GQ Corner
Q. We are a private employer with workers’ comp coverage in Texas, and we have a large deductible. We would like to receive copies of correspondence between our adjuster and the attorney they hire to defend claims before DWC. Are we entitled to receive that correspondence?
A. In Texas, the courts generally recognize only two (2) parties in the workers’ comp system – the insurance carrier (an insurance company, a certified self-insurer for workers’ compensation insurance, a certified self-insurance group under Chapter 407A, or a governmental entity that self-insurers either individually or collectively) and the injured worker. The employer plays a valuable and key role in the process, but it is not considered a party unless it has filed its own contest of compensability. Attorney/Client privilege applies to communications between the insurance carrier and its attorney, and does not extend to the employer. That is critical to the exclusive remedy protection Texas provides to subscribing employers.
In In re XL Specialty, 373 S.W.3d 46 (Tex. 2012), the Texas Supreme Court held that communications between defense counsel and the carrier or its representatives is only privileged to the extent that such communication is not provided to the insured employer unless such insured employer is a self-insured entity certified by the Division of Workers’ Compensation to provide workers’ compensation benefits through self-insurance. Such privilege is not afforded in a case where the insured simply has a high deductible plan. In the event that the insured is provided a copy of the correspondence, the privilege is waived and such correspondence is discoverable by the injured employee.
The attorney defending your insurance carrier should correspond with you regularly and provide relevant case updates, but do so in separate communications to you. And, they must be careful about the contents of that correspondence, as it is clearly discoverable by the injured worker under In re XL Specialty.
FOLIO
