Answering All Your Personal Injury, Social Security Disability, and Bankruptcy Questions
When a catastrophic event puts your future at risk, anxiety and uncertainty will cause you to have a million questions. What can you do? How can you provide for your family? Will you recover?
Allow the extensive experience and knowledge of the Packard Law Firm put your worries to rest. Come learn the answers to your questions and see how we can help pull you out of the depths of uncertainty.
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Social Security is Demanding I Pay Them. What Should I Do?
Getting a notice that you owe the SSA money can be frightening, especially if you don’t have the money to pay them back.
But don’t worry. If you receive an overpayment notice from the SSA you have several ways to move forward.
What are my Options if I Receive a Social Security Overpayment Notice?
If you receive a notification from the SSA that they are seeking money because of a past overpayment, you have three basic paths forward:
- Appeal the overpayment
- Pay the SSA the requested funds
- Request a waiver
The option to appeal is only available if the SSA did not in fact overpay you. So if the notification is correct, your only options are to pay or to request a waiver.
How Do I Appeal a Social Security Overpayment?
If you believe that an overpayment notice is incorrect, you have ten days from the day you receive a notice to request an appeal without affecting future Social Security payments.
Because of the time-sensitive nature of appeals, you should contact a social security attorney as soon as you consider requesting an appeal.
How Do I Receive a Social Security Overpayment Waiver?
You can request a waiver from an SSA payment request even if the request is correct. Asking for a waiver is like asking the SSA to forgive the amount due.
There are several ways you can obtain a waiver from an overpayment notice. You can show that:
1) You are without fault for the overpayment AND that you are unable to afford to repay.
2) You passed on another money making opportunity because of the amount you received from Social Security.
3) You purchased something more expensive than you otherwise would have (such as a car or home) because of the amount you received from Social Security.
How Does the SSA Determine if I Can Afford to Repay?
When the SSA determines if you can repay it looks at whether your current income is being spent on things like:
- Medical expenses
- Rent or mortgage
If, however, you still have the funds from the overpayment or receive a back pay settlement the SSA will likely determine that you have the ability to repay.
How Do I Decide What to Do?
Because of the time sensitive nature of the process, and because individual circumstances can be complex. The best thing you can do to make the most informed decision on how to handle an SSA overpayment notification is to consult with an attorney. The Packard Law Firm is committed to helping individuals who have received overpayment notifications make the best decision for them and their families. Reach out to us today.
More Information Related To Disability:
Can my employer fire me for filing a workers’ compensation claim?
The threat of being fired or laid off is a major concern for many employees who are injured on the job and are considering workers' compensation. However, it is actually illegal for an employer to terminate an employee who is seeking workers' compensation benefits, has hired an attorney for an injury claim, or is otherwise acting in good faith after an injury at work.
Texas Law Prohibits Firing an Employee for Collecting Workers’ Compensation
Section 451 of the Texas Labor Code expressly forbids discriminating against employees for filing valid workers' compensation claims. The law dictates that no person may discharge or in any other manner discriminate against any employee who has:
- Filed a “good faith” workers’ compensation claim for a compensable job-related injury
- Contacted or engaged the services of an attorney for the explanation and protection of the employee’s rights or to represent the employee in a workers’ compensation court
- Instituted any actions protected under workers' compensation laws in good faith
- Testified or will testify in a legal proceeding involving a workers’ compensation claim (protection is given for both injured employees and coworkers who are testifying on behalf of the injured employee)
The purpose of these laws is to allow injured employees to be treated fairly and receive adequate compensation after an injury on the job. After all, workers’ compensation would not offer no-fault protection for injured workers if the worker could simply be fired at will by the employer after an accident. As long as an injured employee genuinely needs compensation to recover from an on-the-job injury, the right to payment shall be protected under state law.
What If I Was Fired While Pursuing Workers’ Comp Benefits?
If any employee is fired in retaliation for filing a workers' compensation claim, it is a clear violation of the labor law and grounds to file a wrongful termination lawsuit. However, in order to prove that the labor code has been violated, the employee must be shown to have acted “in good faith.”
“Good faith” is a legal term meaning with honest intention or without intent to deceive. While the majority of worker’s compensation claims are made in good faith, it is worth examining the details of your case to ensure that all of the information is correct and truthful. Any misrepresentation of the facts on your part may be seen as deceit, and can result in the denial of benefits as well as legal dismissal from your job.
Some examples of claims that are not filed in good faith may include:
- Payment for treatment that was not medically necessary
- Filing a claim for an injury that was not work-related
- Claiming a previous injury that was not related to a compensable condition
- Filing for benefits after being declared fit for previous employment
- Claiming that an accident or injury is worse than it is to maximize benefits
- Lying about the circumstances of the accident to hide employee responsibility
- Collecting workers’ compensation disability while illegally performing sustainable work
- Continuing to cash a deceased person’s workers’ compensation checks
- Lying about the injuries sustained or treatment received
- Filing a claim for an injury that the employee caused on purpose
- Filing for benefits for an injury sustained while the employee was drunk or on drugs
- Asking coworkers to lie to support a false work injury claim
Although there is a persistent myth that employees file thousands of bad faith claims every year, the truth is most workers’ compensation claims are entirely valid. As long as you were working within the scope of your employment and suffered a significant injury, you rightfully deserve payment for your medical treatment and lost income.
If your employer is treating you differently or is threatening to fire after you filed a workers’ comp claim, we can help. Our attorneys can work to get you reinstated with back pay, ensure your benefits continue, and even explore your options to get additional compensation through a work injury lawsuit. Contact the Packard Law Firm today to tell us more about your case in your free consultation. Anything you tell us is confidential, and we do not charge anything unless we win your case.
Can I file a wrongful death lawsuit in addition to a Texas workers’ compensation claim?
While there are some costs that can be recovered through filing a workers’ compensation claim, it is often not enough to cover the full extent of a family’s losses. While pursuing a wrongful death claim is a good option for many survivors, families need to be aware of some legal barriers that arise when filing these claims—especially if the employer is covered by Texas workers’ compensation insurance.
What Can I Recover in a Texas Wrongful Death Claim?
Families of workers who are killed on the job are forced to endure many emotional and financial difficulties. Wrongful death claims are filed on behalf of spouses, children, or parents of the deceased, and are meant to compensate these family members for their losses, including:
- Lost income and future earning capacity
- Funeral expenses
- Loss of counsel (such as advice, child care, and guidance)
- Loss of companionship and society
- Loss of parental and spousal services
- Loss of future inheritance
- Mental and emotional anguish
- Costs of therapy and grief counseling
- Punitive damages (to punish the negligent party for causing the death)
Filing a Wrongful Death Lawsuit After an Injury at a Subscriber Employer
Under the Texas Workers Compensation Act, workers’ compensation is the “exclusive remedy” for recovering the cost of a workplace injury or death. In layman’s terms, this means that employers who subscribe to workers’ compensation cannot be named in injury or wrongful death lawsuits. However, there is an exception to this rule. If the employee was killed by an employer’s gross negligence or as a result of an intentional act or oversight of the employer, families can sue an employer for wrongful death. This lawsuit can be filed even if the employer has provided workers’ compensation benefits (although these benefits may be subject to subrogation after a successful wrongful death suit).
If someone other than the employer was responsible for the death of the employee, a family can file a third-party claim. Third-party claims can be filed regardless of whether the employer provided workers’ compensation or was a non-subscriber. Common parties in third-party injury claims include manufacturers of defective machinery, distributers of tools and supplies used on the job, at-fault drivers or subcontractors, and other negligent parties.
Filing a Wrongful Death Lawsuit Against a Non-Subscriber Employer
If a person is killed while working for an employer who does not carry workers’ compensation insurance, families have few limitations on their ability to file suit and receiver damages. Not only can survivors sue employers directly, they can also recover damages that are not awarded through the workers’ compensation system, such as pain and suffering and punitive damages.
Some Texas non-subscriber employers provide alternative accident and health benefits to injured workers and their families. While these benefits may offer some relief for survivors of a deceased worker, they are not legally a replacement for workers’ compensation, and families of the deceased may still sue the employer. In addition, survivors can file an additional lawsuit against any third parties (including co-employees) who contributed to the death.
Employers take a big risk when they fail to provide workers’ compensation. If the family of a deceased employee files suit, the employer could be on the hook for major damages—and the employer also loses the right to claim many defenses in the case. For example, employers cannot escape liability by claiming that the worker was partly to blame for the accident or that the employee should have been aware of the risk of injury. The employer may only place blame on the victim if evidence shows that the victim caused the accident on purpose or the victim was intoxicated at the time of the accident.
If you have lost someone you love in a work accident, our attorneys can explore your options to get you the maximum amount of allowable compensation for your losses. Contact the Packard Law Firm today to tell us more about your case in your free consultation. Anything you tell us is confidential, and we do not charge anything unless we win your case.
Can I still get workers’ compensation benefits if I file a third-party accident claim?
Employees who are injured on the job typically only have one option for recovering payment from an employer: workers’ compensation. However, employees can seek compensation from an additional party whose negligence contributed to the accident—and they can file these claims while receiving workers’ compensation benefits. Third party work injury claims arise when someone other than the employer or a coworker is to blame for an on-the-job accident. Some examples of third parties include:
- The manufacturer of a tool that was poorly designed
- The distributer of defective products, parts, or machinery
- A worker under a different employer who caused the accident
- The owner of the land or building where the injury occurred
- A driver who struck an employee while in the course of his duties
- Independent advisors who fail to provide adequate safety training
- A subcontractor who failed to follow safety protocol
- Independent safety inspectors who failed to identify hazards on the job site
Payments Through Workers’ Compensation vs. Third-Party Injury Claims
Not only can injured workers receive workers’ compensation benefits while filing a third-party claim, it may actually be advantageous to pursue both types of claims. An attorney handling both actions may be able to maximize the effect of your claim and the damages you are awarded for your suffering by:
- Surpassing benefit limitations. Workers’ compensation is limited in the amount and scope of payments it can provide for an injury. In most cases, injured employees can only receive benefits for lost income, medical bills, and disability. However, there are no damage limits on third-party claims, allowing workers injured to sue for emotional trauma, pain and suffering, loss of enjoyment of life, loss of independence, and punitive damages.
- Calling attention to negligent conditions. A third-party claim is a legal action, and changes in operations may be ordered as part of the verdict or settlement. If the worksite was in violation of state or federal safety standards, the third party may face fines and civil penalties, helping to ensure that the same accident will not happen again.
- Addressing subrogation issues. If your claim is successful, the company who provided your workers’ compensation benefits may attempt to recover the amount it paid for your injury. This action is called subrogation, and it essentially forces the at-fault party to pay for the entirety of your injuries. In many cases, employees use workers’ compensation payments to pay the bills, paying the insurer back when their third-party claim is successful.
Texas Workers May Get Compensation From a Third Party and an Employer
There are a few special considerations for Texas employees filing work injury claims. The first concerns employees who are working for “non-subscriber” employers. While workers cannot sue employers who provide workers’ compensation, workers can pursue claims against Texas employers who do not have worker's compensation insurance. In these cases, workers can sue the non-subscriber employer without limitations on damages, and may also file a lawsuit against any additional third-parties (including co-employees) whose actions contributed to the accident.
Texas state law also provides an exception to the rule barring lawsuits against employers. If an employee suffers a fatal work injury, the employee’s family members can bring a lawsuit against the employer for gross negligence. These lawsuits can be filed regardless of workers’ compensation status, since the action is brought by family members instead of the employee himself.
If you are considering filing a work injury lawsuit, our attorneys can explore your options to get you the maximum amount of allowable compensation for your losses. We can calculate the full costs of your injury, including how much the accident will cost you in the future and the pain and suffering you have endured. Contact the Packard Law Firm today to tell us more about your case in your free consultation. Anything you tell us is confidential, and we do not charge anything unless we win your case.
What is subrogation, and how does it affect my workers’ compensation case?
An employee who is injured on the job may receive payment through workers’ compensation without the need to file a lawsuit. However, employees may be allowed to file lawsuits if the injury was caused by a negligent third party (not the employer) or if the employer did not carry workers’ compensation insurance. In either case, any party that has made some payment toward your injury has the right to recover the money spent on the accident, also known as a right of subrogation.
What Is Subrogation?
Subrogation is a legal term that means “substituting one party for another.” For example, when you file an injury claim, you are seeking payment from an at-fault party’s insurer, rather than the individual. Similarly, one insurer can seek repayment from another insurance company if their customer is ultimately found to be at fault for an accident.
For example, let’s say you are hurt in a work accident and your employer is a non-subscriber. You receive benefits through your spouse’s medical insurance to pay for medical costs. After you recover, you file a lawsuit against the employer and win. Now, your spouse’s insurer has a right to ask you to pay back the amount it has spent on your injury out of your damages.
How Does Subrogation Affect My Injury Case?
While subrogation can affect the amount of damages you receive, it also has the potential to strengthen your case. If one of the companies who paid your injury costs knows you are filing a lawsuit against a negligent party, they are going to want you to win your claim because they could share in the damages. Your attorney should pay careful attention to determine whether your providers have a subrogation interest.
Parties who may file a subrogation claim include:
- Worker’s compensation insurers. The state workers’ compensation provider is allowed to collect some or all of the benefits that it pays to victims for lost wages and medical costs.
- Health insurance providers. Health insurance contracts often have a subrogation clause in their policies that requires repayment from successful settlements or a verdicts in a personal injury claim. Usually, insurers cannot subrogate until the employee has reached maximum medical improvement.
- Disability insurers. If you were unable to work during the filing of your claim, your disability insurer may file a subrogation claim for the income replacement benefits you collected.
- Medicare or other government benefits. You may have to pay back a portion of any federal- or state-sponsored benefits you received during your recovery.
It is important to note that there are special subrogation rules for employee death claims in Texas. This is vital for families filing a single lawsuit that includes both a survival action and a wrongful death action against an at-fault party. A survival action is filed on behalf of the deceased employee, but a wrongful death action is filed by the survivors of the deceased.
In Texas, insurers can only subrogate claims of an insured person, not an insured person’s family member. As a result, workers’ compensation insurers can only file subrogation claims for damages received in a survival action, and have no right to any portion of proceeds from successful wrongful death cases.
Subrogation is a long and frustrating process that can take months to complete. Providers and insurers will often perform their own investigation to estimate how much is owed to them for injury and wage loss costs, and will use their own legal team to maximize the amount they can be reimbursed for providing benefits. If you are considering filing a work injury lawsuit and you have received public or private insurance benefits, our attorneys can help. We can calculate the full costs of your losses, including how much your injury will cost you in the future and the pain and suffering you have endured, and we do not charge anything unless we win your case. Contact the Packard Law Firm today to tell us more about your case in your free, confidential consultation.
How much is my non-subscriber case worth?
Many injury victims want to know how much they could be awarded if they file a non-subscriber claim against their employer. Unlike employees who are covered by worker’s compensation, there is no set amount of damages that Texas employees who are not covered by these benefits may receive. That said, there are a few ways to estimate the possible award in a non-subscriber case.
Determining the Value of a Texas Non-Subscriber Case
The most important thing to remember in your injury claim is that you are looking for compensation for the way your accident has affected you. Injuries can have very different effects on different people, and even so-called “minor” injuries can result in high medical bills and weeks off of work. The first step in estimating your potential damages is to total all of your expenses and losses, including:
- Medical bills. Your case should take into consideration how much you have paid for medical treatment, including emergency room costs, x-rays and scans, prescription medications, follow-up appointments, co-pays, physical therapy, and any other costs you paid out-of-pocket.
- Lost income. You should add up your lost wages for the total time you were unable to work due to your injury, including any overtime opportunities, bonuses, and other benefits you were not eligible for.
- Disability. You should calculate the value of any limitations that have resulted from your injury, such as those that prevent you from working in your old job, make it more difficult to live independently, or have full enjoyment of your life.
- Future costs. You must consider whether your injury could cause you to incur any expenses in the future, such as additional surgeries or replacements for wheelchairs, braces, or assistive devices.
- Pain and suffering. Victims may be able to get additional payments depending on the amount of physical and mental anguish they have endured.
Things That Can Affect the Value of a Non-Subscriber Case
After your losses has been totaled, you should carefully examine the factors that can add or subtract from your damages. While every case is different, each one will involve potential losses or additions based on the facts of the case.
Some things that can alter the amount of your damages include:
- Fault. The employer must be at least 51% to blame for causing the injury in order to owe an employee compensation. As Texas has a comparative fault system, a victim’s award will be reduced by the percentage of fault he owes for the injury. For example, if you are found 30% responsible, the overall award will be reduced by 30%. There are also a few employer defenses in a non-subscriber case that may completely bar the employee from compensation, such as hurting himself on purpose or as a result of intoxication. In order to get compensation, you must not be more than 50% responsible for the injury you sustained.
- Negotiation. Your employer’s attorney will likely make a settlement offer throughout the course of your case, and it is up to you whether you will accept. The amount offered will depend on how much the other attorney thinks a jury could award you if the case goes to trial. These offers are typically lower than the case is worth, but should at least cover medical and out-of-pocket expenses. Your own attorney can help you decide if the amount offered is fair compensation.
- The jury. Juries in non-subscriber cases have the final call on how much compensation you should get for your losses. It is nearly impossible to determine how each person in a jury will respond to your accident, so you should be able to trust your attorney to plead your case effectively.
- Punitive damages. If the employer demonstrated gross negligence or the employee died as a result of his injuries, you may be awarded punitive damages as a way of punishing the employer.
If your work injury prevents you from earning a living, our attorneys can fight on your behalf. Contact the Packard Law Firm today to set up your free, confidential consultation to find out how much your non-subscriber claim could be worth.
Will a Car Wreck Affect My Disability Benefits?
Imagine you have waited so long to win your Social Security disability case, and then are involved in a car accident. What kind of impact will a car wreck case have on your monthly Social Security benefits when the auto accident case is solved?
Generally, most types of Social Security cases will not be affected. But, some will be. In Social Security cases where benefits could be affected by resolving your injury case, there are things you can do to keep the sum of the settlement and your monthly Social Security income benefits.
- Special Needs Trust : A special needs trust can be established. This option is complicated and you need a lawyer who specializes in this area of law. Basically, it allows you to save money and have it administered by a trustee. This money can be used to pay for most living necessities other than food, rent or clothing. If you use it that way, money that is separated by the trust will not affect your Social Security benefits.
- Assign the money to other people: Often there is not enough money to cover or all the medical expenses and people involved in the accident. In these types of cases, you can allocate the money among those people in a way that reduces the impact on your Social Security case.
- Use the money: Money will affect Social Security benefits if you have more than $ 2,000. You can spend the money that comes from the accident in normal household expenses. And once the money runs out, it will not have an impact on Social Security benefits will not be affected.
If you have been involved in a car accident, and are receiving Social Security benefits, the law is very complex. We can help you. Call us today at 210-340-8877 and set up your free consultation.
When can you sue your employer for an on-the-job injury in Texas?
As you may be aware, Texas employers are not required to purchase workers’ compensation insurance to provide benefits to injured employees. If an employee suffers an injury on the job is not covered by workers’ compensation, then the worker has a right to file a lawsuit against the employer to get fair payment for his injuries. But what many workers do not know is that this is only one instance in which an employee has the right to sue his employer.
When Employers May Be Named in a Texas Injury Lawsuit
Failure to provide workers’ compensation benefits is a good reason to sue an employer, but there are also additional situations where the company you work for is liable for damages, including:
- Intentional harm. Employees have the right to sue employers whose conduct caused direct and intentional harm. In these cases, employees must show that the employer was trying to hurt the worker on purpose, such as if an employer assaults a worker or trips him at the top of a flight of stairs.
- Defective product injuries. If a worker is injured by tools, machinery, or other equipment in the workplace, he or she can file a lawsuit against the employer or the manufacturer of the object that caused harm. Employers and manufacturer could both be liable if the risks of using the equipment were not minimized, if the equipment failed to work properly, or if employees were not properly warned of the danger of injury.
- Toxic substance injuries. Employees who work around dangerous chemicals or toxic substances are at high risk of developing severe medical conditions. Compounds such as silica, asbestos, benzene, radium, or chromium have all resulted in illnesses that have formed the basis of toxic tort lawsuits. Toxic injuries may happen suddenly (such as a chemical burn or eye injury), but they can also take years of exposure before symptoms appear (such as asbestos-related cancers). Workers may sue an employer who was aware of the potential side effects of toxic exposure, and they may also sue the manufacturer or distributor of the harmful product.
- Third party injuries. Employees may be able to name multiple parties in a personal injury lawsuit, especially if each party played a role in the injury. There are many people on a job site who may be responsible for a worker’s injuries, including engineers, contractors, project managers, architects, drivers, or other non-employer entities.
How to Determine Who Is Responsible for the Costs of an On-the-Job Injury
In order to file a successful Texas work injury or wrongful death claim, you will have to be able to show that the party named in your suit is directly responsible for the harm you have suffered. This is done by demonstrating negligence. The person who should be named in an injury lawsuit is the person whose negligence most contributed to the accident, injuries, or suffering.
In order to demonstrate negligence, a person must show that the person accused of negligence:
- Owed the injured worker a duty of care
- Failed in the performance of that duty of care
- Performed an action or inaction that directly caused injury or harm
When workers are covered by workers’ compensation, they do not have to prove that the employer was negligent in order to get payment for their injuries. While employees outside of this benefits system do have a burden of proof, they are also able to collect additional forms of damages if their case is successful. For example, people who win work injury cases may collect payment for permanent disability, lost future income, lost companionship of a deceased worker, and pain and suffering—all of which are not provided to those covered under the workers' compensation system.
If you suffered a work injury that prevents you from earning a living, our attorneys can fight on your behalf, getting you the compensation you deserve for your medical bills, lost wages, and more. Contact the Packard Law Firm today to set up your free, confidential consultation find out how much your work injury claim could be worth.
Are there any defenses Texas employers are not allowed to use in a non-subscriber case?
The decision not to enroll in workers’ compensation places certain limits on an employer if an employee files an injury lawsuit. One of the biggest benefits to employees in these cases is that they have a lower burden of proof, and another advantage is that employers are forbidden from using certain defenses against an employee.
Defenses Employers Cannot Use in a Non-Subscriber Injury Case
Under the Texas Labor code, there are several defenses available to non-subscriber employers who are sued after a work injury. However, this law also protects workers by forbidding employers from using certain defenses that would otherwise be allowed in injury cases, including:
- Contributory negligence. Most personal injury cases allow victims to recover lower damages, or even no damages at all, if they are found to be partially liable for the injuries they suffered. However, non-subscriber employers are not allowed to use an employee’s fault against him. It doesn’t matter if the employee is 99% to blame for the accident, if the employer is 1% liable for the injury, the employer is liable for the full costs of the injury.
- Assumption of risk. Many jobs and career paths in Texas are inherently dangerous, carrying an above-average risk of injury. In some injury cases, employees are said to “assume the risk” of dangerous activities, such as acknowledging that construction work at heights or near heavy machinery is dangerous, and any injuries that result cannot be blamed on the employer. This protection is removed from non-subscribing employers.
- Coworker negligence. When an injury is caused by the actions or negligence of a coworker, an employer may avoid liability by encouraging the victim to sue the coworker instead of the company. This defense, also known as the fellow servant doctrine, can no longer be used by non-subscriber employers.
- Pre-injury waivers. People are often asked to sign waivers before engaging in activities that can cause injury or death, such as skiing or skydiving. These waivers are a contract stating that the person signing will not sue the company if they are injured, since they realize there is a risk of injury. Some employers may attempt to protect themselves from liability by making employees sign waivers when they are hired, even before an injury has occurred. While these may be binding in other cases, pre-injury waivers are not admissible in cases against non-subscriber employers.
Even if your injury involved one of these defenses—if a coworker caused your injury, or if you acknowledged that there was a risk of danger in your work—it does not affect liability. In other words, if any of these statements are true, the employer is still responsible for covering the costs of the injury and any other costs due to negligence.
Why Does Texas Law Prevent Employers From Using These Defenses?
Texas lawmakers want to encourage companies to do business in the state, and making workers’ compensation an option rather than a mandatory law can attract employers. However, they also know that it is important to offer worker protections, since injuries can lead to higher unemployment and increased lawsuits. By making it harder for companies who opt out of workers’ compensation programs to escape responsibility, the state is essentially saying that companies who do not participate in the workers’ compensation system are on the hook for any injury costs they incur—and these costs can be in the millions of dollars. It is up to each company to weigh the risks: either pay a smaller amount and purchase workers’ compensation insurance, or risk paying much more after an injury occurs.
Unfortunately, employers who fail to purchase workers’ compensation insurance have a vested interest in defeating non-subscriber claims. These companies will have their own corporate lawyers who work to discredit victims almost immediately after an injury occurs. Our work injury attorneys even the playing field, fighting on your behalf while you take the time you need to heal. Contact the Packard Law Firm today to set up your free, confidential consultation find out how much your non-subscriber claim could be worth.
How does a pre-existing condition affect my Texas non-subscriber case?
If you are filing a lawsuit against a Texas employer who did not subscribe to workers’ compensation, you should expect the employer to defend the company’s interests. While companies can fight against the charges an employee levels against them, they are limited to a handful of defense arguments in a non-subscriber case. One of these is the “pre-existing injury” defense, which claims that the employee’s injury occurred or was made worse by something that happened earlier in the employee’s life.
When Can an Employer Use the Pre-Existing Injury Defense?
The costs of emergency care and ongoing medical treatment make up a large portion of the damages in Texas non-subscriber work injury lawsuits. If the injury has left the victim permanently incapacitated, the employer can also be on the hook for disability and loss of future income payments. As they have relatively few defenses available to them, the employer’s legal team can claim the pre-existing injury defense in any case, and can even make the claim when they have little to no evidence of a prior injury.
The goal of this defense is to attack the victim’s:
- Right to fair compensation. If the employer can convince the jury that the employee’s injury existed before the accident, the employer can escape liability for all costs associated with the injury. Evidence of this can range from you calling in sick after an accident at home to a coworker’s knowledge of your past injuries.
- Monetary award. Even if an employer expects to lose the case, the company may be able to reduce the award by suggesting that a pre-existing injury contributed to your overall suffering. This is technically not allowed, as Texas employs the “thin skull” rule in injury cases, which states that a company must take the employee in the state that it finds him. Simply put, a person cannot receive lower compensation because he or she is more prone to an injury than others. Unfortunately, the suggestion of a pre-existing condition does have the potential to influence the jury when it comes time to assign a dollar value to the case.
- Credibility. If the defense finds out that you injured the same part of your body years earlier and you failed to inform your employer, the employer can attack your credibility. By omitting the truth about your injury, the court may presume that you were trying to get compensation under false pretenses, and your case is likely to fall apart. Even if you did suffer an injury years earlier, it is always best to inform your attorney to allow him or her to prepare for the day it is addressed in front of the judge.
Does a Pre-Existing Injury Automatically Disqualify Me From Compensation?
A previous injury does not bar an employee from seeking compensation. However, these cases must be handled delicately in order for the victim to have the best chance of success in court. It is best to work under the assumption that the defense knows everything you do and won’t hesitate to use anything that could discredit you. First, you must give your attorney all information necessary about the prior injury, including dates, prognoses, and medical records. This will allow your attorney to prepare a rebuttal to any claim about your condition that the defense might make.
One of the ways these claims may be rebutted is by questioning the impact and relevance of the prior injury. If you suffered a broken wrist in a car accident years earlier and are looking for compensation for carpal tunnel syndrome, your attorney should be able to provide x-rays, medical evidence, and doctor’s testimony about the likely bearing of the old injury onto the new one. These cases typically involve qualified experts, including medical practitioners and accident reconstructionists, who can take the jury point-by-point through the effects of both prior and current injuries.
Whether your employer has a valid reason to make this defense or not, you will need an experienced non-subscriber injury attorney to guide you through your case. To find out how much your claim could be worth, contact the Packard Law Firm today to speak with an attorney in your free, confidential, and no-obligation consultation.