Non-Subscriber Work Injuries
In the state of Texas, employers choose whether or not to carry workers’ compensation insurance to cover employees who are injured on the job. If employers carry this specific insurance, they subscribe to the workers’ compensation system and are protected from injury lawsuits being filed against them. In these cases, injured employees’ exclusive remedy against their employers is to pursue benefits through the workers’ compensation system, which is administered through the Texas Department of Insurance – Workers’ Compensation Division (http://www.tdi.texas.gov/wc/indexwc.html). An employer that is a subscriber is immune from liability for work injuries sustained by employees. In other words, if you are injured at work and your employer carries workers’ compensation insurance, you cannot sue for your injuries but must instead pursue benefits through the workers’ compensation system. To learn more about the workers’ compensation system and how we can help, visit our workers’ compensation information page.
On the other hand, there are many employers who choose not to carry workers’ compensation insurance due to the high cost or for other legal reasons. These employers are known as “non-subscribers,” since they have chosen not to subscribe to the workers’ compensation system. When employees experience an work injury and their employer is a non-subscriber, they have the legal right to file a lawsuit against their employer to recover all damages sustained as a result of their employer’s negligence. This legal right is given to Texas residents and is found in § 406.033 of the Texas Labor Code.
Many times, if an employee suffers an on-the-job injury, some employers carry a separate insurance that provides for some lost wages and medical care as a result of the injury through a work injury “benefit plan.” However, Texas law allows an injured employee in this situation to not only recover for past medical bills and past lost wages, but also for future medical care and expenses, future lost wage earning capacity, past and future impairment, past and future pain and suffering, past and future mental anguish, and disfigurement. Most employers do not wish to compensate their injured employees for these legally-entitled damages and it becomes necessary for injured workers to bring a “non-subscriber” claim against their employer for all damages they are entitled to receive, not just the ones the ir employer chooses to pay.
When we bring a non-subscriber claim on behalf of an injured worker, we must prove that something the employer or a co-worker did was negligent and caused the employee’s injury — even if the negligence was minimal. If injured workers can successfully demonstrate that their employer or a co-worker was negligent in causing the on-the-job injury, they can recover damages for the injury, including damages for pain and suffering, mental anguish, lost earning capacity, medical treatment, disfigurement, and impairment, as stated above.
Our office has extensive experience handling non-subscriber claims and have successfully tried and arbitrated many of these claims. Our attorneys have authored a published article on litigating these work injury cases in Texas and have given presentations to other attorneys on properly handling these claims. Our firm has even assisted in filing a Brief to the Texas Supreme Court on behalf of an injured worker being represented by another attorney in order to ensure the injured worker’s rights were protected.
Courtroom vs. Arbitration
When dealing with work injury claims, especially non-subscriber cases, there are two main forums where employees can file claims against their employers. First, employees can make claims in state or federal court in the form of a lawsuit against their employer. This is the traditional method in which an employee files his or her petition at the courthouse and proceeds in county, district, or federal court with an opportunity to be judged by a jury of his or her peers. This method is open to the public and is administered by a local judge.
Secondly, what we have seen being used more and more often is that employers are forcing employees into arbitration to pursue their claims. When employees begin working for a new company, they are usually asked to sign numerous papers and are given booklets and manuals. Amongst these papers is usually an “Agreement to Arbitrate” document which most employees sign without once questioning its consequences and is usually a non-negotiable pre-condition to employment. In other words, if you don’t sign, you don’t get to work for the company. By signing these agreements, employees are agreeing to forego any claims in local courts which are free and open to public scrutiny and instead agree to bring any claims through arbitration through a specified arbitration company.
Employees can then make claims with arbitration associations, such as the American Arbitration Association (AAA) or Judicial Workplace Arbitration (JWA), amongst others. In these cases, injured employees do not have the opportunity to be judged by a jury of their peers, but rather must present their case to a single Arbitrator or group of Arbitrators that is usually paid for by the company. Notwithstanding the clear conflict of interest that the arbitrators are placed in when they know that the employer is paying their fee (which can easily run in excess of $20,000.00), these arbitrators are asked to judge that employer’s actions and the arbitrators’ decisions are final and only appealable under very difficult and unlikely circumstances. Furthermore, the arbitration usually takes place in a conference room and is secretive, with the arbitrators’ decisions not being open to the public for scrutiny.
For these reasons, many attorneys shy away from pursuing non-subscriber cases when required to pursue the claim in arbitration. Our office has extensive experience with arbitrations and we have successfully arbitrated to final hearing multiple non-subscriber claims. Whether your claim is brought in a courtroom or through an arbitration, our office is experienced in litigating work injury claims and have a successful track record to prove it.
Unlike general personal injury attorneys, our firm focuses on work injury cases. We choose to dedicate our careers representing injured Texas workers.