Frequently Asked Questions About Texas Workers' Compensation Cases

Clients tend to ask us similar questions when we're looking at their workers' comp case with them. They all really just want to know the same things. Let's discuss those questions and give some answers.

Before we go any further, we want to clarify that all the information you'll read on this page pertains to Texas employers with workers' compensation coverage. If your employer does not offer workers' comp, then that's a totally different ballgame. In that scenario, your employer is called a "Non-Subscriber." You can read all about that in our Non-Subscriber Work Injury section.

Can I sue my employer for a work injury?

The simple answer is "no." You see, the ability to sue your employer for a work injury depends on if they have workers' comp or not. If they do, they've made themselves immune to lawsuits. In essence, it doesn't matter if they were negligent and failed to provide a safe workplace, if they participate in an approved Texas workers' compensation plan, they cannot be sued. You are only eligible to receive benefits from the plan.

Can I sue my loved one's employer if my loved one was killed on the job?

This is a trickier question to answer. The short answer is "yes," but it's not that simple. In any type of injury case or wrongful death case, you sue the wrongdoer for compensation. The court only makes them pay you compensation if you can prove that the wrongdoer's negligent conduct was what caused you to suffer. Now, negligent conduct comes in a couple of different forms, but it can be grouped into the categories of "ordinary negligence" and "gross negligence." Ordinary negligence occurs when someone is careless. Gross negligence occurs when someone does something absurdly reckless, something wherein they knew what they were doing was bad but did it anyway. Juries award different types of compensation for these different types of negligence. In a case where a jury finds that the person you sued was ordinarily negligent, the jury makes them pay "compensatory damages," which encompasses almost all types of losses such as medical bills, lost wages, pain and suffering, etc. But if a jury finds that the person you've sued was guilt of gross negligence, they make them pay you extra money for "punitive damages." So, to restate, if you are hurt because of ordinary negligence, a jury makes the bad guy pay you compensatory damages (which comes in several forms), but if you're hurt because of gross negligence, the jury makes the wrongdoer pay you punitive damages (Click here for more info on punitive damages).

This is how it works in all personal injury and wrongful death cases under Texas law EXCEPT IN WORKERS' COMPENSATION CASES. The way workers' comp works, any ordinary negligence on the part of the employer entitles a work accident victim to workers' comp benefits only, irrespective of whether the employee is hurt or killed. The lawmakers essentially felt that ordinary negligence on the part of the employer should only result in payment of benefits, not a lawsuit. But, the Texas Constitution has always allowed the children and the spouse of the deceased to sue ANY defendant who is grossly negligent. So, even though Texas lawmakers designed the workers' compensation system to protect businesses from lawsuits, their laws could not trump the Texas Constitution. As such, if your loved one is killed on the job AND your attorneys can prove that the employer was grossly negligent --not just ordinarily negligent-- then you are allowed to collect workers' compensation benefits and still sue the employer for punitive damages. This is a highly technical endeavor. Our lawyers have won many of these cases, but since proving gross negligence is tricky, most lawyers don't even try. Further, if your loved one was killed on the job, whether you think gross negligence occurred or not, you should consult with an experienced attorney. You likely do not possess the working knowledge of the law in order to determine if the death was caused by ordinary or gross negligence. The way we see it, Texas law is unfairly biased in favor of the employer and workers' comp Death Benefits are incredibly unfair, so we will always welcome an opportunity to at least investigate the possibility of a gross negligence case in relation to any fatal accident case.

How much of my lost wages does my employer have to pay for?

In a workers' compensation claim, your employer's benefits paid to you are determined by formulas. You will only get a portion of your lost wages, and that is after you've surpassed a seven day stint off of work because of the injury. This benefit payment is subject to several variables, including the Texas State Average Weekly Wage. Put simply, you will not be paid the same amount by your employer that you were once being paid.

Can I opt out of workers' compensation at my job?

The answer to this is yes, you can opt yourself out of their workers' comp coverage whenever you're signing your new hire paperwork. Be forewarned though! If you opt out, you're basically telling your employer that you want to reserve the right to sue them if you're injured at work. Most employers don't like being sued by their employees--not surprisingly--and therefore, they won't want to take on an employee that might make that a possibility. Because you opt-out, you could be fired on the spot for doing so.

What if I'm injured so badly, I can't every go back to work again?

When Texas lawmakers were setting up workers' comp legislation, they took this factor into account. Some workers just won't be able to work anymore. They decided on a type of income benefit that you can be paid by your employer: Impairment Income Benefits. Like the above question about how much your employer has to pay you if you're injured, this benefit is also determined by a formula. You will definitely not be making what you used to be earning. But, this income benefit is in place for those victims who have been injured so severely that they cannot make a full recovery.

What if I was injured by someone other than my employer?

Sure, your employer has workers' compensation coverage and you cannot sue them. However, there are sometimes third parties involved in your work injury. Say you were injured on the job site, working for your boss, and everything was going great. Simultaneously, your employer has contracted an independent company to come in and do some work too. If someone from that independent company negligently harms you, you can seek compensation from them. Essentially, workers' comp is a relationship between the employer and the employee. That third party company does not have workers' comp for you (since you are NOT their employee), and therefore, you can take them to court for compensation.

What if I was hurt by a co-worker?

Not surprisingly, this happens a lot. When you work with folks 40 hours a week, you're bound to have an interaction with them. If a co-worker injures you, you can seek workers' comp from your employer. This is because since that co-worker is your company's employee, by hiring him your company has taken on a sense of "vicarious liability" for his actions in the scope of his employment. If you want more information on what vicarious liability means, check out our page here on the subject. Otherwise, just know that the answer to this frequently asked question is yes.

More questions?

When our clients ask these questions, we try to explain them the best we can. We also realize that since we've been practicing law for 25 years, it seems like second nature to us, but that these are all new concepts to you. If your question wasn't answered here, call our offices. We're happy to share the knowledge. (855) 326-0000.