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Non-Subscribers Arguments in Work Injury Law: Self-Inflicted Injury

In Texas, our state's labor laws allow employers to opt in or opt out of providing workers' comp coverage. As such, there are benefits that they become entitled to if they do subscribe, and there are penalties if they don't; nonetheless, workplaces get to make that ultimate decision for themselves.

As you familiarize yourself with workers' comp laws, you'll need to know this detail: employers that don't provide it are called "non-subscribers." We discuss all the logistics of those penalties and advantages over on our non-subscriber info page.

However, there is one specific penalty that is particularly detrimental to non-subscriber employers. The Texas Workers' Compensation Act states that when an employee is injured at a workplace that doesn't provide workers' comp insurance, that worker can bring forward a work injury lawsuit (which employers become immune from, if they do subscribe to workers' compensation). The injured worker is allowed to have all the traditional common law negligence arguments and laws at their fingertips, but the employers who opt out of providing coverage are only given just a few of those.

One defense that is afforded to employers by the Texas Workers' Compensation Act is the Self-Inflicted Injury Defense. As the name would suggest, this defense claims that a worker intentionally injured themselves, most likely in an attempt to defraud an employer of injury compensation. While the Self-Inflicted Injury Defense is a necessary safeguard against employers having to pay for injuries that were not their fault, not surprisingly it is often abused by employers in an attempt to avoid paying compensation for legitimate injuries.

In this article, Texas work accident attorney Michael Grossman examines the Self-Inflicted Injury Defense, what it means and its uses in trial.


Questions answered on this page:

  • What is a "self-inflicted injury" defense?
  • When can an employer use the "self-inflicted injury" defense?
  • How can a lawyer help me in a lawsuit against an employer who is trying to use the "self-inflicted injury" argument?

Overview of Defenses Used By Non-Subscribers in Work Injury Lawsuits

Under Texas law, the most common defenses that can be used by non-subscriber companies in a work injury lawsuit include:

The Self-Inflicted Injury Defense in a Nutshell

The Self-Inflicted Injury Defense is often used by non-subscribers in attempt to avoid fault. Moreover, it's not just that; in non-subscriber work injury lawsuits employers want to avoid liability at all costs. If the employer is even 1% at fault, they're responsible the entire cost of the damages. Whereas in other non-work injury lawsuits, the negligent party is only on the hook (generally) for an amount of damages proportional to their fault. It is easy to imagine that an employer would use the defense that the employee harmed himself on purpose to avoid any blame.

The Self-Inflicted Injury Defense is one of the few defenses explicitly given to employers by statute:

Sec. 406.033

  • c) The employer may defend the action on the ground that the injury was caused:
    • (1) by an act of the employee intended to bring about the injury;

This defense seems pretty straight-forward. If an employees hurt himself on purpose, it would hardly be just if the law compelled employers to pick up the tab.

The problem with this defense is that employers will use it when they merely suspect an employee may have caused their own injuries, without any actual proof, or on a flimsy pretext. For example, most people would consider workers who show up to work every day and do an awesome job as a model for other employees to emulate. However, these people are particularly vulnerable to this defense, because employer's will claim that the injury was caused by a mistake that was out of character for the worker (as if there are workers who injure themselves enough for it to be expected). Rather than take care of the model employee, they will use her normal excellent work against her to suggest that there is no way she would have suffered a real injury, so she must have done it to herself.

The danger to the plaintiff from this defense is that since people rightfully believe that those who injure themselves should not be rewarded with compensation, the mere suggestion that an injury is self-inflicted casts doubt over the whole case. In many instances, even if an injured worker's attorney can fend off the suggestion that an injury was self-inflicted, the amount of compensation that is awarded by a jury can be somewhat less than it otherwise would have been.

An additional issue with the Self-Inflicted Injury Defense is that the barrier to get it before a jury is so low. Normally, if there is no basis in fact for a defense theory, the judge will prevent it from being presented to a jury, but with the Self-Inflicted Injury Defense, judges tend to err on the side of giving employers every opportunity to make the defense work. Once that genie is out of the bottle in front of jury, even if there is nothing to the allegation, the damage to an injured workers' case is tough to undo.

How an experienced work injury attorney fights back against the Self-Inflicted Injury Defense

Given the stakes for the injured worker in a Texas work injury case, the mountain of medical bills, the lost wages, potential impairment or disfigurement, experienced work accident attorneys will anticipate this defense and be ready to fight back against it. First, an excellent attorney will vigorously cross-examine the employer and any witnesses supporting the claim of self-injury.

Secondly, the plaintiff's attorney will bring in credible, independent experts. These experts can include doctors, who will give their expert opinion about whether or not the injuries were self-inflicted. Additionally, accident reconstructionists can be invaluable for blowing up Self-Inflicted Injury Defenses, because based upon the condition of the accident scene after an injury occurs, as well as the physical forces involved in an injury, reconstructionists can offer scientifically plausible scenarios for how the accident actually occurred. Better reconstructionists will also create simulations of the most probable accident scenario. Often the most effective way to combat allegations that an employee intentionally caused their own injury is with an expert's visual simulation of how the accident actually happened.

Why You Need an Experienced Work Injury Attorney

For the past quarter century, the attorneys at Grossman Law Offices have been standing up for the rights of injured workers in Texas non-subscriber cases. Our attorneys have litigated hundreds of work injury cases and seen darn near everything that defense lawyers can throw at our clients. We don't stay in business because we head for the hills every time a defense attorney raises a defense like the Self-Inflicted Injury Defense.

Our commitment to thorough investigation, coupled with our experience in litigation means that our law firm can build the strongest possible cases for our clients. When your employer tries to use the Self-Inflicted Injury Defense, call us at (855) 326-0000 now. We answer the phone 24/7.


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