NON-SUBSCRIBER CASES IN TEXAS
The legislature long ago concluded that it would be good public policy for employers to provide their employees with insurance for on-the-job injuries. It passed the Texas Workers Compensation Act with this in mind. While the law does not require employers to buy insurance, it contains many incentives for employers to do so, as well as disincentives for an employer not to do so. In short, an insured employer enjoys protections that a non-insured employer does not. The biggest example of this is that an insured employer cannot be sued for negligence as a result of an on-the-job injury.
WHAT IS A NONSUBSCRIBER CASE
When an employer buys Workers Compensation insurance for its employees, it becomes a subscriber to the Texas Workers Compensation Act. All other employers are considered nonsubscribers. A nonsubscriber case simply means that a person was injured on the job while working for an employer that did not have workers compensation coverage. A nonsubscriber case is different from a personal injury case because different rules apply regarding proportionate responsibility and because the defenses available to the Defendant are limited.
Many companies do not become subscribers, but instead buy a private workers compensation insurance policy. Some of these policies are actually quite favorable to the injured employee. Nevertheless, such companies are still nonsubscribers. How do you know the difference between a subscribing employer and one with a private policy? The Texas Workers Compensation Commission keeps a list of subscribing employers and can tell you if your company is on that list. Secondly, if your employer is a subscriber, your accident will be reported to the Texas Workers Compensation Commission and you will receive various forms filled out by your employer’s insurance company. These forms are titled TWCC, followed by a number referencing the type of form. These are commonly called t wic forms.
RULES IN NONSUBSCRIBER CASES FAVOR THE PLAINTIFF
If you work for a company that has workers comp insurance and get injured on the job, you cannot sue your employer for negligence. However, if your company does not have workers comp insurance you can sue the company for negligence and/or for the negligence of your co-worker(s). What’s more, the rules of proportionate responsibility and the rules of evidence in such a suit are in your favor. The rules of proportionate responsibility prescribe how the degree of negligence among the parties affect the case. In a personal injury case, for example, a plaintiff must prove that the negligence of the defendant was greater than 50% in order to prevail. By contrast, in a nonsubscriber case a plaintiff only has to prove the defendant was 1% at fault.
Another advantage to the plaintiff in a nonsubscriber case is that the defendant is limited in how it can defend itself. Specifically, it cannot claim that your own negligence contributed to your injuries, that you voluntarily accepted the risk, or that it was your co-worker’s fault that you got injured.
WHAT A PLAINTIFF MUST PROVE
The Plaintiff has to prove that the employer owed him a duty, such as a duty to provide a safe work environment, to provide proper safety equipment, to provide adequate supervision and training, or to provide appropriate assistance such as in lifting a heavy objet. Plaintiff must then prove that the employer breached that duty and that the breach of that duty was the cause of Plaintiff’s injury. Finally, Plaintiff must prove his damages – medical expenses, impairment, lost income, disfigurement, etc.
WRONGFUL DEATH AS A RESULT OF AN ON THE JOB INJURY
Sadly, a high number of on the job injuries result in the employee’s death. In these cases, the deceased employee’s spouse, children, and parents, can bring suit against the employer.
WHERE DOES THE MONEY COME FROM TO PAY THE INJURED EMPLOYEE
Except for the companies that buy private insurance as mentioned above, companies that choose not to have workers comp must pay the employee out of their own pocket. This is a very real problem if you work for a small company or even a big company that is operating on thin margins and has limited assets. Usually, the companies that have assets and that are making big profits insure themselves either through private workers compensation insurance, or by becoming subscribers. Companies that have little or no assets usually do not insure themselves. This makes your chances of receiving compensation very slim if you are injured while working for a small company.
Nevertheless, sometimes an employer becomes a nonsubscriber simply because of ignorance and/or inexperience. I once represented a man who was seriously injured while working as a day laborer for a church. The church was not thinking like an employer and failed to obtain workers comp insurance. I was able to negotiate a settlement for my client.
On the job accidents often result in very serious injuries. If your company has workers comp, the insurance company will pay all of your medical expenses and pay you impairment benefits. If, however, your company did not have workers comp, you should consult with an experienced personal injury attorney as soon as possible. Good luck.
Law Offices of Robert Rodriguez