In Texas, when someone is hurt on the job, it is usually handled as a workers compensation case. However, there are two situations in which a work injury can become a personal injury case. One is called a non-subscriber claim and the other is called a third-party claim. Let me explain.
Workers Compensation Law in Texas: A Texas employer can choose to buy workers compensation insurance for his employees. If he chooses to do so, he (or his company) is referred to as a subscriber. Having workers compensation insurance carries certain benefits to both the employer and the employee. To the injured worker, it means his medical expenses and a portion of his lost wages will be paid by the workers compensation insurance company. For the employer, having such insurance means he is immune from being sued by an injured employee. (He can only be sued if the injured worker can prove malice on the part of a co-worker or the company owner, a requirement so difficult to prove it almost never happens.)
If you have been injured at work and your employer is a workers compensation subscriber, it is almost never advisable to retain an attorney. The law is written in such a way as to nearly eliminate the need for an attorney. Plus, the attorney you hire is paid out of your weekly compensation checks. This is why my office does not accept workers compensation cases – I never take cases that involve taking money out of my client’s pocket.
Non-Subscriber Cases: If your company is not a subscriber to workers compensation insurance, your work injury is treated as a personal injury claim called a non-subscriber claim. If it becomes necessary to file a suit in your case, the law in this area is very favorable to the injured worker and this is why I gladly accept these claims. For the injured worker to win this type of suit, all he has to prove is that his employer or a co-employee was one percent negligent in causing his injury. This extremely easy to prove. In addition, the employer, because he has chosen not to protect his employees with workers compensation insurance, loses all of his common law defenses at trial. He, in essence, has both his hands tied behind his back. For this reason, most employers choose to buy workers compensation insurance. Those companies or individuals who choose to opt out are usually small contractors or “mom and pop” companies with few if any assets. For this reason, I turn down many non-subscriber cases as there is no point in suing someone with no money and no assets. The old adage that says you can’t squeeze blood out of a turnip applies here. Every now and then, though, I run into a company with big assets and no workers compensation insurance.
Third-Party Cases: Regardless of whether your employer has purchased workers compensation insurance, if you are injured through the negligence of a third party, you have two claims: a workers compensation claim and a personal injury claim. This is a common occurrence and I have handled thousands of these cases. A third party is anyone who is not working for the company you are working for. This can apply to a person working at the same job site as you but who is employed by a different company. Most often though, third-party cases arise when a worker who is driving as part of his employment is injured in a traffic accident. In those situations, the injured worker has a workers compensation claim and personal injury claim. Both claims should be pursued. In my office, we encourage the client to handle his workers compensation claim (with advice from us if needed) while we handle the personal injury claim.