The Neese Law Firm–Houston Workplace Injury Attorneys

When an injured worker seeks legal assistance from our firm, one of the first things we do is determine whether “Workers’ Compensation” applies. If Workers’ Compensation applies, the worker may not be permitted to bring a lawsuit in court. Instead, the worker could be limited to receiving compensation in the form of Workers’ Compensation benefits. The bad thing about Workers’ Compensation benefits is that they usually do not provide full compensation to an injured worker. Injured workers usually receive much better compensation through the court system. On the other hand, many workplace injuries fall outside of the Workers’ Compensation system. For this reason, it is extremely important to have your case reviewed by a skilled workplace injury attorney who can determine whether or not Workers’ Compensation applies to your case.

Background on Workers’ Compensation Insurance

Workers’ Compensation is a form of insurance that is purchased by employers to pay for worker injuries. This insurance provides benefits to workers who are injured on the job regardless of who caused the injuries. The Workers’ Compensation insurance scheme is the product of state legislation with roots dating back to 1911, when Wisconsin became the first state to enact such legislation–Texas followed in 1913. Today, all 50 states have enacted Workers Compensation legislation. Interestingly, Texas is the only state which allows employers to opt-out of the Workers’ Compensation system. Employers who do so are commonly referred to as “nonsubscribers.” If an employer is a nonsubscriber, you may be able to bring your case in the court system rather than be limited to Workers’ Compensation benefits.

In a typical Workers’ Compensation case, a worker does not need to prove negligence on the part of the employer and, similarly, the negligence of the employee is not considered. The determinative factor is simply whether the employee was injured in the course and scope of employment. Section 401.011(12) of the Texas Workers’ Compensation Act defines “course and scope of employment” as: 

“activity of any kind or character that has to do with and originates in the work, business, trade, or profession of the employer and that is performed by an employee while engaged in or about the furtherance of the affairs or business of the employer.”

So as long as this requirement is met, the employee is eligible to recover benefits under Workers’ Compensation law. The downside is that a seriously injured employee who incurs significant medical expenses and lost wages generally will not recover enough under Worker’s Compensation law to be made whole.

Workers’ Compensation as “Sole Remedy”

If an employer subscribes to Workers’ Compensation, then Workers’ Compensation benefits may be the sole remedy available to a worker injured on the job. This means that a personal injury cause of action in the court system may not be available. However, there are important exceptions to when Workers’ Compensation provides the workers’ sole remedy, which we will discuss below. 

When Workers’ Compensation is not the Sole Remedy for On-the-Job Injuries

Non-subscriber Employers
A nonsubscriber is a Texas employer who has chosen to opt-out of the State’s Workers’ Compensation plan. Unlike a subscribing employer, a nonsubscriber is subject to personal injury lawsuits by the injured worker. Furthermore, in the event of a lawsuit, a nonsubscriber is unable to use two important defenses to liability. First, the employer may not argue that the employee’s negligence contributed to the injury. Second, it may not argue that the employee knew of the risk and voluntarily assumed that risk. Generally, the result is that if a nonsubscribing employer is found to be even slightly negligent, it can be held responsible for the full amount of the employee’s damages, including pain and suffering and even exemplary damages.

Gross Negligence in Cases of Wrongful Death
Even when an employer does have the protection of Workers’ Compensation insurance, the employer may nonetheless be sued in the court system if the employer’s gross negligence resulted in the death of the worker. 

Gross negligence is conduct on the part of an employer which goes beyond simple carelessness. Texas courts have set forth the standard for determining what qualifies as gross negligence:

In Texas, if there is an allegation of gross negligence resulting in death, an injured worker may seek recovery of damages outside of the Workers’ Compensation system.

Third-Party Negligence
Third-party negligence occurs when the negligent act of someone other than your employer or coworker is to blame for your injury. An example of third-party negligence is a situation in which a person is injured by defective equipment supplied by another company. In the event that you are entitled to recover from a third party, a portion of the benefits you may have received from Workers’ Compensation may have to be repaid. However, there is a much greater chance of a full recovery in the court system.

Call Today

For any on-the-job injury, it is crucial to speak with a qualified, experienced personal injury attorney as soon as possible to determine and understand your options. John Neese, at the Neese Law Firm, is board certified in personal injury trial law by the Texas Board of Legal Specialization and has been helping clients suffering from workplace injuries for 14 years.  At the Neese Law Firm, we are dedicated to making sure you have the right attorney for your case. Give us a call and speak with an attorney today.