09/21/2018
Texas is the only state that does not require employers above a predetermined size to carry Workers Compensation coverage for their employees. However, if an employer chooses to subscribe to Texas Workers Compensation insurance, the Texas Labor Code provides that the benefits payable under that comp policy are the “exclusive remedy” of an employee who seeks to recover for personal injuries sustained as a result of an on the job injury. This means that if you are injured on the job, and your employer is responsible for your injury, you cannot file a lawsuit against your employer, but must instead rely solely on workers compensation benefits you may receive. This is the case even though the benefits may not fully compensate the injured worker for all personal injury damages he or she has suffered due to the injury. The only exception to the “exclusive remedy” provision of the Texas Labor Code provides that family of a worker killed in a work related accident may bring a lawsuit against the employer for the death of the employee, provided that the employee’s family can prove “gross negligence.” However, the standard the Courts apply in determining gross negligence establishes a very high bar, and precludes recovery in many cases.
It is important to remember that just because you may have been injured on the job, and your employer is a subscriber to Texas Workers Compensation, does not mean you cannot recover damages associated with your work related injury, in addition to those workers compensation benefits. Your personal injury could have been caused by a negligent third party, that is to say, someone who is not your employer. Texas law permits lawsuits against responsible third parties who are not the employer of the injured worker. Likewise, if your work related personal injury is caused by a defective product, such as a machine, tool or automobile, Texas law permits lawsuits for those claims as well. The lesson to be learned when your employer is a subscriber to Texas Workers Compensation is that there may well be other avenues by which you can recover for your personal injuries, in addition to Texas Workers Compensation.
But what if your employer does not carry Texas Workers Compensation? The Texas Labor Code refers to these employers as “Non-Subscribers”. In addition to the avenues of recovery against responsible third parties described above, employees of non-subscribers can also bring lawsuits against their employers for all types of personal injuries, including the wrongful death of a family member. Not only does The Texas Labor Code permit lawsuits by employees of non-subscribers, it punishes the non-subscribing employer by eliminating many of its legal defenses. For instance, a non-subscribing employer who is responsible for an injury, even in part, to its employee is prohibited from asserting a claim of contributory negligence. This means that even if an employee is partially at fault for his or her own injury, the employer may be fully responsible for the personal injury damages that result from the work related accident, provided the employer is at least slightly negligent as well. The non-subscribing employer is also prohibited from asserting a defense based on the negligence of a co-worker. In fact, the employer is prohibited from relying on any common law defenses.
The moral of the Texas Workers Compensation story is that an injured employee should examine all avenues of recovery available when he or she has suffered a work related injury. If your employer has workers compensation coverage, it is smart to look at other causes of the injury, and ultimately to other persons or entities who may be responsible for your personal injury damages. When your employer has no workers compensation coverage, do not simply accept the absence of workers compensation as an inability to recover for your work related injury.
