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.