Workplace Injury – Texas Workers Compensation – The Exclusive Remedy?

Workplace Injury? If you have been injured on the job, you need to know whether your employer is covered by Texas Workers Compensation Insurance. Texas does not require employers to carry workers compensation insurance to cover workplace injuries.  You may search to determine whether your employer has workers’ compensation coverage by going to the Texas Department of Insurance I want to… page and scrolling down until you see “Locate Covered Employers” under “Workers Compensation.”  If the employer is covered, the Texas Department of Insurance (TDI) has a list of Employee Frequently Asked Questions you may find helpful.  If you are an employer, you may find the TDI page Information for Employers helpful.  The TDI website has a number of useful resources and is worth visiting before and after a workplace injury.

If your employer is not covered by workers compensation insurance, some employers buy accident and health policies, employer indemnification agreements, and disability policies as cheaper alternatives to workers’ compensation. Even though these policies may provide benefits to an injured employee, Texas law does not recognize them as substitutes for workers’ compensation insurance and your employer will likely be considered a nonsubscriber.

The difference between a subscribing employer and a non-subscribing employer is significant. Nonsubscribing employers are subject to a lawsuit claiming negligence for a workplace injury or death. Subscribing employers are not. The Texas Workers Compensation Act provides:

Sec. 408.001. EXCLUSIVE REMEDY; EXEMPLARY DAMAGES.

(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.

(b) 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.

In short, if the employer is a subscriber, workers’ compensation benefits is the exclusive remedy against the employer, unless the employee dies as a result of an intentional act or omission of the employer or by the employer’s gross negligence.

For nonsubscribers it is completely different. The employee can file suit against the employer claiming negligence and the employer loses some of its defenses:

Sec. 406.033. COMMON-LAW DEFENSES; BURDEN OF PROOF.

(a) In an action against an employer who does not have workers’ compensation insurance coverage 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 injury or death was caused by the negligence of a fellow employee.

(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) against an employer who does not have workers’ compensation insurance coverage, the plaintiff must prove negligence of the employer or of an agent or servant of the employer acting within the general scope of the agent’s or servant’s employment.

The statutes above deals with claims against the employer. The on the job injury or death may be the result of the wrongful conduct of someone other than the employer or as a result of a defectively designed products or warnings. Whether the employer is a subscriber or not, a lawsuit can be filed against a negligent third-party or based upon a defective products.  For example, many workplace injuries involve machine guarding, or lack thereof, lock out tag out, OSHA violations, NEC and NESC violations, etc…

The Workers Compensation Statute provides:

Sec. 417.001. THIRD-PARTY LIABILITY.

(a) An employee or legal beneficiary may seek damages from a third-party who is or becomes liable to pay damages for an injury or death that is compensable under this subtitle and may also pursue a claim for workers’ compensation benefits under this subtitle.

(b) If a benefit is claimed by an injured employee or a legal beneficiary of the employee, the insurance carrier is subrogated to the rights of the injured employee and may enforce the liability of the third-party in the name of the injured employee or the legal beneficiary.

Section (b) deals with subrogation which may allow the insurance carrier to recover all or some of the benefits it has paid out of any third-party settlement or judgment.

The above are excerpts from a detailed Act and the issues that arise in on the job accidents and injuries can be complicated. The point of this post is that there may be remedies available in addition to workers compensation benefits or a claim against an employer.

If you are a worker that believes your employer is not following OSHA standards or that there are serious hazards,  employees can file a complaint online with OSHA or by calling 1-800-321-OSHA (6742).

Please also see our posts concerning workplace injuries – Accidents in the Workplace – Fall Protection, Defective Products, Products Liability and Lockout Tagout.

If you have been seriously injured or have lost a loved one in a workplace accident, and need a Texas attorney, please do not hesitate to give East Texas Attorney, Chris JonesBoard Certified Personal Injury Trial Law, a call at 903-236-4990 for a free initial consultation or send us a message at Contact Us.

Chris Jones About Chris Jones

Chris Jones is a Personal Injury lawyer and Wrongful Death lawyer with over 24 years of experience. Chris Jones is Board Certified in Personal Injury Trial Law by the Texas Board of Legal Specialization.

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