Practicing for 20+ years Austin Employment Lawyer and Houston Labor Attorney Jack Nichols fights to get you the maximum amount of recovery due to you for on-the-job and workplace injuries when you employer does not carry workers’ compensation insurance (Non-Subscriber).
What is the Workers’ Compensation?** What is “Non-Subscriber”?**
Workers’ compensation is a form of insurance that provides wages and medical benefits to employees who suffer a work-related injury or illness. Private employers in Texas may choose if they will provide this coverage to their employees, as it is not required. However, there are substantial benefits to an employer who chooses to cover their employees by workers’ compensation insurance, and substantial penalties for those who do not.
When an employer obtains a workers’ compensation insurance policy aka “subscribes” to a workers’ compensation policy, statutory limits are placed on the type and amount of compensation that an employee may recover if they are injured at work. As a result, an employer may become immune to certain types of lawsuits, and its employees may be forced to seek compensation for work related injuries solely from the employer’s workers’ compensation insurance.
However, when an employer does not obtain a workers’ compensation insurance policy, they are known as a “non-subscriber”, and the employer may be sued for an employee’s on-the-job personal injuries without the benefit of any statutory limitations. Further, the law restricts the non-subscribing employer’s ability to defend itself in court by limiting the defenses that may ordinarily be available in other types of personal injury cases.
How do I Find Out if an Employer has Workers’ Compensation?**
Whether an employer has workers’ compensation insurance should be posted at the workplace and stated in the employer’s handbook. If not an employee can contact the Texas Department of Insurance’s Division of Workers’ Compensation at (512) 676-6000 or look look the employer up on their website. If should be noted that workers’ compensation is not the same as health insurance or commercial liability insurance, thus, an employer who does not have workers’ compensation insurance does not enjoy the benefit of statutory limitations on liability and is still subject to penalties even if the employer provides its employees health insurance and carries commercial liability insurance.
Can an Employee Sue an Employer who Does Not Carry Workers’ Compensation Insurance for Personal Injuries (aka a “Non-Subscriber”)?** How do you Prove a Personal Injury Case Against an Employer Who Does Not Carry Workers’ Compensation Insurance (aka a “Non-Subscriber”)?** How does a Non-Subscriber Personal Injury Case Differ from a Normal Personal Injury Case?**
If the employer does not carry workers’ compensation insurance (a “non-subscriber”), an employee may sue the employer if the employer’s negligence caused the injury. However, the law punishes the non-subscribing employer by making it easier for the employee to win. In an ordinary personal injury case, an injured person must generally prove that the person who injured them was negligent. A person is negligent when they fail to act as a reasonable person would have in the same or similar circumstances, and that failure caused injuries. For example in the employment context, depending on the facts of the case, this could be as easy as showing that a reasonable employer would have provided the employee with a helmet at a construction site.
In normal personal injury cases, an employee’s damages are reduced by the employee’s percentage of fault, and if the employee is more than 50% at fault, the employee cannot recover anything from the employer. However, in a non-subscriber personal injury case, the employer cannot argue that the employee was partially at fault. If the employer has any fault at all, then the employer is liable for 100% of the damages. For instance, even where an accident is 98% the fault of the employee, the employee can still recover 100% of his or her damages from the employer and the employer is not entitled to a reduction or to win because of the employee’s own negligence. The only exception is where the employee is 100% at fault.
What are the Employers’ Defenses to a Personal Injury Claim when the Employer does not Carry Workers’ Compensation?**
Generally.** An employer may have several defenses to a non-subscriber personal injury claim. Some defenses are factually based, such as when an employer has proof that an employee’s description of the facts is not true. Sometimes, the employer may claim that the employee was solely responsible for his or her own injuries, and thus the employer should not be held liable. Other times, an employer may allege that they are not liable for the employee’s injury because at the time of the injury, the employee was acting outside of the course and scope of his duties as an employee, i.e., that the employee was actions at the time of the injury were not authorized or otherwise in furtherance of the employer’s interests, but rather were for the employees own benefit, like horseplay. An employer may also challenge whether the employee’s alleged injury is genuine or the result of a preexisting condition. Many other defenses may be available depending on the circumstances.
What Types of Damages can an Employee Recover from a Non-Subscribing Employer?**
An employee who is successful in a personal injury case against their employee may recover money damages for :
- Past and Future Lost Wages;
- Pain and Suffering;
- Mental Anguish;
- Past and Future Medical Bills;
- Punitive Damages; and
- Other Remedies as well.
Schedule a Free* Consultation
*A Free Consultation is a short discussion of your legal needs to determine if our firm can be of assistance to you. It does not include free legal advice and nothing discussed during the Free Consultation should be construed as legal advice. Free Consultations are limited to certain practice areas. SENDING A MESSAGE THROUGH THIS WEBSITE, EMAILING OR CALLING AND/OR LEAVING A VOICEMAIL MESSAGE DOES NOT CREATE AN ATTORNEY/CLIENT RELATIONSHIP. NO SUCH RELATIONSHIP IS ESTABLISHED UNTIL AN AGREEMENT OF SUCH A RELATIONSHIP IS REDUCED TO WRITING AND SIGNED BY JACK QUENTIN NICHOLS. IF NO RESPONSE TO YOUR MESSAGES ARE RECEIVED BY YOU WITHIN 24 HOURS, YOU SHOULD CONSIDER OUR FIRM TO HAVE DECLINED TO REPRESENT YOU, AND YOU SHOULD SEEK THE ASSISTANCE OF ANOTHER ATTORNEY IMMEDIATELY AS THE LAW LIMITS THE TIME IN WHICH YOUR RIGHTS MAY BE ASSERTED. IF YOU SPEAK WITH AN ATTORNEY AND THEY DECLINE YOUR CASE, YOU SHOULD ALSO IMMEDIATELY SEEK THE ASSISTANCE OF ANOTHER ATTORNEY IMMEDIATELY FOR THE SAME REASONS.
**THE INFORMATION ON THIS PAGE AND ELSEWHERE ON THIS WEBSITE IS ONLY INTENDED TO PROVIDE A BRIEF OVERVIEW OF SOME OF THE LAWS AFFECTING EMPLOYMENT IN THE STATE OF TEXAS AND SOME OF THE REQUIREMENTS OF THOSE LAWS. THIS BRIEF OVERVIEW DOES NOT CONTAIN A FULL DESCRIPTION OF ALL OF THE LAWS AFFECTING EMPLOYMENT IN THE STATE OF TEXAS, NOR DOES IT CONTAIN ALL OF THE REQUIREMENTS TO PURSUE OR DEFEND ANY PARTICULAR TYPE OF EMPLOYMENT LAW CLAIM. THE LAW REGARDING EACH PARTICULAR EMPLOYMENT LAW CLAIM, AND THE INTERPRETATIONS THEREOF, MAY VARY FROM TIME TO TIME, PLACE TO PLACE, JURISDICTION TO JURISDICTION, FROM COURT TO COURT AND FROM EMPLOYER TO EMPLOYER. THE INFORMATION ON THIS PAGE ONLY APPLIED TO PRIVATE EMPLOYERS, NOT PUBLIC AND/OR GOVERNMENT EMPLOYERS FOR WHICH DIFFERENT RULES MAY APPLY. IN ADDITION, THE APPLICATION OF ANY PARTICULAR EMPLOYMENT LAW WILL DEPEND ON THE FACTUAL CIRCUMSTANCES SURROUNDING EACH CASE. EVERY EMPLOYMENT LAW CASE IS FACTUALLY UNIQUE, AND THE APPLICATION OF EACH EMPLOYMENT LAW WILL VARY. ACCORDINGLY, NOTHING WHICH IS WRITTEN ON THIS PAGE IS INTENDED TO CONSTITUTE LEGAL ADVICE WITH REGARD TO ANY PARTICULAR SITUATION. YOU ARE ADVISED TO CONTACT AN ATTORNEY IMMEDIATELY TO DISCUSS THE APPLICATION OF THE EMPLOYMENT LAWS AFFECTING THE STATE OF TEXAS TO YOUR SITUATION. .