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What Rights Do Employees Have in Non-Subscriber Work Injury Cases in Texas?

By: Mike Grossman, Texas Injury Attorney

Rights of an Injured Worker In a Texas Non-Subscriber On-The-Job Injury Case:

When an employer opts out of a Texas workers' compensation plan, they are known as a "non-subscriber." When an employer who works for such an employer is injured, they have what is called a "non-subscriber case."

A non-subscriber case is completely different than a worker's compensation case; non-subscriber cases are a matter of common law, while workers' comp is administrative law. About the only thing these two different kinds of Texas work injury cases have in common is that they involve work injuries. If one were to write a book about the two, it might be titled, Workers' Comp is from Mars; Non-Subscriber Cases Are from Venus.

To begin, we'll say that in a worker's compensation case, a worker has certain rights that are explicit in the statute. Some of those rights include things like:

  • An employer cannot fire the employee for being injured and filing a workers' compensation claim,
  • Workers' comp employers must also pay wage benefits to the injured worker when they miss work for a significant period of time due to their injury,
  • If an employee covered by workers' comp dies due to an on-the-job injury, the carrier is then required pay for funeral expenses, and
  • Workers' comp subscribers must pay for medical care provided the employee meets eligibility requirements

These some of the main benefits of the workers' comp system, but not an exhaustive list.

By contrast, in a non-subscriber case, the employer is not obligated to do anything for an injured worker. Instead, the law allows injured workers, to sue their employer for damages caused by the employer's negligence. In this article, Texas work injury attorney Michael Grossman explains how in non-subscriber cases filing a lawsuit is an employee's only means to recover compensation after suffering a work-related injury. For all intents and purposes, the right to sue the employer IS the singular right possessed by an injured worker whose employer is a nonsubscriber.

Questions answered on this page:

  • What rights do employees of non-subscribers have to recover compensation for work injuries?
  • How can the right to sue an employer get an injured worker more compensation than what is available under workers' comp?
  • Are employers allowed to compensate their injured employees if they wish to?
  • How can an experienced work injury attorney an injured worker's non-subscriber work injury lawsuit?

What benefits does a non-subscriber employer have to provide?

When a worker is injured at work and their employer is a non-subscriber, they not are automatically eligible for a certain amount of compensation like the worker would be if their employer had workers' comp coverage. In a non-subscriber scenario, if the employer wishes, they are free to provide their injured worker with some benefits, but this is completely at the employer's discretion. Truthfully, the law does not require them to do anything. Essentially, if a worker's employer is not taking reasonable steps to compensate them for their injury, then they will have to sue.

Some people may think that sounds extreme, but it corresponds with other areas of the law. Here are some examples:

  • For instance, let's say you buy a product that does not function properly. The manufacturer has an opportunity to correct this defect. They can exchange the item and replace it with one that works as intended, or they can simply reimburse you for the purchase and you are no worse off than prior to buying the defective product. If you feel that the manufacturer's actions are sufficient, then you may accept their offer and simply let it go. However, if you believe that the manufacturer has not fulfilled their obligation in some manner, then you can file a breach of warranty lawsuit.
  • Likewise, in a car accident, a defendant can pay for your damages out-of-pocket or through insurance. But if they fail to adequately reimburse you for your injuries and financial loss, then you can sue to recover your damages.

Put simply, you--the injured worker--are really the determining factor. It is up to you to decide whether or not your non-subscribing employer has adequately provided for your injuries and losses. If you believe they have failed to give you what you deserve, then it's your within your rights to sue them.

The vast majority of employers will provide some medical care for an injured employee, but lost wages, future medical bills, or lost earning capacity are rarely compensated by employers without litigation. For whatever reason employers just don't consider these damages when they're "helping" their injured employees. Of course, it makes no sense for an injured worker to foot all of these bills themselves when Texas law empowers the worker to sue the employer and make them pay.

What Normally Happens When You're Injured and you employer is a non-subscriber?

Normally, a non-subscriber employer doesn't have workers' compensation because they are gambling that their employees won't get hurt. If the employee is hurt, they will either fire them or they might offer minimal compensation. In this scenario, whether they fire you or offer minimal damages, it would be appropriate to file suit against your employer because either way, they are not interested in making sure that you get back on your feet after a work-related injury.

  1. The first thing you will need to do before deciding whether or not to file suit, is seek the advice of a knowledgeable attorney. Only after talking with an experienced attorney can you fully understand whether you have a valid claim that is worth pursuing. Sometimes, injured workers will have a valid lawsuit; however, the remaining damages to seek are so minimal it is not always in the plaintiff's best interest to follow through with the suit.
  2. Second, if you choose to proceed with your claim, your attorney will file on your behalf and commence the suit. At this time, they will try to learn as much as they possibly can about your injury, as well as the events leading up to the on-the-job accident. And they will gather every bit of available evidence about your non-subscribing employer, the work environment, and any co-workers who may have contributed to your injury. Your work injury attorney can use all of the information uncovered during the investigative phase to negotiate a fair settlement on your behalf. If negotiations fail, an experienced attorney can reach an adequate resolution by introducing this helpful evidence at trial against your employer.

How This Process Can Be Superior to Workers' Comp Benefits

Unlike workers' comp which has a strict formula for determining benefits, and which leaves many injured workers stuck footing some of the bill for their work injury, the right to file suit against a negligent employer means that injured workers have the opportunity to recover ALL of the damages they have suffered. These can include, medical expenses, lost wages, pain and suffering, disfigurement, impairment, and lost future earning capacity.

Perhaps there is no better example of the different treatment that workers receive in the workers's comp system versus the treatment in non-subscriber cases than disfigurement damages. The law recognizes that looking normal has a fair bit of social value. When an accident causes someone who was otherwise pretty normal-looking to end up scarred and disfigured, the person who suffered this disfigurement has suffered real damage to their quality of life. Under the workers' comp system, there is no compensation available for those who are disfigured beyond covering the costs of potential corrective surgeries. Even that is up to the discretion of state-appointed doctors. In essence, workers' comp says, "Well, your employer may have been negligent and that led to your face being horrifically damaged for the rest of your life, but that has nothing to do with your ability to work, so they get a free pass for that."

By contrast, disfigurement is a class of damages for which an injured worker is able to receive full compensation in addition to being able to recover the cost of corrective surgeries. Again, the right to sue an employer who is a non-subscriber to Texas workers' comp has its advantages for the injured worker.

While an injured worker has to prove that their employer's negligence led to the worker's injuries in a non-subscriber case, this allows injured workers a tool to fight back against employers who take worker safety lightly. In the workers' comp system, it doesn't matter if an accident was caused by employer negligence, the injured worker is barred from filing a lawsuit. In such a case, the only punishment for their dangerous behavior is an increase in their workers' compensation premiums.

The combination of being able to hold a reckless employer accountable for their behavior, while at the same time recovering full compensation for all of an injured worker's injuries are just two areas where the right to take legal action against an employer trumps the smaller, but guaranteed benefits of workers's comp.

What do we mean when we say "full-compensation?"

Most people assume that benefits in the workers' compensation system are determined by their salary. For people making less than the State Average Weekly Wage that is true, for the most part. For workers below that threshold, they are paid a percentage of their average weekly compensation before the injury as a benefit.

The problem for most people involved in work injury cases is that the people most likely to be injured in a workplace accident are those that work in more dangerous professions such as manufacturing, oil extraction, cell phone tower maintenance, or some other high risk profession. These professions pay significantly more than the average weekly wage, not just because they require specialized skill, but because they're inherently dangerous. This "dangerous job premium" is great for workers in these fields when they are healthy, but if they suffer an injury, and their employers participate in workers' comp, they can get raked over the coals financially.

This is because, unlike workers who make less than the State Average Weekly Wage, workers who make more do not collect a percentage of their pre-injury wage, they collect a percentage of the State Average Weekly Wage. While it can be difficult for many injured workers below this threshold because they are often taking a 30% cut to their income, for workers above this threshold, they often find they are taking cuts of 50-70% from what they were making before the injury. For many workers this is financially ruinous. The really tough part to swallow is in most any other type of injury claims, like a non-subscriber work injury case, those additional lost wages would be a damage for which a worker could receive compensation for the total value, not just pennies on the dollar.

So when we, or another law firm, refer to "full compensation" it means the ability to recover the complete amount of the damages that have been suffered. In a non-subscriber case there are no caps on lost wages or other damages suffered. Injured workers can actually be made financially whole, instead of having to scrape by on paltry workers' comp benefits.

Grossman Law Offices can help protect your rights

While the last thing most injured workers want is a protracted legal struggle with their employer, sometimes that is the only remedy the law affords them. Employers know this and will often make low-ball offers in order to get their injured employees to sign a document releasing them from any liability. It is crucial that any documents that your employer asks you to sign after an accident are reviewed by an experienced work injury attorney. Our attorneys have come across cases where injured workers unknowingly signed away their rights to sue in exchange for a tiny fraction of what their damages were worth, because of pressure from an employer and the financial pressures that invariably come after an accident.

While most people hear lawsuit and assume that they take years (and they can), the good news is that most disputes between non-subscriber employers and injured workers are settled outside of court. They either come to an agreement through negotiations, or they achieve a final ruling through arbitration. For your case to come to a successful conclusion, it is crucial for you to have strong representation, and that means you need an attorney.

To put things as simply as possible, injured workers have the right to take legal action against negligent non-subscriber employers in an effort to secure full-compensation for all of the damages they have suffered.

Our non-subscriber attorneys at Grossman Law Offices are very experienced at investigation, negotiation, and litigation. In the past 25 years, our firm has helped hundreds of injured Texas workers receive the compensation they deserved. To learn more about how we may be able to help you, contact Grossman Law Offices at (855) 326-0000.

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