Employers who do not have workers’ compensation but have their own plan or are self-insured have almost unlimited ability to deny claims of injured workers

In a prior post I have written about the fact that many workers in El Paso, Texas work for employers who do not carry Texas workers’ compensation but have their own self insured work injury plans known as ERISA plans.  These employers are known as nonsubscribers because they do not subscribe to the Texas workers’ compensation system. Many large and smaller employees work for these non-subscribing employers.  Some of the largest employers in El Paso have their own ERISA injury plans for their injured employees who have work accidents while in the course and scope of their employment. (Wal-Mart, Home Depot, Village Inn and Applebee’s are just a few examples of employers in El Paso who do not carry Texas workers compensation).  The reason these employers do not carry workers’ compensation is because they can save money by having their own work injury plan. How do they save money?  Because they are able to control the medical and limit benefits under their plans they can choose doctors who they believe will support them in sending employees back to work more quickly after an injury.  And, because their plans are ERISA plans (governed by the Employment Retirement Insurance and Security Act) they are allowed to make whatever decisions they desire regarding what amount of medical they will pay and what claims they will deny.  So how does ERISA work and what rights do you have under ERISA? ERISA is a federal law that was originally designed to protect workers from their employers in the areas of retirement accounts and group insurance policies.  Unfortunately the Court system has used the law to give employers the ability to make whatever decisions they desire regarding what medical they will pay under these Injury benefit plans that are often a pale substitute for Texas workers compensation.  A recent case of Killen v. Reliance Life Insurance Co., 2015 U.S. App. LEXIS 291 (5th Cir. 2015) illustrates this point.  First it should be understood that ERISA covers any group insurance plans from group health plans to a group disability policy. In  Killen the employee made a claim under his companies disability policy.  Killen the employee claimed that she was disabled and his treating physician found that she was “incapable of performing the material duties of any occupation for which she is qualified.” They plan administrator simply found a doctor that would say something different and then found that the doctor they chose was more persuasive than the treating doctor of the employee and denied her claim.  The Fifth Circuit Court of Appeals (the Federal Court of Appeals for the State of Texas) held that the administrator has the right to rely upon which opinion he likes the best (which of course is the one he chose) and deny the claim.  This highlights the problem of these nonsubscriber injured worker plans of non-subscribing employers. All the employer (who is often the plan administrator or hired the plan administrator) has to do is obtain another conflicting opinion from their own doctor and can then deny the claim.  It is even easier because these plans often designate what doctor you can see; so the odds are in the employers favor that the original opinion of the doctor will be one that is favorable to the employer.  I have personally met with clients who were lucky enough to obtain a favorable opinion from their doctor about their injury only to have the employer (through the plan administrator they hire) to obtain an opinion form an out of town doctor who simply reviewed the medical records and did not ever see the injured worker give the opinion that the worker was not injured or more likely that the injury was a preexisting condition.  This despite the fact that the injured workers had no prior pain before the work injury.  However this opinion is enough justification under the law to deny the injured worker’s claim and there is really no way for the injured worker to overturn this decision.  Fortunately, because the employer did not have Texas workers’ compensation the employer can still be sued for negligence and this claim is outside of ERISA so the plan administrator and its doctors opinion are not the final decision.  However it is important that the injured worker consult an employment lawyer (work injury lawyer) as soon as possible because a work injury lawyer can help the inured worker navigate the various laws that apply to work injury cases including making a claim for damages for medical bills, lost wages, pain and suffering and disability.  There are also laws dealing with how much time the employee can take off for the injuries suffered and disability laws and possibly even wrongful termination laws.  Most of the time in El Paso the injured workers simply want to get the medical care they need, to heal and to return to work; unfortunately this often conflicts with the employers desire to get rid of injured workers and to make more money.  You have rights if you are an injured worker.  Seek out the services of board certified employment lawyer who as a work injury lawyer can advise you through the land mines of legal issues that you face after being injured on the job.