Employers who do not provide workers’ compensation are taking a big risk when it comes to paying employees for work injuries. Under the Texas Labor Code, employers who opt out of workers’ compensation coverage (called non-subscribers) can be taken to court to provide proper injury compensation for an on-the-job accident. Employees have a low burden of proof in these cases, and only need to show that the employer was 1% liable for injury in order to collect full damages—and employers have a limited number of defenses they can use if they are named in a non-subscriber lawsuit.
Types Defenses Commonly Used by Non-Subscriber Employers
During the course of an injury lawsuit, the employer will mount a defense to avoid paying for the worker’s injury. However, the law prohibits a non-subscriber from using certain defenses, such as blaming the injured worker (or one of his coworkers) for the injury, or stating that the employee assumed the risk of injury or death in the course of his employment.
Defenses that employers are allowed to use in a Texas non-subscriber injury lawsuit include:
- Self-inflicted wounds. Employers cannot be held liable if they can prove that a worker hurt himself on purpose. This defense can only be successful if the defense shows that the plaintiff’s actions were the “sole proximate cause” of the accident—in other words, the employee was entirely responsible for the injury.
- Intoxication. An employer can argue that the company is not liable for injuries that occurred when a worker was intoxicated or under the influence of illegal or prescription drugs.
- Known hazard. This defense claims that the hazard that caused the accident or injury was so obvious that the employer did not have a duty to warn employees of potential danger. This defense relies on the assumption that a reasonable person would not have taken the action given the obvious risks (such as crossing a board placed over a hole in a floor).
- Scope of employment. Texas employers are only liable for injuries that occur in the course and scope of employment. This does not necessarily mean that the injury must occur at the workplace, but the employee must be under the control of the employer or performing an action that is in service to the job. Employers often try to use this defense for injures that occur away from job sites or on work-related trips.
- Post-injury waivers. An employer is allowed to offer a settlement to an injured worker without the need to go to court. In exchange for financial assistance, the employee will have to sign a post-injury waiver stating that he will not sue for more money. In order for the waiver to be valid, the injured worker must have received treatment from a doctor (not just emergency care) and he or she must be fully aware of the implications and limitations of the document they are signing. If these requirements are not met, a signed waiver can be declared invalid.
- Pre-existing injury. The employer does not have to pay for the costs of an injury that existed before the accident. If the defendant proves that the injury sustained could have been related to or excaserbated by a pre-existing injury, the amount of compensation in the claim may be reduced significantly.
- Failure to mitigate damages. Even if a defendant accepts the responsibility for the accident, damages may be reduced if the employee did not take steps to keep the costs of their injuries reasonable. For example, employers may be able to escape some of the costs of the injury if an employee underwent unnecessary surgeries or failed to treat their condition until it became life-threatening.
With so much at stake, it is vital that employees speak with a work injury attorney as soon as possible. To find out how much your non-subscriber claim could be worth, contact the Packard Law Firm today to set up your free, confidential, and no-obligation consultation.