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Texas Non-Subscriber Work Injury Law and Relevant Cases

In this article, we’re going to cover the important statutes and court decisions that have shaped Texas non-subscriber work injury cases.


Questions answered on this page:

  • What does the law say about non-subscriber cases?
  • What case law is relevant to non-subscriber claims?
  • How can a lawyer help me in a non-subscriber work injury case?

The Texas Labor Code

First and foremost, non-subscriber claims are negligence-based claims, so they’re subject to all of the common law components that virtually any other negligence-based liability case would feature. For instance, just like you’d encounter in a car wreck case, you must establish that your injuries were caused by some negligent act or omission. In these cases, however, the negligence act must have been performed by your employer or a coworker. So, you can think of non-subscriber cases as being a modified version of the age-old negligence cause of action.

The Texas workers’ compensation system was created by legislators who wanted to create a safe-haven for businesses. They wanted the law to require all companies to buy workers’ comp coverage, and they wanted to do away with all work injury lawsuits by making the workers’ comp system exist outside of the court.

This angered many Texas business owners. While no business owner wants to get sued by an injured worker, they also don’t want to be forced to participate in an insurance scheme like workers’ comp. Ultimately, a compromise was reached. Texas lawmakers would allow companies to opt in or out of the workers’ comp system, but there would be some negative side effects for the “non-subscriber” companies who chose to opt out of the workers’ comp system.

What emerged was a plan that could best be described as, “If an employer doesn’t subscribe to WC coverage, then the injured worker will have a fairly typical negligence-based claim against the employer, only the employer will be limited in their ability to fight back against the injured worker. This way we can encourage employers to buy into our new workers’ compensation system. Opt in and the employer will get immunity from work injury lawsuits. Opt out, we’ll make it easy for injured workers to sue them.”

This is reflected in the codified law itself. Texas Labor Code section 406.033 states:

Sec. 406.033. COMMON-LAW DEFENSES; BURDEN OF PROOF:

  • (a) In an action against an employer by or on behalf of an employee who is not covered by workers’ compensation insurance obtained in the manner authorized by Section 406.003 to recover damages for personal injuries or death sustained by an employee in the course and scope of the employment, it is not a defense that:
    • 1) the employee was guilty of contributory negligence;
    • 2) the employee assumed the risk of injury or death; or
    • 2) the injury or death was caused by the negligence of a fellow employee.
  • (b) This section does not reinstate or otherwise affect the availability of defenses at common law, including the defenses described by Subsection (a).
  • (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; or<
    • 2) while the employee was in a state of intoxication.
  • (d) In an action described by Subsection (a), the plaintiff must prove negligence of the employer or of an agent or servant of the employer acting within the general scope of the agent’s or servant’s employment.

To understand the law a little better, we will break it down subsection by subsection.

  • Subsection A – Subsection A says that a non-subscriber employer cannot claim in their defense that the employee’s own actions contributed to their injury. Nor can they claim that there was an assumed risk on behalf of the employee. For instance, they can’t argue that working in a mine is inherently dangerous and that an employee therefore waives the right to sue simply because they chose to “assume the risk” of such hazardous work. Furthermore, the employer cannot shift any portion of the blame onto another employee: at the end of the day, it is still the employer’s company, and if one of their workers hurts someone (even another worker), the employer is on the hook.
  • Subsection B – Subsection B provides defenses that an employer is allowed use. The language of this subsection establishes that employers are allowed to use all common law defenses, except for the ones prohibited in subsection A. Now, there are many common law defenses that anyone who is sued can use to defend themselves, but very few of them really apply to work injury cases, and the law above eliminates most of the few that do apply. Not all of them, though.
  • Subsection C – In subsections A and B the law takes away most of the common law defenses with one hand, but gives employers new defenses with the other, as spelled out in subsection C. Here, we see that an employer is allowed to argue that an employee deliberately injured themselves. And finally, an employer is allowed to argue that the employee was intoxicated at the time of the accident. An example could be that a forklift operator is injured on the job, and is taken to a hospital where the operator’s blood is drawn. A toxicology screen is performed, and it’s found that the operator’s blood alcohol content was twice the legal limit. In trial, the employer would be allowed to bring this up in their defense. These defenses were created by the statute, making them statutory defenses to a non-subscriber case. An important takeaway here is that these defenses are just that: defenses. They are not bars that prevent you from even seeking compensation. Rather, they are simply arguments that can be used against you to convince a jury not to award compensation to you.
  • Subsection D – Subsection D establishes the standard of proving negligence, which, as we explained earlier, basically makes your non-subscriber work injury case like any other personal injury case in the State of Texas, with the exceptions outlined above.

Relevant Case Law

Rulings by the Texas Supreme Court and other courts of appeal have interpreted the law further, in several important ways. Namely, the interpretation of the Texas Labor Code’s provisions have allowed for two more defenses that employers are allowed to put forth.

Consider the case of Southerland v. Kroger Company. The injured worker sued the defendant employer when he injured his back lifting a heavy box of cleaning supplies. Such heavy lifting was found to be part of his normal course of duties, and had been performed many times over by many people without incident or injury. Thus, the court concluded that Kroger could not be held liable for an injury arising out of routine, normal work. In doing so, they created a new class of defense that all subsequent employers could use against injured workers who sued them.

Further, the courts held that in the case of National Convenience Stores v. Matherne that the employer had no duty to train an employee to drive safely. Driving is not a right, it is a privilege granted once one has demonstrated that they are able to operate a motor vehicle, an activity that is inherently dangerous and known to be hazardous if not done correctly. Consequently, the plaintiff couldn’t hold his employer accountable for his injuries simply on the basis that they asked him to do something that was potentially hazardous. Rather, they would have to have done something specific to cause his injuries. Again, this case had the effect of further limiting the types of supposed negligence that an employer could be held liable for.

Our Experienced Non-Subscriber Attorneys Can Help Answer Your Questions

We’ve just given you a crash course in the relevant jurisprudence surrounding non-subscriber work injury cases in Texas. We understand if you still have further questions, or even new questions after reading this article. Fortunately, the attorneys of Grossman Law Offices, based in Dallas, TX, are always available to take your call. You can reach us, toll free, at (855) 326-0000, 24 hours a day, seven days a week.


Related Articles for Further Reading:

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