Texas Workers' Compensation Defense: Contributing Injury

Under Texas law, there are 8 defenses that employers can use to deny injured workers their workers' comp benefits. While workers' comp is a system that is theoretically supposed to cover a worker's injuries irrespective of fault, the following defenses highlight exceptions to this general rule:

• Act of God
• Employee was intoxicated
• Injury caused by horseplay
• Injury was deliberately self-inflicted
• Intentional injury caused by a co-worker
• Injury caused by a recreational activity
• Not in course and scope of employment

Another defense available to employers is called the Contributing Injury Defense. The whole idea behind this defense is that employers should't have to pay for pre-existing injuries or degenerative conditions (such as an employee having "bad knees" before ever coming to work for the company). The problem with this defense is that it's not hard to imagine how an employee could have a pre-existing injury that is "under control" or not really a problem for the employee, yet an on-the-job incident can suddenly cause this predisposition toward problems to become a very real medical dilemma for the employee.

Therein lies the problem. The law is not perfectly clear as to which pre-existing or contributing injuries the employer should have to cover and which ones they shouldn't have to cover. As such, injured workers who should receive benefits are often unfairly denied on this vague technicality.

In this article, Texas workers' compensation attorney Michael Grossman explains how this defense works and how an attorney can help an injured worker who is being unfairly denied benefits under the Contributing Injury Defense.

Questions answered on this page:

• What is the Contributing Injury Defenses?
• How do contributing or pre-existing injuries affect the amount of benefits available to an injured worker?
• How can the Contributing Injury defense be abused?
• How can an experienced workers' compensation attorney ensure you get everything due to you under the law?

Texas Law and Contributing Injury Defenses

Section 408.084 of the Texas Labor Code defines Contributing Injury. It reads as follows:

• (a) At the request of the insurance carrier, the commissioner may order that impairment income benefits and supplemental income benefits be reduced in a proportion equal to the proportion of a documented impairment that resulted from earlier compensable injuries.
• (b) The commissioner shall consider the cumulative impact of the compensable injuries on the employee's overall impairment in determining a reduction under this section.
• (c) If the combination of the compensable injuries results in an injury compensable under Section 408.161, the benefits for that injury shall be paid as provided by Section 408.162.

The two components of a Contributory Injury are that it is an impairment and that it was a previously compensated injury. This section of the law grants insurance companies the right to request that workers' comp benefits be modified to account for an injury that a worker has already been paid for.

For example, imagine that two years ago a worker injured his left shoulder in a workplace accident and as a result of the injury they have permanent impairment consisting of limited use and strength in their shoulder. Then they are injured in another workplace accident and as a result suffer permanent damage on the right side of their body.

Under this situation, an insurance company would argue that the injured worker would only be able to receive compensation for injuries not relating to the impairment of the previously injured left arm. They would be able to receive compensation for everything else, but they would not be able receive compensation for limited use and strength in their shoulder because they already did. Essentially, people are not allowed to double-dip on compensation for injuries for which they were already compensated.

How Contributing Injury Defenses Can Harm Injured Workers?

If we look at the previous example of the worker with the injured worker, followed by right-side paralysis, it becomes a little clearer how this can be abused by insurance companies. A person with use of only one side of their body is certainly seriously impaired, but the assumption is that they still have use of the other side. In the previous example, it is clear that the injured workers' previous injury, prevents full use of of the supposedly "healthy" side of his body.

Put more simply, the worker was already compensated for the shoulder injury should and cannot receive money for that injury again. That allows the insurance company to evaluate the injury as impairment to one side of the worker's body. The problem is, that the first injury did not actually heal properly and coupled with the new injury creates a level of impairment, who sum is far greater than the impact of either of the two injuries separately.

However, the law says since the worker has already been paid for the first injury, the insurance company is allowed to ask that it not be considered when calculating benefits for the second injury. It is quite possible that the worker will be compensated as if he still has one good side of his body left, even though the previous injury means that it is not the case.

In the end, the worker could be compensated for the level of impairment relating only to the one side of his body that doesn't work. When the reality is that having only a single good leg among his four appendages means that the workers' level of impairment is far greater than when the injuries are considered separately.

You need to consult with an experienced worker's compensation attorney.

Regardless of whether you have a previous workplace injury that has left you with a permanent impairment or not, the first thing you should do when you are injured in a workplace accident is consult with an experienced worker's compensation attorney. They will be able to tell you all of your rights under the law and advise you on the best course of action to take to protect your rights and maximize your compensation.

The work injury attorneys at Grossman Law Offices have over twenty-five years of experience and we have successfully represented thousands of clients and won them the compensation that they deserve.

If you have questions about your case and wish to speak with one of our attorneys, please call (855) 326-0000, toll free any time of day or night.

If you are and injured worker who would like to know more about Texas workers' compensation, please read the following articles:

• How Do Texas Impairment Income Benefits Work?
• What Is an Impairment Rating and How Does it Affect Your Benefits?
• Why You Should Never Accept Payment Under the Table for a Work Injury