Injuries, and even fatalities, can happen in the workplace every day. A clerk slips on a wet floor, an employee has a wreck in the company car, or a forklift operator is injured by faulty equipment. When these things happen, the victims may be able to recover for their losses in a Work Injury lawsuit, over and above Workers’ Compensation benefits.
Under the Workers’ Compensation Act of 1993, Texas is the only state that doesn’t require it’s employers and manufacturers to carry Workers’ Comp insurance. Those who don’t are called Non-Subscribers. It is important to find out whether your employer carries Workers’ Comp. If so, they are automatically required to pay certain benefits in the case of employee injury or death. The employee must be in the “course and scope of his employment” at the time, however. Employers are supposed to be protected from lawsuits by Workers’ Comp as well. These benefits are generally inadequate, and you may be able to recover additional compensation under common law.
Experience Is The Key
The Work Injury Attorneys of our Law Office has been handling these cases for 23 years and know how to get our clients the money they need for things like:
Medical Bills
Lost Income
Pain & Suffering
Funeral & Burial Costs
Disability
Lost Future Income
Lost Earning Capacity
Future Medical Expenses
Disfigurement
Loss of Companionship
If your employer is a Non-Subscriber, with no Workers’ Comp insurance, then they are not protected from common law work injury suits, and you should be able to recover for your losses with the help of a competent, experienced workers comp lawyer like those at our Law Office. In the past two decades, our Law Office has handled Work Injury cases involving:
Slip, Trip & Fall
Construction Site Fatality
Defective Equipment/Machinery
Toxic Chemicals
Traumatic Brain Injury
Trauma Injury
Falling Objects
Why Do I Need A Work Injury Lawyer?
We know how to deal with large companies and insurance adjusters to get you and your loved ones the recovery you deserve. Workers’ Comp has their own doctors who like to downplay employee injuries and adjusters who like to low-ball or deny workers comp attorney claims. We know how to counter these ploys and get you the compensation you need. For instance, Workers’ Comp only pays 70% of injured employees wages while he is out of work, after the first week (which is not paid) up to $700 per week. There is also no provision for pain and suffering or Lost Earning Capacity. We make sure you get competent and credible medical treatment and a fair settlement for your injury or your loved one’s death.
Employers are responsible for the negligent acts of their employees in the scope of their employment under the Doctrine of Respondeat Superior (Let the Master Answer). That means they are vicariously liable for injuries done by their employees. Also, there are often 3rd-party defendants who are liable as well, including:
Manufacturers
Designers
Suppliers
Property Owners
Distributors
Property Occupiers
Employers will likely try to say they don’t have to pay because the employee was:
The Sole Proximate Cause of His Own Injuries
Was Not In The Scope of Employment (Horseplay, Drinking, Distracted)
Intentionally Injured Self to Recover Damages
We know how to counter these claims at our Law Office, and have the skill and experience you need to hold your employer and all responsible parties accountable. We have our own in-house trial prep and investigative teams, as well as the latest in graphics and technology. Our workers’ compensation attorneys keep open communication and are available to their clients night and day. Our initial consultation is free, and we don’t get paid unless we win your case. So if you or a loved one has been hurt or worse at work, call us toll-free today and let our workers compensation lawyers get to work getting you the recovery you deserve.
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Work Injury Attorneys Discuss Non-Subscriber Injury Law in Texas
In 1993, when Texas passed the Texas Workers’ Compensation Act, it was designed so that companies buying into workers’ comp insurance would be shielded or protected from their employees’ lawsuits in the event of an on-the-job accident.
This aspect made the insurance very attractive for employers to purchase. Although there are a few exceptions, in most cases, workers’ comp determines an injured employee’s benefits and guarantees that employers will not be sued by a worker hurt on the job.
This law is a great example of Texas’ historically business-friendly legislation and was designed to protect both insurance companies and businesses from liability. However, it is not specifically designed to help workers injured on the job or to ensure they receive full compensation for their injuries.
When you are injured at work, under workers’ compensation laws, you can receive compensation even if your employer wasn’t necessarily at fault for your injury. Unfortunately, the amount of that monetary compensation awarded is frequently limited in a workers’ comp claim. It does not provide for punitive damages, or for non-economic compensatory damages, such as pain and suffering. And the compensatory economic damages, such as lost wages, are capped in terms of both time and amount and are awarded in fractions of the employee’s previous income. This can be detrimental to your needs and the compensation you deserve, relative to your injuries.
Further, you cannot sue your employer or take them to court for any additional damages. The Texas workers’ comp law does limit your rights to the total amount of compensation you may receive. Also, the workers’ comp program is administered by insurance companies, and by nature, insurance companies are in business to benefit themselves by making a profit, and not to necessarily benefit or help you.
Workers’ compensation legislation, technically, was billed as “tort reform” legislation. The public and some legislators were influenced to believe the primary goal of the legislation was to alleviate the oppressive work injury lawsuit caseload that clogged up the courts. Many of these cases were characterized as unfounded, malicious assaults on business, and frivolous in nature. In this sense, reform often has nothing to do with its real purpose or stated intention or goal. Ironically, often when a piece of legislation is offered to the public as “reform,” in the end, it may actually be used against the public’s best interests in many situations.
Texans have historically been home to individuals with good sense and integrity, so not everyone was on board with the new workers’ comp “reform” legislation. So, in order to pass it, they gave Texas employers the individual right to decide to subscribe or not subscribe to workers’ compensation coverage. This is in contrast to the majority of states in the U.S., where insurance companies, in collusion with the state, have mandated every employer must carry the coverage—it is a state requirement. There are still about 40% of Texas employers today, who have chosen not to subscribe to workers’ compensation coverage. These employers are termed “non-subscribers.” The state and the insurance companies, as a form of punishment, would very much like to penalize these employers for not subscribing to their capped liability scheme. After an accident, these employers do “pay the price”. However, this imperative to punish non-subscribers is actually to your advantage in some specific ways.
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What You Should Do When Injured While Working for a Non-Subscribing Employer
The primary difference between subscribing and non-subscribing employers is that an injured worker is prevented from suing a subscribing employer. The worker is limited to the compensation outlined by the workers’ comp statute. The law protects employers who choose to subscribe to the coverage, yet punishes non-subscribers who choose not to be covered by workers comp. In regular courts, injured employees can sue non-subscribers without limit, and recover all damages (compensatory economic, non-economic, and even punitive) which they are entitled to.
Under non-subscriber injury law, among the damages you can claim (many of which are not available under workers’ comp) are lost earning capacity due to long-term disability, medical expenses, lost wages from time spent in the hospital, property damage, physical pain, suffering and discomfort, and emotional or mental distress caused by the injury.
When injured and trying to determine if you are covered under workers’ comp or not, you may face the common scenario where your employer is not covered by workers’ comp insurance but will tell you that he is, in order to avoid the much higher potential liability of a non-subscriber work injury lawsuit. Any workers who ask if the employer carries workers’ comp coverage may be lied to outright. This is because of the high cost of workers’ compensation insurance to the employer.
In companies that are involved in inherently dangerous or risky activities and have worksites where accidents are likely to happen (such as construction or demolition companies), opting for workers’ compensation insurance can result in a significant financial burden on the company. So to reduce their overhead, many companies elect to not subscribe to workers’ comp insurance. Often, but not always, to reduce their exposure to risk, they will carry a less expensive private insurance policy. This strategy can save the company money until an accident actually occurs. For companies in accident-prone fields, like construction, playing Russian Roulette with workers’ comp coverage is unwise and risky. When an accident does occur, the liability and potential recovery amounts can be “through the roof”, because of non-subscriber injury law, especially in the case of a severe accident or injury. As mentioned earlier, this is because the law frowns upon non-subscribers, and as a way of punishing them for not subscribing, exposes them to extensive liability after an accident. By law, the injured employee is actually allowed to sue the non-subscribing employer for unlimited amounts of money, up to the total value of the losses the employee can prove they incurred.
So it is evident, non-subscribers actually have much to lose after an accident. That is why so many of them pose as subscribers or pretend to be covered by workers’ comp insurance, even to the extent of cutting you checks to compensate you in the small amounts you would have received under workers’ compensation law. If you falsely believe your employer’s claims that these payments are workers’ comp settlements, and you accept them, it will be very difficult later for us to help you get more compensation. Don’t simply accept as fact your employer’s remarks that they’re covered by workers’ compensation insurance since only a little over 50 percent of Texas employers carry workers’ compensation coverage. Instead, you should ask an experienced non-subscriber work injury attorney, who knows how to dig up the truth and how to respond to the tricks your employer, their attorneys, and their aggressive insurance adjusters may throw at you, to keep them from paying you the full value of your claim.
By now, you can see that if your employer was a non-subscriber when you were injured, you’re probably entitled to a much higher amount of money than you would receive under a workers’ comp policy, and much more than the payoff your employer may have tried offering you. But finding out on your own whether your employer actually carries workers’ comp insurance, can be very challenging. The non-subscriber work accident attorneys at our Law Office understand exactly where to look to and how to find if your employer is really carrying coverage, as he stated.
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Preparing Your Case For Court
Once you’ve clearly determined your employer actually is a non-subscriber, you can start to prepare your case. In order to file and pursue your non-subscriber personal injury case in court, your situation should contain the following three important elements:
A solvent defendant
Liability
Damages
A Solvent Defendant
It’s only natural when you’ve been injured, to want to pursue the party who caused your injury, and then to pursue compensation from them. But if that party has few or no assets, there is really no logic in filing a case against them in court, because it will cost you more in court and filing fees than in a settlement or damages awarded from that entity. So in spite of being entitled to compensation, it’s very possible you won’t receive any, just because the other party has no assets to compensate you for your claims. If the defendant has no financial means (income, insurance, or assets) to pay you for your claims, filing a case against them is a waste of time and money. Regardless of their guilt, unfortunately, as the saying goes, “You can’t squeeze blood from a stone.”
It’s also a natural tendency for a party who has injured another person or damaged their property, to make efforts to hide their assets or lie about insurance in order to protect them from being taken as compensation to the injured party. So usually, it’s best not to assume the injuring party has no assets, simply because they may appear to be hurting financially. Neither should you automatically accept your employer’s claims they do not have money or insurance. Remember, it’s a natural tendency for employers to hide and protect their assets if they think they can get away with the deception. Most of the time, it’s not their intent to injure. The injury was simply bad luck for you and for them as well. It may seem unfair or unjust to them to have to give their hard-earned assets to you as compensation, regardless of how badly they accidentally injured you.
However, if the injury was intentional, you can be sure they certainly had no intention of compensating you. This is where a non-subscriber work injury attorney can be invaluable to you Your attorney will know where to look to uncover the defendant’s hidden, undisclosed assets and insurance. In addition, there may be other third parties partly responsible for your injuries, including equipment manufacturers, and contractors or property owners at unsafe worksites. Your attorney can review your case with you in consultation and help clarify all the liable defendants in your case and design an appropriate strategy.
Liability
When injured, Texas law requires that you prove the defendant is liable for and owes compensation to you, for injuries incurred. To do this, you must show they caused your injury and were responsible for it. In other words, you have to prove the defendant owed you a duty, and then violated or breached that duty to you, and this was the cause of your injury. Duty can take many forms. Generally, duty is simply taking reasonable care in the course of actions so that no one is harmed by either party’s actions or inaction. The injuring party breaches their duty when they do not take proper, reasonable care to prevent injury or harm. This is true both in the workplace as well as on the street.
Typically, based on the severity of the breach of duty owed to you, liability is divided into three categories. Simple negligence is the most common form of liability. This is the standard of negligence you will be required to prove under non-subscriber injury law. Essentially, negligence is careless or reckless behavior that results in an injury and is most commonly called an “accident”. For example, if a coworker, playing around, carelessly swings a broom, loses his grip, and breaks your arm, this is negligent. He should have used more reasonable care with the cleaning tool so that no one was injured.
Gross negligence is the next category of liability and is characterized by someone engaging in behavior they know or realize is reckless and dangerous, or disregards an obvious danger any reasonable person would know could cause injury. For instance, if your boss tells you to climb a ladder he knows is unstable, dangerous, or defective and you fall and break your leg, he would be guilty of gross negligence.
The third category of liability is wanton and willful behavior and usually results in punitive damages. This is when the other party intentionally causes you injury and deliberately sets out to harm you in some way. For example, if a vengeful “ex-boyfriend” stalks you and deliberately tries to kill you or a neighbor angry over your Great Dane using his yard as a pasture, intentionally assaults you, they are wantonly and willfully liable. It’s to your advantage to engage an experienced non-subscriber work injury, personal injury attorney to help separate the facts from the emotions, and build the strongest case possible. Our Law Office has handled thousands of non-subscriber work injury cases, understands all levels of liability, and can help in determining how legitimate a case you have. They can help pinpoint where the acts that caused your injury fall on the liability scale.
An experienced non-subscriber work injury lawyer can assist you in sorting out the sequence of events leading up to your injury and separate the facts from the emotional elements of the case. That way, the court hears clearly exactly what happened and who caused what. You could easily get sidetracked in the emotional volleyball of “he said/she said” with the defending parties unless you have skilled attorneys advocating your rights. Although the parties at fault, the duties breached, and the compensation you are entitled to in your personal injury case may seem crystal clear to you. In court, these issues often become murky, especially when argued against by savvy defense attorneys. In fact, it is the goal or intention of the opposing party attorney to make sure these issues become muddied. That is why you need an experienced lawyer on your side to clear up all the issues.
Damages
Initially, you have to prove you actually have damages, i.e. financial losses you’ve incurred because of your injury. This may strike you as totally obvious, but often it is overlooked in the rush to obtain compensation for an inconvenient, bothersome, or seriously annoying incident.
For instance, imagine you’re in a department store on a hurried errand after work and another shopper blinded by a display runs into you with such force that your shopping cart turns over. It takes you a while to dig yourself out, right your cart, retrieve you spilled items, and continue. This causes you much frustration and anger, but you don’t have even a slight bruise, and the mishap doesn’t even make you late for work. Nothing was damaged when it fell out of your cart. You may want to get even with the careless shopper who buried you in Barbie Dolls, or the employee who built the ill-advised display, but you have no actual damages, and therefore, you have no case. You simply have the beginnings of a bad day.
Our attorneys have won hundreds of work injury cases, so call us today to discuss the specifics of your case and to answer your questions.
Certainly, we’d all be happier and healthier if every accident only resulted in a slight inconvenience or annoyance, as shown in the above example. But unfortunately, workplace accidents often result in serious damages and injuries. And in court, you must prove your damages, the severity of those damages, and that they were the result of the defendant’s liable behavior. You may, in some cases, also need to distinguish the injuries or damage resulting from the defendant’s behavior from “pre-existing” conditions. Some injuries and damages may be difficult to prove.
For instance, long-term future medical expenses and medication costs, or future medical or physical conditions likely to arise from the current injuries, or even future lost wages, can be open for debate and hard to place a specific value on. It can be particularly hard to distinguish current injuries and conditions from similar ones that were pre-existing. You can be confident the defendant’s lawyers will do all they can to attempt to show you have no actual damages arising from the defendant’s actions. After all, that is their job, and their intention, which is exactly why you need an experienced non-subscriber work injury attorney to meet their challenges and to show the full extent of the damages and injuries the defendant caused you.
Once you and your attorney are sure you have the three major case elements in place–a solvent defendant, liability, and damages—then you can start to assemble your evidence and witnesses and proceed forward with the case. When a non-subscriber is your defendant, you can avoid the entire bureaucratic red-tape of the workers’ compensation system.
That doesn’t mean your case will be any easier, however. You will still be dealing with regular civil court requirements, procedures and filing deadlines, and will most likely face an intense, highly contested battle with aggressive defense attorneys and insurance adjusters, attacks on your character, and many other unpleasant scenarios.
You will need to present convincing evidence in court to prove all the various elements of your claim. You must show legally you were an employee, and not just a contractor or temporary worker and that your employer was at least partially responsible for your accident. Also, you must point out how your employer’s negligence caused the injuries, and that you are entitled to specific damages as compensation for your injuries. Your claim will likely be dismissed if you miss evidence on even one of these essential points. And remember this — in these non-subscriber personal injury cases, the burden of proof rests squarely on you, the plaintiff. You must be proactive and aware of each of these requirements.
From the glass-is-half-full perspective, to win your case, you only have to prove standard negligence, where the employer experienced just a momentary or single lapse in his ability to maintain workplace safety. You don’t have the burden of proving the higher standard of gross negligence, such as where the employer consistently had a pattern of maintaining poor workplace safety or knowingly instructed employees to use equipment or engage in acts known to be unsafe.
The process of your non-subscriber lawsuit begins when you, the plaintiff, file the claim and notify your employer of your injury, the damages, losses, and costs you’ve incurred as a result, and the restitution you expect for damages. The employer can make a decision to agree or to negotiate a settlement out of court. However, the majority of work-related injury cases, historically are strongly contested by the employer and insurer, and the plaintiff must file a formal work injury lawsuit in court to seek compensation.
Frequently, the court process will initiate and continue for some time, as both parties file motions, claims, responses, and so forth, trying to undermine the opposing party’s case. This continues until one party recognizes it has a substantially weaker case and cannot win. Then both parties may opt to settle out of court. But before you decide you have a certain victory, let’s look at two major challenges to your non-subscriber case you will face in court.
Two Significant Challenges Your Non-Subscriber Case Will Face In Court
The Sole Proximate Cause Defense
Under non-subscriber injury law in Texas, this is actually the only defense a non-subscribing employer has, and you can bet they make the most of it. Texas law only allows non-subscribers this single, rather difficult, defense. This limitation of possible legal defenses is another way of punishing non-subscribers for not subscribing to workers’ compensation coverage. In almost every case, non-subscribers use this defense, since it is their only hope. Consequently, you can expect it to be a major focus and issue in your case. Whole legions of high-blood-pressure insurance defense attorneys have built their careers around this defense. While you can anticipate it being a source of conflict in court for you, it is not an automatic airtight defense for your employer.
In order to win, your employer has to prove you were 100% responsible for your work injury. This requires your employer to prove you caused your accident entirely by yourself, and that no other causes (defective equipment, a slippery floor, or unsafe work procedures) contributed. It is rare that any person is 100% responsible for any incident. For this defense to be upheld, your employer would have to maintain 100% safe premises and equipment and have 100% observed totally adequate safety procedures at the time of your injury. Does this sound reasonable or likely to you? An employer who skimps on workers’ comp insurance expenses is also likely to skimp on safety precautions. For over twenty years, our Firm has been fighting for the rights of non-subscriber work injury victims. Call today to discuss your case and the options available to you.
Regardless of the limitations, sole proximate cause is your employer’s only defense, so they will undoubtedly attempt to use it. Your employer and their insurance company will initiate a full-scale investigation into your work habits and work history. They’ll review your employment records, talk with coworkers, and search for and collect evidence to use to prove you were a sloppy, inconsistent worker who caused your injuries at the time of the accident. They will try to destroy your reputation and make you seem like a careless worker who can’t perform a simple task without bringing disaster down upon your head. The seasoned high-end, savvy defense attorneys will try to prove their client has no liability whatsoever, by questioning your competence and ability to do your job. This literally adds insult to your injuries. The employer will talk with witnesses and try to get coworkers to say you make careless mistakes at work. The defense attorneys’ ultimate goal is to prove that on the day of your accident, your behavior was so sloppy and negligent, no one except you is to blame for your injury, Sad, but true—it’s just the nature of the game they play.
At our Law Office, we’ve seen these defenses hundreds of times and know exactly what to expect. We’ll prepare your case to withstand these attacks and prepare you for what’s coming. When your employer hires a shrewd, aggressive defense attorney, you need to counter with an experienced non-subscriber work injury attorney who can put the fault back onto the negligent employer, where it belongs. Remember the burden of proof in these cases rests with you, so don’t attempt to shoulder the burden alone. Our non-subscriber work injury attorneys are ready to help you get the compensation you need to move forward with your life after your injury. We will help you navigate through the legal process to get the results you want.
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A Solid Insurance Defense and Aggressive Opposing Attorneys
Despite your non-subscribing employer not willing to carry workers’ comp insurance, it’s highly likely the employer carries some form of insurance to help cover losses in the event there is a claim. This means your employer ultimately isn’t the only party with an interest in defending your claim. The insurance company, which would be responsible for paying a portion of your claim, has an inherently strong interest in undermining your claim. With a high-dollar personal injury case, that insurance company will be ready to deploy its team of sophisticated lawyers and slick insurance adjusters onto your case. So don’t expect the relatively friendly adjuster you encountered when you had a fender bender in your neighborhood.
Adjusters assigned to these personal injury cases are highly trained, highly compensated professionals who’ve risen to the top by denying claims and saving their employers money. They know where to find weak points in your case and are savvy in attacking its merits. Your employer and insurance company have an interest in protecting their assets and in you losing the case. Insurance companies are experts in avoiding liability. After all, that is their purpose for existing. They will use their expertise against you because that is what they are well paid for. The employer’s insurance company will have adjusters, investigators, and specialized defense attorneys to find ways to prove you aren’t entitled to recover anything for your injuries.
Your employer’s insurer and defense attorneys have one goal—to save their client as much money as possible by ensuring you receive the least compensation possible. They don’t hate you or are unsympathetic to your injuries—it’s simply their job to save clients money. Therefore, most insurance adjusters and injury defense attorneys use pressuring tactics to make an injured employee believe they don’t have a good case and should merely accept a token settlement much smaller than what is fair. They’ll likely make promises and claim to be on your side, but this isn’t the case.
Don’t rely on opposing parties who have opposing interests to yours. Hire an experienced non-subscriber work injury lawyer to help you preserve the evidence, build your case, counter the opposing counsels’ work character assassination attempts, and guide and protect you through the maze of a personal injury case.
The personal injury attorneys at our Law Office can link your injury back to your employer through your employer’s failure to provide necessary safety equipment, proper training, or other essential precautions. We understand how to prove your employer’s negligence directly caused your injuries when such negligence occurred. We are committed to helping you seek the compensation you require to move on with your life, whether your employer has workers’ compensation insurance or not. We can separate the fact and fiction in your case and get it moving on the right track.
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WORKERS COMP
Are You Really an Employee, Legally?
This is a very important question to answer before beginning your case. In Texas, the law states employers are not obligated to keep the workplace safe for contractors, volunteers, or temporary employees. Consequently, many employers rely on only these types of workers so they can save on insurance costs, safety upgrades, and maintenance, and to avert potential liability. The logic they rely on is simple — why should they be responsible for your injury, when you, technically, were never their employee? Yet legally, even though an employer refers to you as a “contractor,” and even when you have a signed related contract, that doesn’t necessarily mean that you are not a true “employee”. It’s not set in stone.
Then to complicate the issue, Texas law doesn’t provide clear guidelines for determining employee status from a civil liability standpoint. Your attorney has to refer to previous rulings by a judge, called “case law,” to determine whether a worker is an employee or a contractor. Fortunately, case law in Texas is clear on this point: in terms of civil liability, an employer-employee relationship is determined not by your job title or a contract, but by your actual working relationship with your employer. You still may be able to recover from your employer, even if you were hired as a contractor or a temp worker if you can show the existence of an employer-employee relationship at the time of your injury. Some of the factors used to determine whether you are an employee or contractor are listed below:
If you are an employee, your employer withholds taxes or social security from your check.
If you are an employee, you are paid by the hour or on salary rather than on completion of a job or project.
If you are an employee, the employer sets your work schedule, (if you determine how much time is spent on each project, and can devote as much or as little time you want to a project, then you are a contractor; if the employer determines the amount of time devoted to a project, then you are an employee.
If you were hired for an indefinite period of time, as opposed to just completing a specific task or project, then you are an employee.
If you are an employee, the employer provides the materials and equipment you need for your job. If you are responsible for providing your own tools and equipment, then you are a contractor.
If you are an employee, you signed a document, like conditions of employment, an employee handbook, or a confidentiality agreement, which limited your legal rights relating to the job.
If you took a mandatory drug test, you are an employee.
If you are an employee, the employer supervises, directs, and inspects you and your work as you do your job or examines your project at various stages of completion. If the employer only looks at the finished product, you are a contractor.
The employer can hire or fire you at any time if you are an employee.
If the employer can select a particular worker for a job, then that worker is an employee (if an agency can send over any worker it wants, then the worker is a contractor).
You are a contractor if you work for many different clients, rather than for a single company. For example, if a computer technician works for many different clients on different projects, he is a contractor; if he only works for an accounting company only, then he is an employee.
If an agency lending a worker can substitute another worker at any time, then the worker is a contractor.
If an employer “borrows” a worker for a particular skill set (for example, a framing company borrows an expert woodcarver from a furniture manufacturer for a special framing project), then the worker is a contractor. If, however, an employer “borrows” a worker to fill a position that virtually anyone could fill, then that worker is an employee.
As clearly seen in the examples above, the line between employee and contractor is not always completely clear-cut. The court usually looks at several factors in conjunction to determine whether such a relationship existed. The burden of proof to prove an employer/employee relationship existed at the time of your injury, will rest upon you in court. Proving this relationship existed when you were injured is a complicated process requiring some intricate legal thinking.
Many attorneys do not have a grasp of how to prove this relationship, so for a layman, the task is even more difficult. To establish this relationship and obtain compensation for your injury, you need to hire a competent, experienced legal professional who understands how to prove you were a legal employee under the State of Texas laws. Even if you’ve been turned down by another attorney and told that you don’t have a case, call our non-subscriber work injury attorneys for a free consultation. On many occasions, we have won cases for contractors and temporary workers, when other law firms turned down their cases. We’ve been handling claims similar to these in Texas for twenty years. Even if you were called a temp worker or a contractor, we can help you show the existence of the employer/employee relationship so you can receive compensation from your employer for your injuries.
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Other Factors Affecting Your Claim
As mentioned above, in order to sue, you must be able to prove that you have damages. Damages can come in many different forms. Compensatory damages include all non-economic and economic damages arising from your injury. Economic damages can include lost wages, all medical bills and expenses, loss of future income, travel expenses going to and from medical treatment, and essentially any measurable financial loss. Non-economic damages are less tangible losses such as interference with family relationships, loss of companionship, pain and suffering, and loss of enjoyment of life. Punitive damages are those damages intended to punish the defendant for their bad behavior. Punitive damages in Texas can be up to twice the amount of your compensatory damages, both economic and non-economic, but cannot exceed $750,000 or $200,000, whichever amount is greater.
The amount of compensation you can receive for your damages in workers’ compensation cases is set by statute and is limited to economic compensatory damages. Just as you are able to sue a subscribing employer under a wrongful death claim involving gross negligence, you can also obtain compensatory non-economic damages and punitive damages. In non-subscriber cases, you are entitled to both economic and non-economic compensatory damages in addition to punitive damages, where warranted.
Texas adheres to the doctrine of “modified comparative negligence’, which means as long as you were less than 50% responsible for your injuries, you can collect compensation for your injury from the other responsible parties. The doctrine is known as “joint and several liability” can have an unusual effect on the collection of your damage award. Although a defendant whose blame for your injury is less than 50% can only be held responsible for their share of the damages, a defendant who is found to be more than 50% at fault for your injury, can be held liable for the entire amount. In other words, a defendant may have to pay damages resulting not just from their share of the fault for your injury, they may have to pay the damages owed by every other defendant as well. This applies when the other defendants are not sufficiently solvent enough to pay.
Personal Injury Lawsuit Statute of Limitations in Texas
Texas has a two-year statute of limitations, or time limit, for most personal injury cases. This time frame is marked from the date of your injury until the time you must file your personal injury lawsuit. There are a few exceptions to this, such as in the case of an injured minor, or when the victim is in a coma or completely unable to assent to a case, or where the date of the injury cannot be determined. The application of these exceptions varies on a case-by-case basis, depending upon the specific circumstances surrounding the injury. For this reason, you should consult a knowledgeable and experienced personal injury attorney regarding the statute of limitations in your case. Don’t make a mistake and wait to file, assuming one of the exceptions may apply to you. Consult with your attorney, and be sure to file before the deadline. If you don’t, your case will be dismissed and your plans thwarted, leading to disappointment.
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After A Work Injury, OSHA Will Not Help You With Your Case
You are probably familiar with the federal Occupational Safety & Health Administration (OSHA). This agency develops, disseminates, and enforces regulations regarding workplace safety in order to promulgate and maintain minimum workplace safety standards for American workers. Although the goals and aspirations of this agency are admirable, the key term here is “minimum”. Like many federal agencies involved in your welfare, OSHA is underfunded and understaffed. So, oftentimes, it can’t be relied upon to ensure minimum levels of workplace safety, let alone intervene on your behalf in your individual case. OSHA simply lacks the manpower.
In fact, many employees are able to coast under the radar and maintain workplace safety standards well below the mandated minimum because they know there’s a good chance they will never be caught for their failure to comply with the standards. Even when caught and fined for the transgressions, the amounts of the fines were established years ago and haven’t kept pace with inflation and profits. Therefore potential fines do not give sufficient financial motivation for all employers to keep up with workplace safety mandates. The fines are often so minimal, it seems to make financial sense for many businesses to take the risk, pay the fine, and upgrade later.
OHSA, because of its budgetary and staff limitations, is more of a reactive than a proactive agency. Because of its lack of manpower to investigate all non-compliant employers in advance, OSHA often can’t prevent workplace injuries before they occur. OSHA investigators generally do not visit a workplace until after an accident takes place. They may fine the employer several hundred or a few thousand dollars and write a report detailing the accident in terms of federal workplace non-compliance issues and what the employer has done to correct its safety lapses. This report information is intended strictly for use at higher OSHA levels and not for any bearing it may have on your individual case. The report is designed to help stop further workplace problems or make note of potential problems, and to suggest regulatory solutions. At most, the report will document the employer’s compliance failures and corrections, and used to fine those employers who refuse to comply with federal standards.
Yet many workers believe they still can rely on OSHA to help them win their cases or workers’ compensation claims against negligent employers that have caused their injuries. Sadly, this is incorrect. The focus of OHSA is simply trying to ensure the overall maintenance of safe workplace standards nationwide, not to serve individuals in their workplace safety-related injury matters. OSHA honestly isn’t concerned with specific workplace accidents or whether the victim is fully compensated for injuries or losses. So OSHA reports are typically very broad in scope and terms, and of little use whatsoever in helping you establish the finer points of your case. As a federal agency, serving a broader national purpose, OSHA doesn’t want to be involved in local matters. The reports are not intended to hurt you, yet they can rarely serve your purposes in a personal injury case where you are trying to prove employer liability for your accident.
In summary, OSHA cannot help you obtain justice in your personal injury or wrongful death claim the way an experienced non-subscriber injury attorney can. Only a competent Texas accident lawyer like those of our Law Offices can help secure the compensation you are justified in receiving after a workplace injury in Texas. So don’t rely on OSHA to help you, but consult with your own workplace injury attorney as soon as possible after your accident to make sure your claim and its specifics are preserved. Your future is too important, not to call.
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Texas Workers Comp Lawyers Discuss Natural Gas Drilling Rig and Roughneck Injuries
As vital as oil is to the economy of not only Texas but also the entire United States, the job of gathering that oil can be fraught with danger. The oil industry is one of the most hazardous professions in existence, as injuries and, unfortunately, deaths can take place in gas well drilling accidents, offshore drilling accidents, oil rig drilling accidents, and oilfield accidents.
The use of heavy machinery is prevalent in the oil industry, so workers are almost in a constant state of danger from this machinery. There aren’t many workers in the industry that have not sustained some kind of injury, and, unfortunately, fatalities are all too common. Because of the heavy machinery used in areas such as oil platforms, oil rigs, and oilfield, injuries that take place can be extremely serious. They can include paralysis, severe burns, brain trauma, amputations, crushed bones, and, of course, death. Wildcatters, drillers, roughnecks, and roustabouts are, in particular, susceptible to suffering injuries in an oil industry-related accident. The extremely sad part of many of these injuries is that they, many times, could have been avoided if only proper guidelines had been observed. Accidents such as explosions, fires, valve failure, rig collapse, and others can oftentimes be quite avoidable.
If you have suffered an oil-related injury, or you are the family of an oil worker who died in an oil industry accident, the first thing you must determine is whether or not the worker’s employer bought workers’ compensation insurance. Because the oil industry is so dangerous, most employers think beforehand and buy insurance that is provided for by the Texas Workers’ Compensation Act of 1993. But that does not mean that every oil industry employer has purchased workers’ comp coverage.
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How to Determine Whether or Not Your Employer Purchased Workers’ Compensation Insurance
Texas, unlike most other states, does not make it mandatory for employers to purchase, or “subscribe” to, workers’ compensation insurance. The manner in which you pursue litigation regarding an oil industry accident depends on whether the employer subscribed to workers’ comp, or was a workers’ comp “non-subscriber” and did not purchase the insurance. The way you go about trying to obtain compensation in the event of an oil industry injury varies greatly depending on which description fits the employer in question, and the reasons why will be detailed later in this article.
It can be oftentimes difficult to determine whether or not an employer is a subscriber to workers’ comp. Many employers, after an accident occurs that results in an injury to a worker will claim it is a subscriber in order to keep from being the subject of a lawsuit filed by either an injured worker or the family member of a worker wrongfully killed in an accident. The opposite can be true as well. Some companies will feign not having workers’ comp insurance when, in fact, they really do. They do so because they are trying to avoid seeing their premiums raised after an accident. The oilfield accident attorneys with our Law Office have been practicing personal injury law and wrongful death law for the last two decades. During that time, we have seen many instances where companies have attempted this kind of blatant deception. No matter what the employer chooses to tell you, we know how to correctly determine the status of a company’s worker’s compensation insurance. We can help you, no matter if the company was a subscriber or a non-subscriber.
Benefits of Workers’ Compensation Insurance
When an employer purchases workers’ compensation insurance, it buys more than just insurance; it also purchases protection against legal action taken by employees who are injured on the job. If an employer has legitimate workers’ comp coverage, then an injured employee cannot sue that company. That employee must file an insurance claim through the correct channels through his or her workers’ compensation insurance provider.
There are many instances, however, where an insurance carrier’s idea of fair compensation for lost wages, pain and suffering, and medical expenses is one that does not come close to adequately compensating an injury victim for the actual expenses that have been accumulated by that victim. But because our oilfield accident lawyers have been dealing with this type of litigation for 20 years, we know that there can often be other liable parties other than the employer in an oil industry accident. Other potentially responsible parties include the owner of the property where the oil is being drilled; the person who owns the oil rig or oil platform, and the vendors responsible for providing any potentially faulty machinery (such as the steel lingers that are inserted into earthen tunnels that have been drilled). Either one or a combination of more than one, of these parties can be found to have either negligently contributed to an oil industry injury or to have caused it outright through negligence. It is very commonplace for more than one party to have played some kind of role in an oilfield accident, and the lawyers with our Law Office have extensive experience in investigating accident scenes in order to identify all the parties that are liable.
You might be 100 percent sure that your employer subscribed to workers’ compensation insurance, but it can still be worth your time to call us for a confidential and free consultation. We can tell you whether or not the employer’s workers’ comp policy is sufficiently meeting your needs, and whether or not there may be another party or parties that you can take legal action against in order to try and obtain fair compensation.
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Workers’ Comp Claim Exceptions
There is only one exception where the family of a deceased accident victim can sue a subscribing employer. That is when the employer’s gross negligence was the reason for the accident taking place that caused the wrongful death. It can be much harder to prove gross negligence, however, than standard negligence. Gross negligence is, in a nutshell, when an employer habitually created an unsafe workplace environment and was aware that an accident would likely happen that would result in either an injury or death. Standard negligence, on the other hand, is the temporary lack of focus or reason of an employee that led to an accident. A subscribing company cannot be successfully sued unless gross negligence can be proven. The oilfield accident attorneys with our Law Office are adept at building rock-solid cases against employers that are grossly negligent in order for the families of deceased workers can obtain the restitution they have coming to them.
Companies that are Workers’ Comp Non-Subscribers
The victim, or plaintiff, will more than likely have to file a lawsuit against a non-subscriber in order to obtain restitution after an oilfield injury. The first thing the victim must do is file a claim with the employer that details both the injury and the extent of the monetary damages the victim expects to receive in restitution. The employer then has the choice of either paying you what you demand or attempting to negotiate a settlement for a lesser amount. Most of the time, however, a non-subscriber will choose neither option. When that happens, your only recourse in securing the fair compensation you have coming to you is by pursuing legal action by filing a lawsuit.
A plaintiff can get a substantially higher amount of restitution via a lawsuit than he or she might be able to obtain through a workers’ compensation claim. Also, the plaintiff needs to only prove standard negligence – the aforementioned temporary, solitary error in judgment or the duty to provide a safe workplace – and doing so is fairly simple. When the Texas Legislature enacted workers’ comp in 1992, it did so with the purpose of trying to shield companies from frivolous employee lawsuits. It does not require employers to buy the insurance, but it very strongly encourages them to do so. As a result, non-subscribers are “punished,” so to speak, by allowing not only employee lawsuits but requiring that those employees need only prove standard negligence.
There can be extremely large amounts of money at stake, however, and employers will employ a wide variety of tactics – both legal and illegal – in order to keep from having to pay a claim. Through two decades of dealing with workers’ comp claims, the oilfield accident attorneys with our law Office know the tricks that non-subscribing companies can try to pull. We can protect your right to pursue compensation by putting our experience and track record of success to use for you.
An injured worker, or plaintiff, has to bear the burden of proof in order to win a personal injury case and therefore has to be able to provide a convincing argument that will prove the negligence of the employer led to the accident that caused injury to an employee. The plaintiff has to establish that the employer should be held responsible for the pain and suffering, medical bills, lost wages, and lost potential earnings due to lifelong disabilities that the plaintiff has incurred. The standard of negligence that must be proven in a case regarding a non-subscriber is quite low, but it can still be very difficult for inexperienced attorneys and nearly impossible for those who have no legal background. But our experience enables us to establish standard negligence in a relatively easy fashion.
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Hurdles Plaintiffs Must Overcome in Winning a Case Against a Non-Subscriber
Again, the purpose behind workers’ comp is to strongly encourage companies to purchase the insurance. As a result, those that choose not to are punished for their decision by being afforded only one true defense against personal injury or wrongful death lawsuits – this defense, known as the “sole proximate cause” defense, means that an employer will not be held liable for any injuries suffered by their employees if it can be proven that the employee was 100 percent responsible for the accident that caused that injury. In this instance, a case involving a non-subscriber can get very personal; the employer will often defame the employee’s character, painting a picture of that employee as an incompetent and careless worker whose own negligence resulted in his or her injuries. Since the defense has no other option at its disposal, you can be virtually certain that the opposition’s attorneys will attack your character and make you look incompetent.
In addition, even though a non-subscriber chose not to buy workers’ comp coverage, that doesn’t mean it is without a very expensive insurance policy. Many companies choose to buy private insurance rather than workers’ comp, which can be even more expensive. Millions of dollars can be at stake in a case involving a non-subscriber, so the insurance company will have aggressive adjusters on the job who will do whatever it takes to either reduce the amount of restitution you obtain or simply flat-out deny the claim. These adjusters aren’t anything like the ones you may encounter after a run-of-the-mill fender-bender. These people are highly trained and highly paid professionals, and they could not care less about your injury, no matter how severe. In fact, they are often paid handsome bonuses for denying claims, so they have a strong motivation to do the same to yours. Shortly after an accident, they will likely attempt to pelt you with a barrage of confusing questions that are designed to trip you up and get you to admit responsibility for the accident. This way, the insurance company can potentially get away without having to pay you a dime. Never talk to an insurance adjuster without an experienced attorney by your side who will protect your rights. Also, the insurance company will also be represented by very formidable attorneys who love it when an injury victim decides to go it alone and represent himself or herself. They love it because they know they can easily out-negotiate you and either give you a relative pittance or leave you with no compensation at all.
These sharks only respect an opposing attorney that has a track record of success. Our Law Office has taken on nearly every major insurance carrier in the United States and defeated it. Because insurers know us and respect us, they will often offer our clients fair settlements rather than take the risk of losing a great deal more money by tangling with our attorneys in a trial. To have any chance at getting the restitution you have coming, you simply have to have a seasoned and skilled oilfield accident attorney working on your side.
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Proving the Relationship between Employer and Employee
Non-subscribing employers are under no obligation to provide a safe workplace to temporary workers or contract workers in the eyes of the law in Texas; those workers are responsible for their own workplace safety. So an injured worker who falls under one of those categories cannot sue the non-subscribing company. However, there are many instances where a company will try and label their workers as contractors in order to avoid liability in the event of a workplace accident that results in an accident. This happens quite a bit in the oil industry, as many oilfield workers are considered contractors. But just because a company calls you a contractor doesn’t mean that a court of law will view you in that same manner. We have encountered myriad instances in our 20 years of practice where we have been able to establish that an employer-employee relationship did, in fact, exist by simply asking the right questions. As a result, we were able to help our clients secure just compensation. If you meet any of these following standards, then you will be seen as an employee in the eyes of the law.
The employer withholds taxes or social security from your paycheck.
The employer supplied you with the equipment that was essential for you to do your job.
The employer expected to you maintain a specific work schedule that is established.
The employer either inspected, oversaw, or managed your work on a regular basis, either by the employer, or the employer’s manager or foreman.
The employer asked you to either perform a task or sign a document that in some way limited your rights. For instance, you were asked to take a drug test or to sign a document stating that you had read, and agreed to comply with, an employee handbook.
The employer employed you for an undetermined period of time, and not just for a certain job.
The employer paid you on either a salary basis or an hourly basis, and not on a job-by-job basis.
The oilfield accident attorneys with Our Law Office can launch a detailed, thorough investigation in order to prove that you were, indeed, an employee and not a contract worker. We can procure pay stubs, interview fellow workers, and thoroughly review contracts in order to establish that you were an employee when injured.
How We Can Help You
The attorneys with our Law Office can help you or your family, no matter how your injury or the wrongful death of your loved one took place in an oil industry accident. We will be passionate and dedicated in working your case and work tirelessly in order that you get the maximum amount of restitution that you have coming to you.
It does not matter whether the accident was caused by a subscriber or a non-subscriber, or by one or more third parties. Call us as soon as you can for a confidential and free consultation. We will go over the specific circumstances of your case and tell you how we may be able to help you.
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Injuries, and even fatalities, can happen in the workplace every day. A clerk slips on a wet floor, an employee has a wreck in the company car, or a forklift operator is injured by faulty equipment. When these things happen, the victims may be able to recover for their losses in a Work Injury lawsuit, over and above Workers’ Compensation benefits.
Under the Workers’ Compensation Act of 1993, Texas is the only state that doesn’t require it’s employers and manufacturers to carry Workers’ Comp insurance. Those who don’t are called Non-Subscribers. It is important to find out whether your employer carries Workers’ Comp. If so, they are automatically required to pay certain benefits in the case of employee injury or death. The employee must be in the “course and scope of his employment” at the time, however. Employers are supposed to be protected from lawsuits by Workers’ Comp as well. These benefits are generally inadequate, and you may be able to recover additional compensation under common law.
Experience Is The Key
The Work Injury Attorneys of our Law Office has been handling these cases for 23 years and know how to get our clients the money they need for things like:
Medical Bills
Lost Income
Pain & Suffering
Funeral & Burial Costs
Disability
Lost Future Income
Lost Earning Capacity
Future Medical Expenses
Disfigurement
Loss of Companionship
If your employer is a Non-Subscriber, with no Workers’ Comp insurance, then they are not protected from common law work injury suits, and you should be able to recover for your losses with the help of a competent, experienced workers comp lawyer like those at our Law Office. In the past two decades, our Law Office has handled Work Injury cases involving:
Slip, Trip & Fall
Construction Site Fatality
Defective Equipment/Machinery
Toxic Chemicals
Traumatic Brain Injury
Trauma Injury
Falling Objects
Why Do I Need A Work Injury Lawyer?
We know how to deal with large companies and insurance adjusters to get you and your loved ones the recovery you deserve. Workers’ Comp has their own doctors who like to downplay employee injuries and adjusters who like to low-ball or deny workers comp attorney claims. We know how to counter these ploys and get you the compensation you need. For instance, Workers’ Comp only pays 70% of injured employees wages while he is out of work, after the first week (which is not paid) up to $700 per week. There is also no provision for pain and suffering or Lost Earning Capacity. We make sure you get competent and credible medical treatment and a fair settlement for your injury or your loved one’s death.
Employers are responsible for the negligent acts of their employees in the scope of their employment under the Doctrine of Respondeat Superior (Let the Master Answer). That means they are vicariously liable for injuries done by their employees. Also, there are often 3rd-party defendants who are liable as well, including:
Manufacturers
Designers
Suppliers
Property Owners
Distributors
Property Occupiers
Employers will likely try to say they don’t have to pay because the employee was:
The Sole Proximate Cause of His Own Injuries
Was Not In The Scope of Employment (Horseplay, Drinking, Distracted)
Intentionally Injured Self to Recover Damages
We know how to counter these claims at our Law Office, and have the skill and experience you need to hold your employer and all responsible parties accountable. We have our own in-house trial prep and investigative teams, as well as the latest in graphics and technology. Our workers’ compensation attorneys keep open communication and are available to their clients night and day. Our initial consultation is free, and we don’t get paid unless we win your case. So if you or a loved one has been hurt or worse at work, call us toll-free today and let our workers compensation lawyers get to work getting you the recovery you deserve.
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Work Injury Attorneys Discuss Non-Subscriber Injury Law in Texas
In 1993, when Texas passed the Texas Workers’ Compensation Act, it was designed so that companies buying into workers’ comp insurance would be shielded or protected from their employees’ lawsuits in the event of an on-the-job accident.
This aspect made the insurance very attractive for employers to purchase. Although there are a few exceptions, in most cases, workers’ comp determines an injured employee’s benefits and guarantees that employers will not be sued by a worker hurt on the job.
This law is a great example of Texas’ historically business-friendly legislation and was designed to protect both insurance companies and businesses from liability. However, it is not specifically designed to help workers injured on the job or to ensure they receive full compensation for their injuries.
When you are injured at work, under workers’ compensation laws, you can receive compensation even if your employer wasn’t necessarily at fault for your injury. Unfortunately, the amount of that monetary compensation awarded is frequently limited in a workers’ comp claim. It does not provide for punitive damages, or for non-economic compensatory damages, such as pain and suffering. And the compensatory economic damages, such as lost wages, are capped in terms of both time and amount and are awarded in fractions of the employee’s previous income. This can be detrimental to your needs and the compensation you deserve, relative to your injuries.
Further, you cannot sue your employer or take them to court for any additional damages. The Texas workers’ comp law does limit your rights to the total amount of compensation you may receive. Also, the workers’ comp program is administered by insurance companies, and by nature, insurance companies are in business to benefit themselves by making a profit, and not to necessarily benefit or help you.
Workers’ compensation legislation, technically, was billed as “tort reform” legislation. The public and some legislators were influenced to believe the primary goal of the legislation was to alleviate the oppressive work injury lawsuit caseload that clogged up the courts. Many of these cases were characterized as unfounded, malicious assaults on business, and frivolous in nature. In this sense, reform often has nothing to do with its real purpose or stated intention or goal. Ironically, often when a piece of legislation is offered to the public as “reform,” in the end, it may actually be used against the public’s best interests in many situations.
Texans have historically been home to individuals with good sense and integrity, so not everyone was on board with the new workers’ comp “reform” legislation. So, in order to pass it, they gave Texas employers the individual right to decide to subscribe or not subscribe to workers’ compensation coverage. This is in contrast to the majority of states in the U.S., where insurance companies, in collusion with the state, have mandated every employer must carry the coverage—it is a state requirement. There are still about 40% of Texas employers today, who have chosen not to subscribe to workers’ compensation coverage. These employers are termed “non-subscribers.” The state and the insurance companies, as a form of punishment, would very much like to penalize these employers for not subscribing to their capped liability scheme. After an accident, these employers do “pay the price”. However, this imperative to punish non-subscribers is actually to your advantage in some specific ways.
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What You Should Do When Injured While Working for a Non-Subscribing Employer
The primary difference between subscribing and non-subscribing employers is that an injured worker is prevented from suing a subscribing employer. The worker is limited to the compensation outlined by the workers’ comp statute. The law protects employers who choose to subscribe to the coverage, yet punishes non-subscribers who choose not to be covered by workers comp. In regular courts, injured employees can sue non-subscribers without limit, and recover all damages (compensatory economic, non-economic, and even punitive) which they are entitled to.
Under non-subscriber injury law, among the damages you can claim (many of which are not available under workers’ comp) are lost earning capacity due to long-term disability, medical expenses, lost wages from time spent in the hospital, property damage, physical pain, suffering and discomfort, and emotional or mental distress caused by the injury.
When injured and trying to determine if you are covered under workers’ comp or not, you may face the common scenario where your employer is not covered by workers’ comp insurance but will tell you that he is, in order to avoid the much higher potential liability of a non-subscriber work injury lawsuit. Any workers who ask if the employer carries workers’ comp coverage may be lied to outright. This is because of the high cost of workers’ compensation insurance to the employer.
In companies that are involved in inherently dangerous or risky activities and have worksites where accidents are likely to happen (such as construction or demolition companies), opting for workers’ compensation insurance can result in a significant financial burden on the company. So to reduce their overhead, many companies elect to not subscribe to workers’ comp insurance. Often, but not always, to reduce their exposure to risk, they will carry a less expensive private insurance policy. This strategy can save the company money until an accident actually occurs. For companies in accident-prone fields, like construction, playing Russian Roulette with workers’ comp coverage is unwise and risky. When an accident does occur, the liability and potential recovery amounts can be “through the roof”, because of non-subscriber injury law, especially in the case of a severe accident or injury. As mentioned earlier, this is because the law frowns upon non-subscribers, and as a way of punishing them for not subscribing, exposes them to extensive liability after an accident. By law, the injured employee is actually allowed to sue the non-subscribing employer for unlimited amounts of money, up to the total value of the losses the employee can prove they incurred.
So it is evident, non-subscribers actually have much to lose after an accident. That is why so many of them pose as subscribers or pretend to be covered by workers’ comp insurance, even to the extent of cutting you checks to compensate you in the small amounts you would have received under workers’ compensation law. If you falsely believe your employer’s claims that these payments are workers’ comp settlements, and you accept them, it will be very difficult later for us to help you get more compensation. Don’t simply accept as fact your employer’s remarks that they’re covered by workers’ compensation insurance since only a little over 50 percent of Texas employers carry workers’ compensation coverage. Instead, you should ask an experienced non-subscriber work injury attorney, who knows how to dig up the truth and how to respond to the tricks your employer, their attorneys, and their aggressive insurance adjusters may throw at you, to keep them from paying you the full value of your claim.
By now, you can see that if your employer was a non-subscriber when you were injured, you’re probably entitled to a much higher amount of money than you would receive under a workers’ comp policy, and much more than the payoff your employer may have tried offering you. But finding out on your own whether your employer actually carries workers’ comp insurance, can be very challenging. The non-subscriber work accident attorneys at our Law Office understand exactly where to look to and how to find if your employer is really carrying coverage, as he stated.
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Preparing Your Case For Court
Once you’ve clearly determined your employer actually is a non-subscriber, you can start to prepare your case. In order to file and pursue your non-subscriber personal injury case in court, your situation should contain the following three important elements:
A solvent defendant
Liability
Damages
A Solvent Defendant
It’s only natural when you’ve been injured, to want to pursue the party who caused your injury, and then to pursue compensation from them. But if that party has few or no assets, there is really no logic in filing a case against them in court, because it will cost you more in court and filing fees than in a settlement or damages awarded from that entity. So in spite of being entitled to compensation, it’s very possible you won’t receive any, just because the other party has no assets to compensate you for your claims. If the defendant has no financial means (income, insurance, or assets) to pay you for your claims, filing a case against them is a waste of time and money. Regardless of their guilt, unfortunately, as the saying goes, “You can’t squeeze blood from a stone.”
It’s also a natural tendency for a party who has injured another person or damaged their property, to make efforts to hide their assets or lie about insurance in order to protect them from being taken as compensation to the injured party. So usually, it’s best not to assume the injuring party has no assets, simply because they may appear to be hurting financially. Neither should you automatically accept your employer’s claims they do not have money or insurance. Remember, it’s a natural tendency for employers to hide and protect their assets if they think they can get away with the deception. Most of the time, it’s not their intent to injure. The injury was simply bad luck for you and for them as well. It may seem unfair or unjust to them to have to give their hard-earned assets to you as compensation, regardless of how badly they accidentally injured you.
However, if the injury was intentional, you can be sure they certainly had no intention of compensating you. This is where a non-subscriber work injury attorney can be invaluable to you Your attorney will know where to look to uncover the defendant’s hidden, undisclosed assets and insurance. In addition, there may be other third parties partly responsible for your injuries, including equipment manufacturers, and contractors or property owners at unsafe worksites. Your attorney can review your case with you in consultation and help clarify all the liable defendants in your case and design an appropriate strategy.
Liability
When injured, Texas law requires that you prove the defendant is liable for and owes compensation to you, for injuries incurred. To do this, you must show they caused your injury and were responsible for it. In other words, you have to prove the defendant owed you a duty, and then violated or breached that duty to you, and this was the cause of your injury. Duty can take many forms. Generally, duty is simply taking reasonable care in the course of actions so that no one is harmed by either party’s actions or inaction. The injuring party breaches their duty when they do not take proper, reasonable care to prevent injury or harm. This is true both in the workplace as well as on the street.
Typically, based on the severity of the breach of duty owed to you, liability is divided into three categories. Simple negligence is the most common form of liability. This is the standard of negligence you will be required to prove under non-subscriber injury law. Essentially, negligence is careless or reckless behavior that results in an injury and is most commonly called an “accident”. For example, if a coworker, playing around, carelessly swings a broom, loses his grip, and breaks your arm, this is negligent. He should have used more reasonable care with the cleaning tool so that no one was injured.
Gross negligence is the next category of liability and is characterized by someone engaging in behavior they know or realize is reckless and dangerous, or disregards an obvious danger any reasonable person would know could cause injury. For instance, if your boss tells you to climb a ladder he knows is unstable, dangerous, or defective and you fall and break your leg, he would be guilty of gross negligence.
The third category of liability is wanton and willful behavior and usually results in punitive damages. This is when the other party intentionally causes you injury and deliberately sets out to harm you in some way. For example, if a vengeful “ex-boyfriend” stalks you and deliberately tries to kill you or a neighbor angry over your Great Dane using his yard as a pasture, intentionally assaults you, they are wantonly and willfully liable. It’s to your advantage to engage an experienced non-subscriber work injury, personal injury attorney to help separate the facts from the emotions, and build the strongest case possible. Our Law Office has handled thousands of non-subscriber work injury cases, understands all levels of liability, and can help in determining how legitimate a case you have. They can help pinpoint where the acts that caused your injury fall on the liability scale.
An experienced non-subscriber work injury lawyer can assist you in sorting out the sequence of events leading up to your injury and separate the facts from the emotional elements of the case. That way, the court hears clearly exactly what happened and who caused what. You could easily get sidetracked in the emotional volleyball of “he said/she said” with the defending parties unless you have skilled attorneys advocating your rights. Although the parties at fault, the duties breached, and the compensation you are entitled to in your personal injury case may seem crystal clear to you. In court, these issues often become murky, especially when argued against by savvy defense attorneys. In fact, it is the goal or intention of the opposing party attorney to make sure these issues become muddied. That is why you need an experienced lawyer on your side to clear up all the issues.
Damages
Initially, you have to prove you actually have damages, i.e. financial losses you’ve incurred because of your injury. This may strike you as totally obvious, but often it is overlooked in the rush to obtain compensation for an inconvenient, bothersome, or seriously annoying incident.
For instance, imagine you’re in a department store on a hurried errand after work and another shopper blinded by a display runs into you with such force that your shopping cart turns over. It takes you a while to dig yourself out, right your cart, retrieve you spilled items, and continue. This causes you much frustration and anger, but you don’t have even a slight bruise, and the mishap doesn’t even make you late for work. Nothing was damaged when it fell out of your cart. You may want to get even with the careless shopper who buried you in Barbie Dolls, or the employee who built the ill-advised display, but you have no actual damages, and therefore, you have no case. You simply have the beginnings of a bad day.
Our attorneys have won hundreds of work injury cases, so call us today to discuss the specifics of your case and to answer your questions.
Certainly, we’d all be happier and healthier if every accident only resulted in a slight inconvenience or annoyance, as shown in the above example. But unfortunately, workplace accidents often result in serious damages and injuries. And in court, you must prove your damages, the severity of those damages, and that they were the result of the defendant’s liable behavior. You may, in some cases, also need to distinguish the injuries or damage resulting from the defendant’s behavior from “pre-existing” conditions. Some injuries and damages may be difficult to prove.
For instance, long-term future medical expenses and medication costs, or future medical or physical conditions likely to arise from the current injuries, or even future lost wages, can be open for debate and hard to place a specific value on. It can be particularly hard to distinguish current injuries and conditions from similar ones that were pre-existing. You can be confident the defendant’s lawyers will do all they can to attempt to show you have no actual damages arising from the defendant’s actions. After all, that is their job, and their intention, which is exactly why you need an experienced non-subscriber work injury attorney to meet their challenges and to show the full extent of the damages and injuries the defendant caused you.
Once you and your attorney are sure you have the three major case elements in place–a solvent defendant, liability, and damages—then you can start to assemble your evidence and witnesses and proceed forward with the case. When a non-subscriber is your defendant, you can avoid the entire bureaucratic red-tape of the workers’ compensation system.
That doesn’t mean your case will be any easier, however. You will still be dealing with regular civil court requirements, procedures and filing deadlines, and will most likely face an intense, highly contested battle with aggressive defense attorneys and insurance adjusters, attacks on your character, and many other unpleasant scenarios.
You will need to present convincing evidence in court to prove all the various elements of your claim. You must show legally you were an employee, and not just a contractor or temporary worker and that your employer was at least partially responsible for your accident. Also, you must point out how your employer’s negligence caused the injuries, and that you are entitled to specific damages as compensation for your injuries. Your claim will likely be dismissed if you miss evidence on even one of these essential points. And remember this — in these non-subscriber personal injury cases, the burden of proof rests squarely on you, the plaintiff. You must be proactive and aware of each of these requirements.
From the glass-is-half-full perspective, to win your case, you only have to prove standard negligence, where the employer experienced just a momentary or single lapse in his ability to maintain workplace safety. You don’t have the burden of proving the higher standard of gross negligence, such as where the employer consistently had a pattern of maintaining poor workplace safety or knowingly instructed employees to use equipment or engage in acts known to be unsafe.
The process of your non-subscriber lawsuit begins when you, the plaintiff, file the claim and notify your employer of your injury, the damages, losses, and costs you’ve incurred as a result, and the restitution you expect for damages. The employer can make a decision to agree or to negotiate a settlement out of court. However, the majority of work-related injury cases, historically are strongly contested by the employer and insurer, and the plaintiff must file a formal work injury lawsuit in court to seek compensation.
Frequently, the court process will initiate and continue for some time, as both parties file motions, claims, responses, and so forth, trying to undermine the opposing party’s case. This continues until one party recognizes it has a substantially weaker case and cannot win. Then both parties may opt to settle out of court. But before you decide you have a certain victory, let’s look at two major challenges to your non-subscriber case you will face in court.
Two Significant Challenges Your Non-Subscriber Case Will Face In Court
The Sole Proximate Cause Defense
Under non-subscriber injury law in Texas, this is actually the only defense a non-subscribing employer has, and you can bet they make the most of it. Texas law only allows non-subscribers this single, rather difficult, defense. This limitation of possible legal defenses is another way of punishing non-subscribers for not subscribing to workers’ compensation coverage. In almost every case, non-subscribers use this defense, since it is their only hope. Consequently, you can expect it to be a major focus and issue in your case. Whole legions of high-blood-pressure insurance defense attorneys have built their careers around this defense. While you can anticipate it being a source of conflict in court for you, it is not an automatic airtight defense for your employer.
In order to win, your employer has to prove you were 100% responsible for your work injury. This requires your employer to prove you caused your accident entirely by yourself, and that no other causes (defective equipment, a slippery floor, or unsafe work procedures) contributed. It is rare that any person is 100% responsible for any incident. For this defense to be upheld, your employer would have to maintain 100% safe premises and equipment and have 100% observed totally adequate safety procedures at the time of your injury. Does this sound reasonable or likely to you? An employer who skimps on workers’ comp insurance expenses is also likely to skimp on safety precautions. For over twenty years, our Firm has been fighting for the rights of non-subscriber work injury victims. Call today to discuss your case and the options available to you.
Regardless of the limitations, sole proximate cause is your employer’s only defense, so they will undoubtedly attempt to use it. Your employer and their insurance company will initiate a full-scale investigation into your work habits and work history. They’ll review your employment records, talk with coworkers, and search for and collect evidence to use to prove you were a sloppy, inconsistent worker who caused your injuries at the time of the accident. They will try to destroy your reputation and make you seem like a careless worker who can’t perform a simple task without bringing disaster down upon your head. The seasoned high-end, savvy defense attorneys will try to prove their client has no liability whatsoever, by questioning your competence and ability to do your job. This literally adds insult to your injuries. The employer will talk with witnesses and try to get coworkers to say you make careless mistakes at work. The defense attorneys’ ultimate goal is to prove that on the day of your accident, your behavior was so sloppy and negligent, no one except you is to blame for your injury, Sad, but true—it’s just the nature of the game they play.
At our Law Office, we’ve seen these defenses hundreds of times and know exactly what to expect. We’ll prepare your case to withstand these attacks and prepare you for what’s coming. When your employer hires a shrewd, aggressive defense attorney, you need to counter with an experienced non-subscriber work injury attorney who can put the fault back onto the negligent employer, where it belongs. Remember the burden of proof in these cases rests with you, so don’t attempt to shoulder the burden alone. Our non-subscriber work injury attorneys are ready to help you get the compensation you need to move forward with your life after your injury. We will help you navigate through the legal process to get the results you want.
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