Non-Subscriber Employers May Use the Post-Injury Waiver Statutory Defense:

When crafting the Texas Workers' Compensation Act, lawmakers wanted to maintain the ability of employers to opt of the workers' compensation system, while at the same time offering encouragement for businesses to join. As a consequence, employers who opt into workers' comp are granted immunity from most lawsuits, while those who don't subscribe, non-subscribers, are limited in the number of traditional common law defenses available to them.

While non-subscribers are limited in the number of defenses they can use, they are not defenseless. As such, they'll use and abuse the defenses available to them just because they're the only available tools that might get them out of their financial responsibility. One defense that they may use is the Post-Injury Waiver Defense. This defense is only valid if the injured worker signs a document after they have been injured, which basically says they are signing away their right to pursue a claim against their employer.

In this article, Texas work injury attorney, Michael Grossman will discuss the Post-Injury Waiver Defense and how it often used to cheat employees out of their legal rights, denying them the ability to pursue compensation for their work injuries.

Questions answered on this page:

• Should I sign a waiver from my employer after a work accident that injured me?
• When can an employer use the Post Injury Waiver Defense?
• How can a lawyer help me in a work injury lawsuit?

Overview of Statutory Defenses For Employers Who Opt Out of Workers' Comp Coverage

Some of the common defenses that allow Texas employers to defend themselves in a work injury lawsuit include:

• Sole Proximate Cause
• Employee Intoxication
• Self-Inflicted Injury
• Known Hazard
• Pre-Existing Injury
• Not Within Course and Scope of Employment
• Job Routine
• Post-Accident Waiver Defense

What is a Post-Injury Waiver?

Put simply, we can break down the term to define what it is. Post, meaning "after," injury is pretty self-explanatory, and waiver meaning "document that you sign, waiving rights." When you think about it, if you didn't know the definition, it seems a little sneaky to try to get you to sign a document that you don't understand, right? That's exactly what they're hoping to do.

While from the definition is may seem like that any sheet of paper will do for a Post-Injury Waiver, the law is quite specific about what a valid Post-Injury Waiver Must include. The specific requirements are found in Section 406.33 of the Texas Labor Code and read as follows:

• (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 the initial report of injury;
  • (3) the employee, before signing the waiver, has received a medical evaluation from a nonemergency 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.

Unfortunately, a lot of injured workers can't say that they've agreed to all of those stipulations, yet they've signed the waiver anyway. The waiver itself is usually created by the employer for protection, financial protection that is. Put simply, Post-Injury Waivers serve no other purpose than to protect employers from work injury lawsuits.

Looking through the law, you can see that workers are afforded a fair number of rights. Pre-employment injury waivers are never considered valid. Nor are agreements entered into sooner than 10 days after an accident. An injured worker must have visited a doctor beyond initial emergency care and the employee has to be aware of what they are signing. To that end, the law further requires that relevant elements of the document appear in different colors, or in a larger font than the rest of the text.

When you read the list of requirements it is clear that the law intends to provide a fair deal of protection to injured workers. This is because in the past employers would attempt to stipulate that they would give the injured worker some money (usually a much smaller amount than what would be necessary for the employer to fully recover) in exchange for the injured worker signing a Post-Injury Waiver. In such deals, injured workers invariably got the worst of the arrangement.

Warnings About Post-Injury Waivers

If there's anything we stress here, it's that even if you don't hire us for your case, we want to be a credible resource for you. In that spirit we offer the following advice concerning post-injury waivers:

• If you're offered a waiver, don't sign it. This takes away your legal right to sue for work injury compensation.
• If you've signed it, you may still have a way out. The fact of the matter is, sometimes these waivers are badly written and use the wrong jargon. As well, they're usually written in haste to keep you from taking any immediate action, so they're often sloppy.
• If you've signed it, and you don't really understand it, that's okay. Talk to an experienced attorney who knows work injury law. They can help you make sense of what you've signed.

The most important thing to understand about Post-Injury Waivers is that they are essentially a settlement. An employer may offer some financial assistance to the injured worker, but they will demand that in exchange for that assistance, the employee will have to sign a waiver. In fact, these waivers are part of any settlement that is negotiated during the litigation process. The difference between signing a Post-Injury Waiver then and signing one without legal representation is that a lawyer will be in a much better position to properly value your case and ensure that you are getting enough money to help with all of your damages, not just the ones that an employer feels like paying for.

Once a waiver has been signed and so long as it is valid, any attempt by the injured worker to sue their employer will result in the employer exercising the Post-Injury Waiver Defense. This defense is the employer showing that court that a valid waiver has been signed and the employer has been released by the employee of any liability for the accident. If the court determines that the waiver was valid, the Post-Injury Waiver Defense will prevail and the case will be dismissed, ending any hope of claiming compensation.

If You've Signed Something That Your Employer Gave You...

Sadly, popular culture has made it a cliché to tell someone that you won't be signing a legal document until it is reviewed by a lawyer. While all legal documents should be reviewed by competent legal counsel, this advice is even more important for injured workers. While it is possible to contest Post-Accident Injury Waivers, it is almost always better from the injured workers' perspective if they had never been signed in the first place.

Contrary to popular opinion, having an injury waiver reviewed by a lawyer is not sign that you don't trust your employer, rather it is admitting the importance of the document and making sure that your interests are protected. After all, people don't just sign car loans, or mortgages. They are carefully reviewed before hand. Damage settlements in non-subscriber work injury cases can easily exceed the value of a car loan or mortgage, making it all the more important that any documents are looked over by an experienced work injury attorney.

The work injury attorneys at Grossman Law Offices are ready to help you, even if you feel like it's too late, it probably isn't. In the past 25 years our attorneys have represented hundreds of injured Texas workers and quite a few people who had signed invalid Post-Injury Waivers. Give us a call at (855) 326-0000. We answer the phone any time, day or night.

Related Articles for Further Reading:

• After a Work Accident, Should I Use My Own Doctor or the Company's Doctor?
• Recoverable Compensation For Injured Employees
• Common Obstacles Employees of Non-Subscribers Face