Frequently Asked Questions for Crawford and Melinda Kirkpatrick

Q. If injured, why do I need an attorney? Can’t I just save the money and take care of matters on my own?

A. You need someone on your side who is experienced in dealing with insurance companies, who have many people working for them. Often, they’ll try to avoid or delay paying valid claims, or offer unfairly low amounts to settle claims. Accident victims need someone to assert their rights so they can obtain that to which they are legally entitled. Experienced personal injury attorneys, such as Crawford and Melinda Kirkpatrick knows how insurance companies work.

If you needed surgery, you would not operate on yourself. The same concept holds true in law — if you are hurt in an accident, you should seek a professional’s help. Not only will an attorney make recovering damages a lot easier, but also you will have a better chance of recovering money, and you’ll likely get more money. A study was done which shows that auto accident victims who use attorneys receive about 25% more money than those who do not -- even after deducting all costs.

Q. OK, You’ve convinced me. Now, I need to tell you that I’ve been injured on the job. I’m frightening and I’m hurting. What should I do?

A.  First, you must report the injury; seek medical attention, and then submit your claim. You must notify your employer of the facts and circumstances surrounding your injury by telling your supervisor or someone else in a managerial position. If possible, put this notice in writing and keep a copy for your records.

In the report, accurately detail the circumstances surrounding the incident, and describe all parts of your body that were affected. Inform your employer of all witnesses to the accident; these observers will be crucial in verifying the events leading up to and occurring after your injury.

As soon as possible, ask all witnesses to write in their own words exactly what happened, and be sure that they sign and date their statements. Ask for a copy of the accident report completed by your employer. If your employer does not make a written report, ask your supervisor to sign a statement indicating that you informed your employer about the on-the-job accident, and get at least one witness to sign that statement as well.

Q. How soon do I have to tell my employer about my injury?

A. You must inform your employer of your injury within 30 days of the incident, or you will waive your rights to workers’ compensation benefits for that injury. In fact, Crawford and Melinda Kirkpatrick recommend that the sooner you notify your employer, the better. “Even if you don’t think your injury is serious at the time, you should immediately report it anyway. Many claims are denied simply because they are not reported promptly,” says Melinda, who has handled personal injury cases since 1987.

Melinda advises that if you suffer from an occupational disease –a condition that occurred because of your job - you must notify the employer within 30 days of the date you knew about the condition. The term “occupational disease” includes but is not limited to repetitive trauma injuries, such as carpal tunnel syndrome and prolonged exposure to chemicals.

Q. Must I obtain treatment from the doctor that the company recommends?

A. By law, you have the right to choose your own treating doctor. Typically, when an individual reports an injury, an employer will send the injured worker to a doctor of the company’s choice. “It is not unusual for a company doctor to attempt to return an injured employee back to work as soon as possible,” explains Crawford Kirkpatrick. “You must keep in mind that a company doctor is just that – a doctor who works for and with the company; consequently, the doctor’s loyalty is with the company, not you.”

The Kirkpatricks recommend that if you don’t already have a doctor whom you trust, ask these questions when evaluating potential doctors:

c. Is this a trustworthy person, someone with whom I am comfortable?

b. Does this doctor know a great deal about workers’ compensation?

c. Will this doctor give me the personal attention I need?

d. Is this doctor willing to answer my questions honestly and to give me an overview of my treatment plan?

e. Is this doctor ready, willing and able to fight for my rights, regardless of the insurance company’s position?

“Seeking proper medical care is critical to your claim,” asserts Crawford. “The purpose of workers’ compensation is to assist the injured worker in obtaining compensation while he/she is incapable of working. Once you have the ability to work, you should definitely do so.”

Q. How do I submit a claim for workers’ compensation?

A. To report a claim, you must complete an Employee’s Notice of Injury or Occupational Disease and Claim for Compensation. This form is generally referred to as a TWCC-41, and someone working on your behalf can complete it for you. You can obtain a copy of the form at the law office of Crawford and Melinda Kirkpatrick or at your nearest Texas Workers’ Compensation Commission field office. To find that location, call 1-800-252-7031 or download the TWCC-41 at http://www.twcc.state.tx.us.

Q. What is a compensable injury?

A. This means that your treatment can be paid for or “compensated” by workers’ compensation if your injury, illness or disease happened while you were performing your job. This injury can occur off premises from your workplace, according to Crawford Kirkpatrick. “For example, if you are traveling to a meeting for your job, or even talking to a client/customer on a cell phone while driving home, and you are hit by a car, you can file a workers compensation claim. In fact, you can still be compensated for the injury even if your negligence contributed to the injury,” Crawford explains. “For instance, you were distracted by talking on your cell phone to a client, and you hit a car and became injured.”

The definition of a compensable injury is very broad. The following are NOT typically considered compensable injuries:

• If the employee is involved in “horseplay” at the time of injury;

• If the employee is intoxicated at the time of injury;

• If the employee willfully attempts to injure himself/herself or another person;

• If a third party injures the employee for personal, rather than job-related reasons.

• If the injury is an “act of God” –Example: an earthquake or a flood. However, the injury from an “act of God” event could be covered if the employer has exposed the employee to a greater risk of injury than normal during this event.

The above exclusions rely heavily on specific facts. If your claim is denied as “uncompensable,” you should immediately seek professional help to develop your claim. Attorneys Crawford and Melinda Kirkpatrick are most willing to help you.

Recorded Statements

If you don’t yet have legal representation, do not allow the insurance carrier to take your recorded statement. Simply inform the adjuster that you wish to speak with your attorney first. This may save you a lot of trouble and prevent your claim from being disputed. Even without your statement, the insurance carrier will be able to get all the facts needed to determine if your claim is compensable. “Many times, insurance carriers will take a recorded statement primarily to get information they can use to dispute your claim. Don’t make the job of the insurance company easier – at your expense,” advises Crawford.

Q. What types of claims can I file?

A. The first is a typical injury claim, where an event causes injury to an employee. Even though you may not immediately know the extent of your injuries, there is a definite time and place where the incident occurred.

The second type of claim is an occupational disease claim. Two examples of occupational injuries are 1) carpal tunnel syndrome, and 2) exposure to chemicals for prolonged periods that cause damage or harm the physical structure of your body. Typically, the biggest problem a claimant with an occupational disease has is determining the date of injury and reporting this to the employer within 30 days.

According to Melinda Kirkpatrick, the date of your injury is the earlier of:

a.  The date you actually determined your condition is related to your employment; or

b. The date you should have known your condition is related to your employment.

“Great care must be taken to show that the injury was reported with 30 days, or you risk waiving your rights to benefits,” says Melinda.

Q. With my personal injury, what kind of benefits am I entitled to?

A. There may be several, depending upon the severity of the injury and the effects this injury has had upon you:

1. A claim for medical benefits only, if you are capable of continuing to work after the injury has occurred.
2. A claim for medical and income benefits, if your injury prevents you from working while you are obtaining medical services; and
3. A claim by your estate for death and burial benefits, if you are killed in the course and scope of your employment.

“For an injury that does not prevent you from working but does require you to seek medical attention, the insurance carrier is required to pay all medical expenses that are reasonable and necessary for the treatment of your injury,” explains Crawford.  “The carrier is not required to pay all your medical bills after an injury; only those specifically related to your injury.

For instance, if you had a compensable knee injury and while at the doctor’s office were given a hearing test, the insurance carrier would not be responsible for the expense of the hearing test. while this example may seem far-fetched, there are many instances where it is difficult to ascertain whether the medical treatment relates to or results from the original injury, or whether it is independent of the original injury.”

The second type of claim you may have is for income benefits. Income benefits are payable when the severity of your injury prevents you from continuing to work. Income benefits are intended to replace a portion of the money you were making while employed. Income benefits are paid at 70% of your average weekly wage. However, if you made less than $8.50 an hour, then income benefits are paid at 75% of your average weekly wage for the first 26 weeks of disability, and at 70% thereafter.

The third type of claim is for death and burial benefits. “Death benefits are paid to the spouse, dependent children or other dependent family members if the death is caused from the employment,” says Melinda. “The length of time death benefits are paid depends on the beneficiary’s relationship to the deceased. A spouse may receive death benefits for the remainder of his/her life, provided he/she does not remarry. A minor child may receive benefits until he/she reaches the age of 18. The child may receive benefits after 18 years of age under certain circumstances; for instance, if the child has a physical or mental disability or is enrolled in an accredited school. Burial benefits are paid to the individual or entity that paid the deceased worker’s funeral expenses. The maximum amount allowed for funeral expenses is currently $6,000.00,” Melinda adds.

Q. When do income benefits begin and how long do they last?

A. Four different types of income benefits are available to an injured worker: temporary income benefits, impairment income benefits, supplemental income benefits, and lifetime income benefits.

Temporary income benefits (TIBS) begin to accrue the eighth day after you’ve been released from work. If you are unable to return to work in four weeks, you will receive two checks (around the fifth week) to pay you for the first week of missed work. TIBS continue to be paid on a weekly basis until you reach your maximum medical improvement, or until a qualified health-care provider determines you are capable of returning to work.

Under either circumstance, TIBS cannot last longer than 104 weeks except if you have been approved for spinal surgery or actually had spinal surgery within 12 weeks before the expiration of the 104-week TIBS period. If properly requested, the Commission may extend the date of maximum medical improvements to a date certain based on the medical evidence presented.

Impairment income benefits (IIBS) are paid when you receive a permanent impairment rating for the injuries sustained as a result of your employment. You become eligible to receive IIBS the day after you reach maximum medical improvement. “The length of time IIBS are paid depends on your impairment rating,” says Crawford. “You will receive three weeks of pay for every one percent of whole body impairment. For example, if your whole body impairment rating is 6%, you will receive benefits for 18 more weeks.”

To qualify for supplemental income benefits (SIBS), you must meet four statutory requirements:

1. Your final impairment rating must be 15% or greater.
2. You either (a) have not been able to return to work, or (b) have returned to work but are earning less than 80% of your average weekly wage. Under either scenario, your unemployment or reduced employment must be the direct result of your impairment from the compensable injury.
3. You cannot commute any portion of your impairment income benefits. This means you must not take your impairment income benefits all at once or in one lump sum.
4. You must have attempted in good faith to seek and obtain employment commensurate with your ability to work. “This requirement is the basis of most disputes involving SIBS cases,” explains Melinda. “What constitutes ‘good faith’ in attempting to find employment depends on the circumstances of each case. I strongly recommend that if your impairment rating is 15% or greater, you seek professional advice at least four months prior to the time your impairment income benefits are to end. If you wait until your IIBS stop, you may lose some or all of your supplemental income benefits.”

During the first quarter of your SIBS claim, the Commission determines whether or not you are entitled to benefits. If the Commission approves you, the insurance carrier may still dispute your entitlement and request a hearing. Or, the insurance company may accept the determination and pay. “If the Commission denies you for the first quarter, you must file your request for SIBS directly with the insurance carrier and Commission on the Commision’s approved form,” explains Crawford. “Failure to timely file your application may waive all or a portion of your SIBS. If the insurance carrier accepts your application, they will pay benefits for the three months of that quarter. If your application is denied, it is your responsibility to request a hearing and prove your entitlement,” he adds. “If you lose four successive quarters of SIBS, your claim for income benefits is over.”

The fourth type of income benefit you may be able to obtain is called lifetime income benefits (LIBS). As the name indicates, LIBS are paid until your death at 75% of your average weekly wage. To qualify for LIBS, you must have one of the following types of injuries:

1. Total and permanent loss of sight in both eyes
   
2. Loss of both feet at or above the ankles
   
3. Loss of both hands at or above the wrists
   
4. Loss of one foot at or above the ankle and loss of one hand at or above the wrist
   
5. An injury to the spine that results in permanent and complete paralysis of  both arms, both legs, or one arm and one leg.
   
6. For an injury to the skull that occurred before September 1, 1997 , resulting in incurable insanity or imbecility.
   
7. For a physically traumatic injury to the brain that occurred on or after September 1, 1997, resulting in incurable insanity or imbecility.
   
8. For an injury that occurred on or after June 17, 2001, resulting in third-degree burns covering at least 40% of the body and requiring skin-grafts, or third-degree burns covering the majority of either both hands or one hand and the face.
   
   

Q. That is really comprehensive information. Now I have a few more questions. I’ve heard about Board Certification by the Texas Board of Legal Specialization. Tell me what this means and how important it is.

A: A Board Certified attorney demonstrates special competence in a specific field in which the Texas Board of Legal Specialization has certified that attorney.

The Texas Board of Legal Specialization was created by the Supreme Court of Texas and the Board members are appointed by the President of the State Bar of Texas. The Board, in turn, administers the program through which attorneys demonstrate their special competence in a particular area of law practice. With these special credentials, hiring a board-certified attorney should bring you comfort and confidence in the outcome of your case.

Q: How many attorneys are currently Board Certified in Personal Injury Trial Law?

A: Melinda Crawford is one of only about 1,350 Texas attorneys now Board Certified in Personal Injury Trail Law out of the population of approximately 67,000 total attorneys in the State of Texas.

Q: How long does an attorney remain certified in Personal Injury Trial Law?

A: Initial certification lasts 5 years. To remain certified after that time, every 5 years the attorney must apply for re-certification and meet the requirements for continued experience, peer review and continuing legal education.

Q: What are the general requirements for Board Certification in Personal Injury Trial Law?

A: All Personal Injury Trial Law Board Certified attorneys must have:

1. Attended personal injury trial law continuing legal education seminars regularly to ensure that their legal training is current.
2. Undergone evaluation by fellow lawyers and judges
3. Passed a day-long written examination and been licensed to practice law for at least 5 years
4. Practiced personal injury trial law for at least 3 years
5. Dedicated a minimum of 25% of their law practice to personal injury trial law
6. Handled a wide variety of personal injury trial law matters to show experience and involvement.

Q: What special requirements must an attorney who is Board Certified in Personal Injury Law meet?

A: An attorney, such as Melinda Crawford, who is Board Certified in Personal Injury Trial Law, must have handled jury trials in cases involving vehicle accidents, worker's compensation , premises liability, products liability, statutory tort claims, medical malpractice, maritime accidents, social security claims or claims involving mental anguish damages not necessarily accompanied by a physical injury. In addition, such an attorney must also have extensive knowledge of the law of evidence, procedure, and other substantive law in the trial of civil cases.

Social Security/SSI Section

Q. What kind of disability benefits does Social Security pay?

People who are severely disabled may be eligible for monthly benefits under one or more of the programs overseen by the U.S. Social Security Administration. Both the Social Security program and the SSI program provide a monthly income for people with severe disabilities. However, the eligibility requirements for the two programs are different.

The Social Security program pays benefits to disabled or retired workers and their families and to the families of deceased workers. To be eligible for Social Security disability benefits, you must be disabled and must have earned a minimum number of credits from work covered under Social Security. (The required number of credits varies depending on your age at the time you became disabled.)

The SSI program provides monthly income to people who are age 65 or older, or are blind or disabled, and have limited income and financial resources. Generally, to be eligible for SSI, an individual also must be a resident of the United States and must be a citizen or a non-citizen lawfully admitted for permanent residence. Also, some non-citizens granted a special status by the Immigration and Naturalization Service may be eligible.

Q. What is the difference between Social Security disability and SSI?

A. Social Security disability insurance is a program that workers, employers and the self- employed pay for with their Social Security taxes. You qualify for these benefits based on your work history, and the amount of your benefit is based on your earnings.

SSI, on the other hand, is a program financed through general tax revenues-not through Social Security trust funds. SSI disability benefits are paid to people who have a disability and who do not own much or have a lot of income.

Q. What are the disability requirements for an adult?

A.     The definition of disability under Social Security law is a strict one. To be eligible for benefits, a person must be unable to do any kind of substantial gainful work because of a physical or mental impairment (or a combination of impairments), which is expected either to last at least 12 months or to end in death.

If, because of a medical condition, a person cannot do the work that they performed in the past, then age, education, and past work experience must be considered in determining whether the person can do other work. If the evidence shows that the person can do other work, even if it involves different skills or pays less than their previous work, they cannot be considered disabled for Social Security purposes.

According to Melinda Crawford, the S.S.A. uses a step-by-step process to determine whether you will qualify as being disabled. The process includes the following five questions:

1. Are you working?
   If you are and your earnings average more than $700 a month, you generally cannot be considered disabled.

2. Is your condition severe?
   Your impairments must interfere with basic work-related activities for your claim to be considered.

3. Is your condition found in the list of disabling impairments?
   Note: See previous section. The S.S.A. maintains a list of impairments for each of the major body systems that are so severe they automatically mean you are disabled. If your condition is not on the list, the S.S.A. will decide if your impairment is of equal severity to an impairment on the list. If it is, your claim is approved. If it is not, the S.S.A will go to the next step.

4. Can you do the work you did previously?
   If your condition is severe, but not at the same or equal severity as an impairment on the list, the S.S.A. must determine if it interferes with your ability to do the work you did in the last 15 years. If it does not, your claim will be denied. If it does, your claim will be considered further.

5. Can a person perform any other type of work?
   If you cannot do the work you did in the last 15 years, the S.S.A determines if you can do any other type of work. The S.S.A. considers your age, education, past work experience, and transferable skills, and they review the job demands of occupations as determined by the Department of Labor. If you cannot do any other kind of work, your claim will be approved. If you can, your claim will be denied.

Workers Compensation Section

Q. What is Workers' Compensation?

A. Workers' Compensation is insurance that by law your employer is required to carry in case an employee is injured on the job, becomes ill due to circumstances surrounding their job or even if death results from their job. Benefits include medical expenses, lost wages, vocational rehabilitation, and death benefits.

 Workers' comp exists both as a way to benefit injured workers and as a way to protect employers. Before workers' comp laws existed, serious injury to an employee could bankrupt an employer due to the employee being able to sue their employer. Workers' compensation is a no-fault insurance system. Negligence on the part of workers or employers is not an issue in paying benefits.

Q. Who is responsible for providing the benefits under the Workers' Compensation Act?

A. By law the employer is responsible for providing Workers' Compensation Insurance. In some instances the employer provides benefits directly by being self-insured. Otherwise, the employer provides the benefit indirectly through a Workers' Compensation insurance company. A worker cannot be charged for benefits provided or any portion of their employer's Workers' Compensation insurance premium. Explains Crawford Kirkpatrick: “Texas is the only state that still allows private employers to choose whether or not to maintain workers' compensation insurance.”

Q. Is workers' compensation the same as State Disability?

A. Workers' compensation is only for injuries or illnesses that occur due to employment. State Disability is for injuries or illnesses that are not work related. You can file a State Disability claim, but you cannot be paid both workers' compensation and State Disability for the same period of time. However, if your workers' compensation temporary disability rate is less than State Disability, then you may be paid the difference. If your employer's insurance company denies or delays payment, you may be able to receive State Disability temporarily.

Q. What injuries are covered by the Act?

A. See previous section. Any worker who has been injured on the job has a potential Workers' Compensation claim. As long as your injury is job-related, it's covered. In addition, you are covered if you are injured while traveling on business, performing a work-related errand or even attending a required business-related social function. Any injury or illness that occurs due to employment is considered a workers' compensation injury. “Under workers' compensation law, you will receive help if you are injured no matter who was at fault,” says Crawford Kirkpatrick. “Some types of workers' compensation injuries are: broken/fractured bones, back problems/pain, knee problems/injuries, grip loss, heart attacks, hypertension, wrist injuries including carpal tunnel syndrome, burns, shoulder pain, neck pain, headaches, etc. You may be entitled to benefits even if you are still working.”

Q. Does an injury need a specific date of onset in order to be covered?

A. Your injury does not need to be caused by a specific accident such as a fall. Many workers receive compensation for repetitive trauma injuries such as back problems that are caused by overuse or misuse over a long period of time in the performance of their normal work activity. Explains Crawford Kirkpatrick: “You may also be compensated for some illnesses and diseases that are the gradual result of work conditions such as lung disease. Due to the fact that symptoms with these types of injuries reveal themselves over a period of time, the worker might not associate the eventual diagnosis of the injury as being work-related.”

Q. Thank you, Crawford and Melinda. When can I make an appointment to see you?

A. Just call our office administrator at (713)-868-2306. She will arrange a day and time that is convenient for you. We strongly believe in personal service to our clients. Melinda or I may even call you back personally.