Texas workers’ compensation law has evolved in favor of employers at the expense of disabled workers. It didn’t start out that way.
Why workers’ compensation laws were passed: Back in 1913 it was almost impossible for a disabled worker to sue an unsafe employer. The worker could only sue for negligence, but if the employee was even 1 percent at fault, or there was any negligence of a fellow employee, or the worker was found to have “assumed the risk” by taking the job, then the worker got nothing.
So the Texas workers compensation system was passed by the Texas legislature to solve the problem of disabled workers and their families unable to make a living. The law was a compromise between groups advocating for workers on one side and business groups on the other. Back then the law did four main things:
- The only issue would be whether the worker was hurt while on the job.
- How much the worker got depended only on how hurt the employee was. If it was a general injury, then this was measured by disability to work. If the injury was to certain parts of the body, then specific amounts were allowed depending on the loss of use of that part.
- The employee did not have to prove the employer was negligent and the employer could not be sued; only the workers compensation insurance company could be sued.
- An employer could choose not to carry workers compensation insurance, but if so, then the worker could sue the employer. The worker had to prove some negligence, but opposite of before, this time the worker only had to show the employer even only 1 percent negligent and the employer had to pay full damages. Defenses like “assumption of the risk” could not be used by the employer.
This system lasted until about 1989. The problem was that unsafe employers were driving up the workers compensation insurance costs to all employers. Instead of passing laws to give employers an incentive to be safer, the business groups took another route. They got the legislature to pass laws that made it almost impossible for disabled workers to get a lawyer to help them in a workers compensation claim. They didn’t say so outright, but the law prohibited attorney’s fees in so many different ways that no lawyer could afford to handle the claim.
The new law did make it seem like the worker got something, by passing what looked like better benefits. Without a lawyer, however, the worker is at the mercy of the insurance company and its doctors.
Some employers still didn’t like the cost of workers compensation insurance so in the 1990s we began seeing them use something called ERISA to get around the right of employees to sue an employer who chooses not to cover its employees with workers compensation insurance. Here is how it works:
When an employee gets hurt, the employer gets the employee to sign a release and promise not to sue, in return the employer agrees to pay for the medical. This is done at a time when the employee is desperate to get medical treatment (regular health insurance does not always cover work related injuries). The worker then gets little or no benefits for disability.
Many employers do carry workers compensation insurance and do everything they can to have a safe working environment. The workers compensation law in Texas needs to be overhauled to take care of the employers who don’t and to allow workers to get the representation they need to be on even footing with insurance companies.