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This article discusses the defenses that employers can use against you in a Texas workers' comp case.

When you file a workers' compensation case, you can theoretically expect that your claim will be processed fairly, and that you'll be receive prompt payment of benefits. The reality is that there are ways that the insurance carrier may deny your claim on a technicality. In some cases, the law allows that, and in others, the insurance carrier is breaking the rules. This article will discuss the defenses that insurance carriers are allowed to use against you.

Read the info below or call us for a free consultation.

An Overview of Defenses that Employers Are Allowed to Use in a Texas Worker’s Comp Case

Workers’ compensation cases, just like any other type of case, are often defended by the accused. That is to say, when a worker is injured and they seek compensation from their employer (and the employer’s insurance carrier), the law allows the employer to defend themselves against the injured worker’s accusations. In this article, we will provide an overview of the defenses that Texas employers are allowed to use against injured workers, and which ones they are forbidden from using.


Questions answered in this article:

  • How did Workers’ Compensation come to be?
  • What is “common law”?
  • How does “common law” pertain to Workers’ Compensation?
  • What defenses will employers use to deny me Workers’ Compensation?

A little history lesson before we get started:

In order to provide some context about the workers’ comp defenses that are applicable in Texas cases, you must first know a little about how general defenses worked BEFORE the workers’ comp system came into existence.

For thousands of years, civilizations have allowed injured persons to sue the person who hurt them. This process has taken many forms, but the civil justice system that we have in America has evolved directly from the system used in England. This system is called a “common law” system. Common law systems are ones where judges can make rulings that are binding in other similar cases (known as precedent), and judges can create law pertaining to matters where elected lawmakers have not yet drafted a statute about the matter at hand.

So, for instance, the very first time that someone in England was ran over by a horse and decided to sue the horse’s owner, they filed suit and the judge presumably had to decide what the rules of the case would be, how much the person could sue for, and what the accused defendant could argue back, since the lawmakers had not yet invented laws specific to horse tramplings. Once this matter was ruled upon, the court’s findings would apply to all other similar cases.

So if you were to sue someone under this court-created bit of law, you are in effect arguing a “common law theory of liability.” Naturally, the person you would sue could argue an appropriate common law defense. Over hundreds of years of English and American court cases, we have come to accept that the most of the laws pertaining to personal injury cases are based in common law. Since this system has always worked very well, the lawmakers rarely feel the need to intervene and replace the common law with actual written codes and statutes. They only ever intervene when the common law is not sufficient to address a particular type of injury case.

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One area where the common law has been less than ideal is in work injury cases. Historically, common law defenses such as “assumption of the risk” or “contributory negligence” allowed employers to argue against the workers who sued them, and the result was often that the injured worker would lose their case on a technicality, even if the employer had indeed caused the injury. It’s important to note that these defenses were not an outright bar to suing the employer. Instead, they were simply counter arguments used in court, and juries could ignore them or take them seriously, depending upon their interpretation of the evidence presented. However, since these common law defenses were so restrictive, they often spelled disaster for the injured worker. Nevertheless, these defenses, in principal, serve to diminish fault on the part of the employer to a varying extent. Think of it like a dimmer switch. The stronger the common law defense against the worker, the dimmer the workers’ case would shine.

When Texas developed its own workers’ comp system, the goal of the lawmakers involved was to take work place injury cases out of the courtroom and make it easier for workers to get compensation, while also limiting the amount of money that employers would have to pay. In order to accomplish this, workers’ comp cases are not handled in court (in fact, you’re forbidden from suing your employer if they have workers’ comp coverage), the law forbids employers from using most common law defenses against employees, and the law simply makes the employer liable for all injuries that take place on the job, no matter how the accident happened… That is, unless certain technicalities apply.

How Employers Often Get Away With Negligence In this article, we explain how work injury law has morphed over the years to protect employers and what can be done about it...Read More >

This leads us to the whole point of this article. The defenses allowed under Texas’ workers’ comp laws are not defenses in the true sense of the word. Meaning, they are not arguments that dim the injured workers’ case. Instead, these defenses are more like a light switch, that is to say, that if the employer can prove that the facts of the case warrant the use of one of these defenses, then using these defenses does not dim the injured worker’s case, it shuts it off entirely.

Further, these defenses are not common law defenses. Rather, they are statutory defenses, meaning that the written law (statute) expressly did away with the common law defenses that employers used to use, while also creating new defenses that didn’t previously exist in common law.

Defenses That Can Be Used In Texas Workers’ Comp Cases

Here are the defenses that employers can use (per Sec. 406.031 and .032):

As you can see, there are 8 defenses that employers can use against an injured worker who files a workers’ compensation case. Again, if the circumstances allow an employer to use one of these defenses, the effect is that the injured worker cannot receive any compensation. Unfortunately, many negligent employers will try to distort the truth and claim that their workers committed one of the above wrongful acts, when in actual fact, they did not. This is yet another reason that injured workers can benefit from the help of an attorney.

You Need an Experienced Work Injury Attorney

If you have questions about any of the things we talked about in this article, call us. We’re available day or night: (855) 326-0000.

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