If you’ve been hurt at work in Texas, one of the first questions to ask is whether your employer carries workers’ compensation insurance. That matters because your legal rights will look very different depending on whether your employer participates in the Texas workers’ compensation system or is a nonsubscriber. When a Texas employer does not subscribe to workers’ compensation, an injured employee may have other legal options for seeking recovery for medical expenses, lost income, and other losses.
At Bailey & Galyen, we handle both Texas workers’ compensation claims and nonsubscriber work injury claims. If you are an injured worker in Texas and have questions about your options, call Bailey & Galyen for a free consultation.
Your Options for Recovering from a Workplace Injury
In most states, when you have been injured on the job, you have a right to seek benefits through the state’s workers’ compensation laws, designed to protect both workers and employers. In Texas, though, there is no requirement that private employers carry workers’ compensation insurance, so many do not.
Some injured workers receive medical treatment or wage-related benefits through an employer-sponsored injury plan and assume they are covered by Texas workers’ compensation. That is not always true. Some Texas employers provide their own occupational injury benefit plans without participating in the state workers’ compensation system. Identifying which type of coverage applies is an important first step, because it can affect both how a claim is handled and what legal remedies may be available.
Determine if your employer is covered by a Texas workers’ compensation policy, by searching for your employer at the Department of Insurance Division of Worker’s Compensation’s Coverage Verification tool. Just because you are receiving benefits following a work injury, that does not always mean you are covered under a Texas workers’ compensation policy.
Filing a Direct Claim against Your Employer
As a general rule, when your employer subscribes to the Texas workers’ compensation program, your exclusive remedy, meaning the main legal course of action available for your job-related injury, is through the workers’ compensation system. However, there are scenarios where there may be an at-fault third party, or other extenuating circumstances that apply, so it can be important to have your case reviewed by an attorney.
If your employer is a nonsubscriber, you won’t have access to workers’ compensation, but you may be able to take legal action directly against your employer. That typically takes one of two forms: arbitration or a civil lawsuit.
A nonsubscriber injury claim is different from a standard workers’ compensation claim. In a workers’ compensation case, benefits are usually available without having to prove that the employer was negligent. In a nonsubscriber claim, though, the case turns on whether the employer’s negligence contributed to causing your injury. Depending on the facts, the employer’s negligence might involve unsafe work practices, inadequate training, failure to provide proper equipment, failure to correct known hazards, or requiring employees to work in unreasonably dangerous conditions.
Nonsubscriber claims can often seek a broader range of damages than a workers’ compensation claim. In the right case, an injured worker may be able to seek recovery for medical expenses, lost wages, reduced earning capacity, pain and suffering, and other losses allowed by law.
Benefits to Actions Against Non-Subscribing Employers
The Texas Legislature has passed laws meant to encourage Texas employers to purchase Texas workers’ compensation insurance by not allowing those non-subscribing employers to use certain affirmative defenses in a legal action against them by an injured worker.
Texas Labor Code Section 406.033 says:
(a) In an action against an employer by or on behalf of an employee who is not covered by workers’ compensation insurance obtained in the manner authorized by Section 406.003 to recover damages for personal injuries or death sustained by an employee in the course and scope of the employment, it is not a defense that:
- the employee was guilty of contributory negligence;
- the employee assumed the risk of death or injury;
- the injury or death was caused by the negligence of a fellow employee.
*See entire statute for more information
However, there are certain defenses an employer may still use, like the fact that an employee signed a waiver after the injury occurred, that the employee was intoxicated by alcohol or drugs, or that the employee injured themselves intentionally.
Nonsubscriber injury claims often turn on the facts surrounding the accident. Employers may dispute how the injury happened, whether the employee was acting in the course and scope of employment, whether a preexisting condition played a role, or whether the worker was impaired at the time of the incident. Evidence such as incident reports, witness statements, safety records, employment documents, medical records, and surveillance footage may become important in evaluating the claim.
Binding Arbitration May Be Required
Many private employers have their own work injury benefit policies and practices, and one of the common requirements, when you seek compensation from such an employer for work-related injuries, is that you agree to have your claim submitted to binding arbitration.
The arbitration process involves an individual or a panel, all of whom are considered highly knowledgeable about work-related injury claims. Typically, you’ll submit documents to the arbitrator(s), stating your position, as well as the evidence supporting your claim. It’s also common to have an arbitration hearing.
The arbitrator(s) will consider all evidence provided by both sides and render a decision, which may be the denial of your claim or include an award for your injuries. Because the arbitration is binding, you must generally accept it and will typically have no other potential remedies.
Arbitration can affect how evidence is presented, how quickly the dispute moves forward, and whether there is any opportunity to challenge an unfavorable result. Because many employers include arbitration provisions in onboarding documents or workplace injury plans, it is important to review employment paperwork carefully after a serious work injury.
There are certain scenarios where arbitration can be avoided, even if your employer has a policy requiring it, so it is important to speak with an attorney who is familiar with this area of law.
You May Be Able to File a Lawsuit
If your employer is a nonsubscriber, and there is no employment policy requiring that you submit your injury claim to binding arbitration, you may be able to file a personal injury lawsuit against your employer.
A lawsuit may allow you to recover more broadly than under workers’ compensation because you can seek damages for pain and suffering, loss of enjoyment of life, and loss of companionship or consortium. In a workers’ compensation claim, you typically get compensated only for a portion of your lost wages, and your medical expenses are covered for only certain medical providers.
Whether a personal injury lawsuit is available depends on several factors, including the employer’s nonsubscriber status, the existence and enforceability of any arbitration agreement, and the facts surrounding the injury. A lawsuit also allows the parties to gather evidence through the formal discovery process, which may include written questions, document requests, depositions, and testimony from safety or medical experts.
Could Someone Other Than Your Employer Be Responsible?
A workplace injury claim can involve a third party in addition to, or instead of, the employer. Depending on the cause of the injury, that third party might be a negligent driver, a contractor or subcontractor, the owner of unsafe property, or the manufacturer of defective machinery or equipment. Identifying all potentially responsible parties can be important when evaluating the full range of legal options after a serious work injury.
Contact the Experienced Workplace Injury Lawyers at Bailey & Galyen
At the law office of Bailey & Galyen, we know the impact that a workplace injury can have on your day-to-day life. If you’ve been hurt on the job, let us help. We handle both Texas workers’ compensation claims and nonsubscriber work injury claims.
If you have been injured at work and believe your employer may be a nonsubscriber to Texas workers’ compensation, Bailey & Galyen can help you understand your options. Our team can review the circumstances of your injury, explain the differences between these types of claims, and discuss what options may be available in your situation.
Contact us by email or call our offices at 844-951-2697. Our phones are answered 24 hours a day, seven days a week.
Frequently Asked Questions
1. What is a Texas nonsubscriber employer?
A nonsubscriber is a private employer that does not participate in the Texas workers’ compensation system. Instead, the employer may have its own workplace injury plan or no comparable coverage at all.
2. Can I sue my employer if it does not carry workers’ compensation insurance?
In some situations, yes. When an employer is a nonsubscriber, an injured worker may be able to pursue a claim directly against the employer through arbitration or a lawsuit, depending on the circumstances and any applicable agreements.
3. What potential damages are available in a nonsubscriber injury claim?
Depending on the facts of the case, damages may include medical expenses, lost wages, loss of earning capacity, pain and suffering, and other losses allowed by law. The damages available in a nonsubscriber claim are often broader than those available through workers’ compensation, but the exact recovery depends on the nature of the injury, the evidence, and whether the employer’s negligence contributed to the incident.
4. What if I signed employment paperwork mentioning arbitration?
That does not automatically answer whether arbitration applies or whether it can be challenged. The language of the agreement, when it was signed, how it was presented, and whether it covers the type of injury claim involved can all matter. In some cases, an employer may argue that a workplace injury claim must be resolved through binding arbitration instead of a lawsuit, so it is important to have the agreement reviewed carefully.
5. Can I still bring a claim if someone other than my employer caused the accident?
Possibly. Some workplace injuries involve third parties such as contractors, subcontractors, drivers, property owners, or equipment manufacturers. For example, a claim may arise if a worker is injured in a crash caused by another driver while performing job duties or is hurt by defective machinery at a worksite. Whether a third-party claim exists depends on the facts, but identifying all potentially responsible parties can be an important part of evaluating your legal options.
6. How long do I have to bring a nonsubscriber injury claim in Texas?
Deadlines may apply, and the time available to bring a claim can depend on the type of case, the facts involved, and whether arbitration is an issue. Waiting too long can make it harder to preserve evidence, identify witnesses, and protect your rights. For that reason, it is important to have a nonsubscriber work injury claim reviewed as soon as possible after the accident.
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