Non-Subscriber Work Injury Attorney
Work Injury Attorney Discusses 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. 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 “nonsubscribers.” 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. And after an accident, these employers do “pay the price”. However, this imperative to punish nonsubscribers 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 nonsubscribers who choose not to be covered by workers comp. In regular courts, injured employees can sue nonsubscribers without limit, and recover all damages (compensatory economic, non-economic, and even punitive) to which they are entitled.
Under nonsubscriber 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 nonsubscriber 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 a 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 nonsubscriber injury law, especially in the case of a severe accident or injury. As mentioned earlier, this is because the law frowns upon nonsubscribers, 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, nonsubscribers 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 nonsubscriber 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. 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 nonsubscriber, you can start to prepare your case. In order to file and pursue your nonsubscriber 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. 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. 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 nonsubscriber 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 nonsubscriber 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 land on the liability scale.
An experienced nonsubscriber 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 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’s 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 accidentally bumps a giant stacked display of Barbie Dolls and hundreds of boxed Barbies fall on you and your cart. It takes a while to dig yourself out, right your cart, retrieve your 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, toll-free 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. 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 nonsubscriber 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 nonsubscriber 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 that in these nonsubscriber 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 nonsubscriber 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.
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Two Significant Challenges Your Non-Subscriber Case Will Face In Court
The Sole Proximate Cause Defense
Under the nonsubscriber 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 nonsubscribers this single, rather difficult, defense. This limitation of possible legal defenses is another way of punishing nonsubscribers for not subscribing to workers’ compensation coverage. In almost every case, nonsubscribers 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 an 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 Law Firm has been fighting for the rights of non-subscriber work injury victims. Call today, toll-free 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. 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 this defense 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 nonsubscriber 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 nonsubscriber 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.
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. That is 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 nonsubscriber 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 work 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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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 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.
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 the 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 nonsubscriber work injury law firm 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 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
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 nonsubscriber 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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Determining Your Employer’s Liability and Culpability for Your Injuries is the First Step
Many of the current rashes of petroleum drilling and pipeline accidents can be caused by worn or defective rigging and machinery, or negligence that leads to explosions. Falling heavy objects slip, falls, and a cornucopia of other hazards are very common. We already mentioned that petroleum production workers are being pushed to their physical and mental limits every day. A lot of workers choose to take drugs to keep up the grueling work pace. Many drilling contractors turn their backs to this illegal practice, claiming to know nothing about it, though some of them silently encourage such unlawful behavior, which is typified by a lot of them not even testing their employees. Production is more important to them than safety.
Because of this employer’s “blind eye,” numerous petro-production mishaps occur such as broken bones, head and crush injuries, falls from derricks, and even deaths (at an alarming frequency). One reason for this callous behavior by petroleum production employers is because workers’ comp insurance provides them a “no-fault” coverage umbrella. This means drilling contractors and rig owners have a liability buffer that doesn’t significantly penalize them if they don’t provide a safe workplace. Those who subscribe to workers’ comp are rarely, if ever, sued by their injured employees because workers’ comp generally shields them from injury lawsuits, though there are a few exceptions. So if they don’t have to pay for the injury out of their own pocket, they view an employee who is hurt in a job-related accident as little more than the cost of doing business as a driller.
Texas oil and gas drilling companies are not required to purchase workers’ comp. So when you are injured on the drilling rig or pipeline you must quickly learn if your employer carries workers’ comp or not. Employers who have worker’s comp are “subscribers.” Those who don’t are “non-subscribers.” How you seek compensation for your injury is determined by the answer to this first, very important, question. The answer determines which one of a number of unique compensation methods and strategies is used to win your case.
The funding pool that pays workers’ comp claims for companies that subscribe to the programs comes from participating private insurance carriers. Subscribing companies are also protected from all but a few civil lawsuits. Texas workers’ comp does deliver a certain amount of financial relief to employees who are injured on the job site, mostly for your medical bills and short-term income loss. They also pay a modest amount of money for disability, but certainly not all that is needed. This “no-fault” insurance covers drilling and pipeline workers, no matter how the accident occurred or who was at fault. As you may already suspect, this quick and easy coverage comes with some serious financial risks for claimant workers. The limited amount of money received for the injury doesn’t always cover the total value of your actual damages, especially if the injury is severe, requires long-term care, or causes permanent disability.
Workers’ rights of access to fair reimbursement are highly dubious. This “donut hole” of substandard coverage in workers comp benefits for major injuries and disability (and lost wages) just don’t match-up with fair-market compensation levels. This is because workers’ comp benefits the employer, not the employee. They benefit the insurance companies, not the workforce in general. You can thank the legislatures in Austin and the insurance lobby for this “tort reform” legislation.
There is one exception where an employee can bring a lawsuit against their workers’ comp subscriber employer in both states. But being able to build an airtight case that proves gross negligence is problematic at-best without an experienced drilling accident lawyer to handle what is always a very complicated case.
Since only about half of Texas employers (and petroleum production companies) subscribe to workers’ comp, which leaves another very large group of employers who do not participate. We find it curious that many Texas drilling contractors, their subcontractors, and pipeline transport companies are willing to risk being a workers’ comp non-subscriber, which subjects them to a possible civil action for a petroleum production or drilling injury. Who can say? Those who do not subscribe run the risk of not only an expensive non-subscriber lawsuit but heavy fines (and possible prosecution by the state) for failing to participate in the workers’ comp program.
Be that as it may, eventually, the odds catch-up with non-subscribers and someone gets hurt. Then, because they aren’t protected, the injured worker can sue them for civil damages, without benefit caps. Some of the things non-subscribers attempt in order to avoid a work injury lawsuit is sinister indeed. Many employers try to sweep their non-subscriber status under the rug by claiming to have workers’ comp when they really don’t. They want to quickly close the matter by offering to pay the benefits injured workers normally receive from workers’ comp by asking them to sign what appears to be a workers’ comp release that accompanies what appears to be a nice check. You’d be surprised how many drilling and pipeline employers resort to this and how many of their frauds our experienced petroleum accident attorneys expose.
For an injured drilling or pipeline accident injury sufferer to win compensation from a non-subscriber, the only course of action is a civil lawsuit. An experienced petroleum accident attorney can easily determine the true nature of your company’s workers’ comp status and quickly take the best legal option available to you.
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The Best Legal Results Combine Thorough Investigations and Carefully Crafted Strategies
When you know whether or not your employer is a workers’ comp subscriber (or not), the next steps involve developing a specific strategy to get your deserved compensation from those liable for your drilling rig or pipeline-related injury. There are several options, and combinations, from which to choose. You’re already aware of the exception that allows you to sue a workers’ comp-covered employer for gross negligence. So if your loved one was killed on the rig or at a pipeline and our investigation proves your employer’s gross (or willful) negligence, then you should definitely file a civil wrongful death lawsuit. In Texas, there is a side issue that comes into play when it comes to wrongful death, and it’s an advantage to your case.
Texas workers’ comp’s no-fault insurance carries much lower standards of proving negligence when calculating the value of a claim. This is especially true if the accident causes a worker’s death. Those same lower standards of proof apply in civil cases surrounding gross negligence in death-related lawsuits, including non-subscriber cases as well, so don’t forget that. So if a family member has died due to anyone’s gross negligence on a Texas drilling rig or pipeline, proving it in civil court is easier.
We have also mentioned that injured workers who are employed by non-subscribers can be directly sued. But in this case, a more practical and supplemental approach to either a workers’ comp claim or civil suit, regardless of whether the employer is a subscriber or not, involves third-party claims and lawsuits against those whose negligence helped cause the drilling or pipeline worker injury. Faulty or improperly restored equipment that breaks and causes an injury, even if expired warranties exist, might expose the manufacturer (or workshop that rebuilt it) to a defective product lawsuit. The owner might not have cared for or serviced his equipment properly, or it was old and not reconditioned at all before being put back in service, or the owner of the rig (or the drilling contractor) did not create a safe workplace, either through oversight or willfully.
These are a few of the many instances of employer (and third party) negligence for which defendants can be held legally accountable for your damages that include the injury itself, medical bills, pain, suffering, lost wages, and disability. We often find that employees of contractors or subcontractors, or other vendors the owner might have allowed on the job site might have caused the accident. Is it possible that even the corporation that owns the rig or the owner of the lease if he or she is a legal “working partner,” shares some of the blame? Many of these scenarios fall under the purview of the personal injury law called respondeat superior. It states that employers of those found to be liable for an accident, even if they don’t have a direct hand in the mishap, are ultimately responsible for the actions or inactions of their employees.
So, once the above facts of liability in the case are known, your drilling accident attorney generally has two basic options to choose from in order to develop your winning legal strategy:
You can sue your workers’ comp non-subscriber employer and all identified third parties for damages.
If your employer is a workers’ comp subscriber, you will file your normal claim and augment its coverage benefit cap with targeted civil suits against all third parties your attorney’s investigation has identified who should pay supplemental damages in addition to that claim. Often, a workers’ comp claim and third-party lawsuits combine to produce fair liability compensation.
Your lawyer knows how to look before he leaps down either of those prospective strategies, so it doesn’t happen immediately. Because he has to learn, without a shadow of a doubt, who did what, when, and whose negligence caused your injuries. His ability to properly (and immediately) investigate the accident scene and the roles everyone played in your drilling rig or pipeline accident is critical. He also must research the financial assets of all liable defendants too. A lawsuit is a waste of time if the guilty defendant doesn’t have the money to pay damages. These are all good reasons why it’s best to hire an experienced oilfield accident attorney to safely navigate you through this intricate case, and the investigation that produces the evidence which leads to your best legal strategy.
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Defendants Avoid Paying Your Damages by Trying to Deny the Employer-Employee Relationship
After the sole proximate cause defense, another popular method for employer-defendants to avoid workplace injury liability is to claim you are actually not an employee in the traditional sense. They (or their insurance companies and attorneys) know they are not liable for injury damages to their subcontractors, or their subcontractors’ employees. So in order to distance themselves from the prospect of an injury case, they will try and claim you are a contractor. But in the face of overwhelming evidence that you are an employee, proving their claim in court is hard. Remember, the burden of proof is on you. And that includes the burden of disproving every charge they fire at you, which means you must have irrefutable evidence to counter your employer’s claim that you are a contractor.
While many drilling and pipeline companies claim this non-employee point, often the employer knows that a true employer-employee relationship exists and that you have the right to receive damages from this defendant. Here are some of the ways to disprove this employer ruse and confirm an employer-employee relationship exists.
Social security or taxes have been withheld from your paycheck by the employer.
The essential equipment for the job was supplied to you by the employer.
Your work has been regularly managed, overseen, or inspected by your employer.
A specific work schedule has been set for the job by the employer. You are not free to come-and-go as you please.
Your employer requires you to sign a document that limits your rights while working for the employer. The most common examples are taking a drug test or signing a document that states you comply with an employee handbook.
You have been employed for an undetermined period of time and not just for a single job.
You are paid by a salary or an hourly wage and not on a by-the-job contract.
Sometimes, an employer might claim you have been “borrowed” from another company, or hired through a third-party employment agency. The rules for determining the working relationship are closely related to those above. Depending on the actual wording of the defendant’s allegations, there can be some differences in determining how you prove the employer-employee relationship. Some of these conditions may include:
If the borrowing employer can hire or fire you at any time, you are clearly an employee. Otherwise, you are a contractor
Most of the time, if the borrowing employer can pick a particular worker, then the worker is an employee. If the agency that provides the worker is allowed to send any worker they choose, the worker is a contractor.
If you provide your own tools, then you are a contractor. If the employer provides them, then you’re an employee.
If the agency can substitute the borrowed worker for another at-will, the worker is a contractor. If the lending agency cannot, then the worker is an employee.
If you are borrowed indefinitely, then you are an employee. But if you’re borrowed for a specific project with a specific date of completion, then you’re a contractor.
If you are borrowed or “leased” because of a skill that is unique or hard-to-find, then you’re a contractor. But on the other hand, if an employer borrows you to fill a position that just about anyone can fill, then you’re an employee.
If the borrowing employer agrees to pay your social security and income tax, then you’re an employee. If the borrowing employer does not accept this responsibility, then you’re a contractor.
In cases where you were actually hired by an employment agency to perform work for a particular drilling contractor or pipeline company, there’s a good chance the employment agency subscribes to workers’ comp as almost 90 percent of those firms, and all of the reputable ones, do. So in this particular case, you would file a workers’ comp claim against the agency, and parties at the petroleum jobsite then become third-party defendants to your accident damage case. The same thing goes if your employer loaned you to another company and you were injured on that job site.
The drilling accident attorneys with our Law Office conduct methodical investigations of your employer to prove any one of the standards that determine an employer-employee relationship exists. Most often, all we need to prove is one (or two) of the above points and the link is legally established. We will depose co-workers, review contracts, and examine pay stubs to prove an employer-employee relationship existed when you suffered your petro-work injury.
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To the Defendant, It’s All About Not Paying You the Damages You Deserve
As you know, personal injury defendants break down into two basic categories. They are either covered (or represented) by an insurance carrier, or they are not. No matter what category they fall into, they fight tooth-and-nail to avoid paying your injury damages.
We’ve spoken about traditional insurance-related defenses, but at least belligerent insurance companies and their lawyers who are pitted against you are governed, somewhat, by a rather stringent legal code of ethical behavior. There are no such rules governing the behavior of self-insured contractors and subcontractors who are defendants in your lawsuit, or the non-insured. These defendants resort to a bag full of tricks (many of them questionable and some of them illegal) to defend themselves against your civil damage suit.
You will likely deal directly with an officer of the self-insured drilling or pipeline company. This person’s salary comes out of company profits. If injury damages are paid to you, they come directly out of company funds. This means your employer or that third party is taking money out of his own pocket. Small wonder a self-insured company officer uses any trick he can think of to deny your claim and protect his company’s (and his personal) assets.
These people will deliberately destroy evidence or intimidate witnesses and even bribe them. Sometimes they’ll physically threaten you, even your family. Often, we file motions that prohibit anyone with the company from inappropriate behavior towards our clients. Such motions can also demand they make no attempt to communicate with our clients, or their families unless one of our attorneys is present.
What You Need to Do (and Not Do) Right Now to Win Oilfield Injury Compensation
Before you speak with an insurance company, or accept even a single dollar of payment or compensation from your employer, or sign anything, or attempt to file a lawsuit on your own, you must contact a competent lawyer.
Your petroleum drilling or pipeline employer (or its insurance provider) wants you to accept a low-ball settlement and go away. They don’t care if it’s enough or not. In order to prevent them from taking advantage of you, don’t talk about your intentions or anything else about the injury with your employer, a third party, anyone with any insurance company, or even with your co-workers without a lawyer protecting you.
You must act swiftly in order to present your best case. You only get one shot at fair damage compensation. Make it your best because you can’t go back and ask for more later. Quick action is vital because evidence and the physical details of the accident begin to fade almost immediately. Witnesses change their stories, or forget what they saw, or even disappear. All of these, and more, can torpedo your ability to win the restitution you and your family deserve. This is why you need to act fast.
An experienced drilling accident lawyer with our Law Office can help you win your liability case. Call us now toll-free to arrange a free consultation and find out how we can help you. We can answer all of your questions and tell you the best way to win the compensation you deserve from your injury on a drilling rig or pipeline.
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