At Perdue & Kidd, we frequently receive calls from people who have suffered job-related injuries, asking about their rights and what they can expect from their employers and the workers’ compensation system. This article will explain some unique aspects of workplace injuries in Texas.
Workers’ compensation insurance is insurance that’s purchased by employers to cover their employees for injuries sustained while working on the job, called “in the course and scope of employment” for that employer. Workers’ compensation insurance is “no-fault” insurance, meaning that it will pay an employee for a portion of his or her lost wages and all medical expenses related to that injury, regardless of fault. The employee need not prove that the employer was negligent. Further, the employee may recover even if he/she were negligent, although there are some exceptions (such as an employee may not recover if intoxicated at the time of the injury).
The downside is that an employee may not recover such human damages as physical pain, mental anguish, physical impairment, or physical disfigurement in a workers’ compensation claim. The employer benefits from workers’ compensation coverage because, if an employee is injured on the job, the employee may recover benefits only from the workers’ compensation insurance carrier; employees cannot sue the employer. One exception is if the employee dies as a result of the incident, but the employee’s surviving spouse and children must then prove that the employer was grossly negligent. In Texas, workers’ compensation claims are handled by the Texas Workers’ Compensation Commission as an administrative proceeding.
Workers’ Compensation in Different States
In every state and the District of Columbia, employers are required to carry workers' compensation coverage. Some states require all employers, regardless of the type of entity and number of employees, to have coverage. Some states require employers with certain minimum numbers of employees or revenue amounts to have coverage, but the minimum requirements in all states are so low that all businesses must provide workers’ compensation coverage.
In New Mexico, all businesses with three or more employees must provide workers’ compensation insurance. Employers may purchase voluntarily if the business has fewer than three employees. Construction businesses must carry coverage regardless of their number of employees. There are exceptions for certain professions, such as domestic servants and real estate salespeople.
Texas is the only state in the United States that does not mandate workers’ compensation coverage. An employer may elect not to cover its employees. Those employers, commonly called “non-subscribers,” as they do not subscribe to workers’ compensation coverage. Employers who do not subscribe to workers’ compensation coverage usually base their decision on costs. Workers’ compensation coverage can be expensive. However, the risk is that an employee injured in the course and scope of employment may sue a non-subscribing employer, and the employer loses the common-law defenses of comparative and contributory negligence. That means that an employee recovers from his/her employer, provided that the employer was negligent, regardless of the employee’s negligence. If the employee was negligent, but the employer was also negligent, the employee may recover full damages. Those damages include the human damages discussed above.
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There is a trend among many large employers in Texas to become non-subscribers. Many of these are big-box retailers, grocery stores, and hospitals. They create variations of a Texas Workplace Injury Plan. To the employee, those plans look like workers’ compensation plans, but they are very different. The plans usually cover medical expenses and lost wages. The primary difference is that the Texas Workers’ Compensation Commission has no authority and will not require the employer to make any payments or provide medical care.
Upon sustaining a workplace injury, the employee will report the injury to the company. The company will then direct medical care, either through an in-house specialist or a third-party administrator. It is vital that the employee knows that the person directing the medical care is working on behalf of the employer – NOT THE EMPLOYEE. In our experience, the goal of these people directing medical care is to get the employee back to work as quickly and cheaply as possible. They will often not approve necessary diagnostic testing, surgery, and rehabilitation.
Many injuries have a limited window during which medical care can help the employee; otherwise, they will become permanent. Additionally, most, if not all, plans have a mandatory arbitration provision. That means that if you decide to file a lawsuit either to recover medical expenses not approved or covered, or to recover your human damages, the employer will require that the case go to an arbitrator rather than a jury. The statute of limitations is 2 years, meaning an employee must file suit/arbitration within 2 years of the incident. It is imperative that an injured employee contact a qualified attorney, such as those at Perdue & Kidd, because these proceedings are complex and usually favor the employer.
Experienced Injury Lawyers
Finally, if an employee is injured on the job due to the negligence of a third party, the employee may be entitled to recover workers’ compensation benefits and to sue the negligent third party. We often see this arise in situations where an employee works for a contractor at a refinery or plant, or works for the refinery or plant and suffers injuries due to a contractor's negligence.
At Perdue & Kidd, we have extensive experience in representing employees who are injured on the job. We have tried these lawsuits in court and arbitrated them when mandated by the employer’s plan. If you suffered injuries on the job, please contact us as soon as possible. Our lawyers can protect your rights to fair compensation.
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