competent and experienced employment lawyer who has arbitration experience is certainly better than having no claim at all and can lead to compensation even if it is harder to obtain. In fact, many of these arbitration agreements actually attempt to shorten the time period to bring a claim, so it is important that you see a competent employment lawyer as soon as possible.

Moral of the story: Texas employers who have contributed to judges and politicians have invested their money well at the expense of fired and injured workers. But if you are injured in El Paso Texas or anywhere else in Texas, you should go see a competent employment lawyer immediately so that you can at least have a fighting chance to be compensated for your injury.
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