Texas On-The-Job Injury: How Does Worker’s Compensation Insurance Affect My Claim?

When you are injured on the job, one of the big issues affecting your case will be whether your employer has worker’s compensation insurance.  There are several issues that you need to look at to see how any worker’s compensation insurance will affect your claim.

1.  Does your employer have true worker’s compensation insurance?

Many employers purchase “true” worker’s compensation insurance, purchased in accordance with the Texas Workers’ Compensation Act. (Employers who purchase true worker’s compensation insurance are called “subscribers.”) However, because worker’s compensation insurance is so expensive, many employers purchase “accident” insurance that doesn’t fully comply with Texas Workers’ Compensation requirements. (Employers who purchase this accident insurance or who don’t have any insurance at all are called “non-subscribers.”)  These two types of policies are treated differently under the law so it’s important to know what type of coverage, if any, that your employer offers.

It can often be difficult to find an answer to this first question.  Employers are supposed to post notices about whether they are subscribers under the worker’s compensation system, but these notices are often difficult to find.  The Texas Department of Insurance also maintains an online database of subscribers, which you can find here, but you need to know the precise legal name of your employer to use the database.

2.  Were you injured as a result of your employer’s negligence/conduct?

Under Texas worker’s compensation law, if your employer is a subscriber, then you are able to recover worker’s compensation benefits for any on-the-job injury, regardless of fault.  However, in exchange for these benefits, the law does not allow you to sue your employer for additional damages except in rare instances.

If you’re employer was a non-subscriber — it didn’t purchase worker’s comp insurance or only purchased accident insurance — then you’re free to sue your employer for causing your injuries.

3.  Were you injured by someone else?

Many times, people are hurt by others while they’re on the job.  For example, you may be in a car wreck while you’re on the job.

In these situations, you are allowed to recover worker’s compensation benefits and also make a claim against the party who caused your harm.  The big caveat here is that you will have to reimburse your workers’ compensation carrier for some of the benefits you received if you make a recovery from a third party.

These situations also get very complicated in construction cases, where worker’s comp policies can cover employees of other companies.  If you were injured on a construction job by another sub-contractor, then you need to speak to an attorney to get more clarification than I can offer here.

Preparing For Your Personal Injury Mediation

In Texas, most cases are required to go through mediation before they can proceed to trial.  Some lawyers just tell their clients to show up, but I’m a strong believer in the idea that if you’re prepared for the mediation, you’ll be able to make much better decisions about your case.  Here are some tips to prepare for your mediation.

1.  Understand the mediation process.

To make the best decisions, you need to minimize your anxiety about the process.  And one of the best ways to do that is to understand the process.  I’ve already written a long article describing the process.  You can read it here.

2. Dress appropriately.

In some cases, the first time you meet the insurance adjuster will be at the mediation.  It is important to make a good first impression on the adjuster.  The adjuster is the one who has the most input into how much the insurance company will offer (though adjusters need to get approval from their bosses), and a big part of that decision may be how the adjuster thinks you will be as a witness and whether the adjuster thinks a jury would like you.

Thus, it’s important that you dress appropriately.  You should dress up as much as you are comfortable, but don’t over-dress.  The key is to not be respectful while also being yourself.  You will be more comfortable, and you will come off to the adjuster as more authentic if you don’t over-dress for the mediation.  If you feel you’re drssing up in boots, jeans and a long sleeve shirt, then wear that.  And if you dress up all the time and aren’t comfortable unless you’re in a suit, then feel free to wear a suit.  As I said, just make sure you’re respectful, but comfortable.

3.  Talk to your lawyer about expectations.

I do not ever think it’s a good idea to go to a mediation with a hard and fast bottom line because you never know what you’ll learn during the process.  On the other hand, it is a good idea to talk to your lawyer about where you might start the mediation and about reasonable expectations for a settlement range.    This is a hard conversation to have, but it’s always better to have it earlier than during the mediation itself.

4.  Make sure you’re prepared for the day.

It’s hard to explain.  All you’re going to do is sit down all day (or half the day), but I can almost guarantee that by the end of the mediation, you will be exhausted.  Mediation is an emotionally draining process.  That’s why it’s so important to prepare yourself.  Get a good night’s sleep the night before the mediation; have a good breakfast (and lunch for an afternoon mediation); make sure you’re mind is clear.

And perhaps most importantly here, bring something to do.  Mediations are long, and there is a lot of sitting around time when the mediator is speaking to the other side.  Bring something to do for this downtime.  If you have a book, activity, or something else to keep your attention, the day will go quicker, and the process won’t be so mentally taxing.

Van versus bicycle accident results in $2.3 million wrongful death lawsuit verdict

A 52-year-old man was hit by a van belonging to a hotel corporation, driven by a hotel employee.

This case was about being in the wrong place at the wrong time. A 52-year-old man was out riding his bicycle early in the evening in September 2008, when he was struck by a van being driven by an employee of one of the local hotels. At trial, the van driver and the hotel corporation were found equally liable in a civil suit filed by the family of the deceased bike rider.

The bike rider was not wearing a helmet at the time of impact, and he was ejected from his bike, slamming into the pavement, sustaining serious traumatic brain injuries. Although he made it to the hospital alive, and survived emergency surgery, he died three days later. He left behind a wife and three sons.

The jury ruled that the bike rider and the van driver were both at fault for the accident. However, the van driver and therefore the driver’s hotel employer were responsible for 58 percent of the negligence in the accident. The cyclist was deemed to be 42 percent responsible, as no one could ascertain for sure if he had obeyed a stop sign prior to the collision. It was determined that the van driver did not have a stop sign, but also revealed that he was traveling 40 mph in a 25 mph zone.

Other evidence that came to light during the trial determined that the van driver may also have been using a cell phone just prior to the impact; a violation of state law. The driver denied that he was on his phone. In assessing the case, the jury awarded $1,709,840 in damages to the estate of the deceased cyclist and $580,000 in damages to the widow, who had asked the court to award expenses for medical bills, funeral and burial costs, lost wages and the permanent loss of her husband’s earning ability, companionship and moral support. The deceased had been a doctor in his native homeland.

Most wrongful death lawsuits are not about exacting revenge. They are about making sure something horrible does not happen to someone else’s family. They are about seeking compensation in order to be able to move forward with their lives. They are about trying to heal and deal with the sudden loss of income provided by the deceased who died a wrongful death.

None of these cases are easy, and many of them take a number of months, if not years to get through court. This is why a family who has lost someone in such a manner needs to seek compassionate and experienced legal counsel from an Austin personal injury lawyer. Assessing damages in cases like this is part of the experience counsel needs to help a family get the compensation they deserve. A seasoned personal Austin injury lawyer will get the family through their ordeal with as little anxiety and grief as possible.

Brooks Schuelke is an Austin personal injury attorney with Perlmutter & Schuelke PLLC. Contact an Austin injury lawyer at Civtrial.com or (512) 476-4944.

This case is an example of a personal injury case and not one of our firm’s cases.

Litigation: Preparing For Your Deposition

Once your case has reached the litigation stage, perhaps the most important step is your deposition.  You can never really “win” a deposition — except in the extremely rare case,  you’re not going to convince the other side that you’re right.  But you can certainly “lose” a deposition — provide testimony that can gut your case and claims.

Going into your deposition, the insurance lawyer has a number of different objectives, all designed to hurt you.  Some of the lawyer’s more important goals are:  (1) find out your story, (2) find inconsistencies the lawyer can use to attack your credibility; (3) limit your claims; and (4) evaluate you as a witness.

Because your deposition is so important, it is important that you properly prepare.  Hopefully, your lawyer will spend some time with you to get ready for the deposition.  Depending on the case, we usually make sure you understand the process, give you our “rules” for depositions, go over the facts of the case, and provide sample deposition transcripts so you can get a better flavor for the types of questions asked.

I’m probably overly protective of the information I provide, but my good friend Steve Lombardi, a personal injury lawyer in Des Moines, has a great blog post where he shares his Rules for Deposition Preparation.  While I don’t agree with all of Steve’s rules, if you’re nervous about your deposition and/or don’t think you’re lawyer is adequately preparing you, Steve’s rules are a great start.

Voice-Activated Texting While Driving Is Still Dangerous

After my mom bought her first iPhone, I was explaining Siri to her.  And her first statement was, “Great!  Now I can text in the car.”

And my response was to almost scream at her, especially since she drives a lot with my kids.

New research is backing up my belief that voice-activated texting while driving is not much safer than “old fashioned” texting.   An article on texting while driving in the Jan. 21st issue of the Atlantic discusses one of those studies, which concludes that while using a voice activated system is a little safer than texting by hand (especially when receiving messages), it is still significantly more dangerous than driving without the distraction.

But what I really like about the article is not the statistics, but this point a doctor makes with her patients:

How would you feel if the surgeon removing your appendix talked on the phone — hands free, of course — while operating?

This statement captures the essence of the problem — you can’t concentrate fully on the road when you’re concentrating on incoming or outgoing texts.

Sadly, it’s hard to convince people of these risks.   A significant number of our clients are hurt because other drivers were trying to text and drive at the same time.

Increased big rig speed on highways may account for more accidents

The good news is that the number of car accidents has gone down. The bad news is that the number of big rig wrecks is on the rise.

There are a number of factors at play during a car accident — anything from texting while driving to mechanical failure. And yet, the National Highway Traffic Safety Administration (NHTSA) is indicating that fatal accidents are down 1.9 percent since 2010. This is good news. The bad news is that on the other side of the statistics column is an increase in truck accident deaths.

A closer look at the car collision numbers indicates that for the first time since 1949, when these types of figures were first recorded, U.S. car accidents are at an all-time low. In 2011, there were 32,367 deaths, and while this sounds on the high side, it is much lower that previous years, sparking hope that drivers are getting the message to drive with due care and attention.

As for tractor trailer units, or big rigs, between 2010 and 2011, the number of fatal accidents jumped by 20 percent— from 530 in 2010 to 635 in 2011. Anytime figures like this take a jump, it is not a good sign. Although these numbers relate to fatal accidents, the number of injury accidents involving trucks also shot up by 15 percent. The cause is a mystery. However there are many industry pundits, and those in law enforcement, that speculate when speed limits for trucks were raised, more accidents followed. Add in the fact that there are now more trucks on the road than ever, and the results may be self-explanatory.

It’s not just speed that kills.  Drivers on the highways need to be aware that truckersare human. This opens the door for things like speeding, texting while driving, falling asleep while behind the wheel, distracted driving, improperly lashed down loads, or the driver is under the influence of drugs or alcohol. The causes are many. The results, should something go wrong, are a disaster.

It’s a fact that when a passenger vehicle gets into an accident with a large transport truck, that the truck wins. There are very few survivors in an accident such as this, and those who do make it out alive, are seriously injured to the extent that their lives may never be the same again – ever. They face years of medical care, pain, suffering, depression and rehabilitation— an expensive proposition to say the least.

If you have been involved in an accident with a big rig, reach out and contact an experienced Austin injury lawyer. If you want compensation for your injuries, medical bills, pain and suffering, lost wages and so on, an Austin injury lawyer is the one to take your case to court— your voice seeking justice when you need it the most.

Brooks Schuelke is an Austin personal injury attorney with Perlmutter & Schuelke PLLC. Contact an Austin injury lawyer at Civtrial.com or (512) 476-4944.

Costs of Medical Care

One of the things injury attorneys deal with on a daily basis is the wildly divergent cost of medical care.

It comes up in any number of ways.  For example, our clients may need a surgery, and we will have to obtain an estimate for that procedure.

Or maybe we’ve resolved the case and it’s time to pay back a hospital, and there’s a dispute about what is a reasonable cost for the medical care its provided.

In many of these fights, it’s difficult to come up with a solid cost for care, especially for hospitals.

Yesterday’s New York Times had a blog post with an interesting story on this issue.  The post addressed a study done by a student at Washington University in St. Louis.  The student called around to more than 100 hospitals to ask for the price for a hip replacement for her “grandmother.”

Amazingly, many of the hospitals couldn’t even give her a quote.  Hospitals simply aren’t set up to deal with customers who aren’t paying through health insurance.  Of those who were able to provide an estimate, the quoted costs ranged from $11,100 to $125,798.

Now, some of that disparity is because the quotes involved different services.  For example, some quotes only included the cost of the hospital, leaving out associated costs such as surgeons, anesthesiologists, post-surgical therapy, etc.   But even that issue shows the problem with the lack of transparency in the world of medical care billing.

If you call and ask for a quote, you have no way of knowing whether it’s a complete quote or whether the amount provided is reasonable.

Unfortunately, I don’t have a solution.  This is simply a problem that we’ll have to continue to deal with in our practices.

Posted on: February 12, 2013 |

A Look At A Proposed Texting While Driving Ban

If you read this blog regularly, you know that one of the biggest issues we see is car wrecks caused by texting while driving.   As  a result, we’re big advocates of doing what can be done to reduce those auto accidents.

During the last legislative session, a bill banning texting while driving was passed, but Governor Perry vetoed the bill, citing that it was micromanaging driver behavior (though the same could be said of speeding laws, DWI laws, and on and on).

During the session, I’ll try to post a few updates on the status of the legislation.

In the meantime, KUT had an excellent balanced story today on texting while driving.  I urge you to take a minute to read it.

Will The Legislature Make It Easier To Buy Insurance?

I have long preached that I think the Texas Department of Insurance did consumers a disservice when it allowed insurance companies to offer non-standard policies.

It is hard to buy insurance.  Policies are written in legalese so that even attorneys spend their lives fighting over the meaning of certain provisions or phrases.  How is a typical consumer supposed to read and understand a policy when buying insurance?

That problem is now more important than ever.  Several years ago, insurance companies offered standard policies.  For example, in the homeowner’s insurance context, 95% or more of all policies were standard HO-B policies.  You could go to a number of different insurance companies, and they would all typically offer you the HO-B form policy.

While you might not understand everything that was in it, you were at least assured that the policies were the same.  That allowed you to take a quote from multiple different companies and know that you were comparing apples to apples when you compared prices.

But then the Department of Insurance began allowing non-standard policies.  So you can call three different companies, get three different policies, with three different prices.  Because these policies are written by lawyers for lawyers, it’s almost impossible to know which policy is the best deal and what type of protection you’re really buying.

But maybe there’s some light at the end of the tunnel.

As you probably know, the Texas legislature is in town for its bi-annual session.  Last week, the Texas Senate Committee on Business and Commerce, chaired by Sen. John Carona, issued its recommendations for the current legislative session.  Among those recommendations was a recommendation that the legislature adopt legislation that ensures that policyholders are offered a standard home insurance policy option.

I hope this legislation passes.  If there was one lesson from the Bastrop fires, it is to make sure that you know what insurance you have and that you have enough insurance.  This legislation will help make that easier.


Posted on: February 7, 2013 |

Schuelke Law maintains offices in Austin, Texas. However, our attorneys and lawyers represent clients throughout the state of Texas, including Dallas, Houston, San Antonio, Forth Worth, El Paso, New Braunfels, San Marcos, Kyle, Buda, Round Rock, Georgetown, Lockhart, Bastrop, Elgin, Manor, Brenham, Cedar Park, Burnet, Marble Falls, Temple and Killeen. By Brooks Schuelke

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