The Texas system of workers' compensation is elective, meaning that employers can opt out of the system, although opting out makes the employer subject to common law claims resulting from injury. Individual employees may also opt out of workers' compensation upon proper notice to their employer.
Workers' compensation insurance may be provided through private insurance carriers, a competitive state fund, or self-insurance. Waivers may be permitted to exclude certain employees from coverage, including corporate officers, sole proprietors and children working on family farms.
Exemptions from coverage may apply to certain employees, including agricultural workers, domestic employees, casual laborers and professional athletes.
Medical Benefits are provided to employees entitled to workers' compensation benefits, with coverage for necessary medical care. Coverage will normally be for generic medication, with the employee having the option of paying the additional cost to obtain name brand medication.
The employee may choose the initial treating physician from a list provided by the employer. For network claims the employee may change doctors one time, with subsequent requests for change being subject to the approval of the network. For claims without a network, the injured worker must normally obtain permission for subsequent changes of physician from the workers' compensation commission. Certain limits are imposed on the employer's ability to require independent medical exams (IMEs).
Indemnity benefits are payable to injured workers to help make up for lost income. There is a waiting period of 7 days before a worker is eligible for indemnity benefits, but if the worker's disability lasts more than 14 days indemnity benefits become retroactive to the date of the injury.
Benefits available to injured workers include the following:
Temporary Total Disability (TTD)
Temporary total disability (TTD) benefits are paid to workers who are unable to work due to injury, but who are expected to make full or partial recovery such that they may return to work. Benefits are based upon 70% of the injured worker's pre-injury weekly wage, or 75% for very low-earning workers during their first 26 weeks of benefits, subject to a cap, and continue for up to 105 weeks.
Permanent Total Disability (PTD)
When a worker is not expected to recover from a total disability caused by a work-related injury, and as a result suffers a total loss of earning capacity, the worker becomes eligible for permanent total disability (PTD) benefits. In Texas PTD benefits are calculated based upon 75% of the employee's average weekly wage, subject to a cap, and may continue for the duration of the disability. Benefits are periodically adjusted for inflation.
Permanent Partial Disability (PPD)
Once an injured worker has recovered to the maximum possible extent, the worker may be able to return to employment but nonetheless remain partially disabled, and may potentially qualify for what most states describe as permanent partial disability (PPD) benefits. In Texas impairment income benefits (IIB) are payable when an injured worker has a claim that results in permanent disability. For more serious disabilities, with an impairment rating of 15 or higher, the injured worker may also qualify for Supplemental Income Benefits (SIB). Benefits are determined based on functional and 70% of the injured worker's average weekly wage, subject to both a minimum benefit and a cap, and payable for a maximum of 300 weeks,
Temporary Partial Disability (TPD)
When a worker suffers an injury that limits his ability to return to work, resulting in a reduction of income as a result of reduced hours or wages, the injured worker may be eligible to receive a benefit based on the difference between the worker's pre-injury earnings and their reduced, post-injury earnings. In Texas, temporary income benefits benefits are paid based upon 70% of the difference between the injured worker's pre-injury and post-injury wage, or for the first 26 weeks of benefits 75% of the differential for very low-earning workers, subject to a cap. Benefits may be payable for up to 104 weeks.
For some, more serious injuries, workers' compensation indemnity benefits may be paid according to a statutory schedule, instead of following the standard model of the weekly benefit based on the duration of the disability. Scheduled injuries include such injuries as the amputation of an arm, the loss of a dominant hand, the loss of a leg, the loss of a foot, the loss of an eye, or loss of hearing in an ear.
Coverage may be available for cumulative trauma, and for occupational hearing loss.
When a worker dies as the result of a work-related injury, workers' compensation pays additional benefits, including a burial allowance, and benefits for a surviving spouse and dependents. Survivor benefits are calculated based on 50% of the worker's average weekly wage, subject to a cap in amount and duration. Benefits may continue for minors until the age of 18, the age of 25 if the dependent is a student, or indefinitely in the event of disability. Spousal benefits end upon remarriage, at which time the spouse may receive a two year lump sum benefit.
Attorney fees are determined on a case-by-case basis by the judge, commissioner or magistrate, based upon hours worked and an hourly fee established by administrative rule.
This article provides a quick overview of the benefits available to injured workers, but the full formulas used for assessment of benefits, coordination of different types of benefits, and assessment of injuries and disability ratings can quickly complicate the determination of benefits. Also, states frequently revise their workers' compensation laws. Most workers who suffer a significant injury or wage loss as the result of a workplace injury will benefit from consulting a workers' compensation lawyer.
The state agency responsible for workers' compensation is:
Texas Department of Insurance
Division of Workers' Compensation
7551 Metro Center Drive, Ste. 100
Austin, TX 78744-1609
(512) 804-4000 or 1-800-252-7031