Injured at work? Employer doesn’t have workers’ compensation coverage? Here’s what you need to know.
What is workers’ compensation?
Workers compensation is an insurance program that covers employees with income and medical benefits when they are injured at work. In Texas, employers can choose whether or not they get workers’ compensation insurance for their employees. If a company chooses not to obtain workers’ compensation insurance, then they are considered a non-subscriber.
What happens if I’m injured and my employer is a non-subscriber?
If you are injured at work and your employer is a non-subscriber, then you may still be entitled to compensation. In this case, the employee can take legal action against their employer if they can prove that their injury was related to employer negligence. In other words, if an employer does not have workers’ compensation insurance, yet they negligently cause an employee’s injuries, they can be sued for damages.
Examples of employer negligence:
- Failure to provide safety equipment
- Negligent training (ex. Failing to train employees on the proper safety procedures)
- Negligent hiring (ex. Failing to do a background check)
- Negligent retention (ex. Failing to terminate an employee after multiple complaints regarding safety issues)
- Failure to address hazards in the workplace
- Violations of OSHA regulations or state laws that apply to specific professions
How are workers’ compensation claims different for a non-subscriber work injury claim?
For starters, workers’ compensation claims prohibit the employee from filing a personal injury lawsuit. However, employees filing a non-subscriber work injury claim are allowed to file a lawsuit against their employer. In addition, their claims do not go through the workers’ compensation system. Non-subscriber cases can even result in larger awards since they allow pain and suffering damages, whereas workers’ compensation claims do not.
Additionally, non-subscriber cases can have advantages over a typical personal injury lawsuit because the law prohibits the defendant from arguing certain defenses that are common in other personal injury cases.
These are the prohibited defenses:
- Contributory Negligence- The defendant usually tries to prove that the employee was partially responsible for the injury or contributed to it somehow, therefore trying to limit their own liability and reduce the overall award. However, non-subscriber employers cannot use this defense. If the employer is found at fault for the injury at all, then they can be required to pay the entire amount of damages.
- Assumption of the Risk- A non-subscriber employer cannot argue that an employee can be held responsible if they had knowledge of the risks.
- Pre-Injury Waiver of Liability- A non-subscriber employer cannot require an employee to sign a waiver that gives up their right to sue if they sustain an injury at work.
- Fellow Servant Doctrine– This is a defense where the employer may claim that another employee was at fault for the injury. In this instance, the employer may try to shift the liability to the other employee. Even if another employee is partially responsible for your injury, the employer can still be held liable.
How long do I have to file a lawsuit against my employer if they are a nonsubscriber?
In Texas, the timeframe is typically one or two years depending on the contract you signed. Therefore, it is important to not delay contacting an attorney.
What do I do if I think I have a lawsuit?
If you believe you have been injured at work and think you have a case based on your employer’s negligence, you should contact our bodily injury attorney today. For a free consultation, call us at 214-575-6060 or click below.
