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Workers Compensation Shields Employers from Lawsuits. Therefore, it Can Be Raised as a Defense.

This is a tricky subject to explain since it runs afoul of most people’s understanding of what workers’ compensation is, but lawyers who defend companies can argue workers’ comp participation as a defense. Here’s how…


Questions Answered on This Page:

  • Can I still sue my employer if they have workers’ comp?
  • What will happen if I file a lawsuit anyway?
  • Is workers’ comp really a “bar” to my recovery?

A little about workers’ comp coverage.

100 years ago, the Texas Legislature put the the first Texas workers’ compensation program in place. As with almost every other legislature, lawmakers, workers’ advocates, and business lobbyists negotiated a deal: in exchange for the automatic benefits that the workers’ comp system provides, workers could not sue their employer in court. In theory, this makes things easier on the worker since they no longer had to sue their employer and go through the trouble of proving that the employer was negligent. Instead, when their employer elected to participate in the workers’ comp program, the employer was automatically eligible to receive what essentially amounts to disability payments if they and injured and unable to work.

This was a boon for many employees, especially those with smaller claims, because they wouldn’t have to spend the money to hire a lawyer, they wouldn’t incur medical bills they themselves could never pay, and they wouldn’t have to go through the courthouse to get some compensation.

That notwithstanding, the benefits available through the workers’ comp program are severely limited, especially with respect to lost wages. Over the years, we’ve counseled countless injured workers who are out many thousands of dollars in lost income and additional medical bills, and we’ve had to give them the bad news that the workers’ compensation law bars them from suing their employer.

Many consider this amazingly unfair. After all, why should the worker have to bear the brunt of the injury when he was working for the benefit of someone else? We agree, but that’s just how the law works.

Not a Moment to Waste The importance of a prompt investigation...Read More >

How workers’ compensation is used as a defense.

Based on the explanation above, you can see that workers’ comp is a system of providing benefits to injured workers. But, this article exists to explain how it is also a defense. You see, not all companies have workers’ comp coverage. Some companies in Texas opt out of the workers’ comp system. “They are known as non-subscribers.”

Non-subscribers are not afforded the immunity from lawsuits that employers who opt in to workers’ comp coverage are granted. Non-subscribers can be sued. This creates a bit of confusion in the Texas work injury arena. When an injured worker contacts a lawyer and asks, “Do I have a good lawsuit on my hands?” the lawyer really doesn’t know for sure. If the employer is a non-subscriber, then the injured worker likely has a good case on their hands. If the employer has workers’ comp coverage, the injured worker can only receive benefits. So, what happens fairly regularly is that an injured worker will hire a lawyer and the lawyer will sue the company, assuming that the company is a non-subscriber.

If the company that gets sued is actually a subscriber to workers’ compensation coverage, said company will raise their participation in the program as a defense. Ergo, workers’ compensation can be used as a defense to liability.

Give Grossman Law Offices a Call:

Having represented injured workers for a quarter century, the lawyers at Grossman Law Offices have dealt with the workers comp bar countless times. Whether or not you have a case against your employer that the defense applies to all your claims is an open question. Call us today to find out at (855) 326-0000.


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