Workers’ compensation is a form of insurance that pays medical costs, lost wages, and other damages to people who are injured at work. Companies use workers’ compensation insurance to protect themselves from lawsuits and lower their risk of liability in workplace incidents and accidents.
Workers’ compensation insurance is usually issued and managed by the state government, although a few states have privatized their workers’ comp programs. Interestingly, every state requires that employers carry workers’ comp insurance except Texas. This creates a unique situation for Texas employers and the people who work for them.
In Texas, employers who choose not to carry workers’ compensation insurance are called “non-subscribers.” People who work for non-subscribing employers and have a workplace injury are still entitled to compensation, but the process they must follow is very different from the workers’ comp process.
Since the main function of workers’ compensation insurance is to prevent lawsuits and limit liability, it is often necessary to file a claim in court in order to recover your lost wages, medical expenses, and other costs from a non-subscribing employer. In fact, non-subscribing employers in Texas have special legal risks and requirements if an employee is injured at work.
Because these cases are so unique and complex, it is best to consult with an attorney who specializes in both Texas workers’ compensation and personal injury law in order to protect your rights. 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.
What Texas Workers Need to Know About Non-Subscribing Employers
As of 2020, 28% of Texas employers were non-subscribers, and they employed 18% of the workforce. Employers who do not carry state-sponsored workers’ compensation insurance generally have one of two alternative plans:
- The employer is self-insured: This essentially means that the company plans to pay for employee injuries and damages that result from a workplace incident out of its own funds. This arrangement gives the company complete control over what types of damages are paid. They may limit the types of accidents that merit compensation, require employees to only seek specific medical treatments from specific providers, or limit how much or how long damages are paid.
- The employer has private insurance: Some employers may buy alternative insurance policies that offer compensation for injury, disability, wrongful death, or other workplace incidents. Each of these policies may have specific terms and conditions. An injured employee may need to contact different insurance for different benefits — for example, they may need to seek medical compensation from one insurance carrier and disability payments from another.
If an employer does not carry workers’ compensation insurance, they are required to keep employees informed by prominently posting and sharing information about their insurance coverage and relevant contact information. Employees should always know how they are covered in the case of an accident or injury. If insurance coverage is insufficient, or if the claim is denied, the employee may sue the employer for personal injury and other damages.
Importantly, employees of non-subscribers should always consult with an attorney before accepting an insurance settlement. An unscrupulous employer or insurance company may not be treating you fairly or looking out for your rights, and accepting an insurance settlement or compensation agreement may make it more difficult to later recover all your damages in a lawsuit.
What Is the Difference Between Non-Subscriber Cases and Workers’ Compensation Cases?
There are several key distinctions between ordinary workers’ compensation cases and non-subscriber cases. The state of Texas wants to encourage employers to opt into workers’ comp without making it mandatory, so it has created special requirements and liabilities for non-subscribing employers. Here are the biggest differences:
- Standardized vs. individualized: A workers’ comp claim is handled by the Texas Department of Insurance. There is an established procedure, standardized benefits, consistent forms and contact information, and an impartial appeals process. On the other hand, a self-insured or privately insured non-subscribing employer may have wide variations in benefits and offerings, with different processes, different requirements, and different contact information. Because they are creating the contract, it can have unique terms and conditions.
- Appeals process: If a workers’ compensation claim is denied, there is a system of appeals to have the claim reviewed and reconsidered. If a non-subscribing employer denies a claim, the employee has no choice but to take the employer to court and sue for their damages.
- Limited liability vs. additional liability: The main function of workers’ compensation is to limit the employer’s liability. Workers’ comp makes it much more difficult for employees to sue an employer for negligence or claim special damages like pain and suffering. Non-subscribing employers, on the other hand, are liable for negligence and gross negligence and may be liable for pain and suffering, and even punitive damages. An employee who successfully sues a non-subscribing employer may recover far more damages than from a subscribing employer.
Common Questions About Workers’ Comp Non-Subscriber Cases
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 to Not Have Workers’ Comp Coverage 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 you have been injured at work through no fault of your own, the process of recovering from your injury may keep you out of work and incur special expenses. If you are covered by workers’ compensation, you are entitled to compensation, including:
- 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.
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. 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 your employer does not have workers’ compensation insurance, and you are injured at work, here is the best thing to do:
- Review the coverage offered by your employer. A non-subscribing employer typically has terms in the employment contract or in your insurance package that describes your benefits. Contact the insurer or your employer to learn how to claim your benefits.
- Consult an attorney. Accepting payment from your employer or their insurance may make it more difficult to pursue your case in court. You may be entitled to sue your employer for personal injury, wrongful death, pain and suffering, and other damages.
Discussing your case with an attorney who knows Austin workers’ compensation as well as personal injury law is the best way to protect your rights and recover the damages the law allows.
How Do I File a Lawsuit for a Texas Workers’ Compensation 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
- 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’ Compensation 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.
- 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.
- 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 non-subscribers 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.
- 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.
- 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.
- 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.
- 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’ Compensation 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.