WHO IS THE RESPONSIBLE PARTY (EMPLOYER OR THIRD-PARTY) AND WHAT TYPE OF INSURANCE DO THEY HAVE FOR WORK INJURIES?
Although suffering an injury on the job raises immediate questions about who is going to pay for medical care and lost wage payments, the first question that must be addressed is; what type of insurance your employer or the at-fault party has?
In Texas, your employer could have Texas Workers’ Compensation Insurance, could be SelfInsured, could be a Non-Subscriber (No Workers’ Compensation but has an ERISA Plan) or, your employer could be uninsured. If you are injured on the job but it was the fault of another company or their employee (Third-party), you could have a case and you would need to know if that company has commercial liability coverage. Determining which scenario or combination of scenarios your case falls into is going to determine what kind of injury benefits you could seek.
For this reason, it’s crucial to make an early assessment in your case of what rights you have so that you can do what is necessary to:
- Receive the medical care you need;
- Receive wage support payments that you may be entitled to; and
- Hold your employer responsible for any additional damages they may have caused.
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On This Page:
- THIRD-PARTY CLAIMS (Claims Against a Contractor or Their Employee)
- CLAIMS WHERE THERE IS NO INSURANCE COVERAGE
- CLAIMS UNDER TEXAS WORKER’S COMPENSATION
- TEXAS NON-SUBSCRIBER EMPLOYERS
- NEGLIGENCE (FAILING TO PROVIDE A SAFE WORKPLACE)
- ARBITRATION IN YOUR NON-SUBSCRIBER WORK INJURY CASE
- WHAT DAMAGES ARE RECOVERALBE IN A TYPCIAL WORK INJURY CASE (Not Workers’ Compensation)?
- WRONGFUL DEATH AND SURVIVAL DAMAGES
- WHY SHOULD I CHOOSE ATTORNEY SANDOVAL?
- RELATIONSHIPS BETWEEN LAWYER AND CLIENT ARE BASED ON TRUST!
THIRD-PARTY CLAIMS (Claims Against a Contractor or Their Employee)
Work injuries can happen under all types of scenarios. Texas workers can suffer an injury on the job and their employer hasn’t done anything negligent to cause the injury. The injury could have been caused by a negligent employee from another company on the jobsite or, it could even have been caused by a negligent private citizen driving on roadways. For example, the negligence of another contractor on a construction site could cause injuries to employees of other companies onsite. This is what is considered a third-party case.
These cases often go overlooked because the employee generally looks to the employer for coverage and assistance with medical care and wage benefits. Because the employee was injured on the job and is receiving benefits under his employer’s insurance, considering whether there is a third-party case is important because you may not get all the compensation or wage benefits to get you through the injury. This is especially true in a case where the injured employee has suffered a serious injury and the employer has worker’s compensation coverage. No matter how injured the employee is, without a third-party case, that employee would be limited to the benefits under workers’ compensation. Therefore, the possibility of pursuing a case against a responsible third party can help the injured worker recover damages otherwise not available under workers’ compensation.
Products Liability Cases (Special Third-Party Case)
There are special circumstances that give rise to a third-party case when equipment and tools on the job have failed to work as they were designed by the manufacturers. Like cases involving dangerous products, medical devices and pharmaceutical drugs, the equipment and tools used on the jobsite can fail and cause serious injuries or death. If your injured on the job and you believe that you may have a products liability case because the incident involved failing equipment, you will need to explore your options more thoroughly. It doesn’t matter that you are already receiving coverage or benefits under your employer’s insurance, you could be entitled to bring a third-party claim against the person or company responsible for causing your injury.
CLAIMS WHERE THERE IS NO INSURANCE COVERAGE
Because employers in Texas are not required to carry workers’ compensation, injured workers sometimes run into the scenario where their employer does not have any insurance to cover injuries to employees. This happens very often in the construction industry. A sub-contractor will hire independent contractors or “day-laborers” and will never explain to them that they are not going to be considered “employees” of that sub-contractor. Therefore, each independent contractor would have to get their own employee injury insurance to provide coverage for any injuries they themselves suffer on the job. It’s like they are their own company. Even if you are able to prove that the independent contractor is actually an “employee” of the sub-contractor, very often that contractor has no employee injury insurance. They typically will just have the insurance they needed to show the general contractor in order to be able to do the job. That insurance is found in the Commercial General Liability policy of the contractor. A commercial general liability policy does not provide coverage for injuries suffered by employees or others hired by the contractor.
Even if it is determined that the companies that brought workers on the job site to work do not have any insurance, an injured worker could bring a lawsuit against the negligent party and have them pay the claim directly out of the money and assets of the responsible company. These claims must be examined thoroughly.
CLAIMS UNDER TEXAS WORKER’S COMPENSATION
The Texas Workers’ Compensation program is an injured worker compensation program managed under the laws of the State of Texas. Texas is one of few states that does not require employers to carry workers compensation. For that reason, not all Texas employers have work injury insurance under the Texas Workers’ Compensation Act. Some employers elect nonsubscriber status while others qualify as self-insured employers. It’s not illegal or against the law to be running a business and not have any work injury insurance but, not having insurance exposes the employer to liability for injuries that result from company negligence. For this reason, most large and established companies do have insurance through Workers’ Compensation or by, electing non-subscriber status and having a policy or work injury benefit plan that covers work injuries.
Steps in Opening a Workers’ Compensation Case?
There are certain steps that apply in most work injury scenarios. When you get injured on the job while working for an employer with Workers’ Compensation coverage, you need to make sure you get informed, act quickly and, if you are unable to move your claim along or run into any problems, that you contact an experienced Texas Workers’ Compensation lawyer.
Report the Incident: If you get injured on the job, the first thing you need to do is report your injury. You do not want to provide any reason for your employer to claim that you were not injured performing your assigned job duties. As long as you report your injury, you should have no issues proving that your injury occurred during the course and scope of your employment.
Get Medical Attention: If you are injured on the job and you are in pain, you need to make sure you seek medical attention so that your injury can be assessed, and a treatment plan can be provided to you.
Open the Claim: Once you know the extent of your injury, you will need to contact the right people to get your claim opened with the division of workers compensation. At this point, your wait to see if your employer’s workers compensation insurance has any reasons to deny your claim. Sometimes claims are denied because the insurance claims that at the time of the incident, you were not an “employee” of the specific employer. If your claim is denied, you will want to talk to an experienced Workers’ Compensation lawyer.
What Workers’ Compensation Benefits Are You Entitled To?
Determining the benefits that you are entitled to can be difficult. There are basically the following types of benefits under workers’ compensation:
Income benefits (Temporary, impairment, supplemental, lifetime), Medical Benefits, Burial Benefits and Death Benefits.
Generally, if your claim is accepted by your employer’s Workers’ Compensation insurance, you will be eligible for reasonable and necessary medical treatment and some income benefits until you recuperate as much as your under the care you are receiving (maximum medical improvement).
What happens to my Benefits After I Reach Maximum Medical Improvement?
From the point that a physician has determined that you have recuperated from your injury as much as you are going to (Reached MMI), your benefits are going to change. You will need to be aware that the benefits you may be entitled to will be based on your level of impairment.
Work Injury cases under the Texas Workers’ Compensation program require that the injured worker be vigilant and not fall asleep on your rights. As long as you are injured during the course of scope of your employment, you should receive benefits. The key is finding out what benefits you are actually entitled to receive.
TEXAS NON-SUBSCRIBER EMPLOYERS
In the most general sense, a Texas Non-Subscribing employer is a company that has elected to go outside of the Texas Worker’s Compensation Program and has purchased a policy that is intended to provide coverage and benefits to employees, including specific benefits that apply to on-the-job work injuries. By selecting to go outside of the Texas Worker’s Compensation Program, the employer continues to have some insurance coverage for the injuries workers suffer while in the scope of their employment but, the legal recourse an injured worker has available when that coverage is DENIED is substantially different than if it were to be a Texas Workers’ Compensation Claim.
Except for in very limited circumstances, employers that subscribe to the Texas Worker’s Compensation program are able to avoid being sued for any injuries that occur while the employee was on the job even if, those injuries were caused by employer NEGLIGENCE. This means that even if your employer failed to provide you with the training or tools and equipment to do your job safely, if your employer is a TRUE WORKERS’ COMPENSATION SUBSCRIBER, you cannot sue them for the resulting injuries and damages. The exclusive remedy you have will be governed by Texas Workers’ Compensation law.
On the other hand, if you suffer an on-the-job injury and your employer is a Texas Non-Subscriber, you do have a right to bring a lawsuit against your employer for failing to provide you with a reasonably safe work-place free of recognized hazards. Because Texas Non-Subscriber employers have purposely decided to go outside of the Texas Workers’ Compensation program, they lose the protection against lawsuits from injured employees. In addition to losing that protection, Texas Non-Subscriber employers also lose the right to argue that you were partially at fault for your injuries, which is usually allowed in other personal injury cases in Texas.
You may be surprised but, there are several well-known companies that have elected Texas NonSubscriber status. The most common non-subscriber employers are large retail and restaurant chains that do business in Texas. Although it very important to figure out your employer’s status early on in your case, determining whether you employer is a non-subscriber is not a difficult task and I or one of my staff members can usually provide you with an answer while you are on the phone. The focus will then turn on the specific facts of your injury producing incident.
NEGLIGENCE (FAILING TO PROVIDE A SAFE WORKPLACE)
Generally, in order to determine if you have a case against your employer, you need to determine if you employer was Negligent. Determining negligence is a task that falls on your work injury lawyer but, in additional to relying on his experience with previous cases, your lawyer is going to be relying on your work experience and, the specific facts of your case. For this reason, it is important to understand how an injured employee may be able to show his injury resulted from employer negligence but, you want to make sure you consult with a work injury lawyer to determine if the claim can also be supported by the law.
DUTY: Texas employers have a duty to provide a safe workplace that are free of recognized hazards. Your employer’s negligence can be established if your employer failed to provide a safe workplace. This can be shown in a variety of ways. For example, your employer could have failed to hire qualified supervisors; failed to provide the training necessary to do the job safely; failed to provide the necessary tools and equipment or; failed to provide with a safe alternative way to do the job.
BREACH: If your employer did not provide you with a safe workplace, they could be found to have breached the duty owed to their employees.
CAUSATION & DAMAGES: If you employer has breached their duty to provide a safe workplace, the next step is to connect the injuries and damages to the specific injury causing incident. If your injuries can be attributed to the incident, this may be enough to conclude that there is a case against your employer.
COMMON DEFENSES ARE WAIVED BY TEXAS NON-SUBSCRIBER EMPLOYERS
Texas Non-Subscriber Employers are subject to Texas Labor Code § 406.033 which prohibits nonsubscriber employers being sued by an injured employee from asserting certain common law defenses.
Texas Labor Code § 406.033 states that 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 the:
- Employee was guilty of contributory negligence;
- Employee assumed the risk of injury or death; or
- Injury or death was caused by the negligence of a fellow employee.
Essentially, what this law is saying is that the employer cannot argue that you were partially at fault for your injury. What a negligent employer will try to argue and establish early on in its defense is that the injured employee, you, were fully responsible for injury. If the employer is able to establish that you were the sole proximate cause, you cannot recover from a Texas NonSubscriber. The sole proximate cause defense is not an easy defense to establish.
ARBITRATION IN YOUR NON-SUBSCRIBER WORK INJURY CASE
As explained earlier, by electing non-subscriber status, Texas Non-subscriber employers have waived their protection against being sued and, in the process, they also lose the ability to argue certain defenses. For this reason, Texas Non-Subscriber Employers typically require new employees to sign an arbitration agreement that requires that any dispute arising out of the employment will be submitted to binding arbitration. The agreement can also be signed when an employer first gets coverage under a non-subscriber policy. Requiring that your work injury case be submitted to binding arbitration gives the non-subscriber employer some control over who ultimately hears and decides the work injury case. When there is a valid arbitration agreement between employer and employee, the employee is requested to waive his/her right to have his work injury (other disputes as well) heard by jury in court. In binding arbitration, your case will be presented to an arbitrator who is usually a retired judge or a lawyer with several years of experience. This individual will hear the case, decide if you win or lose and, if you win, decide how much you win.
Requiring that your case be submitted to arbitration assures the employer that there will be no advantage gained for an employee filing his/her case in the state court of a specific county. While that right is lost, there are some practical reasons while arbitration may serve the injured employee’s interest. For one, once the arbitration is initiated, the case is generally scheduled for the hearing within six to eight months. This provides some expediency to the case which is often important for an injured employee who may be experiencing an extended period of financial difficulty. Another advantage is that having an arbitrator decide you work injury case decreases the likelihood that there will be confusion with it comes to legal and factual issues. Instead, you get to have a retired judge or experienced lawyer who understands the law well, hear and decide your case.
While rare, there are circumstances in which a non-subscriber employer has not asked its employees to sign an arbitration agreement. In these cases, you still have the right to file your lawsuit in court. For several reasons, this is a decision that should be made between the client and the lawyer.
WHAT DAMAGES ARE RECOVERALBE IN A TYPCIAL WORK INJURY CASE (Not Workers’ Compensation)?
Determining the damages you can recover in your work injury case should be discussed with you work injury attorney. Because every case is different, it is important to understand that your lawyer’s ability to prove your damages will depend on your injury and whether you are expected to make a full-recovery. Generally, in a work injury case, a claimant (injured person) you could be entitled to recover for the following damages:
- Medical Expenses (Past and Future)
- Lost Income/Earning Capacity (Past and Future)
- Physical Pain and Mental Anguish (Past and Future)
- Physical Impairment
WRONGFUL DEATH AND SURVIVAL DAMAGES
Wrongful deaths cases could be established when a worker is killed because of the negligence of his or her employer or another company, whether it’s an individual or a large company. There are several ways a person, organization or corporation could be held liable for causing an individual’s death.
In Texas, the elements of a wrongful death action are:
- The Individual that is bringing the lawsuit must be a “statutory beneficiary” of the decedent. (Basically, this means that the individual must qualify to bring the lawsuit as determined by law)
- The negligent party must be a person or a corporation;
- The negligent person or corporation’s actions caused the death of the loved one;
- Had the loved one survived, he or she would have been entitled under the law to bring a claim against the negligent party; and
- The person bringing the suit suffered actual injury.
While some elements of a wrongful death claim are very straight forward, others require close review of the facts to determine if all can be met and the claim can survive. When considering whether a qualified beneficiary may have a claim, keep in mind the there is much work to be done to preserve all evidence that would have supported the decedent’s right to bring a case had they survived. In a sense, in order to bring a wrongful death claim, you must be able to establish the case within the case.
Damages in a Wrongful Death Case
The recovery that can be made in a wrongful death case is not always the simplest to explain because it dependent of the facts of each specific case. It is best to sit down with your work injury attorney to discuss which family members would qualify to claim and receive certain damages. These damages can include these but are not limited only to these claims.
- Funeral costs.
- Compensation for your family member’s wages, benefits and future earning capacity.
- Reimbursement for any medical expenses incurred before your loved one died.
- Recovery for emotional trauma, stress, anxiety and loss of your family member’s companionship.
When an employer acts in a careless, reckless or indifferent manner, they expose others to the lethal consequences of their negligent behavior and need to be held responsible.
Elements of a Survival Action Claim
The survival action is essentially the basis for any wrongful death legal standing that will follow the work injury case. If the deceased individual would have been able to establish a case against the negligent employer that caused incident, had he or she survived, then a wrongful death can be established and could be said to derive from the decedent’s survival claim. In sum, it crucial in both types of cases, to be able to prove that the death resulted from the action or inaction (negligence) of the negligent employer.
Damages in a Survival Action
Damages that can be financially recovered in an established survival action claim can include the typical pecuniary items such as medical bills, lost income, and general damages for physical pain-and-mental anguish if the decedent did not die at the accident scene. Cases that involve a victim being hospitalized or under intensive nursing care could increase the amount recoverable damages. Funeral expenses can also be included in any survival action claim as well as any other expenses associated with the accident. It is important to remember that the funds generated from the survival action will be part of the decedent’s estate settlement and potentially claimable by creditors during the probate process. Remaining proceeds could eventually be assigned to inheritors.
WHY SHOULD I CHOOSE ATTORNEY SANDOVAL?
Sandoval Law Firm, PLLC officially opened its doors in early 2019 with me, Houston attorney Hector L. Sandoval, at the head of business. I’ve been in active practice since 2004 and I’ve worked at three previous firms, two of which I was an owner. Our firm handles all types of personal injury cases with a focus on representing the injured worker in Texas work injuries. I grew up working in the swimming pool maintenance, construction and repair business. From this experience, I learned to understand how certain industries work and how work injuries can occur when job safety is not top priority.
Sandoval Law Firm, PLLC was started with three goals in mind:
- Provide sound legal advice backed with aggressive representation!
- Provide Clients with Personal Service like no other law firm out there!
- Treat every case like a million-dollar case!
In my 15-year career, I’ve represented injured individuals in more than half of the States in the U.S. The work injury cases I’ve handled range from cases against large companies like major railroads to small local industrial shops. In addition to work injury cases, I’ve handled a wide range of personal injury cases ranging from dog bites to serious crashes involving 18-Wheeler trucks.
When you’re injured in serious accident and you are looking for a lawyer that you can trust, you would be surprised to learn that when you call certain law firms, you may never speak directly with a “lawyer” before you are asked to sign a contract to hire that lawyer. You have to ask yourself what that firm thinks of your case? Maybe just another number?
When hiring a law firm to represent you, it’s important for you to consider how you are treated from the first contact! Lawyers and law firms are in the customer service industry too even though some lawyers don’t realize it. How can you and your family trust a law firm or a lawyer with your case at a time when you are most vulnerable and experiencing high stress without either speaking directly with the person you are entrusting to protect your rights or meeting with them in person! Don’t settle!
RELATIONSHIPS BETWEEN LAWYER AND CLIENT ARE BASED ON TRUST!
At the Sandoval Law Firm, you will speak directly with me and I will do my best to earn your trust from our first meeting. I pride myself on being available to discuss your legal issue on the phone or in person, and determine quickly whether we believe we can help you and, if we can’t, we will, at the very least, try to offer some guidance to you and your family so that you can continue with your lives with peace of mind, knowing you’ve spoken to a lawyer who tried to help.
When you call Sandoval Law Firm, PLLC, I’ll immediately put my legal experience to work for you! My firm handles all types of work injury cases. Personal service means, you will be able to talk to me at all phases of your non-subscriber case!
Legal Disclaimer: This download is being provided to you for informative and educational purposes only. It is not intended to be a complete explanation on the law as applied to Texas work injury cases and, it is not intended to be relied about for legal advice. Should you have any questions about your work injury case, please contact us for free legal consultation at the numbers below.