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.
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.
If you are involved in a personal injury lawsuit and are considering a settlement, you may be curious about the potential tax implications. As a general rule, a case is taxed the same way regardless of whether it settles or gets a judgement in court. However, these settlements or judgments can be structured in a way to take advantage of certain tax laws.
Most settlements or judgments can be broken down into categories. For example, an agreement or judgment might have categories like emotional distress, lost wages, medical bills or attorney fees. The taxes due will ultimately depend on the type of damages or category that is being paid out.
The most important thing to remember in your injury claim is that you are looking for compensation for the way your accident has affected you. Injuries can have very different effects on different people, and even so-called “minor” injuries can result in high medical bills and weeks off of work. The first step in estimating your potential damages is to total all of your expenses and losses, including:
- Medical bills. Your case should take into consideration how much you have paid for medical treatment, including emergency room costs, x-rays and scans, prescription medications, follow-up appointments, co-pays, physical therapy, and any other costs you paid out-of-pocket.
- Lost income. You should add up your lost wages for the total time you were unable to work due to your injury, including any overtime opportunities, bonuses, and other benefits you were not eligible for.
- Disability. You should calculate the value of any limitations that have resulted from your injury, such as those that prevent you from working in your old job, make it more difficult to live independently, or have full enjoyment of your life.
- Future costs. You must consider whether your injury could cause you to incur any expenses in the future, such as additional surgeries or replacements for wheelchairs, braces, or assistive devices.
- Pain and suffering. Victims may be able to get additional payments depending on the amount of physical and mental anguish they have endured.
Subrogation is a legal term that means “substituting one party for another.” For example, when you file an injury claim, you are seeking payment from an at-fault party’s insurer, rather than the individual. Similarly, one insurer can seek repayment from another insurance company if their customer is ultimately found to be at fault for an accident.
For example, let’s say you are hurt in a work accident and your employer is a non-subscriber. You receive benefits through your spouse’s medical insurance to pay for medical costs. After you recover, you file a lawsuit against the employer and win. Now, your spouse’s insurer has a right to ask you to pay back the amount it has spent on your injury out of your damages.
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.
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.
Failure to provide workers’ compensation benefits is a good reason to sue an employer, but there are also additional situations where the company you work for is liable for damages, including:
- Intentional harm. Employees have the right to sue employers whose conduct caused direct and intentional harm. In these cases, employees must show that the employer was trying to hurt the worker on purpose, such as if an employer assaults a worker or trips him at the top of a flight of stairs.
- Defective product injuries. If a worker is injured by tools, machinery, or other equipment in the workplace, he or she can file a lawsuit against the employer or the manufacturer of the object that caused harm. Employers and manufacturer could both be liable if the risks of using the equipment were not minimized, if the equipment failed to work properly, or if employees were not properly warned of the danger of injury.
- Toxic substance injuries. Employees who work around dangerous chemicals or toxic substances are at high risk of developing severe medical conditions. Compounds such as silica, asbestos, benzene, radium, or chromium have all resulted in illnesses that have formed the basis of toxic tort lawsuits. Toxic injuries may happen suddenly (such as a chemical burn or eye injury), but they can also take years of exposure before symptoms appear (such as asbestos-related cancers). Workers may sue an employer who was aware of the potential side effects of toxic exposure, and they may also sue the manufacturer or distributor of the harmful product.
- Third party injuries. Employees may be able to name multiple parties in a personal injury lawsuit, especially if each party played a role in the injury. There are many people on a job site who may be responsible for a worker’s injuries, including engineers, contractors, project managers, architects, drivers, or other non-employer entities.