Common Questions About Workers’ Comp Nonsubscriber Cases

The Law Offices of Aaron Allison is proud to be one of only four firms in the state of Texas that takes on workers’ compensation cases to protect the rights of injured workers. 

The Texas Department of Insurance (TDI) reports that, in 2019, Texas saw 608 fatal on-the-job injuries and nearly 200,000 nonfatal injuries impact its workers. Workers’ compensation insurance is a safety net for employers: subscribing to workers’ compensation generally limits the amount and type of compensation that injured workers are eligible to receive. 

For many employees, workers’ compensation is also commonly viewed as a safety net for themselves, too, with the understanding that it can be a way to help cover their bills while recovering from injury. However, workers’ comp is more complicated than most people realize, especially in Texas. Employees who have been seriously injured on the job need to understand the impact of Texas workers’ comp laws on their process of seeking recovery.

Is it illegal for a company not to have workers’ comp in Texas?

In Texas, private employers have been allowed to opt out of workers’ comp coverage since 1913. While most people believe that their employers are always legally required to carry this insurance, that is only true for public employers in Texas, such as:

  • Law enforcement
  • K-12 education
  • Government agencies
  • Public universities 
  • Some healthcare agencies

Other employers certainly may choose to have workers’ comp, but Texas is the only state that does not require private employers to carry workers’ comp insurance. Employers who choose not to carry workers’ comp are called nonsubscribers. According to TDI’s most recent data, the number of employers who subscribed to workers’ comp dropped from 78% in 2016 to 72% in 2018. Some nonsubscribers offer their employees alternative occupational benefit plans that may cover medical and wage benefits to employees who are injured. Others simply may have no coverage.

As a result of these three different employer scenarios, figuring out whether you have any benefits to help you when you have been injured, and how to access them, can be complicated. If your employer does have workers’ comp, you may need support filing your claim. If your employer is a nonsubscriber, then you may have to file a lawsuit to recover compensation.

What happens if my employer does not have workers’ compensation insurance?

If your employer does not have workers’ compensation coverage, you may not know whether you have any immediate recourse to receive the kinds of benefits that would be normally covered under workers’ comp. These include:

  • Medical benefits: Doctors visits, medication, hospital costs and rehabilitative care related to the occupational injury are covered under workers’ comp.
  • Income benefits: This may include both lost wages when an employee is unable to work while recovering from a workplace injury or future income lost because of disability.
  • Burial and death benefits: In the event of a fatal injury, certain family members may be compensated under workers’ comp for burial costs and other expenses related to the loss of their loved one.

Employers with workers’ comp are required to post that information publicly, but if you are uncertain, you can check for your employer’s subscriber vs. nonsubscriber status on the TDI website or contact a workers’ comp attorney. If you confirm that your employer does not have coverage, that means your employer is likely not protected by laws that prevent employees from filing a lawsuit to recover damages from an occupational injury. 

How do I file a lawsuit for a Texas workers’ comp claim?

Even when your employer does have workers’ comp insurance, you may have recourse in the form of a lawsuit. Texas employers have the option to acquire workers’ comp insurance by purchasing a policy from a private insurance company or from the state, or even applying to insure themselves. If your employer does not have a policy at all, then it has taken on the risk of a lawsuit, even if they have an alternative benefits plan. 

Sometimes, a third party — someone other than the employer or its agents — is responsible for a worker’s injuries. For example, a negligent subcontractor, a dangerous property condition or defective equipment may contribute to the injury. 

Under Texas law, you can file a personal injury claim against that third party in addition to the workers’ comp claim you filed on your employers’ insurance policy. Thus, if you have been injured on the job in Texas, there are multiple options you can pursue for compensation. Some examples of a third party that can contribute to worksite injuries are:

  • Contractors: Eventually, every structure needs repairs. Sometimes, an outside contractor is hired to make the repairs. Negligence from a contractor can cause injury. For instance, uneven surfaces or falling building materials can harm employees. If this is the case, you may be able to hold the contractor liable.
  • Negligent employees: You expect your job to offer a safe environment. Unfortunately, sometimes another employee acts in a negligent manner. As a result, you could be injured due to someone else. For example, another employee could leave equipment out in a loading dock, resulting in a slip and fall.
  • Product manufacturers: Some jobs require the use of sophisticated or powerful tools. Unfortunately, these tools can sometimes be faulty. An investigation can help reveal if a defective product contributed to your injury.

Texas is an especially dangerous place for workers. Many companies contract with outside parties, and many jobs themselves carry a lot of risk. Nearly one-third of all occupational injuries affect workers in the transportation and materials moving sectors, especially:

  • Laborers and freight employees
  • Stockers
  • Material movers
  • Heavy truck drivers
  • Tractor-trailer truck drivers

Often, serious injuries to these workers mean they can never again do their exact job, and the time to learn a new skill and adapt to a new career can be extremely difficult. 

This adjustment period applies to any employee in any field. Recovering from injury is difficult enough, but if you need to shift your occupation because of permanent disability — or perhaps even find you are incapable of working at all — you are likely wondering how to support yourself or a family while you make that transition. 

What’s the process for a workers’ comp lawsuit?

You may not know whether a lawsuit is right for you — or if you even have a case. Even so, your very first step should always be to seek medical help first. Even if you think you feel fine or that you will just be able to sleep it off, see a medical professional. Many serious injuries take time to fully present symptoms. The earlier you seek medical care, the better for your health and, if it comes to it, your case. 

  1. Call a lawyer: A Texas workers’ comp lawyer can help you understand your options in the face of the unique laws, what you should know and consider, and whether you may have a case. Have as many details as possible ready to share with the legal team. Know the date of the injury, have as clear a narrative of what happened as possible, and be able to explain what you have done since the accident.
  2. Report your injury: If you have not already, make sure you officially report your injury to your employer. Do not assume that someone who was there when you were injured did this already. Some nonsubscribers are required to report injuries to the state, and if you did your part to report but they did not, that can be an important detail in a contentious lawsuit.
  3. File the lawsuit: Once it’s been determined that you have a case, your lawyer will file a complaint in the appropriate court, which is when the lawsuit will be “served.” This step also will determine the first court date to keep the case moving forward.
  4. Pretrial and discovery: This is the investigation stage of a lawsuit. The defendant — the person or entity being sued — has the chance to investigate, and your team does as well. 
  5. Settlement talks: After both sides have seen what the other has to present at trial, either side may suggest a settlement. Many times, defendants will try to get the injured worker to settle for an unfairly low amount, which can be tempting to take. Lawsuits can take a long time, and especially if you have been permanently impacted by your injuries, you may find a legal battle exhausting. Your legal team will support you and counsel you about whether you are being taken advantage of when you are offered a settlement. If you do not want to settle, you can push your case to trial.
  6. Trial: If a settlement cannot be reached, personal injury lawsuits will go to trial. Sometimes, a jury trial is an attractive option, especially if a large employer has acted especially irresponsibly, thus causing your injury. Jurors can often relate to the dangers of working in many jobs.

You have the right to sue your employer for damages after an injury at work in a nonsubscriber workers’ compensation case. Furthermore, the law only requires you to prove that your employer was 1 percent at fault for your accident. If you succeed at demonstrating this, then the company can be held completely liable for your injuries. Workers’ comp lawsuits can take a long time to resolve, and you will want a strong, supportive legal team by your side.  

How can Texas workers’ comp lawyers like Aaron Allison help?

Austin-based workers’ compensation attorneys at The Law Firm of Aaron Allison know that Texas is a unique place — and that’s true for workers’ comp cases as well. 

At The Law Offices of Aaron Allison, we know what it takes to tell your story. We have successfully handled cases against some of Texas’s biggest nonsubscriber companies, including H-E-B, Lowe’s, Home Depot, and several healthcare facilities. Since 1978, our law firm has provided honest and expert legal counsel to the injured workers of Austin, and Aaron Allison has significant experience with both traditional and nonsubscriber workers’ compensation claims. We know what is required for success in both types of cases.

Our Austin workers’ compensation attorney has the experience and resources necessary to fight for your case. Our goal is to maximize your full and fair compensation for medical benefits, lost wages, and pain and suffering. Ultimately, the success of your claim will likely depend on the strength of your legal team. Contact us today for a free consultation.

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