St. Mary's Law Journal


Phil Hardberger


The present Texas Workers’ Compensation system began development in January of 1989 and has been in effect since 1991. Texas is the only state in which workers’ compensation coverage is optional. Alternative benefits plans are provided in some cases; however, many injured workers receive less than they would under the Texas Workers’ Compensation system. The current system uses supplemental income benefits (SIBs), meaning injured workers can be cut off from benefits if they are less than 15% impaired, and the maximum time to appeal each case is ninety days (Rule 130.5(e)). The 71st Texas Legislature focused on decreasing attorney involvement in workers’ compensation cases by limiting the amount of money an attorney may receive. Workers’ compensation cases became unattractive to attorneys and promoted the use of ombudsmen—agents provided by the state who help injured workers navigate the system. Ombudsmen, however, are severely limited in what they can do for each case, and 68% of injured workers surveyed feel that the current system is unfair. Several issues must be resolved by the Texas Legislature for the system to serve injured workers better. The ombudsmen program must be expanded to employ more staff with greater responsibility. The Legislature should either make the workers’ compensation system mandatory for all employers or regulate the alternative benefit plans offered. Legislation needs to be enacted to prohibit discriminatory or retaliatory discharge against employees of non-subscribing employers. The threshold of impairment for SIBs should be lowered from 15% to 11%, and quality review measures should be enacted with statutory penalties to prevent inconsistent impairment ratings. Lastly, Rule 130.5(e) needs to be abolished. Alternatively, the Texas Workers’ Compensation Commission (TWCC) must find a way to clearly communicate workers’ rights, and injured workers need the ability to reopen cases if there is a substantial change in status.


St. Mary's University School of Law