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When is the right time to file a non-subscriber lawsuit?

For many clients and prospective clients, we recommend not suing their non-subscriber employer following a work injury. Often times it’s unnecessary, and many employers who are non-subscribers will pay fair compensation to their workers, even the law doesn’t require them to do so proactively.

But for the vast majority of work accident victims, the opposite is true. Many non-subscriber employers know full well that the law does not require them to pay in real-time for their workers’ injuries, so they’ll just fire a worker once they’re hurt. Naturally, this leaves the injured worker no choice but to file suit against the employer. But this leads to an important question: when is it appropriate to file suit against a negligent employer in a non-subscriber case?

In this article, Texas work-injury attorney Michael Grossman explains what factors go into the decision to file suit.


Questions answered on this page:

  • Should I sue my employer as soon as I’m hurt?
  • Should I file suit soon after my work injury or wait?
  • At what point after I’m hurt on the job do I need to find a lawyer?

Problems Associated With Filing a Lawsuit Too Soon

Before filing a lawsuit against a non-subscribing employer, you should know that there is a narrow window of time where filing a lawsuit will maximize your chances of fully recovering for your injuries. In other words, filing a lawsuit too soon or too late will likely be extremely detrimental to your case and will likely prevent you from obtaining a full recovery for your injuries.

Workplace injury victims that choose to file a lawsuit against their non-subscriber employer too soon are almost always prevented from recovering full compensation for their injuries for several reasons. First, filing a lawsuit too early usually creates unnecessary work for your attorney, and thereby generates unnecessary attorney fees. Firms like Grossman Law Offices are paid by what is known as a contingency fee. In exchange for not having to pay any money up front, injured workers agree to pay a certain percentage of their winnings to their attorney as fees. In other words, we’re paid out of the winnings. The percentage of the winnings that we keep as our fees usually increases once we file suit since it creates so much additional work. For this reason, you want an attorney who is first willing to explore your options for recovery outside of formally filing a lawsuit; namely, we’ll attempt to negotiate a settlement on your behalf that fully compensates you for your injuries and encompasses future medical costs. But if a client wants to rush teh case and file suit too soon, they could pay more in fees than is necessary. We see lawsuits as a necessary tool, and we file them all of the time. But unlike some firms who “go to war” without first trying to be diplomatic, we always attempt to broker a fair settlement first, saving our clients considerable time and money.

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A second and even bigger danger to filing a lawsuit too soon is that it does not allow time for a proper investigation. Digging into your employer’s safety history, locating all of the insurance money available, tracking down witnesses, and seeking expert medical opinions, all take time. When people choose to rush into a lawsuit, these crucial steps can be done sloppily or skipped entirely. Furthermore, with serious work injuries it can take months of medical treatment and therapy before the full extent of the damages are known. Rushing in short-circuits all of these processes.

However, it’s likely that you’re investigating hiring an attorney because your non-subscribing employer has been less than accommodating in compensating you for your injuries. Thus, if you suspect that your employer is attempting to avoid liability for your injuries, you’ll likely need an attorney to enforce your right to compensation when a reasonable settlement can’t be reached.

Problems Associated With Filing a Lawsuit Too Late

Injured workers should also be aware that waiting too long to file a lawsuit against a non-subscribing employer can be equally damaging and may totally preclude an injured worker from recovering compensation for their injuries. Texas courts are required to strictly enforce time limits (known in legal circles as “statutes of limitations”) for filing a lawsuit, and a person that fails to file within the time limit will usually be prevented from ever filing a lawsuit in the future. In Texas work-injury cases, the statute of limitations to file a claim is two years from when an accident occurred. While there are events, which can stall the clock on the statute of limitations, or toll the statute of limitations, they are so specific that they do not apply to 99% of work accident cases and should not be counted on when filing suit.

Just as filing too soon, short-circuits vital avenues to uncovering evidence, filing too late, in order to beat the statute of limitations, often leads to rushed and shoddy investigation, which can harm a case tremendously. Think about it this, when someone leaves their house late for work, they invariably rush. This rushing often leads to speeding, short cuts, and generally dangerous driving. Filing a lawsuit too late causes the same problems that leaving the house late for work does. This is because the time to accomplish everything that normally needs to be done is less.

Filing a lawsuit in a timely manner is important for another reason: to preserve evidence. Too often, our experienced workplace injury attorneys at Grossman Law Offices are unable to help accident victims recover compensation for their injuries because they’ve waited too long to seek help, and thus the evidence needed to win their case has been destroyed, lost or ruined. Additionally, witnesses no longer recall events clears, or in the worst case, the statute of limitations has expired and the case is no longer valid.

How Soon After Your Work Injury Should You Contact an Attorney?

You should call an experienced work injury attorney immediately if your employer has elected to not participate in the Texas worker’s compensation program, because, in the absence of workers’ comp coverage, your employer is not obligated to compensate you. Even if you don’t plan on filing a lawsuit immediately, our experienced workplace accident attorneys can advise you regarding the steps you need to take and the pitfalls you should avoid to preserve the evidence necessary to maintain your case’s viability and have the best chance to obtain compensation.

Whichever attorney you speak with should provide you with an honest appraisal of your situation. Our lawyers talk to workplace accident victims like you every day, and we usually advocate that the potential client attempt to resolve their injuries with their employer without filing suit. However, when a workplace accident victim has suffered moderate to severe injuries and their non-subscribing employer has refused to accept responsibility for their actions, attorneys, like those at Grossman Law Offices can help.

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Furthermore, experienced work-injury attorneys can help in a number of ways. Most crucially, when workers are injured, they rarely have to money on hand to cover their medical bills, regardless of whether or not they have health insurance. In these instances, an employer’s refusal to accept responsibility can prevent injured workers from seeking the medical attention they need to fully recover. Delayed medical treatment can turn short-term injuries into long-term chronic disabilities.

So how can a lawyer help? It’s not like lawyers practice medicine, right? What lawyers can do is arrange treatment with a qualified position via what is know as a letter of protection. A letter of protection means that a doctor agrees to hold off on seeking payment from a patient, in exchange for receiving payment once a potential lawsuit has been completed and the injured worker has money to pay. This is often a fantastic deal for injured workers since they get the medical attention they need, without having to spend money that is not coming in.

As soon as an attorney has been hired, one of their first acts will be to send an employer what is known as a spoliation letter. This letter puts the company on notice not to destroy any evidence relating to a worker's accident case...

Another way that an attorney can help is by preventing what is known as spoliation of evidence. As soon as a worker has been removed from an accident scene, the first thing most workplaces will do is clean up any mess left behind. Even if their intent is not to destroy evidence, but to get back to business, cleaning up the scene often destroys evidence crucial to an injured worker’s non-subscriber lawsuit. The longer it takes for an injured worker to contact and attorney, the more time that an employer has to destroy evidence, either intentionally, or through neglect.

As soon as an attorney has been hired, one of their first acts will be to send an employer what is known as a spoliation letter. This letter puts the company on notice not to destroy any evidence relating to a worker’s accident case, whether it is physical evidence at the scene of the accident, or documents indicating that the company knew about a potential dangerous situation ahead of time.

One last service that an experienced work-accident attorney can provide for an injured worker shortly after an accident is investigative resources. A thorough, professional post-accident investigation can cost thousands, or even tens of thousands, of dollars. Many injured workers, who in the most extreme instances are busy fighting for their lives in a hospital, have neither the time, nor the money to properly investigate their accident. Any injury attorney who deserves to be called an injury attorney will begin conducting an investigation as soon as they are hired on by their client. Shortly after accidents is when there is the most physical evidence, the greatest likelihood of discovering damning documents, and when events are freshest in potential witnesses minds.

What Needs to be Done Before Filing a Lawsuit For Workplace Injuries Against a Non-subscribing Employer?

When trying to get fair compensation from your non-subscriber employer fails and you decide to file a lawsuit against employer, if you haven’t already sought an attorney, you will need to do so at this time. While most people assume that at this point their case will go to trial, the reality is that most attorneys will first attempt to resolve your claims with your employer’s insurance carrier out of court.

Most importantly, if you have not already done so, you should seek medical attention for your injuries. If you’ve been injured in a workplace accident, our attorneys and staff may be able to help you get the medical attention your injuries need. Promptly obtaining medical attention is important to recovering compensation for your injuries for a few reasons. As your health is our primary concern, we want to make sure that your injuries are stabilized and that you make a speedy and complete recovery. Moreover, we’ll need to know the full extent of your injuries so that way we can proceed with the lawsuit. If we don’t know the extent of your injuries, then we don’t know what to demand from the insurance company.

For example, if shortly after an accident an injured worker has $10,000 in medical bills that do not affect their ability to make a living for the rest of their life, an attorney would ask for $10,000 in medical bills. However, suppose that an attorney gets this money and a week after the case is settled, it turns out that the injured worker needs to have another surgery, which will cost $90,000. In addition, after the surgery, the worker will not be able to resume their former job, because they will have suffered permanent impairment. If an attorney has already settled the case, then the injured worker will have to bear the full costs of the surgery and not be able to recover for their diminished earning capacity. That is why attorneys try not to make compensation demands without knowing the full extent of a worker’s injuries.

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After we know the full extent of your injuries, our attorneys will assemble a demand packet to your employer and their insurance company. The demand packet generally consists of a description of your injuries, the law that proves your employer’s liability, and the amount of compensation for which we believe you are entitled. We send a demand packet to your employer and insurance company in an attempt to give your employer a chance to promptly and fairly settle your claim before we file a formal lawsuit. In the event that we have to file a lawsuit on your behalf, we always make sure to file it at the appropriate time.

Talk to an attorney to develop a legal strategy that is best for your case.

If you’ve been injured while on the job, determining when, and if, you need to file a lawsuit is an important decision, one that should only be made in consultation with an experienced work injury attorney that you feel you can trust.

To ensure that you are fully compensated for your injuries, you should contact our experienced workplace injury attorneys at Grossman Law Offices for a free consultation regarding how they can help at (855) 326-0000.


If you’ve been injured in a work accident, you may be interested in the following related articles:

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