Hurt At Work In Texas? What “Non-Subscriber” Means For Your Claim

In nearly every other state, an employee injured on the job is covered by workers’ compensation, and that system is usually the only remedy. Texas is different. Here, private employers can choose not to carry workers’ comp at all. Roughly a quarter of Texas employers — including some of the largest retailers and warehouse operators in Houston — have done exactly that. They are called non-subscribers, and if you work for one, your injury claim follows a completely different path.

How To Tell Which Kind Of Employer You Have

Employers must post a notice in the workplace stating whether they carry workers’ compensation, and must tell new hires in writing. In practice, many workers have no idea. Your HR department is required to tell you if you ask. Your lawyer can also confirm it through the Texas Department of Insurance.

If Your Employer Is A Subscriber

Workers’ compensation pays medical benefits and a portion of lost wages without regard to fault, and in exchange you generally cannot sue your employer for negligence. Disputes go through the Division of Workers’ Compensation rather than a courtroom. The important exception: if a third party — a subcontractor, an equipment manufacturer, a delivery driver from another company — caused your injury, you may have a full personal injury claim against that third party in addition to your comp benefits.

If Your Employer Is A Non-Subscriber

A non-subscriber gave up the protection of the comp system, and the Texas Labor Code takes away its best defenses. In a lawsuit against a non-subscriber:

• The employer cannot argue that you were partly at fault to reduce your recovery.
• The employer cannot argue that a co-worker caused the injury.
• The employer cannot argue that you assumed the risk of a dangerous job.

You must still prove the employer was negligent — that it failed to provide a reasonably safe workplace, adequate training, proper equipment, sufficient staffing or reasonable supervision — and that the negligence caused your injury. But once negligence is shown, the employer is liable for the full measure of your damages: medical expenses, lost wages and earning capacity, physical pain, mental anguish, impairment and disfigurement. Those damages are far broader than what the comp system pays.

Common Non-Subscriber Injuries We See

• Back and shoulder injuries from lifting in warehouses and stockrooms without proper equipment or staffing.
• Falls from ladders, loading docks and wet floors.
• Forklift and pallet-jack collisions.
• Crush and machinery injuries from missing guards or poor training.
• Heat illness on outdoor crews without adequate water and rest.

What To Do After A Workplace Injury

1. Report the injury to a supervisor in writing the same day, and keep a copy.
2. Get medical care. You may be directed to a company clinic; you are entitled to see your own doctor as well.
3. Write down exactly what happened, who was present, and what equipment or conditions were involved.
4. Do not give a recorded statement or sign a release, benefit election or arbitration agreement without legal advice.
5. Call a lawyer. Non-subscriber cases have a two-year limitations period, but the evidence — surveillance video, incident reports, equipment — does not wait.

Key Takeaways

• Texas employers can opt out of workers’ compensation; many large ones have.
• Non-subscribers lose the comparative-fault, co-worker and assumption-of-risk defenses.
• Damages against a non-subscriber are far broader than workers’ comp benefits.
• Do not sign post-injury paperwork without a lawyer reviewing it.