Texas Non-Subscriber Work Injury Law

The purpose of this guide is to help clarify an area of the law that most people are unfamiliar with. The area we speak of is non-subscriber work injury law.

Though this may sound like a complex area of the law, non-subscriber work injury law is really a simple concept. It is basically the idea that you can sue your employer if you are hurt on the job and your employer has opted out of the Texas workers' compensation program.

The reason this area of this law confuses people is that most people think every company participates in the workers' compensation program and therefore the idea of suing an employer seems foreign. But it isn't. Texas law allows employers to opt-out of the workers' compensation system. When a company chooses not to participate in the workers' compensation program it impacts the rights and remedies of injured workers. In this article, we will explain everything thing you need to know in order for you to make the most of your non-subscriber work injury case.

Chapter 1: What in the World is a Non-Subscriber?

Just like the word non-combatant implies that it is the opposite of a combatant, non-subscriber implies that someone (i.e. a company) is not a subscriber to something. So then what is a subscriber?

Subscriber is the technical term used to describe an employer, or a company, that opts into the Texas workers' compensation program. In every other state in America, a company must participate in that state's workers' compensation program, so every worker in those states is a subscriber. This means only Texans have to bother with who is a subscriber and who is a non-subscriber.

The common characteristic of all worker's compensation programs is that the company either pays into a large insurance pool or buys a particular insurance policy. In all other states, companies are forced to participate in the worker's compensation program by the state, and in exchange for buying that insurance, the employer gets the benefit of being practically "unsueable."

So if you are hurt on the job in Arkansas, Colorado, or New York, you cannot sue your employer. The only thing you can do is file a workers' compensation claim into their state's workers' compensation program (which is like a welfare program) and you receive payments from that, but you will never get total compensation for your losses like you would in a personal injury lawsuit. A non-subscriber case in Texas, however, is a personal injury lawsuit against your employer who opted out of the workers' compensation program.

Chapter 2: The Basics of Negelicance-Based Claims

Under the board category of personal injury law, we have two main subcategories. One is called intentional torts, and the other is called negligence. An intentional tort is when someone does something on purpose and it causes an injury. This includes cases with battery, assault, false imprisonment, and stuff like that. Under the umbrella of negligence, you have lawsuits against people who didn't intend to hurt somebody, but the bad actor is liable anyway because they didn't rise to the occasion of what we expect a person to do to avoid hurting someone else.

A Non-Subscriber Case is a Negligence Case

A non-subscriber case is a negligence case. So what does that mean? It means you have to prove that the employer was negligent or you do not get compensation. Let's focus a little on that point because it is really significant.

If your employer didn't do anything wrong and you got hurt on the job, you cannot sue your employer. Period. End of story.

Example #1: Lisa is working for a company that manufactures soap. As she is walking across the factory floor she trips over her own untied shoelaces, trips, falls, and breaks her arm. Her employer did literally nothing wrong there. If she wanted to sue her employer, she would not succeed; her non-subscriber work injury case would fail.

Example #2: Lisa works for a factory that makes soap. As she is walking across the factory floor she slips on soap residue that is on the floor. This causes her to fall and break her arm. In this case, she can sue her employer.

What do You Need to Prove in a Negligence Case?

Now that we have introduced you to the idea that you can sue your employer when they are negligent. Let's zoom in on the idea of negligence and talk about specifically what must be proved for you to win your case.

There are four elements needed for every negligence case: duty, breach, damages, and causation.

In order to win a negligence lawsuit, you must show that all four of those elements are present and can be proved by the evidence you brought to court.

Duty

There are many different ways to describe what a legal duty is, but perhaps the best way we've seen was presented by a law school professor who once said, "A duty is a legally imposed obligation for someone to take risk-reducing precautions for the benefit of others."

In the context of a work injury, that means that an employer has a legal obligation to take risk-reducing steps to benefit their employees. Now, you have to show an employer was under a duty to engage in some sort of conduct, and the imposition of a duty on an employer can come from a few different sources. It can come from statutory regulations, such as OSHA rules, or it can come from the fact that everyone in a certain industry does it a certain way and so we expect the employer to simply behave in the way a reasonable employer in that industry would.

For example, if oil field workers are all expected to wear knee-high boots to keep them safe from common hazards and a company doesn't require their employees to wear knee-high boots in a similar line of work we would say that industry custom imposes a duty on that company to do so.

Breach

Breach essentially means that an employer owed a duty and then breached that duty, just the same way somebody would breach a contract and be legally liable. More specifically, a defendant, or an employer, breaches their duty when they fail to adhere to the proper standard of care. Well, what is the proper standard of care? This ties in very closely with what we just discussed.

There are different circumstances, laws, and regulations that say an employer has to do certain things in order to go far enough to protect employees. The standard of care is not that an employer must do anything humanly possible to protect workers from injuries. The standard of care is that they have to behave as a reasonably prudent person would under the circumstances. And what that looks like, again, is based on either direct imposition of law or custom.

Damages

Damages simply mean that the injured worker either suffered financial or emotional harm or physical pain. This one is usually easy to prove.

Causation

Causation is the idea that it was the employer's conduct that actually caused the employee to incur those damages.

How Does Having a Negligence Case Impact Me?

Now that we've covered that a non-subscriber case is a negligence case and talked about what you have to prove in a negligence case, let's talk about a related question. Why does that matter? Well, it matters, because it changes how you would approach the case.

If your employer was a subscriber to a workers' compensation program and all you could do was file a workers' compensation benefit claim, then what you have is a non-adversarial claim. You would simply fill out some paperwork and get a check in the mail. There is no conflict in 99% of workers' compensation claims.

However, if your employer is a non-subscriber, in order to seek a remedy for your injury, you will need to sue your employer. Because you have to argue it as a negligence claim it is no different than a car accident case, no different than a medical malpractice case, no different than any other adversarial legal proceeding. So again why does it matter? It matters because you will have to "lawyer up" and sue someone, and you've got a fight on your hands. You cannot take a laid-back approach.

Chapter 3: How Does a Non-Subscriber Lawsuit Effect My Relationship with My Employer?

The short answer is that is it probably going to be devastating to the relationship. Every great once-in-awhile, we'll have a client who sues their employer and continues working for that employer, and everyone involved is perfectly mature and recognizes that it is just a fact of life for their employer-employee relationship. No one shares any hard feelings, the worker gets their compensation from the lawsuit, and the employee just keeps on working for the company. That is an absolute rarity.

For the majority of companies, the second a worker sues them, they fire the worker. They are allowed to do so under Texas law, and most employers take it personally when they get sued.

For you, the injured worker, you then have to decide if it makes sense to pursue a lawsuit.

Example #1: Natalie works full-time for a retail store where she is paid $10/hour. While unloading a delivery, one of Natalie's coworkers bumps into her and knocks her off the loading dock. As a result of the accident, Natalie suffers a traumatic brain injury and both of her arms are broken.

In this circumstance, Natalie makes $20,800 a year and she is probably looking at a million dollars in injuries. It makes perfect sense for Natalie to pursue the lawsuit, recover the substantial compensation that she can likely get through the lawsuit, and do so knowing her employer may retaliate and fire her. In other words, she loses a job that isn't that valuable, to begin with, in order to seek greater compensation. It's a fair trade-off.

Example #2: Natalie is a mid-level executive for a healthcare company and she suffers an injury when the elevator she is riding on malfunctions. As a result of the accident, she suffered a broken pinky and several bruises on her left leg. She makes $300,000 per year in this position. If her employer retaliates to her filing a lawsuit and fires her, she would basically be throwing away a very valuable job to go after maybe $20,000 - $30,000 in compensation. So in this example, it is probably not sensible for her to file a lawsuit simply because of her circumstances.

The takeaway is that every worker needs to evaluate whether it makes sense for them, under their unique circumstances, to pursue a non-subscriber work injury case. It would be entirely irresponsible for a lawyer to say yes you should always sue, and in fact, in many cases, we encourage people not to sue for the reasons listed above. In order for you to make that decision intelligently, you need to speak to a lawyer and find out what your case is worth. The lawyer will be able to help walk you through that process, but you have to be willing to engage in that conversation. You shouldn't just automatically sue because you can.

Chapter 4: What Are My Rights as an Injured Worker?

When your employer is a non-subscriber you have certain rights, but the rights are fairly simplistic. What would probably be a better focus for this chapter is to discuss what rights you do not have, so we will cover both.

What Rights Do You Have?

You have the right as an injured worker to be provided with a reasonably safe work environment. If that reasonably safe work environment is not provided and you are hurt, then you can pursue a remedy by exercising your right to sue the employer. That's it. Those are your rights.

What Rights Do You Not Have When Your Employer is a Non-Subscriber?

You do not have the right to any type of automatic compensation. If you wish to be compensated, you must sue.

You do not have the right to automatic free medical care. If you wish to seek out medical care you often have to do it on your own or through your attorney. You do not have the right to automatic time off from work while you are recuperating. The employer can technically fire you if you are unable to perform your work duties. You do not have the right to automatic lost wages compensation if you are unable to work due to your injury.

The Long and Short of It

You have the right to sue your employer. When you sue, you can sue them for lost wages, pain and suffering, mental anguish, past medical expenses, future medical expenses, impairment, and on and on and on. You can sue them for the whole buffet of damages that you can sue for in any other kind of negligence personal injury case, but none of it is automatic.

If your employer is a non-subscriber you must sue in order to exercise your rights.

Chapter 5: Special Considerations for Employees of Non-Subscribers

If you've read this far, you know that:

1. You're likely working for an employer that doesn't participate in the workers' compensation system;
2. You have the right to sue your employer for a work injury;
3. And you also have a rough outline for the factors that help determine whether or not it makes sense to sue.

There are a couple of other factors that impact your decision to file suit and strategy for litigating your case. Let's discuss those now.

Some Employers Provide Automatic Benefits

In the last chapter, we explained how Texas law does not require an employer to provide any kind of automatic benefits to any employee when the company has opted out of the workers' compensation program. Yet, some companies choose to provide a benefit plan in spite of the fact that the law does not require them to do so. Let's unpack that a little bit.

Under Texas law, if a company opts into the worker's compensation program, then that employer has no say whatsoever in the benefits that an injured worker receives. Instead, the workers' compensation program provides compensation to the employee. The program is based on simplistic formulas, and there is no room for interpretation or fighting about the amount in court. It is just like applying for welfare.

However, when a company opts out of the workers' compensation program, the employee retains the right to sue their employer; therefore, the company has no obligation to provide any sort of benefits. Again, though, some employers do. But why?

There are two main theories as to why some employers provide automatic benefits.

1. Some companies, even though the law doesn't require them to, want to provide a safety net for their employees so that the workers are able to get back to work sooner and make a full recovery.
2. The other way to interpret it is that companies are simply trying to avoid the expense of participating in the Texas workers' compensation program and avoid a lawsuit by providing some sort of automatic benefit, even if the benefits are not generous.

Example: Bob works for a major retailer. The retailer has a system in place that will pay 100% of the injured worker's medical bills and 60% of the worker's lost wages, and Texas law does not require these benefits, the employer does so purely of their own volition. Bob falls off a ladder and suffers a very serious back injury. The employer failed to provide Bob with all the appropriate OSHA-required safety harnesses, training, etc. so Bob is at a fork in the road. He could either sue the employer or he can take advantage of the voluntary benefit plan. Bob may decide that even though he would get less money overall, it is worthwhile for him to accept the voluntary benefits plan because he wouldn't have to worry about losing his job and he figures that the voluntary benefit plan is generous enough.

You can see how an employer who is gifted at managing money and accounting for risk can thread the needle with Texas work injury law. An employer can avoid the tremendous expense of participating in the worker's compensation system and still offer an attractive enough benefits package to encourage their workers to take advantage of the offered voluntary benefits plan instead of suing the employer.

However, there's an ugly side to it. Sometimes there are benefits plans that companies put in place that they then do not honestly represent to their injured employees.

Employers Might Intentionally Misrepresent their Automatic Benefits

For a perfect example, let's consider a case that Grossman Law Offices had a couple of years ago. Our client was a woman who worked for a factory and suffered an amputation in a forklift accident. The employer's lawyer told her, Hey if you sign a release promising not to sue the company, you'll get $450,000. Well, $450,000 is a decent chunk of money, and she was tempted to sign the release. Her daughter ultimately talked her out of signing and convinced the victim to consult with a lawyer first. The woman and her daughter then came and met with Grossman Law Offices and they showed us the paperwork that the employer wanted them to sign.

What the paperwork actually said was something like, if you sign this release you will receive up to a maximum of $450,000. However, what is worse is that the employer's lawyer failed to tell our client that $300,000 of the maximum had already been exhausted on paying for her hospital stay. So in actuality, the employer was trying to convince her to sign away her case for only an additional $150,000. That's nowhere in the same universe as a good settlement. Grossman Law Offices was able to ultimately resolve her case for 10 times as much.

What Does All This Mean for You?

The takeaway here is that some companies do offer benefit plans that are generous, and a worker really could just take advantage of the benefit plan instead of suing their employer. But oftentimes, there's a catch in that an employer is not being entirely honest about what is offered in their voluntary benefits package.

Additionally, in many cases, companies can voluntarily turn the benefit plan off at a later date. How does that work? Well, they tell you, we're going to cover your lost wages and your medical bills and then just decide not to do that at some point. It can be as simple as just firing you because their plan only covers "employees," and you're not an employee anymore.

So how should you make use of this information? What should you do with this? The short answer is don't sign anything until you've talked to a lawyer. A good general rule of thumb is, if you have a minor injury, you may be able to comfortably take advantage of your employer's voluntary benefits plan, but if you suffer a serious injury, you need to think long and hard about whether you should take advantage of their benefit plan.

Binding Arbitration Agreements

Most companies that opt out of Texas worker's compensation coverage, know that they can be sued by an injured worker. In an effort to help mitigate the risk of being sued, companies will usually have their employees sign what's called a binding arbitration agreement.

A binding arbitration agreement is a contract where the employee agrees not to sue the company in a Texas State District Court, but instead, in a privatized quasi-court—a privatized quasi-court is run by a retired Texas State District Court judge.

Many judges, who are voted out of office, do not want to return to regular private practice as a lawyer. So oftentimes, those judges will set up alternative dispute resolution companies, a.k.a. quasi-courts. These companies operate similarly to a traditional district court, however, the main difference is that the authority of the quasi-court to decide the case isn't set by law, like a real court is, instead it's agreed to by contract.

A downside to arbitration is that there is no jury. The whole case is presented as a bench trial, meaning that it is the judge who decides whether the employer owes the injured worker anything and how much that compensation is going to be. Generally speaking, arbitrators tend to award smaller verdicts than juries. Naturally, this varies from arbitrator to arbitrator and from jury pool to jury pool, but again, generally speaking, awards in arbitration are smaller than awards issued by most juries in Texas.

Another potential downside to arbitration is that the defendant, i.e. your employer, typically pays for the arbitration process. At first glance, it may seem like a good thing, that you don't have to pay for your case, but on the other hand, this can raise some questions of unfairness when the party you're going up against is the one footing the bill of the "judge."

A lot of lawyers, for these reasons, will do everything they can to avoid taking a case that will land them in arbitration. They just consider arbitration as a judicial "no man's land" and they avoid it. Grossman Law Offices is not like that. We have had tremendous success in arbitration cases. We understand that arbitration has some different challenges and risks, but we feel that our approach has allowed us to be successful for many of our clients, and we do not regard arbitration as a deal-breaker.

Chapter 6: Proving Liability is Easier than You Might Think

We get calls from clients all the time, where they're hurt on the job, they got fired, they're drowning in debt, their whole lives have been turned upside down, but on the phone, they tell us something like, "I'm pretty sure I've got a case that you can't win here, but I just wanted to double-check." What they are so negative about is that they think, "Oh, well, I was injured by a co-worker, not by my boss himself," or "I was injured on the job, but I don't have perfectly clean hands myself." Neither of those things matters.

In a Texas non-subscriber case, all you have to prove is that the employer was slightly negligent and you win your case. To appreciate the significance of this. Let's do a compare and contrast between a non-subscriber negligence case and say a standard car wreck negligence case.

A Car Wreck Negligence Case

In a car wreck negligence case, there are many defenses that are available to the person you sue. The defendant can argue that you are contributorily negligent (basically saying that you also played a role in causing your injuries), that you assumed certain risks, that you failed to mitigate your damages, and on and on and on. Essentially, there's a whole list of defenses that they can use when you sue them. If they successfully argue any of these defenses, it lowers the value of your case, or it may even cause you to lose outright.

A Texas Non-Subscriber Case

Unlike in a car wreck case, in a Texas non-subscriber case, Texas law prohibits employers from raising the contributory negligence, assumption of the risk, and fellow servant defenses against the injured employee. These, if allowed, would be the best three defenses that an employer could use against an injured employee. Why? Let's look at how the defenses were used before the law changed.

Contributory Negligence

Bob is working in a steel mill when a crucible breaks free from a crane, lands on the ground, and sends molten steel flying every which way. As Bob is running away from the steel coming toward him, he sees an exit sign that points to the right, but he panics and goes left instead. Bob accidentally traps himself and gets badly burned.

That was technically negligence on Bob's part, so the steel mill owner would only need to say "You also made a mistake and that is how you were injured," and Bob would lose his work injury case.

Assumption of Risk

Bob is working in a mine and he gets injured in a cave-in. Through assumption of risk, the employer would only need to say, "Hey sorry, you assumed the risk of key events when you took this job," and that would completely bar Bob from any sort of recovery in court.

Fellow Servant

Bob gets run over by a forklift driver while he's working at a lumber warehouse. With the fellow servant defense, the company would argue, "We didn't do it. It was your coworker that hurt you, not the company itself," and Bob would lose his case.

Stripped of Their Best Defenses, Employers Have a Hard Time Defending Themselves in Court

In all those cases, in the olden days, Bob was out of luck. However, in Texas, in the year 2023, none of that matters.

Employers cannot raise any of those arguments. Now, there are still defenses that a company can raise, but those defenses are such neutered, nonsignificant defenses that the end result is that all you have to do is prove that the employer did something wrong, even if other people did too, and your employer is on the hook.

A popular expression that trial lawyers have used to explain this before is "if even one drop in the millions of water droplets in a swimming pool belongs to the employer, then the whole swimming pool belongs to the employer."

Chapter 7: Frequently Asked Questions

What Is My Non-Subscriber Work Injury Case Worth?

One of the hardest questions that a law firm can ever have to answer is "what is my case worth?" It is difficult because there are so many different variables that go into valuing a case. Nevertheless, we want to try to give you a way to estimate a ballpark figure.

Things that typically go into a case evaluation:

1. Where you file your lawsuit makes a huge difference. For instance, Denton County juries are generally more stingy than Corpus Christi juries.
2. Who your employer is, factors into the evaluation. Look at it this way. A roofing company that is almost bankrupt is not going to be in a position to pay you for compensation, but a 20,000-employee retail establishment probably can.
3. How severe your injuries are will impact it. Juries award more money to people who are hurt really badly, and they award less money to people who have smaller injuries. Simple as that.
4. How strong your case is will greatly impact the case's value. If your employer screws up so badly that a jury would hear about the screw-up and faint, you will probably receive a larger payout than if your employer only commits a minor technical violation.

All of those factors and more will go into determining how much your case is worth.

If we operate under the assumption that you have a reasonably good fact pattern and a reasonably good venue, here are the kinds of ranges we think you can expect to see.

1. For soft-tissue injuries, like muscle pulls, you are most likely looking at a low five-figure recovery.
2. For broken bones that don't require any kind of surgical repair. You're typically looking at a high five-figure low six-figure recovery.
3. For any injury resulting in an invasive surgery (like back surgery, or placing titanium rods in a limb, or anything like that), you're probably looking at multiple six figures.
4. For any injury where you have an amputation or a traumatic brain injury, you're looking at seven figures and up.
5. For any injury that involves serious burns, those are usually well into the seven-figure range.

How Do You Start a Non-Subscriber Work Injury Case?

The most important thing that you need to know is, you should not delay. As soon as you suffer an injury, you should talk to a lawyer.

Don't assume that just because you call a law firm for consultation, that means you have no choice but to file a lawsuit. It's a collaborative process. Additionally, it's often the case that you just need to see how things will play out. A lawyer that is candid and honest will tell you "Hey, maybe it's not time to sue, yet. Let's see how your case develops," or the lawyer may say, "Holy smokes! You need to sue right this second. It's that important."

That said, evidence waits for nobody. If you have suffered a serious work injury, you need to hire a lawyer immediately so that the lawyer can lock down the evidence that you will need to win your case later.

Should You Wait for OSHA to Render a Verdict?

No, absolutely not. OSHA takes forever to come up with its verdict, and OSHA is unfortunately never as thorough as a private, individual, independent investigation. Grossman Law Offices typically works with an accident reconstructionist in the field of work injuries, who himself was a former regional director for OSHA. We bring him in, he looks at your case the way OSHA would look at it, and then goes 10 steps further.

How Much Does it Cost to Hire Grossman Law Offices?

Hiring Grossman Law Offices is as simple as signing a one-page document. Simply calling us and asking us to take on your case is completely free. Our firm operates without any money upfront from our clients and instead works on a contingency fee basis. This means you only pay us if we win your case. Simple as that. If we fail to prevail on your behalf, the law firm covers all the expenses associated with the case and never sends you a bill.

So, what does it cost when we win your case? If Grossman Law Offices settles your case outside of a court, then the firm keeps one-third of the settlement as payment. In the event that we have to file suit in the case, the firm keeps 40% of the winnings.

This payment structure allows our office to operate as your partner. Your success is our success; the better your winnings are, the better our earnings are.

Where is Grossman Law Offices Located?

Our main office is located in Dallas, TX. However, Grossman Law Offices is licensed to litigate cases throughout Texas. Whether you are in El Paso, McAllen, Amarillo, Texarkana, or anywhere in between, Grossman Law Offices can take your case.