Texas law restricts a non-subscriber employer’s ability to defend itself in court with certain defense restrictions that may be used in other types of personal injury cases.
When an accidental injury occurs at work, a person can find themselves unable to earn an income. While many employers carry worker’s compensation insurance, some of the largest employers in Texas do not. These are considered “non-subscribers” because they don’t subscribe to a worker’s comp plan that covers all employees on the payroll.
When an employee who works for a non-subscribing employer is injured or killed that employer can be sued for the injury without statutory limitations. The state of Texas treats these cases very seriously, regardless of how much blame falls upon the employer. If even 1% of the cause of injury is the non-subscriber employer’s fault, the employer must cover 100% of the damages.
Types of damages an employee can recover from a non-subscriber employer in court:
- Pain and suffering
- Past and lost wages
- Mental anguish
- Medical bills
- Punitive damages
So what’s it take to win a non-subscriber case in Texas?
Just as in any case that comes before a court of law, certain truths must be proven. Every legal case has a series of parts or steps, and for a non-subscriber case to add up, the injured employee’s legal team must determine these elements.
Employer duty – Under OSHA every employer has certain safety expectations that they owe employees. The first step for defending non-subscribers is to prove a duty fault on part of the employer. For example, let’s say an employer has 10 employees but only 9 hard hats and the employee without a hard hat is injured. The employer is on the hook as they failed to provide a reasonable duty of safety for the employee.
Employer breach – We’ve established that the employer owed a duty of safety to their employee. Now the injured employee’s legal team must prove that the employer failed to uphold their reasonable duty of safety. If in fact, the employer can prove there were enough hard hats for all employees, then the case doesn’t have legs. If the employer can’t prove that in our hypothetical situation, then the case builds in the element of…
Causation – This is essentially where the legal team must connect the employee’s injury to the failed safety duty of the employer. A head injury while working on the job would meet causation in our example. However, if it was an injury to some other part of the body or a head injury while the employee was off the job site, then the employer would not be at fault for causation.
Damages – The final piece of the puzzle for defending non-subscribers is asserting the damages that have occurred. The damages must be enough to justify the lawsuit. A bump on the head and an afternoon headache from walking into a doorframe won’t cut it. The damages must not only be able to justify the time and cost of the court case but must be quantifiable. Meaning the cost (often medical bills) must be provable in court.
If you or a family member is the victim of a workplace injury because of your employer’s negligence, reach out to the team at the Malley Law Firm for help today.
