My Employer is a Non-Subscriber to Workers’ Compensation: Can I Sue for Negligence?

March 3, 2021

In Texas, a personal injury claim against an employer often depends on one crucial question: Was the employer a non-subscriber to workers’ compensation when the injury or death occurred?

Under Texas Labor Code § 408.001(a), “recovery of workers’ compensation benefits is the exclusive remedy of an employee covered by workers’ compensation insurance coverage or a legal beneficiary against the employer or an agent or employee of the employer for the death of or a work-related injury sustained by the employee.”

Unfortunately, most employers are subscribers to Texas Workers’ Compensation, thus the employee is barred from filing a lawsuit against the employer under § 408.001(a), described above.  A key exception, however, is afforded under Texas Labor Code § 408.001 is made for a surviving spouse or heirs.  This exception is triggered when an employee dies on the job, and their death was caused by an intentional act or omission of the employer or by the employer’s gross negligence.  When this happens, the surviving spouse or heirs can bring a claim for exemplary damages against the employer. The exact language under Texas Labor Code § 408.001(b) reads as follows:

“This section does not prohibit the recovery of exemplary damages by the surviving spouse or heirs of the body of a deceased employee whose death was caused by an intentional act or omission of the employer or by the employer’s gross negligence.”

What is the Burden of Proof in a Non-Subscriber Claim for Negligence?

In most cases not involving a workplace injury claim for negligence, a plaintiff has the burden to prove the case by a preponderance of the evidence—more likely than not—that the defendant was negligent.  In these cases, a defendant is generally allowed to argue that the plaintiff was negligent, thus making it harder for the plaintiff to prove their case.

In cases where the negligence claim is against the non-subscriber employer, a plaintiff is provided with many benefits because the defendant employer generally waives its right to assert any defenses regarding the plaintiff’s negligence.

The specific language in the statute provides:

(a)  In an action against an employer by or on behalf of an employee who is not covered by workers’ compensation insurance obtained in the manner authorized by Section 406.003 to recover damages for personal injuries or death sustained by an employee in the course and scope of the employment, it is not a defense that:

(1)  the employee was guilty of contributory negligence;

(2)  the employee assumed the risk of injury or death; or

(3)  the negligence of a fellow employee caused the injury or death.

(b) This section does not reinstate or otherwise affect the availability of defenses at common law, including the defenses described by Subsection (a).

(c)  The employer may defend the action on the ground that the injury was caused:

(1)  by an act of the employee intended to bring about the injury;  or

(2)  while the employee was in a state of intoxication.

(d)  In an action described by Subsection (a), the plaintiff must prove negligence of the employer or an agent or servant of the employer acting within the general scope of the agent’s or servant’s employment.

(e)  A cause of action described in Subsection (a) may not be waived by an employee before the employee’s injury or death.  Any agreement by an employee to waive a cause of action or any right described in Subsection (a) before the employee’s injury or death is void and unenforceable.

(f)  A cause of action described by Subsection (a) may not be waived by an employee after the employee’s injury unless:

(1)  the employee voluntarily enters into the waiver with knowledge of the waiver’s effect;

(2)  the waiver is entered into not earlier than the 10th business day after the date of the initial report of injury;

(3)  the employee, before signing the waiver, has received a medical evaluation from a non-emergency care doctor; and

(4)  the waiver is in a writing under which the true intent of the parties is specifically stated in the document.

(g)  The waiver provisions required under Subsection (f) must be conspicuous and appear on the face of the agreement.  To be conspicuous, the waiver provisions must appear in a type larger than the type contained in the body of the agreement or in contrasting colors.

What if I Was Injured on a Job Where Multiple Companies Were Present?

Workplace injuries involving multiple companies trigger many important factors to consider.  Generally, an employee only has workers’ compensation coverage with his employer, and not with other contractors involved in the project.  When the acts or omissions of another company cause a worker to be injured or killed, the injured worker (or his spouse/heirs) does not have to first consider whether a claim is barred under Texas Labor Code § 408.001 because the worker was not working as an employee to the other company.  These situations are commonly found in the oilfield, maritime industry, and oil refineries because there are various contractors and subcontractors who work together.

What Should I Do If I Was Injured on the Job?

The Texas Labor Code presents many different factors that must be considered when a worker is injured or killed on the job.  Employers rarely (if ever) inform the injured employee (or surviving spouse/heirs) of their rights when tragedy strikes.  The Houston work injury lawyers at Morrow & Sheppard LLP have experience in answering some of the basic questions that must be addressed in these situations.  To learn about what legal rights you may have, please call our office at 800-489-2216 to speak with one of our top-rated work injury attorneys.

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