If you are hurt on the job in most of the country, you can rest assured that your employer (or its insurance company) has the obligation to pay for your medical bills and pay some of your lost wages while you recover, regardless of fault. You may have to fight with them over the bills, but you know that they have to pay as long as you show the injury was the result of an on-the-job accident. You know this as “workers compensation,” and it is mandatory in almost every state in the Union.
Not so in Texas. Texas is the only state in which an employer may elect not to be part of the workers’ compensation system. If your employer has chosen not have workers’ compensation insurance, such employers are called “nonsubscribers,” then you are not automatically entitled to have your medical bills paid for or to receive other benefits if you are injured on the job. This can be a serious problem, because most health insurance plans do not pay for treatment for on the job injuries.
Sometimes nonsubscribers have voluntary benefit plans to pay your medical bills and some lost wage benefits, but your rights under such plans are more limited than under workers’ compensation and are subject to the control of a “plan administrator” rather than the Texas Workforce Commission. Other nonsubscribers provide no benefits at all. The law allows that in Texas, and does not generally obligate employers to cover medical expenses for on the job injuries.
However, if your employer is a nonsubscriber and was at fault for causing the injury, then you have one right that employees covered by workers’ compensation do not have, you can bring a claim against your employer for damages for negligence. The Texas Workers’ Compensation Act, like that of other states, provides that workers’ compensation benefits are the employee’s “exclusive remedy” against the employer for on-the-job injuries, regardless of how the injury happened.
However, if the employer is a nonsubscriber, the “exclusive remedy” provision does not apply and the employee can sue the employer. Moreover, as something of a punishment for being a nonsubscriber, a nonsubscriber employer cannot assert some of the defenses others sued for negligence can assert, they cannot asset that the employee’s own negligence contributed to the accident, that the employee assumed the risk that led to the injury, or that it is not liable under the common-law “fellow servant” doctrine.”
While suing for negligence may not be as quick as receiving workers’ compensation benefits, you may ultimately be entitled to more than you would have received under workers’ compensation. If you are injured on the job and learn that your employer is a nonsubscriber, consult with an attorney. Call the Houston Lawyer Referral Service at 713-237-9429 and request a referral.