Written by attorney Thomas Dean Malone

Work Injury Claims in Texas - Worker's Compensation, Non-Subscribers, and Third-Party Claims

Texas has in place a law that allows employers to obtain worker's compensation insurance to avoid being sued for most work injuries. If an employer has worker's compensation insurance, then an injured employee who survives cannot sue the employer for injuries sustained while at work. Instead, the employee can only obtain help through the worker's compensation system. This is frustrating to many injured workers, because they feel that they cannot obtain just compensation.

There is one primary exception to this rule. If an employee is killed while working, then certain of the employee's family members can sue the employer for gross negligence. Gross negligence, without give the exact legal standard, is generally when an employer acts or fails to act with conscious disregard for the safety of its employees. An employer might fail to, for example, provide fall protection equipment or fall safety training for its employees. If an employee falls and dies, then the employer might be liable for gross negligence.

If a Texas employer does not have worker's compensation insurance, then the employer is called a "non-subscriber." The employer does not subscribe to the worker's compensation system. Such an employer can usually be sued in court for damages. The exception would be when there is a valid arbitration agreement requiring an employee to arbitrate his or her claims related to the injuries sustained at work. Arbitration is a proceeding that occurs outside the court system.

When an non-subscriber employer is sued for a workplace injury in Texas, or pursued in arbitration, the employer waives the primary defenses usually available to most defendants. The primary defense which is waived is known as "comparative fault." Some people refer to this as contributory negligence. Comparative fault lets a judge, arbitrator, or jury determine the percentage of fault of all people who could be responsible for a person's injuries. For example, in an auto accident case, a jury might find that one driver is 70 percent at fault and the other driver is 30 percent at fault. However, in a non-subscriber work injury case, if an employer is only 1 percent at fault, the employer is liable for 100 percent of an injured employee's damages. This is because the Texas Legislature wanted to encourage employers to subscribe to the worker's compensation system. If employers chose not to do so, they assume the risk of injuries to their employees.

There is another important point to address regarding Texas employers covered by worker's compensation insurance. If an employee is injured at work, and there is someone other than the employer who is partially responsible for the injuries, the employer can sue the other person. These are called "third-party claims." For example, if a machine is defective, and an employee is injured as a result, then the machine manufacturer can be sued. Of, if an employee is injured in an auto accident while driving a company truck, the employee can sue the at-fault driver. The worker's compensation insurance carrier would have a lien against any settlement proceed for any amounts it paid through worker's compensation insurance (minus some amounts which are not discussed here).

It is important for Texas injured workers and their families to understand these principles when looking for a lawyer. There are lawyers and law firms that handle only worker's compensation claims. In other words, they handle claims by employees related to dealing with the worker's compensation insurance carrier. Other firms, like my firm, do not handle those types of claims. Instead, firms like mine represent people regarding third-party claims and non-subscriber claims. Be sure that you understand the type of claim that you or a family member have when seeking the services of an attorney.

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