Texas Badge

Texas Workers' Compensation Defense: Intentional Harm Inflicted by Another Employee Defense

The whole idea behind Texas' workers' compensation system is that employers can either opt out of or opt in to it. If an employer opts out of workers' comp coverage, their injured workers can sue them. However, when a Texas-based company opts in to our state's workers' compensation system, the benefit to the company is that they get complete immunity to lawsuits, and the benefit to workers is that, even though they lose the right to sue their employer, they gain the right to receive guaranteed injury benefits... At least, in theory.

But there are a few exceptions to this "the employer always has to pay, irrespective of fault" system. The Texas Labor Code allows employers the right to use certain specific defenses to a workers' comp claim. The avoid paying injured workers, the employer can argue:

In this article, workers' compensation attorney Michael Grossman discusses one of those particular defenses: the "intentional harm inflicted by another employee" defense. We'll also discuss some examples of how that can be used against a worker in a workers' comp dispute.


  • What is Intentional Harm Inflicted by Another Employee?
  • How is this defense sometimes misused?
  • How can an experienced workers' comp attorney help dispute this defense?

Definition of This Defense

The defense, Intentional Harm Inflicted by Another Employee, is explicitly written into the Texas Labor Code. The relevant portion reads as follows:

Section 406.032: EXCEPTIONS. An insurance carrier is not liable for compensation if:

  • (C)arose out of an act of a third person intended to injure the employee because of a personal reason and not directed at the employee as an employee or because of the employment;

The defense is only usable if it meets the certain legal criteria. Those two criteria are:

  1. The act of the coworker was intended to injure the employee for a personal reason
  2. And that the act was not directed at the employee because he or she is an employee or because of the employment

Examples of How the Defense Works and Doesn't Work

Of the two elements of this defense, first criteria is the more abstract one. Whenever someone is angry (be it a coworker or even just a friend), it's usually for a personally upsetting reason. So, really this criteria could apply to nearly any injury that involves a coworker. However, the second point is more concrete and pretty clear: if the injury happened because the coworker was upset about a workplace issue with that employee, then this defense could not be used. Let's look at some examples to help clarify what we mean:

  • Let's say two hypothetical workers, Derrick and Terry, get in an argument. They're fighting about Terry giving Derrick's girlfriend a ride home. The fight turns physical, and Derrick ends up punching Terry. This is obviously a personal fight that is not directed at the employee because he works there or because of the workplace, therefore, the employer could use this defense and effectively say, "workers' comp doesn't have to pay for this since it's not work related." That is to say that the employer is denying covering workers' comp benefits as one co-worker caused intentional harm to another worker for personal and non-work reasons.
  • However, let's say Derrick and Terry get in a fight because Derrick has promoted someone else at the job site before he promoted Terry, making Terry upset with him. Terry starts a fight with Derrick, causing injuries. This fight was probably for a personal reason but also it was "directed at the employee as an employee or because of the employment." This fight was clearly work-related, therefore, employers cannot use the defense that the harm inflicted was personal and not related to the workplace.

It can seem a little confusing, but what it all comes down to is two factors: Was it personal? and was it not directed at the employee as an employee or because of the employment? If you could answer yes to both factors, meaning that it's as if it were a fight that could have happened anywhere in town and was about a girlfriend, then the defense can possibly be used by the employer to shut down the employee's claim.

If the employer or insurer successfully asserts this defense, it means that an injured employee gets absolutely nothing. Since workers' comp bars lawsuits against an employer, employees don't even have that option. In this case, there are two possible strategies, appeal the insurer's denial of benefits to the Workers Compensation Board, or pursue an intentional tort personal injury claim against the co-worker who committed the attack.

Neither of these two instances is ideal. First, most people don't have enough liquid assets to justify the costs of suing the co-worker who injured you. Without liquid assets, it is unlikely that the worker who was attacked could recover money from a judgment even if they do win their lawsuit.

Going before the Workers Compensation Board takes time and does not by itself guarantee success. What makes this situation particularly difficult for an injured worker is that while all of this is going on there is no money coming in.

Is Your Employer Attempting to Use This Defense?

Some clients reach out to us, stating that their employer is using this defense against their workers' comp claim, but that it's not true. If you think about it, most people have said something at some point to a co-worker that could paint an altercation in a personal light. When an employer is faced with the possibility of their workers' comps premiums rising, many will grasp at whatever they can to prevent that from happening. However, that should never be reason for an injured worker to back down from a legitimate workers' comp claim; that's exactly what an employer wants their employee to do. Hire the right lawyer to be on your team: Grossman Law Offices.

At Grossman Law Offices we have been standing up for the rights of injured workers for the past quarter century. In that time we have helped literally hundred of injured workers in Texas and throughout the country recover what they are entitled to under the law.

If you still have questions or think that your employer has unjustly invoked an Intentional Harm Inflicted by Another Employee defense , give us a call at (855) 326-0000 . We take no retainer fees and only get paid if we win your case, so your calls to us are completely free.


Here is a sampling of related articles that may be of interest to injured workers: