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Certainly, we’d all be happier and healthier if every accident only resulted in a slight inconvenience or annoyance. Unfortunately, workplace accidents often result in serious damages and injuries. 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. 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. Before you decide you have a certain victory, you will still face major challenges to your non-subscriber case you will face in court.
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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 of 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. 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. 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 employee’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 Offices 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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