Q: I was injured at my job but was still able to work. I changed jobs but my injury has gotten worse and need surgery.
I will not be able to work for 4-6 weeks. Workers comp has been paying for my medical expenses but now that I will be out of work, am I eligible to receive income from workers comp? I spoke to my adjuster and they said no because I no longer work for the same employer. My new job is in the same field as my previous job.
A: If you had private insurance, you would have to get the surgery under your new insurance. If you had a claim through the Texas Department of Insurance, Division of Workers' Compensation, you can still receive medical treatment and disability no matter where you work. I would advise you to contact a workers' compensation attorney to help you navigate this legal maze.
I am sorry to say but the adjuster gave you a load of crap! It does not matter if you changed jobs. The definition for disability, and therefore entitlement to TIBs, is not dependent on the injured worker being with the same employer. We can look to the DWC, which publishes the "Appeals Panel Decision Manual", written by Bob Lang, with minor assists from Dan Berry and yours truly while Dan and I were Judges with the Appeals Panel. The manual provides, "Disability deals with an IE's inability, because of a compensable injury, to obtain and retain employment at wages equivalent to the IE's pre-injury wage. Section 401.011(16)." There is no mention of changing jobs. Disability results when the work injury is "a cause" of lost earnings.
However, if you have been certified to be at MMI and given an IR you may not be entitled to TIBs without having disputed your MMI date. Two years after your income benefits accrue there is a presumption that you have reached MMI so if you reoccurring disability is after 2 years you may not be able to qualify for TIBs anyway,
Contact DWC and ask for an ombudsman's assistance. Good luck to you.
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