Answering All Your Personal Injury and Social Security Disability
When a catastrophic event puts your future at risk, anxiety and uncertainty will cause you to have a million questions. What can you do? How can you provide for your family? Will you recover?
Allow the extensive experience and knowledge of the Packard Law Firm put your worries to rest. Come learn the answers to your questions and see how we can help pull you out of the depths of uncertainty.
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Are there any defenses Texas employers are not allowed to use in a non-subscriber case?
The decision not to enroll in workers’ compensation places certain limits on an employer if an employee files an injury lawsuit. One of the biggest benefits to employees in these cases is that they have a lower burden of proof, and another advantage is that employers are forbidden from using certain defenses against an employee.
Defenses Employers Cannot Use in a Non-Subscriber Injury Case
Under the Texas Labor code, there are several defenses available to non-subscriber employers who are sued after a work injury. However, this law also protects workers by forbidding employers from using certain defenses that would otherwise be allowed in injury cases, including:
- Contributory negligence. Most personal injury cases allow victims to recover lower damages, or even no damages at all, if they are found to be partially liable for the injuries they suffered. However, non-subscriber employers are not allowed to use an employee’s fault against him. It doesn’t matter if the employee is 99% to blame for the accident, if the employer is 1% liable for the injury, the employer is liable for the full costs of the injury.
- Assumption of risk. Many jobs and career paths in Texas are inherently dangerous, carrying an above-average risk of injury. In some injury cases, employees are said to “assume the risk” of dangerous activities, such as acknowledging that construction work at heights or near heavy machinery is dangerous, and any injuries that result cannot be blamed on the employer. This protection is removed from non-subscribing employers.
- Coworker negligence. When an injury is caused by the actions or negligence of a coworker, an employer may avoid liability by encouraging the victim to sue the coworker instead of the company. This defense, also known as the fellow servant doctrine, can no longer be used by non-subscriber employers.
- Pre-injury waivers. People are often asked to sign waivers before engaging in activities that can cause injury or death, such as skiing or skydiving. These waivers are a contract stating that the person signing will not sue the company if they are injured, since they realize there is a risk of injury. Some employers may attempt to protect themselves from liability by making employees sign waivers when they are hired, even before an injury has occurred. While these may be binding in other cases, pre-injury waivers are not admissible in cases against non-subscriber employers.
Even if your injury involved one of these defenses—if a coworker caused your injury, or if you acknowledged that there was a risk of danger in your work—it does not affect liability. In other words, if any of these statements are true, the employer is still responsible for covering the costs of the injury and any other costs due to negligence.
Why Does Texas Law Prevent Employers From Using These Defenses?
Texas lawmakers want to encourage companies to do business in the state, and making workers’ compensation an option rather than a mandatory law can attract employers. However, they also know that it is important to offer worker protections, since injuries can lead to higher unemployment and increased lawsuits. By making it harder for companies who opt out of workers’ compensation programs to escape responsibility, the state is essentially saying that companies who do not participate in the workers’ compensation system are on the hook for any injury costs they incur—and these costs can be in the millions of dollars. It is up to each company to weigh the risks: either pay a smaller amount and purchase workers’ compensation insurance, or risk paying much more after an injury occurs.
Unfortunately, employers who fail to purchase workers’ compensation insurance have a vested interest in defeating non-subscriber claims. These companies will have their own corporate lawyers who work to discredit victims almost immediately after an injury occurs. Our work injury attorneys even the playing field, fighting on your behalf while you take the time you need to heal. Contact the Packard Law Firm today to set up your free, confidential consultation find out how much your non-subscriber claim could be worth.
How does a pre-existing condition affect my Texas non-subscriber case?
If you are filing a lawsuit against a Texas employer who did not subscribe to workers’ compensation, you should expect the employer to defend the company’s interests. While companies can fight against the charges an employee levels against them, they are limited to a handful of defense arguments in a non-subscriber case. One of these is the “pre-existing injury” defense, which claims that the employee’s injury occurred or was made worse by something that happened earlier in the employee’s life.
When Can an Employer Use the Pre-Existing Injury Defense?
The costs of emergency care and ongoing medical treatment make up a large portion of the damages in Texas non-subscriber work injury lawsuits. If the injury has left the victim permanently incapacitated, the employer can also be on the hook for disability and loss of future income payments. As they have relatively few defenses available to them, the employer’s legal team can claim the pre-existing injury defense in any case, and can even make the claim when they have little to no evidence of a prior injury.
The goal of this defense is to attack the victim’s:
- Right to fair compensation. If the employer can convince the jury that the employee’s injury existed before the accident, the employer can escape liability for all costs associated with the injury. Evidence of this can range from you calling in sick after an accident at home to a coworker’s knowledge of your past injuries.
- Monetary award. Even if an employer expects to lose the case, the company may be able to reduce the award by suggesting that a pre-existing injury contributed to your overall suffering. This is technically not allowed, as Texas employs the “thin skull” rule in injury cases, which states that a company must take the employee in the state that it finds him. Simply put, a person cannot receive lower compensation because he or she is more prone to an injury than others. Unfortunately, the suggestion of a pre-existing condition does have the potential to influence the jury when it comes time to assign a dollar value to the case.
- Credibility. If the defense finds out that you injured the same part of your body years earlier and you failed to inform your employer, the employer can attack your credibility. By omitting the truth about your injury, the court may presume that you were trying to get compensation under false pretenses, and your case is likely to fall apart. Even if you did suffer an injury years earlier, it is always best to inform your attorney to allow him or her to prepare for the day it is addressed in front of the judge.
Does a Pre-Existing Injury Automatically Disqualify Me From Compensation?
A previous injury does not bar an employee from seeking compensation. However, these cases must be handled delicately in order for the victim to have the best chance of success in court. It is best to work under the assumption that the defense knows everything you do and won’t hesitate to use anything that could discredit you. First, you must give your attorney all information necessary about the prior injury, including dates, prognoses, and medical records. This will allow your attorney to prepare a rebuttal to any claim about your condition that the defense might make.
One of the ways these claims may be rebutted is by questioning the impact and relevance of the prior injury. If you suffered a broken wrist in a car accident years earlier and are looking for compensation for carpal tunnel syndrome, your attorney should be able to provide x-rays, medical evidence, and doctor’s testimony about the likely bearing of the old injury onto the new one. These cases typically involve qualified experts, including medical practitioners and accident reconstructionists, who can take the jury point-by-point through the effects of both prior and current injuries.
Whether your employer has a valid reason to make this defense or not, you will need an experienced non-subscriber injury attorney to guide you through your case. To find out how much your claim could be worth, contact the Packard Law Firm today to speak with an attorney in your free, confidential, and no-obligation consultation.
Why would a company lie about having workers’ compensation insurance in Texas?
Texas is the only state in the U.S. where workers’ compensation coverage is not mandatory for employers. The biggest reasons companies choose not to provide state-regulated insurance is that the program is expensive and it provides a lot of protection to the employee. Under workers' compensation, employees are guaranteed to receive payment for lost income and injury-related medical bills when they suffer a work-related injury or illness.
Your Company’s Insurance Policy May Not Be Equal to Workers’ Compensation
Millions of Texas employees are covered under their company’s privately-insured injury policy instead of workers’ compensation. Although these employers are still considered “non-subscribers” to federal workers’ compensation, they do allow injured workers to collect some benefits after an illness or accident on the job. However, these alternative policies typically offer less protection to the employees.
Companies may benefit by offering alternative coverage plans because:
- Workers do not know that their “workers’ comp” is actually an alternative policy. Employers who provide workers' compensation have limited liability if an employee files an injury claim, so this can be another good reason why an employer would lead a worker to believe that the company has workers’ compensation insurance. A company can provide limited injury benefits under an alternative policy and refer to the payments as “workers’ comp,” telling the worker that he cannot sue if he accepts the payment.
- These policies may be limited. Unlike federal coverage where all injury-related expenses must be covered, private insurers can impose both dollar and time limits on their policies. If the employer does not want to pay out of pocket after a claim’s coverage limit has been reached, the employer may simply stop benefits.
- They are not government-regulated. The policies and coverage provided through workers’ compensation have clear regulations set forth by lawmakers. Private insurance is not licensed or regulated by a governing body, making it less likely that the employee will be protected.
- The employers can set their own rules. There are many ways employers can make it as difficult as possible for employees to qualify for benefits through private policies, including requiring mandatory injury reporting within 24 hours of an accident or requiring a supervisor to attend an employee’s doctors’ visits.
- There are no disability or death benefit requirements. Workers’ comp offers the possibility of lifetime benefits after a permanent disability, as well as death benefits if an employee is killed on the job. Private insurance does not offer any such guarantees.
- There are no job protection requirements. Workers’ compensation law includes a provision to prevent retaliation or termination of an employee who seeks job-related injury compensation, while non-subscribing employers are free to demote or employees at will.
Can a Texas Company Offer No Benefits and No Workers’ Compensation Insurance?
Yes. Any company that does not subscribe to workers' compensation insurance can be considered a non-subscriber, even if the company does offer alternative benefits. Under the law, a worker can file a lawsuit against a non-subscriber to recover the full amount of his or her injury costs, plus any additional amounts for pain and suffering or permanent disability—even if they received some benefits under an alternative insurance plan. As an added benefit, any employer who fails to provide federal workers' compensation can be liable for the full amount of damages if the company is found to be just one percent at fault for the injury.
Not only can an employer be forced to pay damages to an employee, the employer can also be required to pay federal penalties for negligence. Texas employers who do not carry workers' compensation coverage are required to communicate their non-coverage status to their workers, and they are required to report any work-related injuries that result in more than one day of lost time to the Division of Workers' Compensation (DWC). If these requirements are not met, employers can be subject to administrative fines and fees, causing the loss of even more of their profits.
The costs to an employer for failing to provide proper benefits can quickly add up, resulting in the loss of hundreds of thousands of dollars in many cases. To find out how much your non-subscriber claim could be worth, contact the Packard Law Firm today to speak with a work injury attorney in your free, confidential, and no-obligation consultation.
What should I consider before filing a non-subscriber claim against my employer?
While Texas employers are not required to provide workers’ compensation benefits to employees, there are still ways to get compensation when an employee is injured on the job. Companies that do not carry workers’ compensation insurance are called "non-subscribers," and in a non-subscriber work injury claim, an employee has the right to sue his or her employer. In some cases, non-subscriber claims can be even more valuable than standard workers’ compensation claims, since employees covered by workers’ comp are barred from suing their employers for additional damages.
Factors to Consider Before Filing a Non-Subscriber Lawsuit Against an Employer
If your non-subscriber case is valid, you may be able to recover a significant amount for past medical bills, lost wages, future disability, and pain and suffering. However, you should ask an attorney to look over the details of your case to see if there are any potential weaknesses that could affect the outcome of your claim. Generally speaking, whether or not you should file a non-subscriber case will depend on your employer’s:
- Insurance benefits. Some employers who do not offer workers’ compensation will carry an alternate benefit plan to pay for employee injuries. If the benefits you receive through your employer’s insurance are adequate to cover your injury costs, you may not need to pursue a further non-subscriber claim. It is worth noting that these plans can differ greatly from the state mandated workers’ compensation, offering only the benefits that the employer has chosen. As these plans are also under the total control of the employer, they may offer limited payments and fail to provide employee protections (such as protection from retaliation or demotion) that are standard under workers’ compensation.
- Evidence of your injuries. Your employer will likely attempt to defend against any claim you make using your own medical records. You should always tell the truth about the injuries you have suffered, the treatment you have undergone, and the medical bills you have paid. If your injury has caused permanent disabilities that can prevent you from earning as much as you have previously, or stop you from participating fully in the things you enjoy, a non-subscriber case may be your only chance at fair compensation for your losses.
- Case against you. One of the benefits in non-subscriber cases is that the employer loses the right to certain defenses, such as blaming the worker for causing the accident. The employee only has to prove that the company was one percent at fault for the accident in order to be liable for damages. However, your actions during and after the accident can affect the amount of compensation you receive. If you were not taking recommended safety precautions prior to the accident or failed to go to the emergency room to treat your injury, a judge might assume that you were not doing everything possible to protect your own health.
- Illegal practices. A judge is likely to look unfavorably on an employer who put his employees at risk or willfully broke the law. Proof of inadequate safety measures, illegal company policies, failure to post a notice about the employer’s workers’ comp status, and other negligent activities can strengthen an employee’s case.
- Contractors. Sometimes, an injured worker’s claim can be paid through someone other than the employer. Such "third-party" claims are typically filed against a person or company that worked on the same site as the employer or provided equipment used in the workplace. Builders, supervisors, painters, training providers, security firms, or even makers of uniforms and safety equipment can all be named in a third-party work injury claim.
The easiest way to tell how much you could be owed in your non-subscriber claim is to speak with a work injury attorney as soon as possible. Contact the Packard Law Firm today to discuss your case in your free, confidential, and no-obligation consultation.
What Is The Lawsuit Deadline For Injuries To Minors and Children?
Children cannot bring suit in their own name until they become an adult. Parents and certain other adults can bring suit on behalf of a minor child, but they do not always do so. What happens if the adults do not protect the child’s case? The Texas Constitution protects children in this circumstance and by preventing the statute of limitations from starting until the child turns 18 years old. For example, if a 10-year old girl is injured in an accident and nobody files suit to protect her rights, she has until two years after her 18th birthday to file suit.
What happens if your doctor commits malpractice over a period of time?
It can be hard to determine when the statute of limitations begins if a doctor commits malpractice over a long period of time.
When you are dealing with a car wreck, it is easy to know when the statute of limitations begins to run – the date of the wreck. However, in the context of medical negligence, sometimes it is hard to know when the statute of limitations begins to run. Suppose you go to the doctor for a number of years and each time, he misses a cancer diagnosis, or suppose your mother is in a nursing home and the doctors and staff neglect her for many months? In these cases, the safest thing to do is to file suit within two years of the first mistake, but if that is not possible, courts have held that the statute of limitations is kept open until a reasonable time after the last date of treatment.
Other Types of Legal Deadlines:
What is the Statute of Limitations When the Negligence Causes Death?
In some cases, a person is injured in an accident and then dies from his injuries some time latter. When this happens, when does the 2-years start to run – on the date of the injury or on the date of the death? The answer is both! For the family members who are asserting wrongful death claim, their statute of limitations begins not when their loved one was injured, but at the death. However, if the deceased suffered pain and suffering before death and incurred medical bills because of the injury, then the estate also has a claim, and the statute of limitations for that case starts to run from the date of the injury, not the date of death. (Click here for the leading case on this issue. Russell v. Ingersoll-Rand Co., 841 S.W.2d 343, 348 (Tex.1992).
Please also note that there is an exception when dealing with medical negligence cases. The statute of limitations begins to run when the injury occurs regardless of when the death occurs. Thus, a wrongful death plaintiff suing on a medical negligence theory does not necessarily have two full years from the time of death to bring a lawsuit. Rather, the statute of limitations expires at the same time it would have for the decedent – two years after the alleged negligence occurred.
What if the negligent party is a government employee?
Government entities have a notice requirement in addition to a statute of limitations. For example, if you are hit by a school bus driver or a city maintained worker, you are required by law to give the particular government agency written notice of your claim before you file suit. These notice requirements act like a statute of limitations because if you fail to give written notice, you probably have killed your case forever. The notice deadlines are very short – usually between 3 to six months from the date of your injury – depending on whether you are talking about a city, county or state government entity. Click here for the City of San Antonio Charter requiring notice within 90 days of the injury. After you give proper written notice of your claim, you are still required to file your lawsuit before the normal statute of limitations expires.
What is the Statue of Limitations Period for an Uninsured/Underinsured Motorist Claim?
If you are hit by a car and the other guy is at fault, then you potentially have two claims
- the claim against the at-fault driver, and
- the claim against your own car insurance company if the other driver does not have enough insurance to cover all your damages.
Deadline For Filing a Lawsuit
The claim against the at-fault driver is a negligence claim, which means that the deadline to file suit is 2 years.
However, the claim against your own insurance company is considered to be a breach of contract case, which means that the statute of limitation is 4 years. And it is not 4 years from the date of the injury, but 4 years from the date your insurance company wrongfully denied your claim. The cause of action in a breach of contract accrues when the contract is breached, or when the claimant has notice of facts sufficient to place him or her on notice of the breach.
Even though the statute of limitations is 4 years for a UIM claim, it is usually better to file suit within 2 years because, many times, you will have an argument that the insurance company acted in bad faith or violated the Texas Deceptive Trade Practices Act, which both have a 2-year statute of limitations. Thus, if you rely on the 4-year statute of limitations, you still will have your breach of contract case against your car insurance company, but you may not be able to assert some of the other theories that could increase the value of your case.
What if I didn’t know that I was injured until later?
When you are in a car wreck, you will almost always know the date you were injured because, by their very nature, car wrecks are sudden and obvious events. But what happens when you are exposed to dangerous chemicals and the symptoms don’t show up until years later? Or what happens if a doctor leaves a foreign object in your body after surgery and you don’t discover it until years later? In these cases, courts will give you a reasonable time to file your lawsuit after you discovered that you have a claim for damages. There are at least two primary ways to keep the statute of limitations open when the injured person does not know they have a claim: (1) the Discovery Rule and (2) Fraudulent Concealment.
The Discovery Rule
The discovery rule exists in case where you could not reasonably be expected to learn that you were injured by someone else’s actions. For example, you may have known that you were exposed to a chemical, but you did not know that you were injured until after the two-years expired. In that case, courts will give you a reasonable time to file suit – not necessarily a full 2 years, but enough time to hire a lawyer and get your lawsuit on file. (click here for more information about the discovery rule).
HECI Expl. Co. v. Neel, 982 S.W.2d 881, 886 (Tex.1998). “The discovery rule has been applied in limited categories of cases to defer accrual of a cause of action until the plaintiff knew or, exercising reasonable diligence, should have known of the facts giving rise to a cause of action. [There are] two unifying principles that generally apply in discovery rule cases. They are that the nature of the injury must be inherently undiscoverable and that the injury itself must be objectively verifiable. [T]he applicability of the discovery rule is determined categorically.” See also Velsicol Chem. Corp. v. Winograd, 956 S.W.2d 529, 531 (Tex.1997).
S.V. v. R.V., 933 S.W.2d 1, 7 (Tex.1996). “An injury is inherently undiscoverable if it is by nature unlikely to be discovered within the prescribed limitations period despite due diligence. [¶] [T]he ‘objectively verifiable’ element [may be] asserted [when] demonstrated by direct, physical evidence. … Expert testimony [alone does] not supply the objective verification of wrong and injury necessary for application of the discovery rule.”
In the law, there is a difference between simply keeping quiet about your own negligence and actively deceiving others about your mistakes. For example, if a doctor makes a mistake during surgery and then lies to the patient about what happened, he may have committed fraudulent concealment that could extend the statute of limitations until the victim learns or should have learned that they have a claim. This sounds a lot like the discovery rule, but it is actually different. With the discovery rule, the focus is on whether the Plaintiff’s injury was undiscoverable. In contrast, with fraudulent concealment, the victim knows that she has been injured, but the wrongdoer has actively concealed his mistake or misconduct. Thus, with fraudulent concealment, the focus is on whether the wrongdoing was actively concealed. (Click here for more information about fraudulent concealment Holland v. Thompson, 338 S.W.3d 586, 596 (Tex.App.—El Paso 2010, pet. denied). “Fraudulent concealment works to estop a defendant from asserting limitations as a defense because 'a person cannot be permitted to avoid liability for his actions by deceitfully concealing wrongdoing until limitations has run.' Fraudulent concealment tolls the statute of limitations until the injured party, using reasonable diligence, discovered or should have discovered the injury. The elements of fraudulent concealment are (1) the existence of the underlying tort; (2) the defendant's knowledge of the tort; (3) the defendant's use of deception to conceal the tort; and (4) the plaintiff's reasonable reliance on the deception. See also BP Am. Prod. v. Marshall, 342 S.W.3d 59, 67-68 (Tex.2011).
Other Types of Legal Deadlines: