GQ Corner
Q. Is there a time limit for a claimant’s attorney to submit a request for attorney fees?
A. No, neither the Act nor the Rules contain a time requirement or limit of this nature. However, where the fees are to be paid by reduction of income benefits, the order is only effective against benefits payable after Carrier’s receipt of the fee order.
Q. A drug screen was performed three days after the claimed injury and came back positive for opiates. Does the three-day delay between the injury and the screen preclude a denial of the claim by way of an intoxication defense?
A. No, the evidence may indeed still support an intoxication defense notwithstanding the delay. However, intoxication is a fact issue, and the likelihood of prevailing on the defense generally decreases as the degree of attenuation increases. You will also need to review whether post-injury treatment included medications that would account for the positive opiate testing.
Q. I have a claimant who elected to commute a 55% impairment rating before subsequently seeking entitlement to LIBS. Can he successfully establish LIBS entitlement despite the commutation?
A. No. Texas Labor Code Section 408.128 provides that an employee who elects to commute impairment income benefits (IIBS) is not entitled to “additional income benefits” for the compensable injury. The reference to “additional income benefits” is unqualified and therefore confirms the preclusive effect of commuting IIBS.
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