Your Rights in Texas When Your Employer is a Nonsubscriber to Workers’ Compensation
At Bailey & Galyen, we handle both State Workers’ Compensation Claims, as well as Nonsubscriber Work Injury Claims. So, if you are an injured worker in Texas and have questions, give us a call.
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—accordingly, many don’t. So, what are your legal options for recovering compensation for lost wages, medical expenses, and other damages when you are hurt in the workplace?
First, it’s important to determine whether your employer has covered you under a Texas workers’ compensation policy. 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 (the only legal course of action you will have) in the event of a 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 is important to have your case reviewed regardless.
If your employer is a non-subscriber, you won’t have access to workers’ compensation, so you can take legal action directly against your employer. That typically takes one of two forms: arbitration or a civil lawsuit.
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 (alcohol or drugs), or that the employee injured themself on purpose.
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.
However, there are scenarios where arbitration can be avoided, 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 non-subscriber, and there is no employment policy requiring that you submit your injury claim to binding arbitration, you can file a personal injury lawsuit against your employer.
A lawsuit may allow you to recover more than workers’ compensation in that 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.
At the law office of Bailey & Galyen, we know impact that any personal injury can have on your day-to-day life. If you have been hurt on the job, let us help. We handle both Texas workers’ compensation claims, as well as nonsubscriber work injury claims. We’ll be your advocate throughout the legal process, acting as your liaison with insurance companies and as your advocate in all legal proceedings.
Contact us by email or call our offices at 844-402-2992. Our phones are answered 24 hours a day, seven days a week.
