Learning that your employer does not carry workers’ compensation insurance can make an already stressful situation feel even more uncertain. You may be receiving medical care, missing work, and wondering whether the employer can be held responsible for what happened.
In Texas, an employer that chooses not to carry workers’ compensation insurance is commonly called a nonsubscriber. An injured employee may be able to file a personal injury lawsuit against a nonsubscriber employer, but the employee generally must show that the employer’s negligence caused or contributed to the injury.
That usually means proving three basic points: what the employer did wrong, how that conduct caused the injury, and what physical and financial harm followed. Accident reports, witness statements, medical records, photographs, safety documents, and wage records can all help establish those facts.
What Must an Injured Worker Prove in a Texas Nonsubscriber Case?
A workplace injury does not automatically make a nonsubscriber employer legally responsible. The injured worker must show that the employer, a supervisor, or someone else acting for the employer failed to use reasonable care. That failure could involve unsafe equipment, poor training, missing protective gear, inadequate supervision, dangerous work instructions, or a known hazard that was not corrected. The evidence must also connect that conduct or condition to the accident. For example, proof that a machine was missing a safety guard can establish that a dangerous condition existed. Other evidence might still be needed to show how the missing guard allowed the employee’s hand or clothing to come into contact with a moving part.
The injured worker must also show the harm caused by the accident, such as physical injuries, medical expenses, lost income, and other losses allowed under the law. Nonsubscriber cases follow rules that differ from ordinary workers’ compensation claims, but the employee still has the burden of proving negligence, causation, and damages.
Accident Reports Can Create an Early Record of What Happened
An accident or incident report may provide one of the earliest written accounts of the injury. Depending on the workplace, it may be prepared by the employee, a supervisor, a safety manager, human resources, or another department. The report typically identifies the date, time, location, equipment involved, and people who were present. It may also record how the accident was first described before disagreements arise or details become harder to remember.
Emails, text messages, reports made through a workplace app, and other communications used to report the injury can serve a similar purpose. A message sent to a supervisor shortly after the accident, for example, may help show when the employer learned about the injury and what information was provided at the time.
An internal report may not tell the full story. If it leaves out a hazardous condition, gets an important fact wrong, or fails to identify witnesses, other evidence may be needed to complete the account.
Witness Statements Can Confirm Unsafe Conditions and Instructions
Coworkers, customers, contractors, or other people at the workplace may have seen the accident or the events that led to it. Their accounts can provide details that do not appear in photographs, medical records, or company reports. A coworker may have heard a supervisor tell the employee to perform a task without proper equipment. Another person may know that a machine had malfunctioned before or that workers had previously reported the same hazard.
Witnesses can also explain how the work was normally performed. If a written rule required equipment to be shut down before maintenance, but supervisors routinely told employees to keep it running, testimony from people familiar with that practice can provide important context.
Witness information can become harder to gather over time. Employees may leave the company, contact information may change, and memories may become less precise. Names, phone numbers, job titles, and a brief description of what each person observed can help preserve useful leads.
Medical Records Can Connect the Accident to the Injury
Medical records help document the injuries diagnosed after the accident, the care provided, and the employee’s condition over time. Relevant records may include emergency room notes, physician records, imaging results, surgical reports, prescriptions, physical therapy notes, and specialist evaluations.
Records created soon after the accident can help establish a timeline between the workplace event and the employee’s symptoms. They can document pain, swelling, limited movement, dizziness, breathing problems, numbness, or other conditions associated with the incident.
Medical records can also explain work restrictions and physical limitations. A doctor may limit lifting, standing, driving, climbing, bending, or repetitive movement. Those restrictions can help show why the employee missed work, returned on light duty, or could no longer perform the same job.
A clear and accurate medical history can make the sequence of events leading up to the injury easier to follow. But the way the accident is described in medical records can also cause uncertainty; for example, if the records contain a very different description of what happened than that contained in an employee’s statement, the employer may point to those differences when disputing whether the injury was work-related.
Photographs and Videos Can Preserve Conditions Before They Change
A dangerous workplace condition may be repaired, removed, cleaned, or altered soon after an accident. Photographs and videos can preserve details that may no longer be visible when the incident is reviewed later.
Useful images may include:
- The equipment or object involved. Photographs of a machine, vehicle, ladder, scaffold, tool, or protective device may document its condition, placement, and visible damage around the time of the injury.
- The specific hazard. Close-up images may capture missing guards, broken parts, spills, exposed wiring, poor lighting, blocked walkways, or other conditions that could have played a role in the accident.
- The surrounding work area. Wider photographs can show how people, equipment, warnings, exits, and work surfaces were positioned in relation to one another.
- Warnings and safety information. Images may capture posted instructions, damaged labels, blocked signs, or the absence of warnings in an area where workers may have needed them.
- Visible injuries and damaged items. Photographs of injuries, clothing, footwear, tools, or protective equipment can help explain the nature and force of the event.
Original image and video files may contain date, time, and location information that is not always preserved in screenshots or smaller copied files. Keeping the original files can make it easier to determine when and where the images were created.
The accident may also have been recorded by surveillance cameras, vehicle cameras, employee body cameras, or cell phones. Some systems automatically overwrite older footage, so identifying possible recordings early can help prevent useful information from being lost.
Safety Records May Show What the Employer Knew
Safety records can help show whether the employer knew or should have known about a dangerous condition. They may also reveal whether the employer took reasonable steps after learning about the problem. Relevant documents may include inspection reports, maintenance logs, repair requests, safety meeting notes, equipment manuals, employee complaints, and earlier incident reports. A repair request submitted before the accident, for example, may show that the employer already knew a machine was not working properly.
Training records may show whether the employee received instruction on a particular task or piece of equipment. Written procedures can also be compared with the way supervisors actually required the work to be performed.
Government safety citations or findings from a regulatory agency may matter in some cases, but they do not automatically prove negligence. The violation must still be connected to the condition that caused the accident and to the employee’s injuries.
Wage and Employment Records Can Document Financial Losses
A workplace injury can cause an employee to miss work, lose overtime, work fewer hours, or move into a lower-paying position. Pay stubs, tax records, time sheets, direct deposit records, payroll statements, and work schedules can help document those changes. Regular wages may be only part of the financial picture. Overtime, commissions, bonuses, shift differentials, and other recurring earnings can also matter when comparing income before and after the injury.
Medical restrictions can help connect the income loss to the accident. For example, a doctor’s note limiting lifting or standing may explain why the employee could not return to the same job or work the same number of hours.
If the injury might affect future earning ability, additional information may be relevant. Employment history, job duties, education, work skills, medical limitations, and evidence about the employee’s ability to work and earn income can help show how the injury changed the employee’s long-term earning ability.
Emails, Work Assignments, and Benefit-Plan Documents Can Also Matter
Not every useful piece of evidence appears in a formal accident report. Emails, text messages, work schedules, job assignments, employee handbooks, training acknowledgments, and private benefit-plan documents can fill gaps in the record. A text from a supervisor may show that the employee was told to use equipment that had already been reported as defective. A work schedule may confirm who was present, while a handbook may identify the safety procedure that should have been followed.
Some nonsubscriber employers offer private workplace injury benefit plans. Those plans may include reporting requirements, claim procedures, medical review rules, agreements requiring disputes to be decided through arbitration instead of court, or deadlines. The plan terms may affect how the employee’s claim is handled, even when a separate negligence lawsuit is also available.
Original records should be preserved without changes. Deleted messages, altered photographs, or public social media posts can create disputes about what the evidence originally showed or whether the employee’s activities are consistent with the claimed limitations.
Why Preserving Evidence Quickly Can Matter
Workplace evidence can disappear or change soon after an accident. Equipment may be repaired, damaged materials may be discarded, surveillance footage may be overwritten, and the area may be cleaned or rearranged. Witnesses can also become harder to locate. Employees may leave the company, contractors may move to another project, and memories may become less reliable with time. An early legal review can help identify records, footage, and other information that should be requested and preserved before they become unavailable.
Under Texas Civil Practice & Remedies Code § 16.003, an injured employee is generally required to file a personal injury lawsuit against a nonsubscriber employer within two years after the claim accrues. For an injury caused by a workplace accident, the claim usually accrues on the date of the injury. A legal disability that exists when the claim accrues can change that calculation. Texas Civil Practice & Remedies Code § 16.001 defines legal disability for this purpose as being younger than 18 or of unsound mind. When that disability exists at the time of the injury, the two-year deadline does not begin to run until the disability is removed.
The two-year lawsuit deadline is separate from any reporting, claim, appeal, or arbitration deadline contained in a private workplace injury benefit plan, employment agreement, or arbitration agreement. Those documents may require action sooner. Also, the ordinary 30-day injury-reporting and one-year claim-filing deadlines for the Texas workers’ compensation system do not govern the filing of a negligence lawsuit against a nonsubscriber employer.
How an Attorney May Help Evaluate a Nonsubscriber Injury Claim
A Texas work injury attorney can review how the accident happened and identify evidence that may relate to the employer’s conduct. This may include comparing accident reports with witness accounts, examining safety procedures, requesting company records, and determining whether video or electronic evidence exists. No single document usually proves an entire nonsubscriber case. The evidence is often more useful when several records support the same account of the unsafe condition, the accident, and the resulting injury.
An attorney may also compare medical records and work restrictions with payroll information. Together, those materials can help explain how the injury affected the employee’s health, ability to work, and income.
Some accidents involve a contractor, property owner, equipment manufacturer, or other outside party. Whether an additional claim might be available depends on the circumstances, but identifying any other people and companies involved should be part of the review.
Call Bailey & Galyen About a Texas Nonsubscriber Work Injury
A nonsubscriber claim often depends on evidence that explains how the accident happened and how the injury affected the employee’s life and work. Understanding which records matter can be difficult, especially when the employer controls much of the information.
Bailey & Galyen has helped individuals and families with legal matters since 1982. The firm offers large-firm resources with personal attention and can help injured workers understand the issues that affect a nonsubscriber claim.
If you were injured while working for a Texas employer that does not carry workers’ compensation insurance, call Bailey & Galyen to discuss what happened and ask questions about your options. Free consultations are available, and the firm is available 24/7.
Frequently Asked Questions
1. Can I sue an employer that does not carry workers’ compensation insurance?
In some cases, yes. A Texas employee may be able to file a personal injury lawsuit against a nonsubscriber employer. The employee generally must prove that the employer’s negligence caused or contributed to the injury. Employment agreements and private benefit-plan documents can also affect how the matter proceeds.
2. What if the employer will not provide an accident report?
Other evidence can still document the accident. Emails, text messages, witness accounts, medical records, photographs, video, work schedules, and company communications can show when and how the injury occurred.
3. Can a coworker’s statement support the claim?
A coworker with direct knowledge can provide useful information about the accident, earlier complaints, unsafe practices, training, or instructions from a supervisor. The value of the statement depends on what the witness personally observed and how it relates to the disputed issues.
4. Are photographs required in a nonsubscriber lawsuit?
Not necessarily. Photographs can be helpful, but no single type of evidence is always required. Witness testimony, video recordings, company records, maintenance documents, and medical evidence can also help explain the accident.
5. What if the employer repaired the dangerous condition?
Evidence of the earlier condition may still exist in photographs, videos, repair requests, maintenance logs, inspection records, accident reports, or witness accounts. A prompt investigation can make those materials easier to locate.
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