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What Are the Defenses Used by Non-Subscribers in Work Injury Cases?

Defenses That Non-Subscriber Employers Can Use Against Injured Workers Under Texas Law:

In its 25 year history, our firm has represented perhaps hundreds of injured Texans whose employers were non-subscribers to Texas workers' compensation coverage. One thing we have learned in that time is that not many attorneys (on either side of the litigation) fully understand how Texas non-subscriber cases work, especially when it comes to understanding the way these cases are defended.

In the interest of fostering a greater understanding of the law, in this article, Texas non-subscriber work injury attorney Michael Grossman discusses the defenses that employers often use in their attempts to avoid compensating injured workers.

Questions answered on this page:

  • What kinds of defenses will my employer use in my Texas work injury case?
  • Is it true that employers can only use the "sole proximate cause" defense against injured workers?
  • What defenses are employers not allowed to use against injured workers?

The Basics of Texas Non-Subscriber Work Injury Law

Texas law does not require companies to subscribe to workers' compensation coverage, as is required in almost every other state. Texas companies are free to subscribe to workers' compensation coverage or they may opt out, thereby classifying them as "non-subscribers."

From a company's perspective in terms of liability, the distinction between being a subscriber vs. a non-subscriber is significant:

  • Subscribing companies cannot be sued by injured workers (under most circumstances).
  • But non-subscribers can be sued by injured workers.

Further, the Texas legislature has long sought to encourage employers to participate in the workers' compensation program. The primary mechanism they use to accomplish this goal is to strip companies of the right to use several "silver bullet" defenses that employers have historically used successfully to avoid financial liability for the injuries suffered by their employees.

While that is all well and true, it is often misstated by lawyers that employers have been stripped of all defenses except for the "Sole Proximate Cause Defense." This is incorrect. There are in fact many defenses that employers may use under Texas law.

What Texas Law Explicitly States About Non-Subscriber Defenses

Let's begin by examining the statute itself, straight from the Texas Labor Code, to determine which defenses are specifically disallowed and which are specifically endorsed:


  • (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:
    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.
  • (b) This section does not reinstate or otherwise affect the availability of defenses at common law, including the defenses described by Subsection (a).
  • (c) The employer may defend the action on the ground that the injury was caused:
    1. by an act of the employee intended to bring about the injury;
    2. while the employee was in a state of intoxication.
  • (d) 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.
  • (e) A cause of action described in Subsection (a) may not be waived by an employee before the employee's injury or death. Any agreement by an employee to waive a cause of action or any right described in Subsection (a) before the employee's injury or death is void and unenforceable.
  • (f) A cause of action described by Subsection (a) may not be waived by an employee after the employee's injury unless:
    1. the employee voluntarily enters into the waiver with knowledge of the waiver's effect;
    2. the waiver is entered into not earlier than the 10th business day after the date of Texas Workers' Compensation Act (83rd Legislature, 2013) Page 117 of 529th initial report of injury;
    3. the employee, before signing the waiver, has received a medical evaluation from a non-emergency care doctor; and
    4. the waiver is in a writing under which the true intent of the parties is specifically stated in the document.
  • (g) The waiver provisions required under Subsection (f) must be conspicuous and appear on the face of the agreement. To be conspicuous, the waiver provisions must appear in a type larger than the type contained in the body of the agreement or in contrasting colors.

As you can see, there are several defenses which non-subscribers can no longer use, and several which they most certainly may use. But as we intimated earlier in this article, any lawyer in Texas who is remotely familiar with non-subscriber work injury cases knows that employers can use the Sole Proximate Cause Defense. Yet, you'll notice that the term "sole proximate cause" does not appear anywhere in the statute cited above.

This brings an astute observer to an inevitable dilemma: either the Sole Proximate Cause Defense isn't really a defense that an employer can use, or employers can use defenses that are not readily identifiable in the statute alone.

As it turns out, the latter is true. There are indeed many defenses that employers can use in a Texas non-subscriber case; the Sole Proximate Cause Defense is just the tip of the iceberg with respect to defenses that are perfectly valid yet are not found in the Labor Code.

Also worth noting, the statute cited above states, "This section does not reinstate or otherwise affect the availability of defenses at common law, including the defenses described by Subsection (a)." What that means is twofold:

  • First, just because this section of the Labor Code specifically obliterates certain defenses, that doesn't mean that old common law defenses (which have fallen out of use with the court or that were supplanted by statute) can suddenly be brought back to life to be used against injured workers simply because this statute doesn't name them as a forbidden defense.
  • Second, just because certain defenses are specifically stated as being valid, that doesn't mean that they are the only valid defenses employers can use.

In summary, this section of the Labor Code should be read as:

  • If an employer opts out of workers' compensation coverage and an employee is harmed through the employer's negligence (directly or vicariously), the injured worker may sue the employer. However, employers cannot claim in their defense that the injured worker was also negligent, that he assumed the risk of such injuries, or that he was injured by a co-worker. If any of those statements are true, too bad; the employer is still liable for their own negligence (directly or vicariously).
  • Further, the employer may also ask an injured worker to sign a release of liability, but only after the injury has occurred. So long as certain parameters are followed, this waiver lets the employer off the hook. Additionally, if the injured worker was on drugs or alcohol or injured themselves on purpose, the employer can present these facts to the jury, so as to reduce or altogether eliminate compensation for the worker. Also, any other normal defenses that are still accepted as valid by the courts in negligence cases at the time of the injury can be raised by the employer.

When you think of the statute in those terms, it seems fairly obvious that there are other defenses which can apply to a non-subscriber case.

What Injured Workers Must Prove

In order to appreciate the defenses that employers can use, we must first establish what elements an injured worker must prove in order to win.

Non-subscriber cases are essentially negligence cases, so the case elements are practically the same as those found typical negligence claims. The plaintiff must show based upon a preponderance of the evidence that:

  • Duty - The injured worker was an employee who was in the course and scope of employment, that the employer was a non-subscriber to Texas workers' compensation coverage, and that the employer therefore owed the employee a duty to use reasonable care in providing a safe workplace.
  • Breach - Through error, default, omission, or carelessness, the employer breached the duty that they owed to the worker.
  • Causation - The breach of the duty owed was the proximate cause of the injury sustained by the worker.
  • Damages - The breach of the duty owed resulted in losses or damages suffered by the worker.

As you'll soon see, some defenses attack specific components of what the plaintiff must prove, whereas others question the plaintiff's legal standing to bring suit altogether.

The Full List of Defenses That Can Be Used

If there are indeed defenses that an employer can use that are not at all addressed in the Labor Code, this prompts the question, "Where do these other defenses come from?"

The short answer is that there are several forms of these other defenses, all of which have their own origin story. We've clustered these defenses into the following groups:

  • Inferential rebuttals
  • Defenses created by statute
  • What we'll call "procedural defenses"
  • Common law (case law) defenses created by old and new appellate and Texas Supreme Court Decisions

Here are the defenses that can be used:

Name of defensePurpose and/or categoryElement that it affectsWhere the authority for this defense comes from
Employee was intoxicatedLiability defense / statutoryCausation - If the worker was on drugs or alcohol at the time of the accident, the jury may believe that the intoxication was the cause of the injury.Statute - This is a statutory defense that is found in section 406.033. of the Texas Labor Code.
Employee deliberately hurt himselfLiability defense / stautoryCausation - If an employee hurt himself on purpose, a jury obviously will not make the employer pay for his injuries.Section 406.033. of the Texas Labor Code.
Employee signed a post-injury waiverLiability defense / statutory /proceduralBars entire case from proceeding.Section 406.033. of the Texas Labor Code.
Commonly known hazardLiability defense / common lawDuty - Essentially, this defense states that the employer never owed the employe a duty to keep the injury from happening in the first place. The reasoning is that an employer has no duty to warn employees about hazards that are blatantly obvious.Texas case law: Austin v. Kroger Co,, Brookshire Grovery Co. v. Goss, Jack in The Box, Inc. v. Skiles, and Kroger Co. v Elwood. In these cases, the Texas Supreme Court has made it clear that an employer does not owe a duty to its employees to warn them about hazards that they are fully aware of.
Part of routine jobLiability defense / common lawCausation - This argument essentially states that an employer cannot be held negligent if the conduct the employer instructs the employee to engage in is not known to be hazardous, it is therefore unforeseeable to the employer that an injury is likely. As such, there's nothing a prudent employer could do to prevent the harm, ergo, no negligence occurred.Texas case law: Great Atlantic Pacific Tea Co. v. Evans
Sole proximate causeLiability defense / common law / inferential rebuttalCausation - Under the Workers' Compensation Act, employers in Texas are barred from arguing that an employee contributed to their own injury. As such, employers cannot plead that an employee was also negligent, or even mostly negligent in causing their own injury. Any negligence at all on the employer makes them liable. But if the jury finds that some party other than the defendant employer is the sole proximate cause of the employee's injury (even if it is the employee who is the sole proximate case), there can therefore be no negligence on the part of the employer, so the employee loses their case.Texas case law
New and independent causeLiability defense / common law / inferential rebuttalCausation - This argument holds that, irrespective of what the employer may have been doing wrong, a new act occurred that severed the causal link between the employer's misconduct and the accident. Basically, something else hurt the injured worker.Texas case law
Unavoidable accidentLiability defense / common law / inferential rebuttalCausation - This argument is rather vague, and all of the circumstances to which it may apply have not been fully fleshed out by the court. Nevertheless, the basic idea behind this defense is that it is allows the employer to Texas case law
Sudden emergencyLiability defense / common law / inferential rebuttalDuty - When determining whether a defendant accused of negligent was in fact negligent, the first order of business is to determine what duties they owed to the person who was injured. While certain members of society (doctors, lawyers, etc.) owe special heightened duties to their clients, most individuals are judged by the reasonable person standard. That is to say, the duty that the owe to others is to behave as any reasonable person would under the circumstances. In the event of a sudden emergency, the jury is asked not to judge the defendant based on what a reasonable person would normally do, rather, they're asked to judge the defendant based on what a reasonable person would do if they found themselves thrust into a similar emergency that was caused by factors beyond their control.Texas case law
Failure to mitigate damagesDamages defense / common law / affirmative defenseDamages - Defendants raise this defense when they believe that the injured party failed to take reasonable and proper steps to keep the costs of their injuries under control. For instance, if an injured person specifically sought out the most expensive doctor in town to perform an operation, or if an injured person, through carelessness, allowed a flesh wound to infect and result in an amputation, both scenarios would be an example of a plaintiff failing to mitigate their damages, and the defendant can instruct the jury to modify the plaintiff's award, accordingly.Texas case law
Act of GodLiability defense / common law / inferential rebuttalCausation - When the Act of God defense is invoked, essentially, the defendant is claiming that a natural occurrence caused the injury, not an act of negligence.Texas case law
Statute of limitationsLiability defense / statutory / proceduralBars entire case from proceeding. Non-subscriber cases are, for the most part, typical personal injury cases, only they're brought against an employer. As such, they're subject to the normal 2 year statute of limitations that personal injury cases in Texas are affordedStatute - This is a statutory defense found in Chapter 16, Sec. 16.003 of the Texas Civil Practices and Remedies Code
Injured party was not an employee (was a contractor)Liability defense / common law / inferential rebuttalDuty and Causation - Employers owe a higher duty to employees than they do to contract laborers. Further, there are more defenses which an employer can use to fend off a claim filed by a contract laborer than are available to fend off claims filed by employees. As such, employers have a vested interest in showing that employees who sue them are not actually employees at all. We wrote a blog post recently detailing this phenomenon wherein employers mis-classify employees as contractors.Texas case law
Preexisting injuriesLiability defense / damages defense / common lawCausation and Damages - This defense can be used to say that the plaintiff was actually hurt outside of work (for example, an old sports injury) and is fraudulently trying to make the employer pay these injuries by pretending that they occurred on the job. When used in that fashion, the defendants are seeking to show that they are not liable. Alternatively, defendants also raise this defense to imply that the injury already existed and that they defendants only made it worse, and therefore should be only responsible for the change in the condition, not the condition itself. This defense is effective since it makes the matter confusing. When used in this sense, the goal is to affect the damages awarded by the jury.Texas case law
Employee was not in course and scope of employmentLiability defense / common law / inferential rebuttalDuty - Generally, employers are responsible for the well-being of their employees precisely because the labor provided by the employee benefits the company and advances its agenda. But when an employee does something that is not to the company's benefit (like horse playing), then the employer can claim that the worker was not in the "course and scope" of employment. This essentially means that the worker was not doing "work tasks," but was instead doing non-work activities.Texas case law

While it can certainly be said that the Sole Proximate Cause Defense is the most commonly used defense in non-subscriber work injury cases, we hope we have clearly illustrated that it is not the only defense that employers can use.

Injured Workers: You'll Need An Attorney's Help

Even though non-subscriber employers are limited in the defenses they can use against you, they still have a great deal to work with. Most non-subscribers hire aggressive lawyers to represent them. You need aggressive attorneys of your own who understand their tactics and how to defeat them. To speak to one of our experienced non-subscriber work injury attorneys, call (855) 326-0000.

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