The State of Workers Compensation in Texas
December, 2015
This past July, a 28 year-old construction worker in Austin fell three stories to his death. A vigil was held, mourning not only the loss of one man, but the countless number of people who have died from construction accidents. For the families and organizations that work in favor of increasing worker safety on construction sites, every death is the loss of not only a family member, but a crucial source of income.
In 2010, 2013 and 2014 Texas was ranked among the most dangerous states to work, with the highest rate of worker deaths in the nation. Construction had a fatality rate of almost 11 people per 100,000, according to the US Department of Labor in 2010. One estimate put the whole number of construction workers in Texas at over 10 million people, making the yearly estimate of number of construction workers fatally injured or killed 11,000.
With such high levels of injury, there should be safeguards for the families that rely on the income of the individual, or at least better safety standards and training. For many construction workers in Texas, the policy and practices in place are just not enough to keep them safe and their families provided for.
In the state of Texas, workers compensation is a state-run program, but not mandatory for private companies. For the workers themselves, compensation can be used to cover emergency medical bills from an injury or work-related illness. For the companies and businesses that provide it, having compensation insurance can assist with liability claims, as well as keep hospital visits away from taxpayer dollars. The problem is that although many companies technically do provide compensation after an injury, in order for an employee to receive the money it has to be filed as a work-related injury. Filing a report can affect safety ratings for the company.
The accident in East Austin is just one example of issues in worker safety, particularly in more blue-collar occupations. The issues of compensation and safety intersect the most with dangerous jobs like welding where heavy metal pipes and debris are everywhere. Katrina Martinez, a Houston resident, has experience with welders not getting proper compensation after a possible injury. Her husband, Chris, works as an industrial construction welder.
“[My husband] didn’t want to get fired because the consequences of reporting an injury are almost always, if it’s something bad enough, they’ll fire you. They don’t want to tarnish their safety record or put anything on the books,” said Katrina Martinez.
In a separate incident, Chris Martinez was working in San Antonio and a large piece of metal dropped on his foot. His boss approached him and said “an agreement” had been made with the insurance company to give him a few days off, without pay, to recover rather than give compensation.
“I had never even talked to my boss about that, he just gave me a week off. I didn’t get no pay, it was just personal days. I went right back to work after that because, you know, there’s really not that much work for me as a welder in San Antonio. So I didn’t have a choice really. It was either stay at that job or just not have a job, so I just decided I have to have a job,” Chris said.
The compensation system in Texas received a major overhaul in the 1980s. Until that point there had been an Industrial Accident Board consisting of a lawyer, a “wage earner” and an employer who is under the compensation law. The problem was that the board was seen as being too expensive with not enough benefit, so when the new Texas Workers Compensation Act was passed in 1989 the board was disbanded. In its place was the Workers Compensation Commission, which took effect in 1991 with the goal of limiting lawsuits and handling problems through administrative review.
Many areas were streamlined such as medical costs, but the lawyers were cut out of the processes. The typical process for filing an injury claim is a series of forms filled out by the employee describing what happened, any medical visits and the date of the injury. After that it’s up to the employer to finish the paperwork and file with a claims administrator with the employer. Then it’s up to the administrator to choose whether the claim is accepted and what benefits will be provided, if any.
Bill Beardall, the executive director of the Equal Justice Center, said that the systematic overhaul only worsened the situation for workers in Texas.
“Texas had the effect of taking a workers comp system that was already widely regarded as the weakest, in terms of worker protection in the country, and making it even worse,” Beardall said.
Compared to the rest of the nation, Texas has the most limited workers compensation program on the books. Insurance companies and employers have the most control over how compensation is doled out. The idea is that companies are able to be more involved in their employees recovery, keeping lawsuits limited and being more accountable for informing employees about what benefits are available to them.
Fewer legal disputes involving a lawyer and federal hearings means a better relationship between the employer and employees, making the work environment that much more harmonious. Beardall said that taking federal regulation out of the equation only does harm for the employees.
This past July, a 28 year-old construction worker in Austin fell three stories to his death. A vigil was held, mourning not only the loss of one man, but the countless number of people who have died from construction accidents. For the families and organizations that work in favor of increasing worker safety on construction sites, every death is the loss of not only a family member, but a crucial source of income.
In 2010, 2013 and 2014 Texas was ranked among the most dangerous states to work, with the highest rate of worker deaths in the nation. Construction had a fatality rate of almost 11 people per 100,000, according to the US Department of Labor in 2010. One estimate put the whole number of construction workers in Texas at over 10 million people, making the yearly estimate of number of construction workers fatally injured or killed 11,000.
With such high levels of injury, there should be safeguards for the families that rely on the income of the individual, or at least better safety standards and training. For many construction workers in Texas, the policy and practices in place are just not enough to keep them safe and their families provided for.
In the state of Texas, workers compensation is a state-run program, but not mandatory for private companies. For the workers themselves, compensation can be used to cover emergency medical bills from an injury or work-related illness. For the companies and businesses that provide it, having compensation insurance can assist with liability claims, as well as keep hospital visits away from taxpayer dollars. The problem is that although many companies technically do provide compensation after an injury, in order for an employee to receive the money it has to be filed as a work-related injury. Filing a report can affect safety ratings for the company.
The accident in East Austin is just one example of issues in worker safety, particularly in more blue-collar occupations. The issues of compensation and safety intersect the most with dangerous jobs like welding where heavy metal pipes and debris are everywhere. Katrina Martinez, a Houston resident, has experience with welders not getting proper compensation after a possible injury. Her husband, Chris, works as an industrial construction welder.
“[My husband] didn’t want to get fired because the consequences of reporting an injury are almost always, if it’s something bad enough, they’ll fire you. They don’t want to tarnish their safety record or put anything on the books,” said Katrina Martinez.
In a separate incident, Chris Martinez was working in San Antonio and a large piece of metal dropped on his foot. His boss approached him and said “an agreement” had been made with the insurance company to give him a few days off, without pay, to recover rather than give compensation.
“I had never even talked to my boss about that, he just gave me a week off. I didn’t get no pay, it was just personal days. I went right back to work after that because, you know, there’s really not that much work for me as a welder in San Antonio. So I didn’t have a choice really. It was either stay at that job or just not have a job, so I just decided I have to have a job,” Chris said.
The compensation system in Texas received a major overhaul in the 1980s. Until that point there had been an Industrial Accident Board consisting of a lawyer, a “wage earner” and an employer who is under the compensation law. The problem was that the board was seen as being too expensive with not enough benefit, so when the new Texas Workers Compensation Act was passed in 1989 the board was disbanded. In its place was the Workers Compensation Commission, which took effect in 1991 with the goal of limiting lawsuits and handling problems through administrative review.
Many areas were streamlined such as medical costs, but the lawyers were cut out of the processes. The typical process for filing an injury claim is a series of forms filled out by the employee describing what happened, any medical visits and the date of the injury. After that it’s up to the employer to finish the paperwork and file with a claims administrator with the employer. Then it’s up to the administrator to choose whether the claim is accepted and what benefits will be provided, if any.
Bill Beardall, the executive director of the Equal Justice Center, said that the systematic overhaul only worsened the situation for workers in Texas.
“Texas had the effect of taking a workers comp system that was already widely regarded as the weakest, in terms of worker protection in the country, and making it even worse,” Beardall said.
Compared to the rest of the nation, Texas has the most limited workers compensation program on the books. Insurance companies and employers have the most control over how compensation is doled out. The idea is that companies are able to be more involved in their employees recovery, keeping lawsuits limited and being more accountable for informing employees about what benefits are available to them.
Fewer legal disputes involving a lawyer and federal hearings means a better relationship between the employer and employees, making the work environment that much more harmonious. Beardall said that taking federal regulation out of the equation only does harm for the employees.
“No social regulation of the employer-employee relationship has evolved voluntarily and naturally. We have recognized since the early twentieth century that the employment relationship is really one of inherently unequal bargaining power. Legislation is what’s required if it were to rebalance the interests of employees and employers in a fair system,” Beardall said.
The last time Texas legislators took on workers compensation reform was in 2013, with a bill that would make compensation mandatory. That bill died, with one argument being that it interfered with private business. At the same time, Texas ranks in the top 10 most dangerous places for workers, with construction remaining in the top 10 occupations after oil rigging, logging and agriculture.
Bo Delp from the Workers Defense Project’ Better Builder Program which negotiates with developers to keep work conditions safe and training programs up to par. He feels like the houses we live in should be built with the same security as the feeling people have when they live in them.
“I would really hate the idea of living in a house that was a little cheaper but someone had to be maimed or killed on the job in order for me to save money. That’s not the kind of community I want to live in,” Delp said.
When employers opt out of the state-run compensation program they replace it with a series of other types of insurance such as accident and health policies, employer indemnification agreements, and disability policies. The idea is that these other plans are cheaper than taking on the whole workers comp package. Those plans may be of benefit to some workers, but are not recognized by the state as replacements for workers compensation.
The Better Builder Program uses signed agreements with developers who promise to maintain certain standards of construction safety, training and providing living wages for their workers. Workers Defense Project then provides on-site monitors to make sure the agreement is being upheld.
Delp said that “people are hurt, not provided adequate safety training, and when you’re trying to support a family and you’re seriously injured on the job, that can really impact your ability to live in our community as it becomes increasingly expensive.”
For Chris Martinez, his welding workshop in Houston gives each person four straight days of work, then four days off. The workshop that Martinez works under does not use the state-run workers compensation program but a third party insurance company. In order for someone to receive benefits an injury would have to be reported at the end of a shift or within 24 hours.
“What the foremen say is that if you can’t do your work, if you can’t work it out, then you don’t need to be here,” Chris said.
Katrina, his wife, said that so many times, rather than file an injury report, any illness or injury is dealt with out of pocket without telling anyone.
“For fear of being fired they don’t tell anybody and they go pay for it themselves. Chris got a huge piece of pipe dropped on his head last year - I’m almost positive he had a concussion,” Katrina Martinez said.
San Antonio, as well as East Austin has experienced exponential growth in the last decade. Apartment complexes, houses, condos, businesses of every size have been taking advantage of the real estate. In 2013 Workers Defense Project partnered with UT Austin to conduct research on construction working conditions in Texas. The report said between 1997 and 2010 the population in the state increased by nearly 25 percent, twice the amount of growth the U.S. experienced in that same time period.
The demand for housing and infrastructure created a Texas economy where construction accounts for one out of every 20 dollars. In 2011, Texas single-handedly accounted for 16 percent of all new housing construction permits in the US, more than both Florida and California combined.
Due to the major expansion in cities like Austin, Houston and San Antonio, the construction industry has also become increasingly competitive. In order to keep costs down without compromising the integrity of a building, the cost is then passed down to workers either by way of cheaper insurance agreements or lower wages.
Passing reforms for workers compensation and safety would be a huge elephant to tackle in the legislature. Texas has allowed for such a huge expansion of its cities by allowing the expansion to occur almost unhindered. The cranes, traffic cones and bulldozers across Austin are a testament to the expansion of the city, but that city shouldn’t come at the cost of its people. The issue of workers compensation and safety concerns the entire state.
Bill Beardall, executive director of the Equal Justice Center, said one the biggest things that would need to change would be to bring back lawyers who work in favor of the employees.
So far it is only the big insurance companies and employers with lawyers well versed in the policies and fine print, leaving the worker in the dust when it comes to taking advantage of benefits when they really need them. If they want to appeal any rejected benefits, workers have hearings with a committee that is formed by the employer, not a judge or other more objective party.
Making workers comp a mandatory program would potentially decrease the loopholes that allow for workers to lose their jobs or wind up paying out of pocket for long-term injuries.
People are always going to get hurt in fields like construction, but that doesn’t mean that the human lives making the houses and skyscrapers are not worthy of being able to adequately provide for their families and get medical help so that they can continue to work.
The last time Texas legislators took on workers compensation reform was in 2013, with a bill that would make compensation mandatory. That bill died, with one argument being that it interfered with private business. At the same time, Texas ranks in the top 10 most dangerous places for workers, with construction remaining in the top 10 occupations after oil rigging, logging and agriculture.
Bo Delp from the Workers Defense Project’ Better Builder Program which negotiates with developers to keep work conditions safe and training programs up to par. He feels like the houses we live in should be built with the same security as the feeling people have when they live in them.
“I would really hate the idea of living in a house that was a little cheaper but someone had to be maimed or killed on the job in order for me to save money. That’s not the kind of community I want to live in,” Delp said.
When employers opt out of the state-run compensation program they replace it with a series of other types of insurance such as accident and health policies, employer indemnification agreements, and disability policies. The idea is that these other plans are cheaper than taking on the whole workers comp package. Those plans may be of benefit to some workers, but are not recognized by the state as replacements for workers compensation.
The Better Builder Program uses signed agreements with developers who promise to maintain certain standards of construction safety, training and providing living wages for their workers. Workers Defense Project then provides on-site monitors to make sure the agreement is being upheld.
Delp said that “people are hurt, not provided adequate safety training, and when you’re trying to support a family and you’re seriously injured on the job, that can really impact your ability to live in our community as it becomes increasingly expensive.”
For Chris Martinez, his welding workshop in Houston gives each person four straight days of work, then four days off. The workshop that Martinez works under does not use the state-run workers compensation program but a third party insurance company. In order for someone to receive benefits an injury would have to be reported at the end of a shift or within 24 hours.
“What the foremen say is that if you can’t do your work, if you can’t work it out, then you don’t need to be here,” Chris said.
Katrina, his wife, said that so many times, rather than file an injury report, any illness or injury is dealt with out of pocket without telling anyone.
“For fear of being fired they don’t tell anybody and they go pay for it themselves. Chris got a huge piece of pipe dropped on his head last year - I’m almost positive he had a concussion,” Katrina Martinez said.
San Antonio, as well as East Austin has experienced exponential growth in the last decade. Apartment complexes, houses, condos, businesses of every size have been taking advantage of the real estate. In 2013 Workers Defense Project partnered with UT Austin to conduct research on construction working conditions in Texas. The report said between 1997 and 2010 the population in the state increased by nearly 25 percent, twice the amount of growth the U.S. experienced in that same time period.
The demand for housing and infrastructure created a Texas economy where construction accounts for one out of every 20 dollars. In 2011, Texas single-handedly accounted for 16 percent of all new housing construction permits in the US, more than both Florida and California combined.
Due to the major expansion in cities like Austin, Houston and San Antonio, the construction industry has also become increasingly competitive. In order to keep costs down without compromising the integrity of a building, the cost is then passed down to workers either by way of cheaper insurance agreements or lower wages.
Passing reforms for workers compensation and safety would be a huge elephant to tackle in the legislature. Texas has allowed for such a huge expansion of its cities by allowing the expansion to occur almost unhindered. The cranes, traffic cones and bulldozers across Austin are a testament to the expansion of the city, but that city shouldn’t come at the cost of its people. The issue of workers compensation and safety concerns the entire state.
Bill Beardall, executive director of the Equal Justice Center, said one the biggest things that would need to change would be to bring back lawyers who work in favor of the employees.
So far it is only the big insurance companies and employers with lawyers well versed in the policies and fine print, leaving the worker in the dust when it comes to taking advantage of benefits when they really need them. If they want to appeal any rejected benefits, workers have hearings with a committee that is formed by the employer, not a judge or other more objective party.
Making workers comp a mandatory program would potentially decrease the loopholes that allow for workers to lose their jobs or wind up paying out of pocket for long-term injuries.
People are always going to get hurt in fields like construction, but that doesn’t mean that the human lives making the houses and skyscrapers are not worthy of being able to adequately provide for their families and get medical help so that they can continue to work.