Injured on the job and fear that your employer doesn't subscribe to workers' compensation coverage? Learn your options for bringing a Texas non-subscriber work injury claim.
If you've been injured on the job and your employer does not have workers' comp coverage, chances are you've heard the term "non-subscriber" being tossed around. What is it? Let's start with a simple definition. A "non-subscriber" is any employer who chooses not to subscribe to workers' compensation coverage. When your employer opts out of workers' comp coverage, you cannot file a workers' comp claim. Instead, your only option is to pursue a non-subscriber work injury claim.
In this article, we're going to thoroughly explain what a non-subscriber case is, how it's different from workers' comp, and what steps need to be taken so you get the maximum amount of compensation.
The Difference Between Non-Subscriber Cases and Workers' Compensation Cases
For most of Texas' history, work injury cases have been treated just like any other kind of personal injury case. Just like accidents that involved a negligent driver or negligent doctor, winning a work injury case was all about proving your work-related injury was caused by your employer's negligence. All work injury cases back then were decided in a court of law.
But in the 1990's, Texas legislators decided that they wanted to eliminate work injury lawsuits. They re-wrote Texas' work injury laws and created a type of alternative work injury benefit system that operated completely separate from the court. They called this new system "workers' compensation."
Here are some of the characteristics of Texas' workers' comp system:
- Think of it like a welfare or a social security system. Your employer pays money into the program and, later, you can file a claim for benefits, if you meet certain criteria. The workers' comp program is a system that's based entirely on eligibility. If you qualify for the benefit, you receive it - simple as that - just like a welfare system. In legal terms, we call that an "administrative process" because it's mostly paperwork.
- You're not filing a lawsuit. In fact, if your employer subscribes to workers' compensation coverage, then you actually don't have the right to file a lawsuit like you would in a normal accident case. The way the legislature sees it, they've given you a no-hassle benefit system in exchange for taking away your right to sue.
But not every employer in Texas wants to pay into this workers' compensation injury fund. About half of the employers in Texas choose not to "subscribe" to workers' comp coverage, so they're called "non-subscribers." When an employer is a non-subscriber because they chose not to participate in the workers' compensation system, their employees retain the right to sue them for work injuries.
That's what a non-subscriber case is: a normal, negligence-based personal injury lawsuit that happens to be about a work accident.
- A workers' comp case is based on a system of benefits wherein you file a claim for limited compensation
- A non-subscriber case is a lawsuit against your employer.
In a lawsuit, you can't just walk into a courtroom, claim you were hurt, and then walk out with money. No, you have to adhere to every single step of the lawsuit process, as well as adhere to the Rules of Evidence and Civil Procedure.
- A History & Background of Texas Non-Subscriber Work Injury Laws
- Texas Statutes and Case Law Applicable to Non-Subscriber Cases
- Frequently Asked Questions about Texas Non-Subscriber Work Injury Cases
How to Determine If Your Employer Subscribes to Workers' Compensation Coverage
There are several different ways you can check whether your employer subscribes to the Texas Workers' Compensation Program or not. One way is to simply check the Texas Department of Insurance's Division of Workers' Compensation website, where you can click on "Locate Covered Employer." Another way is to check the employment contract you signed when you were first hired by your employer (if applicable). Further, the employer is actually required by Texas law to inform you as to whether or not they subscribe, but few actually follow this rule.
One question that we frequently field is whether non-subscribers have insurance or not. The prevailing myth is that if your employer has any kind of insurance coverage, that must mean they are a workers' comp subscriber. That's not correct; "insurance" and "workers' comp insurance" are not mutually exclusive terms. Plenty of insurance carriers sell liability insurance to non-subscribing employers. So just because your employer has insurance doesn't mean they have workers' compensation insurance. Here's an article that dives a little deeper into that topic.
- Insurance Does Not Equal Workers' Comp
- Nonsubscriber Employers Pretending to Have Workers' Comp Coverage
An Intro to Negligence-Based Work Injury Cases
As we said earlier, non-subscriber claims are essentially negligence-based claims because you're suing your employer for their negligence which caused your injuries. In order to win a negligence-based case, you must be able to prove to a jury that your case has all the right ingredients.
In order to win a normal negligence-based case:
You must prove that the defendant was negligent.
Negligence is a bit of a tricky subject for non-attorneys to appreciate. Essentially, the term negligence refers to any kind of reckless or careless conduct that no reasonable person would think is safe. There are millions of different kinds of dangerous activities that could be classified as negligence, so rather than have laws that enumerate every stupid idea such as "Thou Shalt Not Throw Rocks At Trains" or "Thou Shalt Not Play With Fire," we instead have general laws that effectively say, "don't be negligent".
But how do we know whether any particular scenario constitutes negligence? Well, the courts have long since established a "litmus test" for determining whether or not some particular type of conduct constitutes negligent conduct. You must prove that your injury scenario was brought on by conduct that meets these criteria. Read the following articles to learn the details of proving negligence: Explaining Negligence in Work Injury Accidents
You must verify that you were injured and illustrate the financial value of all your losses.
Read the following to learn more about this process.
- How to prove the value of a work injury
- Using expert witness testimony to increase the value of your case
You must contend with their defenses.
Anyone who is sued has the right to defend themselves. In a negligence-based case, defenses usually work in one of three ways:
- A negligent defendant will try to poke holes in your arguments. There are lots of different ways a defendant will try to do this, but they're mainly trying to show that you can't substantiate your own claims, that is, you can't prove them. Sometimes, all it takes is for the defendant to show that your proof is merely insufficient for a jury to side with them. You can learn more about guarding your case against the defendant below.
- A negligent defendant will use "canned defense" against your argument. There are enumerated defenses allowable by law that a defendant can use against your argument, such as the "Act of God" defense and the "Sudden Emergency" defense. Both of those defenses will argue that your injury was caused by something completely unavoidable - be it a natural disaster, like a tornado, or an emergency situation caused by someone else. If lawsuits were a poker game, these kind of defenses would be a "flush" or a "straight." All the defendants have to do is play it at the right time and, if you're not prepared to argue against it, they'll effectively snuff out your claim.
- The negligent defendant engages in character assassination. The last two tactics were more fact-based and objective, but this is completely different. Sometimes, the defendant will try and appeal to the jury by debasing your character. See, the jury's sense of human nature isn't supposed to be a big factor in these cases. After all, we don't decide who's guilty or or innocent by which person looks the most pathetic. However, juries are people, too. If they are convinced that you're a bad person (e.g., late to work, difficult to get along with, late on rent payments, etc), they might be inclined to lessen the value of your case. It's not fair, but that's what we're dealing with. Learn more about how to shield your case from this kind of attack.
You must survive the allotment of comparative fault.
In a few short points, here's how our comparative fault regime works in Texas. In any kind of negligence-based claim (personal injury, wrongful death, medical malpractice, etc):
- Everyone involved in an accident is responsible for their own contribution, very rarely is any one party completely at fault. If you run a stop sign and are T-boned by a car going 100 mph, then who is at fault? Well, since you ran a stop sign, you'll bear the majority of the fault - say, 85%. But if the other car was driving double the speed limit, some of that fault would be apportioned to them as well since they broke the law. After all, perhaps they could have slowed down or avoided the wreck if they had been driving the speed limit. Click below to read more about comparative fault in Texas and learn how fault can be apportioned to things like weather or even faulty equipment.
- If you (the plaintiff) are more than 50% at fault for an accident, you lose your case. That means the defendant's job is a little easier than you think. Essentially, they just have to prove that you're more than 50% at fault, or simply prove that they are only slightly at fault. Fault is apportioned by percentage points which ultimately correspond to the dollar amount of the case. I.e., 65% fault in a case that a jury deems to be worth $200 amounts to $130.
How a Nonsubscriber Case Differs from other Negligence-Based Cases
Now, everything we just said above applies to most negligence-based claims, and a non-subscriber case is certainly a type of negligence-based claim. However, it's a special type of negligence-based claim because, for the most part, it works just like any other negligence-based claim, but it also has some of its own unique properties. As we explained earlier when we were discussing the history of non-subscriber cases, Texas lawmakers want to force all employers to buy workers' comp insurance. As such, when an employer chooses not to buy workers' comp coverage, the current set of laws "punish" them by:
- allowing you, the injured worker, to be able to sue the employer; and
- making it harder for the employer to fend off your claim
So, even though a lot of the same components of a negligence-based claim are addressed in a non-subscriber case, the legislature has handicapped your employer's ability to fight back. As you can see, things get a little easier for you, the plaintiff.
Here's how it works:
The employer can still use the general defense tactic of arguing that you failed to prove the elements of your case.
- An example of this that comes up frequently is the "Course and Scope" argument. In order to have a successful non-subscriber case, you must show that you were in the course and scope of your duties when the accident occurred. So, one of the easiest ways for your employer to fight back is simply to say, "No, you weren't." Effectively, they'll argue that you got hurt while you were doing something they never authorized you to do.
- Another common example of how they can attack the elements of your case is simply to argue that your injuries are either made-up or were caused by some prior incident.
Here are some informative articles about these kinds of defense strategies:
- An Explanation of Course and Scope
- How Pre-Existing Injuries Affect Your Work Injury Case
- Elements of a Non-Subscriber Cause of Action
Defenses Allowed in a Non-Subscriber Case.
The employer also loses the ability to use many of the "canned" defenses we mentioned before. There are only a few defenses available.
- Intentional acts. Your employer is allowed to claim that you had simply injured yourself in order to receive benefits. In other words, on purpose.
- The employee was intoxicated when the injury occurred. Obviously, if you were under the influence of anything, your employer will argue that the drugs or alcohol in your system caused the accident, not their negligence.
- The employee signed an enforceable post-injury waiver. This is essentially an agreement that you sign after your accident that allows for benefits and medical care provided by your employer, even if they are a non-subscriber. However, this also states no lawsuit will be filed in exchange. In reality, however, this isn't really a "defense" that your employer can use against you, it flat-out bars your case from recovery.
- Sole Proximate Cause. This is an argument that your employer can use, exclusively pointing the blame at the plaintiff (you). If your employer can establish that the accident was caused solely by you, then they can avoid being held liable for the injury at question. Effectively, they're stating, "The accident had nothing to do with us and had everything to do with you." The article below goes into more detail about the defenses used in a non-subscriber case and how to prepare your case to withstand them.
- The accident was the result of a commonly known hazard. This is self-explanatory, but an employer can argue that their employee was injured while doing something that involved a commonly-known hazard and that the employee wasn't owed any kind of warning. For example, a beekeeper is probably going to get stung by some bees at some point in his career, simply by virtue of his work environment.
- The employee was performing a routine job. For many workers, there are parts of their job, like lifting heavy items, that are routine and not at all out of the ordinary. Usually, an accident happens because of something unusual that posed a threat.
- The employer will still use character assassination as a defense tactic. The same rules apply from the regular, negligence-based case defenses; assaults on an employee's personal life and character will be brought to the forefront. The employer is basically trying to show the jury that you're not that "good" of a person.
Defenses Not Allowed in a Non-Subscriber Case.
Your employer is not allowed to make any comparative fault arguments other than sole proximate cause, which was addressed above. Essentially, comparative fault means that the fault is divided between the employee and the employer. Under Texas law, it's all or nothing. That is, your employer can only argue that you were the sole proximate cause of your injury, not them.
When you compare and contrast the defenses used in a regular negligence-based lawsuit versus a non-subscriber work injury case, it's easy to see that the "non-subscriber" plaintiff, theoretically, has a much easier job than a regular plaintiff. But, don't think that it's a walk in the park to win your non-subscriber case.
There is a downside: since their hands are tied and they can't fight the case the way they would in any other type of case, the employer usually resorts to "playing dirty." They may spy on you, they may coerce co-workers into lying about you, and they will generally attempt to intimidate you.
Further, there are but a few lawyers in Texas who defend non-subscribing employers. Needless to say, these lawyers have cultivated their skills and will have no qualms using them against you.
Injured Workers' Rights in a Texas Non-Subscriber Case
As a worker in Texas, you're entitled to certain rights if your employer subscribes to workers' compensation coverage. But it's a little different with a non-subscribing employer.
As an employee of a non-subscriber, you do have a few rights that are outlined below.
You're entitled to a safe workplace.
We've used the term "reasonable" a few times, and it's generally the standard by which the law is interpreted. You're entitled to a reasonably safe workplace, which means that your employer has a duty to make sure you know about any hazards/dangers and how to operate your equipment.
- It's reasonable that your boss would provide you with hard hats and harnesses if you're on a construction site. Any other kind of equipment that's provided to you also needs to be in reasonably good condition and safe for use. This includes keeping up with maintenance and repairs as well.
- It's reasonable that your co-workers be competent on the job site. Most workplace accidents are caused by human error, and that can certainly include co-workers. This falls under the realm of your co-workers being properly trained and qualified to do their jobs so as not to endanger anyone else. If your co-worker is operating a dump truck, you'd hope he's qualified, licensed, and trained to do so safely.
You're entitled to file a lawsuit against your employer.
You don't really have an inherent rights to benefits in a non-subscriber case like you would in a workers' comp case. In a workers' comp case, you automatically get income benefits if you've missed work for a certain period of time due to your injury. In a non-subscriber case, your employer may choose to give you benefits or even pay 100% of your damages outright, but that's not normal.
Texas legislation allows you the opportunity to bring a lawsuit against your employer if they're not interested in voluntarily compensating you for your injury or even offering benefits. Think of it like an honor system, except the person on the other end (your employer) is either directly or indirectly responsible for your injury.
Do you think they're going to jump at the chance to compensate you fairly and avoid a lawsuit? It'd be nice if they did, but that's not the world we live in and, truth be told, most employers have no problem fighting over compensation in an accident case because they have a lot at stake.
- Work Injury Negligence Theories Recognized by Texas Courts (theories of liability against non-subscribers)
You can learn more about workers' rights in a non-subscriber case by clicking the link below.
- Worker Rights in a Nonsubscriber Case
- What Duty of Care Employers Owe Their Employees
- Employers Have Vicarious Liability For Their Employees
Benefits and Compensation
You just read that you don't have any rights to "benefits" if your employer is a non-subscriber, but the term "benefits" is a bit of a misnomer. In reality, "benefits" are really a form of compensation, so the question you should be asking is, "What type of compensation can I get?" The good new is that unlike a workers' comp case - where you can only get pre-packaged benefits - in a non-subscriber case, you can sue for all the normal losses that Texas allows in any other kind of negligence case.
You can sue for the following types of losses:
- Pain and Suffering
- Medical Bills
- Lost Wages/Loss of Earning Capacity
- Punitive Damages
- And several other types of losses
The main point that we must stress is that there are no "automatic" benefits if your employer is a non-subscriber; at least, not anything prescribed by law. However, some employers will choose to provide automatic benefits to their employees (such as voluntarily paying for medical bills or a portion of your lost wages), but since they chose to give you these benefits, they can also choose to take these benefits away. You have no lawful right to benefits, you only have the right to sue.
Medical Benefits and Seeing a Doctor
When you work for an employer who subscribes to workers' comp, they have a workers' comp-approved doctor they have to send you to if you're injured on the job. But if your employer is a non-subscriber, there is no preferred doctor and you're essentially on your own. Again, your employer may offer you a paid doctor's visit as a courtesy, but that's their choice.
It actually matters quite a bit which doctor you go see, because that plays a big part in determining your damages. If you go see a company-recommended doctor, you run the risk of diminishing the value of your work injury case. A doctor who's recommended by your employer might have an incentive to find your injuries less serious than they are. After all, they get business from your employer, so they want to help them out as much as possible. If the company-recommended doctor is constantly saving your employer money by downplaying worker injuries, then everybody wins except you.
We recommend that you go see your own doctor and make sure you get all the treatment you need. You're not looking to rack up a big medical bill on purpose, but the worst thing you can do for yourself is not get all the medication and treatment right away. What seems like a small injury can lead to bigger problems down the road, especially those with back or heart problems who work in the blue-collar industry. A lot of workers are sent away by company-recommended doctors thinking they're okay to work again, but they develop more problems months or even years down the road.
How to File an Injury Suit Against Your Employer
As we explained, you'll typically have to sue your employer to get any kind of compensation. Naturally, having legal representation is the best way to go about doing this. Our firm is routinely contacted by work injury victims who thought it would be a good idea to represent themselves and we've literally never heard of an unrepresented plaintiff succeed in a work injury case. That said, read the following article that tells you how to file suit in a work injury case.
Problems and Obstacles You Will Face
We've mentioned a few times that your employer is probably going to fight you and that it will get ugly. A lot of people think highly of their bosses and supervisors, and there are a lot of good managers out there. But at the end of the day, your employer has to make a business decision that affects not only them, but their other employees (and sometimes stockholders) as well. Your employer has a business to run regardless of how much they like you, and nobody wants to pay out potentially hundreds of thousands of dollars without putting up a fight.
The most common argument we come across is when an employer tries to claim their workers are not actual "employees," but independent contractors.
Employee Or Independent Contractor?
By default, Texas assumes that all workers are actual employees at their businesses and not independent contractors. The difference is in the relationship the workers have with their bosses/supervisors and how their paychecks are taxed. In theory, you should be able to look at your paystub and see if taxes have been taken out. If they have, you're probably a regular employee. If they haven't, then you're probably an independent contractor with your employer.
But, it's not always that simple. First, some employers will try to treat regular employees as independent contractors. That's because if an accident happens, the employer gets to claim that their worker was responsible for his own actions and that the they owed him a much lower duty of care. Plus, they're able to save a little money on taxes with the IRS. If it sounds fishy, that's because it is. Here are three ways Texas uses to determine if you're an employee as opposed to an independent contractor.
- The employer controls the worker's behavior. If your employer dictates your hours & schedule, provides tools, gives detailed instruction and guidance on the job site, and asserts a good deal of control over you, then you're considered an employee. Even if your employer calls you an independent contractor on paper, you're still an employee in the eyes of the law.
- The employer asserts financial control over the worker. Usually, hourly wages and salaries are indicative of an employee while flat-rate payments are associated with independent contractors. Think about it this way: if you can gain a profit or suffer a loss at your job, then you're probably an independent contractor because you have financial control over your situation. But, if you're paid an hourly wage whether the work is done on time or not, you're probably a regular employee.
- The employer provides benefits. This criterion is a bit more more subjective to the court's interpretation, but an employer providing benefits and sick pay to their worker is usually indicative of an employee, not an independent contractor.
Get a Good Strategy and a Good Attorney
All of this can sound overwhelming, and it's a lot of information. The simple fact of the matter is that when you file suit against your employer in a work injury case, the ball is in your court. You have the burden of proof and must show that your employer was negligent, which led to your injury. You don't automatically get anything until you can prove it in court, so you obviously need an attorney who's experienced in this area of the law.
Earlier, we said that a good defense lawyer will know the law inside and out so that they can poke holes in your argument. Well, a good plaintiff's attorney knows how to build an airtight case that stands firm against attacks from the defendant.
The best attorneys will have:
- Experience and a conceptual understanding of the law, not just a focused knowledge of one area
- Resources to investigate your claim and give it the attention it needs. Lots of attorneys sign up cases left and right, but then don't do anything for months at a time. You need an attorney who is free right now to work on your case and investigate all the details.
- Access to medical care. It's incredibly important that you take care of yourself after an accident and a good attorney will also be able to help you get healthcare and worry about expenses after your case is settled.
- No fear of your employer. As we said, your employer will fight back and that doesn't scare us. We've filed suit against large corporations and even U.S. Postal Service, so don't let their size and resources intimidate you.
- The ability to adapt to the circumstances. Things change and new facts are introduced during the investigative process. If your attorney is a bit of a one-trick pony, they won't know what to do. This goes without saying, but make sure you hire an attorney who actually practices work injury law. We get calls all the time from tax attorneys and real estate attorneys who took a work injury case and didn't know the first thing about personal injury law, so don't let that happen to you.
Timing is also important when filing suit because there are lots of different deadlines to consider, not to mention the statute of limitations.
Proving the Value of Your Work Injury Case
We can't overstate this point: it's absolutely crucial to prove the value of your case. By default, your work injury case has no value until it's proven to a jury. Remember that your employer isn't required to compensate you if they're not subscribers to workers' comp coverage, so it's your job (or, rather, your attorney's job) to make sure the jury understands how serious your case is and how negligent your employer was. The following are the main things you need to prove your case:
- Documentary evidence. This includes medical bills, medical records, and things like video presentations that show the jury how your life has been affected by your work injury
- Expert testimony Most of the time, it's not enough to simply say that your injury was serious, so you need the opinion of a highly qualified person. An expert witness can testify before a jury or simply prepare a report for submission
- An attorney with oratory skills. They say that communication is everything, and it's absolutely true in this sense. You need an attorney who can accurately capture the value of your case and put it into words. You'd be surprised at how many attorneys simply mumble their way through the courtroom because they don't do public speaking very well.
- Treat your case like it's going to trial. Obviously, it's better and more efficient to settle out of court, but you have to be prepared to see the case through to the end. If your employer's attorney senses that you're not really prepared for trial, they'll take advantage of it.
Arbitration in Work Injury Cases
Arbitration is a term most people have heard, but few actually know what it means. "Arbitration" is synonymous with "court" in that it's a legal process used to settle a case. Think of it as privatized court. If your employer makes you sign a "binding arbitration" document, that means you've waived your right to a regular lawsuit and instead have to seek compensation via arbitration. Usually, your employer will hire an arbitrator to hear both sides of the dispute and that person tries to decide what's fair. Unfortunately, that rarely works out in your favor.
We won't get into all the details here, but it's very difficult to arbitrate a work injury case and very, very few lawyers will even attempt it. To be completely honest, ours is the only firm we've ever heard about successfully arbitrating cases. We've had a handful of clients who have been fairly represented and adequately compensated in arbitration, and that's saying something.
Talk to a Qualified Texas Attorney About Your Non-Subscriber Case
The bottom line is that we're here to help you. If that's simply providing educational resources and giving you the tools you need to understand your own situation, that's great. If we can help with filing suit against your employer and making sure you get the most compensation possible, then we're fully qualified and capable of doing that as well.
Most people just don't understand all the elements and moving parts in a lawsuit, much less the intricacies of personal injury law. Unfortunately, your employer isn't going to be much help on that front and we've found that most workers just aren't ever told about their rights under Texas law or told how they can get fair treatment. Hopefully, this page has fixed some of that and you understand your rights.
Everyone deserves fair compensation. If your employer's negligence has caused you an injury through an accident of some sort, you need to take action and be proactive. Talk to a qualified attorney who is willing and able to go to bat for you and get you the compensation you deserve.