Workplace Injury: Handling the employer non-subscriber and retaliation case
For the first time, I recently handled a non-subscriber case with an employee injured on the job. Unfortunately for the employer, the company was not a subscriber to Texas Workers Compensation. When I first encountered this scenario, my mind seemed to jump all over the place because there were so many legal issues. However, I also encountered some workplace injury or violations as well. There were so many issues I spotted, I had to jot them down and go through a mind map checklist to make sure I went through all plausible issues as do some grunt work so that I could come up with a workable demand. I hope this will help anyone who may encounter the same thing and will make it a bit easier to spot the issues so you can include them into your demand.
Here is the story:
A client has severe injuries as a result of being injured on the job. She is injured after being forced to perform a job-related task. The client could not perform the job related task and her supervisor was well aware. They did not provide her with the proper equipment to complete her job and she suffered a horrific slip and fall. She inquires about workers compensation benefits and wants to file a claim. However, after getting the runaround, she eventually finds out there is no workers compensation. She has severe injuries and is in need of medical attention. Additionally, the client was told by her employer that she would receive Texas Worker Compensation coverage. She was also told the company had benefits. The Employer also began paying for some of her medications. Relying on this, she incurred additional medical expenses.
Subsequently, she was terminated after making further inquiry regarding workers’ compensation benefits. In fact, she was told she should not have hired an attorney and inquired into her worker’ compensation benefits. She is left unemployed and must find another job at lower pay. Prior to the incident, she was working a second job. However, now due to her injuries, she can’t work her additional job as she once did prior to her accident. She gets the medical help she needs but is left to fin for herself incurring medical debt and other consequential losses from not working. She comes in and asks for legal help to make the employer pay for her injuries.
Where do we start? Here is what I did!
1. Completed the following Worker Compensation Grunt Work:
- I verified the employer was not a subscriber.
- I verified to see if the employer provided my client a copy of DWC Form-001, Employer’s First Report of Injury or Illness. In my case, they had done so, which was a violation Sec. 409.005 (g) of Title 5, Subtitle A, of the Texas Labor Code.
- Although the Employer was not a subscriber, I was told by the Texas Workers Compensation Office that she should still file an Employee’s Claim for Compensation for Work-Related Injury or Occupational Disease, DWC Form-041, which we filed.
- I completed and filed a complaint with a Worker’ Compensation Compliant Form
2. Completed my issue spotting for any Employers Related Actions and or Violations going through the following checklist:
- Negligence & negligence per se
- Negligence hiring, supervision
- Possible EPA (environmental protection act)
3. Completed my issue spotting for wrongful terminations causes. In my case, I issue spotted retaliation, however there may be a few more that are applicable to you as listed below.
- Retaliation under the Texas Labor Code
- Discrimination-EEOC-Fed law violation
- Common law exception
- Violation of public policy
- Statutory Exceptions to employee at will statue
- Stated federal documentation statue
- Protected activity
- State & federal whistle-blowers
- Filing type of claims OSHA, federal wage & hour, workers compensation, employment documentation
- Military Duty
- Jury Duty
- Engaging in union duty
4. Completed a demand to the employer
- Lastly, I prepared my pre-suit demand. See the following demand letter checklist of what to include in your demand.
- This is an overall summary of the legal claims, fact summary, damage summary and the amount client seeks on behalf of the injury victim.
- This is background information of the parties, in this case, the plaintiff and the defendant.
Facts giving rise to the Incident in Question
- This is a sequential list of events of the accident. I usually insert what happened before, the actual accident, what happened during, and immediately thereafter. Again this is a pre-suit demand, so I am usually very clear in painting the picture for the adjuster and or the defendant. The goal at this stage is a settlement.
- This is where I explain the legal theories and its application to my client.
- This is where I give my general damage model with general and special damages.
Total demand and request for settlement
- I usually give a summary and request for settlement followed by a deadline date.