Fort Worth, TX asked in Workers' Compensation for Texas

Q: My sister was injured at work. Workman’s Compensation is denying surgery despite the MRI findings of a torn rotator cuf

MRI shows torn rotator cuff in three tendons. What are her next steps. She lives in Texas and cannot afford to hire an attorney. Should she have surgery done under her private insurance?

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3 Lawyer Answers
Tim Rose
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  • Workers' Compensation Lawyer
  • Pleasant Grove, UT

A: Sorry to hear she is having trouble. She likely CAN afford an attorney as most workers' compensation attorneys work on a commission basis - no fee until you win. I would suggest looking in the Justia directory for the area of Texas where she is and see if there is an attorney to consult with that can help her with the next steps to fight for her claim. Good luck.

John Michael Frick
John Michael Frick
  • Frisco, TX
  • Licensed in Texas

A: If her treating doctor is an orthopedic surgeon and is recommending surgery, he/she needs to request a peer-to-peer with the workmen’s compensation carrier’s orthopedic surgeon to discuss why surgery is the best option in her case.

Surgery is not always necessary or recommended for a full rotator cuff tear. In many instances, the treating doctor either hasn’t charted the factors which support a surgical or, even worse, isn’t qualified to make a recommendation because he/she is not an orthopedic surgeon.

Carriers and their TPAs often keep track of individual doctors and their recommendations, and therefore know who will recommend surgery at the drop of a hat and who will recommend more conservative treatment.

Long-term unsuccessful conservative treatment is usually more expensive than surgery, whereas quick, unnecessary surgery is more expensive and carries greater risk than successful conservative treatment.

Make sure there is a convincing case for surgery first, then have the surgeon advocate for approval, if necessary with a medical contested case hearing (CCH). TWC provides an ombudsman to help your sister, but this is almost certain to be a battle between surgeons over the best course of treatment.

Jimmy Doan
Jimmy Doan
  • State Wide, TX
  • Licensed in Texas

A: Your sister is not alone in facing what appears to be an initial denial of her Texas worker’s compensation claim. Unfortunately, when it comes to Texas worker’s compensation cases, a significant percentage of claimants are denied when they initially file a claim for benefits.

A bit of background information on Texas worker’s compensation may be helpful in discussing your sister’s particular situation. In basic terms, worker’s compensation is a type of insurance that provides benefits to employees who suffer work-related injuries or illnesses. This insurance covers medical expenses, lost wages, and other related expenses.

All Texas employers are required to provide worker’s compensation insurance coverage to their employees. This means that if you are an employee of a Texas employer, you are eligible for worker’s compensation benefits. Worker’s compensation covers all types of injuries that occur while you are at work or performing work-related duties. This includes physical injuries, illnesses, and occupational diseases caused by exposure to toxic substances.

Based on your question, it does appear that your sister has filed a worker’s compensation claim. As mentioned a moment ago, it does also seem as if your sister’s initial application for benefits has been denied. In the alternative, perhaps a specific medical procedure has been denied despite the application having been generally approved.

Your situation does have the legal ability to appeal either a denial of her worker’s compensation claim or a rejection of her request to obtain a particular medical procedure. Keep in mind that there are specific procedures that must be followed as well as definitive deadlines associated with pursuing a Texas worker’s compensation appeal.

Worker’s compensation claims in Texas can prove to be complicated legal matters. Your sister likely would be best served retaining the services of an experienced Texas worker’s compensation attorney. The standard practice in Texas is for a worker’s comp lawyer to represent a client on a contingency fee basis. In other words, your sister would not pay an attorney fee unless she is successful in her claim.

It is also important to note that the state of Texas has specific rules regarding attorney fees. This includes capping attorney fees at a maximum of 25 percent of any benefits obtained through a claim.

Your sister should also consult with her doctor to ascertain the timeframe in which the surgery in question must be undertaken. If there is an immediate need to undertake the surgery in question, your mother may need to rely on her own health insurance for the procedure.

If your mother ultimately is successful in her worker’s compensation claim, her insurance company may be able to obtain a reimbursement of money expended for the surgery. These legally is known as subrogation. In addition, your mother should be able to obtain reimbursement of any deductible or other fees and expenses associated with a needed surgery.

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