When you get hurt at work, one of the first questions that matters is whether your employer carries Texas workers’ compensation insurance. Many injured employees assume every employer has this coverage. In Texas, that is not always true.
A Texas employer that does not carry workers’ compensation insurance is commonly called a non-subscriber. That status can affect nearly every part of a workplace injury claim, including whether the case goes through the workers’ compensation system, whether a lawsuit may be possible, what the worker must prove, and what damages are available.
Whether your employer is a subscriber or non-subscriber affects what kind of claim is available after a workplace injury. Bailey & Galyen’s Texas workplace injury lawyers can review what happened, explain what type of claim is available to you, and help you understand your next steps.
What Is a Non-Subscriber Employer in Texas?
Texas is different from many states because most private employers are not required to carry workers’ compensation insurance. Public employers generally must provide it, but private employers choose whether to carry workers’ compensation coverage. Employers that choose not to provide Texas workers’ compensation coverage are known as non-subscribers.
A non-subscriber may be a large company, a small business, a warehouse operator, a construction contractor, a restaurant, a retailer, or any other type of private employer. The key issue is not the size of the company but whether the employer has workers’ compensation insurance in place for its employees.
Texas employers must notify workers about whether they have workers’ compensation coverage. Employers without coverage must post notice of no coverage in the workplace and provide written notice to new employees.
How a Non-Subscriber Claim Differs From Traditional Workers’ Comp
Traditional workers’ compensation is an insurance-based system. When an employer carries workers’ compensation coverage, an injured employee files a claim through that system for medical benefits and income benefits. In most cases, the employee does not have to prove that the employer was negligent. The focus is often on whether the injury happened in the course and scope of employment and what benefits are available under the Texas Workers’ Compensation Act.
Non-subscriber claims work differently. If your employer does not carry workers’ compensation coverage, you may have a negligence claim against the employer instead of a standard workers’ compensation claim.
That difference matters because a non-subscriber case often looks more like a personal injury lawsuit than a workers’ compensation claim. Bailey & Galyen can provide you with additional information about suing a non-subscriber employer after a Texas workplace injury, including how the process may unfold after a job-related injury.
The Injured Worker Must Usually Prove Employer Negligence
A non-subscriber case is not automatic. The fact that an employee was hurt at work does not, by itself, mean the employer is legally responsible. Texas Labor Code Section 406.033 provides:
“In an action described by Subsection (a), the plaintiff must prove negligence of the employer or of an agent or servant of the employer acting within the general scope of the agent’s or servant’s employment.”
This means the injured worker generally has to prove that the employer, a supervisor, manager, coworker, or other employee acting within the scope of employment did something careless, failed to do something reasonably necessary, or allowed an unsafe condition that caused the injury. Cases of this type can involve claims based on unsafe equipment, lack of training, failure to follow safety rules, poor supervision, dangerous work conditions, or ignored hazards.
Non-Subscriber Employers Have Fewer Defenses
Although injured workers still must prove negligence, Texas law limits some defenses that non-subscriber employers may use.
Texas Labor Code Section 406.033 states that, in certain actions against employers without workers’ compensation coverage:
it is not a defense that:
(1) the employee was guilty of contributory negligence;
(2) the employee assumed the risk of injury or death; or
(3) the injury or death was caused by the negligence of a fellow employee.
This is one of the most important parts of a Texas non-subscriber case. While injured workers still must prove negligence, employers without workers’ compensation coverage may be limited in the defenses they can use.
For example, an employer may not be able to avoid liability by saying the worker accepted the danger as part of the job or by blaming the injury entirely on a coworker’s negligence. However, the employer may still raise certain defenses, including arguments that the injury was caused by an intentional act of the employee or occurred while the employee was intoxicated.
What Damages Are Available in a Non-Subscriber Case?
Workers’ compensation benefits are limited by statute. A non-subscriber lawsuit can allow an injured worker to seek broader damages, depending on the facts and evidence. Potential damages include damages for medical expenses, lost wages, loss of future earning capacity, physical pain, mental anguish, physical impairment, disfigurement, and other losses recognized under Texas law.
In fatal workplace injury cases, surviving family members may have a wrongful death claim. In a wrongful death claim, damages typically include compensation for the deceased’s lost future earnings, medical and funeral expenses, and the survivors’ loss of financial support, companionship, and emotional suffering..
These damages are not guaranteed. The worker must prove liability, causation, and the extent of harm. Medical records, witness statements, safety reports, photographs, incident reports, employment records, and expert analysis may all become important.
Workplace injuries can also overlap with other legal issues. For example, if a defective machine, negligent contractor, property owner, or delivery company contributed to the injury, a separate claim may need to be evaluated. Bailey & Galyen’s personal injury practice can help injured workers understand whether more than one party might be involved.
Employer Benefit Plans Can Create Confusion
Some non-subscriber employers provide private workplace injury benefit plans. These plans may pay for some medical care or wage replacement after an injury. While these benefits can be helpful, they are not the same as Texas workers’ compensation coverage.
Injured workers should review post-accident paperwork carefully before signing anything that could affect their rights. Some forms may involve benefit claims, medical authorizations, recorded statements, arbitration agreements, releases, or waivers. The wording and timing of documents can matter.
Also, it’s important to know that an employer cannot require an employee to waive non-subscriber claims before an injury happens. After an injury, however, documents can still affect a worker’s options, so it is important to understand what is being signed.
Why Non-Subscriber Status Matters After a Workplace Injury
Whether an employer is a subscriber or non-subscriber can change the entire path of a workplace injury case. It determines whether the claim goes through the workers’ compensation system or through a civil claim. It affects the evidence needed, the damages available, the employer’s defenses, and the deadlines that apply.
It also matters because evidence can disappear quickly. Equipment may be repaired, video footage may be overwritten, witnesses may leave the company, and incident reports may become harder to obtain. The earlier an injured worker understands whether the employer is a subscriber or non-subscriber, the easier it will be to identify the right process and preserve important information.
How Bailey & Galyen Can Help Injured Workers Understand Their Options
A workplace injury can leave you dealing with medical bills, missed work, pain, uncertainty, and pressure from your employer or an insurance administrator. When your employer is a non-subscriber, the process can feel even more confusing because it does not follow the ordinary workers’ compensation path.
Bailey & Galyen helps injured workers and families understand what type of claim they have, what evidence matters, and what options are available under Texas law. Since 1982, the firm has helped clients facing serious legal problems across Texas. Free consultations are available, and home and hospital visits are available when needed. Call Bailey & Galyen today or contact us online for a free consultation.
Frequently Asked Questions About Texas Non-Subscriber Claims
1. How do I know if my employer is a non-subscriber?
Your employer should notify employees whether it has workers’ compensation coverage. You may see a posted workplace notice, receive written notice when hired, or confirm coverage through Texas workers’ compensation coverage through the Department of Insurance Division of Worker’s Compensation’s Coverage Verification tool.
2. Can I sue my employer if it does not have workers’ compensation insurance?
A lawsuit may be possible in some non-subscriber cases, but the worker generally must prove negligence by the employer or someone acting within the scope of employment. The facts of the injury, the available evidence, and any documents signed after the injury can all determine whether an injured worker has a claim against a non-subscriber.
3. Is a non-subscriber benefit plan the same as workers’ compensation?
No. A private workplace injury benefit plan may provide certain benefits, but it is not the same as Texas workers’ compensation coverage. The plan documents should be reviewed carefully because they may contain limits, deadlines, or other requirements.
4. What should I do after being injured while working for a non-subscriber?
Seek medical attention, report the injury, preserve any evidence you can, and keep copies of paperwork related to the accident and your medical care. Be careful about signing releases, waivers, or other documents before you understand how they could affect your options.
5. Does the employer have to pay damages just because it is a non-subscriber?
No. Non-subscriber status does not automatically make the employer liable. The injured worker must prove negligence and damages. However, Texas law limits certain defenses that non-subscriber employers may otherwise try to use.
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