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Frequent Problems in Nonsubscriber Work Injury Cases
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What Happens if My Employer is a Workers Comp Non-Subscriber?
Personal injury litigation involving a claim filed by a worker against a non-subscriber employer in a completely different manner than those regarding subscribing companies. When the Texas Legislature enacted workers comp law, it did so with the intentions of trying to lighten the burdens of an incredibly overwhelmed state legal system. The thinking was, if the instances of worker’s injury lawsuits could be lessened, the entire legal system might be able to work much more efficiently. That’s why subscribers are shielded from lawsuits involving the workplace. Consequently, the law looks unfavorably toward companies that choose not to subscribe to workers comp insurance. You can say the law, in effect, “punishes” non-subscribers to leaving them wide open to personal injury litigation. It is far easier for injured workers to gain just restitution for medical expenses, lost pay, and pain and suffering from a non-subscribing company than it is a subscriber. The obvious difference is that an injured worker can sue a non-subscriber. Since there is no workers compensation claim to file in this kind of case, a victim will not be subjected to the onerous bureaucracy associated with the workers’ comp claims process.
While it may seem like a slam-dunk, that it would be very simple to win a personal injury lawsuit against a non-subscriber, in reality, it’s not. A plaintiff, in this case, does, indeed, have more rights. But that in no way means the process is an easy one. These kinds of cases have a lot of complexity surrounding them. Experienced attorneys – by either working for the defense to minimize compensation awarded or for the plaintiff to increase compensation – can use these complexities to the benefit of their client. The attorneys at our Law Office are extremely familiar with non-subscriber personal injury litigation and can put that experience to use for you in making sure you are fairly compensated for the injury you have suffered due to the negligence of your employer.
Sometimes a claim can be resolved amicably out of court. Many times, however, that doesn’t happen and a lawsuit gets filed as a result. As stated before, when a case goes to trial, the plaintiff bears the burden of proof. Your side must prove the accident that led to your injury was caused by the employer’s negligence, and that you have incurred lost wages and lost future earning potential, medical expenses, and both emotional and physical pain and suffering as a result. This is another key difference in cases involving subscribing and non-subscribing defendants. In any case, involving a subscriber, “gross negligence” has to be proven – basically, the plaintiff has to prove that an employer habitually and recklessly created a hazardous workplace environment and that an injury-causing accident was inevitable. In a case involving a non-subscriber, however, the plaintiff needs only to prove “standard negligence,” meaning that someone’s momentary lack of focus led to the accident. This may be much easier to prove, but it still comes with several pitfalls.
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The Employer/Employee Relationship
There may be one other method a non-subscribing company will use in order to defeat a claim. Even though it could be as flimsy as the sole proximate cause defense, it still must be taken seriously. It can be difficult to combat. What a non-subscriber might do to avoid having to pay your claim is to try and prove that you, in fact, were never really an employee of the company, but a contractor. If they can prove that an employer/employee relationship never existed, they can successfully avoid paying your claim. In Texas, contractors are responsible for their own safety in the workplace. Thus, if the company can prove you were a contractor, they cannot be held responsible for the accident that resulted in your injury. Our law firm has dealt with this kind of tactic many times. Even if the company that hired you always saw you as a contractor, that doesn’t mean that you’ll be regarded that way in the eyes of the law. There are many ways to prove that the employer/employee relationship was in full effect at the time of your accident.
Again, though, the burden of proof lies with you, the plaintiff, in establishing that the employer/employee relationship did, in fact, exist. There are quite a few methods we use to establish that relationship. If any of the following took place, it is likely you will be considered an employee of the company in the eyes of the court.
The employer withheld Social Security or taxes from your paycheck.
You were paid either hourly or through some sort of salary: weekly, bi-weekly, monthly, etc.
You signed a document that in any way limited your rights, such as a form stating you read and understood the company’s employee handbook, or a form stating that you agreed to submit to a company-mandated drug test.
Your employer inspected, managed, or otherwise oversaw your work on a regular basis.
Your employer established a definitive work schedule for you. For example, you had to be at work at a certain time, were only allowed breaks at certain times, and could not leave until a certain time signified the end of the workday.
Your employer, and not yourself, was responsible for providing the tools and equipment necessary for you to perform your job.
The workers’ comp lawyers at our Law Office know how to use documented evidence, such as pay stubs, other paperwork, or the testimony of co-workers, to successfully prove the existence of an employer/employee relationship. Doing so will vastly improve your chances of winning just restitution in a personal injury lawsuit involving a non-subscribing company.
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Why You Can’t Count on OSHA to Help
The Occupational Safety and Health Administration, or OSHA, is a federal agency that plays a vital role in trying to ensure the safety of workplace environments throughout the United States. You’ve probably seen their guidelines posted somewhere at your job, maybe in the break room or the main office. So seeing those guidelines may lead you to think that if you suffer some sort of work-related injury, you can count on OSHA to help you win any litigation that may take place. As important as that agency is, however, the unfortunate truth is it can’t really help you at all.
OSHA serves a vital role, but as vital as that role is in our country, the agency will be of no use to you in your case. OSHA investigators are stretched thin because of budgetary limitations, so there’s probably very little chance they will be able to be present at every workplace accident scene. Even if they do show up, however, their only role will be to put together a report on what happened and make recommendations to your employer on how to prevent such an incident from occurring again. This is typically a very general report used by the federal government, and normally not very specific to your case. And OSHA is not particularly concerned with who is to blame for the accident. All they want to do is enforce federal safety requirements and try to ensure that the accident doesn’t happen in the future.
OSHA’s main goal is deterrence, but even in this aspect, their hands are pretty well tied. OSHA can levy a fine against a company that violates safety regulations, but its fine schedule is seriously outdated. It hasn’t been updated since the 1960s. To put that into perspective, a gallon of gas didn’t even cost 50 cents back then. So OSHA fines normally don’t amount to much more than a slap on the wrist of the offender. The intentions of the agency are noble, but it doesn’t really have as much power as you may think. As we already said, you can forget about OSHA being of any help in your personal injury case.
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So You’ve Suffered a Workplace Accident Injury. What Happens Next?
The workers’ comp lawyers of our Law Office have won thousands of personal injury cases and helped injury victims just like you reap millions and millions of dollars in awards, getting the compensation they deserve for the physical and emotional trauma they’ve experienced, and the medical expenses and lost wages they’ve incurred. We would like the chance to do the same thing for you. As soon as you possibly can, call us toll-free for a confidential and free consultation regarding the specifics of your case. If you hire us, we will immediately launch a thorough investigation of all the aspects of your accident. Time is of the essence in doing so, because critical evidence can often disappear if it is not gathered quickly enough. Without that evidence, your chances of winning a lawsuit are greatly damaged.
One thing you should NEVER do when you’ve suffered an injury due to a workplace accident is to sign any sort of document that will eliminate your right to sue. You’d be surprised how many injury victims will fall victim to an aggressive insurance adjuster or defense lawyer and sign away their rights in exchange for a quick settlement. They soon realize the devastating mistake they’ve made, however, when they see what kind of pittance they’ve signed for; a pittance that won’t come anywhere close to providing them just compensation for the lost wages and medical bills they’ve incurred.
Do NOT let that happen to you. Call us as soon as you possibly can so that we can go over the details of your case, clearly spell out all of your legal options, and then get to work in order to ensure you get the just compensation for your injury that you deserve.
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CONSTRUCTION ACCIDENTS
Our Construction Accident Lawyers are Here to Discuss Your Case for Free
Our Law Office has been litigating personal injury accident lawsuits for over twenty years. They have settled thousands of personal injury cases successfully. If you have been injured on a building site, you need a good construction accident lawyer to represent you.
Give our Law Office a call today and get the experience and success on your side to help you in your case. Our consultation is free and so is the call. Get in touch with us now.
Wherever you look in Texas it seems, there is some type of construction being done. Whether it is work on the roads or new houses going up in a new subdivision, there is no shortage of construction projects in the area. With that kind of building and repair taking place, there is always the potential for construction accidents. It’s not a question of if, but when they will happen.
So what takes place if it is you who gets injured on a job-related construction site? You should be aware that many factors are involved. For example, some of these things are whether or not a company carries workers’ compensation insurance, and if you are an employee or only a contract laborer. Inexperienced lawyers will have a hard time navigating the legal waters of construction site accidents, especially when considering the potential complexity of each situation. Even more so will you have difficulty if you try and work your own personal injury claim.
That is why you need to hire an experienced, construction accident lawyer like the ones at our Law Office to litigate your case. Our team has over twenty years of experience in resolving workman’s compensation insurance problems for those injured on work sites. We stand ready to help you understand the options you have if you have been injured or lost a loved one in an accident on the job. In addition, we want you to be aware of the obstacles that await you if you decide to take this legal journey to right your wrong.
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Non-Subscribers to Workman’s Compensation
Non-subscribers of workman’s compensation insurance have a different set of variables involved in their lawsuits. When dealing with non-subscribers, you are much more likely to get a company that will not settle immediately for the fact that they are protecting their own money and resources. They are more likely to aggressively defend themselves against such accusations that may be levied against them. When a claim is filed against a non-subscriber, they have the chance to settle out of court, but if they do not, the injured party, or plaintiff, has the burden to prove that an injury did occur at the hands of the company. Fortunately, the level of proof is much lower than that of subscribers to workman’s compensation insurance.
Defining Sole Proximate Cause
The main obstacle to overcome regarding non-subscribers is the lone defense that they can legally employ – sole proximate cause. Sole proximate cause is when a person is one-hundred percent responsible for their own injuries. In such cases, the company, or defense, will hire specialized attorneys who are skilled at shifting the blame to the injured worker. They will try and show that the cause of the accident was completely due to the actions of the injured individual and not because of the company. This of course can be a difficult proposition for the defense, since they have to prove one-hundred percent. This makes non-subscriber cases advantageous for the plaintiff. If you have been injured in a construction site accident, it is important to have the advice of a qualified construction accident attorney to help you decide if you have a viable case against a non-subscriber. Give our Law Office a call today toll-free and receive your free consultation.
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Contract Labor Versus Company Employer
Although the sole proximate cause defense is the only legal defense afforded to a non-subscriber, it is not the only defense period. Often companies in an attempt to avoid lawsuits will hire contract labor. With contract labor, there is not the same legal liability involved in the case of an on-the-job accident. This allows the construction company to avoid its responsibility more easily.
By definition, contract labor is labor that is hired on a per-job basis and in which no tools are provided and no specific times to work are given. In addition, no supervisor is supposed to give direct orders on how to complete the task. These definitions along with several others make up the contract employee–company relationship. By contrast, the employer of a company is legally more protected and the company has much more legal liability in regards to him. The employer is usually provided his tools, told the time to work, and given instructional supervision of some sort.
However, companies will try and stretch the definition of a contract laborer to fit their needs. This is where the knowledge and know-how of a veteran construction accident attorney come in handy. Our Law Office can do investigative research that will reveal the actual nature of the relationship between the company and the injured worker so we can help you develop a solid case.
Below is a list of definitions of which any will constitute an employer-employee relationship.
Withheld taxes on check
Important equipment or tools provided by the company
Set work hours
Direct inspection and oversight of work done
Taking a drug test or limiting your rights
Being employed for not only a single project but for an undetermined amount of time
You are not paid on a per-job basis but by the hour
If any one of these is applicable to your situation, you may actually be an employee of the company, even though they claim you are not. If this is the case, you may be entitled to sue and receive compensation for your injuries. Our Law Office can help you make that important determination. Give us a call today toll-free.
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The Problem With O.S.H.A.
O.S.H.A. stands for the Occupational Safety and Health Administration. It is a government agency that sets the standards for the workplace and levies fines against companies that break those standards. Because the standards were put in place in the 1960s, they are outdated and sometimes inadequate in protecting workers. In addition, the fines given to companies breaking them are so small that they amount to nothing more than a slap on the wrist. These companies sometimes will go on paying O.S.H.A. fines instead of the cost of making their work environments safer.
Therefore, do not expect that you will not need an attorney just because big brother O.S.H.A. is there. In addition to being ineffective in dealing with non-compliant companies, O.S.H.A. will not get compensation for injured workers. They will not collect medical expenses, pain, and suffering, or lost wages on your behalf. O.S.H.A. only deals with the company at large to help prevent future problems. They are only interested in keeping documentation that states that a company is in good stead with its procedures and standards.
For these reasons, it is extremely important to have a qualified construction accident attorney on your side. You need to have solid legal counsel to represent your real needs so you can get the reparation you legally are entitled to receive.
If you have been injured in a construction site accident the first thing to remember is not to sign anything without first consulting a qualified construction accident lawyer. They will make sure you do not end up signing away the potential settlement that you really deserve and not the first low-ball offer that your company will make.
Second, you must remember the importance of immediate action. Evidence on any construction site begins to be lost immediately after the accident occurs. Numerous workers, machines, and weather all can change crucial evidence that may help prove your case. If you hesitate you may regret it later. Our Law Office is extremely skilled at the art of investigation and can take swift action on your behalf that can save important evidence from being lost. Every minute you wait will make it more difficult for you to potentially make a viable and robust case for yourself.
So do not hesitate to take advantage of our twenty-plus years of experience. We are here twenty-four hours a day, ready to answer your questions. We are qualified and we know we can help. Call us toll-free for your free consultation.
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How does Workers’ Compensation Apply to Workers in the Construction Industry?
The first thing you will need to find out is whether or not your employer is a Workers Comp Insurance Subscriber or Non-Subscriber. This may seem like a straightforward question and answer, but the truth is, many low to mid-level construction managers may not have the answer or understand the question. The higher your manager has to go up the food chain to get an answer, the longer you will have to wait, and the response may be incomprehensible. The attorneys at our Law Office are here to help you navigate through the bureaucratic mess and ensure that you are compensated fairly.
Workers’ compensation provides compensation to workers injured on the job while at the same time providing subscribers with a high degree of immunity to lawsuits, except in the rare case that a worker dies and the employer was grossly negligent. In this case, the worker’s family may file a wrongful death lawsuit. Due to the current legal structure of the workers’ compensation insurance system, if you are injured doing construction work for a company that carries workers’ compensation insurance, you cannot file a work injury claim.
If You Can’t Sue Your Employer Because he or she has Workers’ Comp Insurance, What Can You do?
You may be able to file a lawsuit against other parties to recover financial damages or get the relief you need. Other defendants in construction accident cases often include property owners who own or control the job site, other contractors, the general contractor, equipment manufacturers, and leasing companies.
Any of these other defendants could provide you with additional compensation to pay for your injuries. Our attorneys can conduct thorough investigations to determine exactly how your accident occurred and identify all potential defendants in your case. We are dedicated to finding every possible source to secure the compensation you need.
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What Benefits Should You Expect to Receive Under Workers’ Comp?
Up to 70% of any wages lost during recovery time in which you were unable to work.
Note: the max on this is capped at $600/week.
If the injury impairs you for life and renders you unable to return to work, you may be entitled to this benefit for the rest of your life.
Per diem compensation for mileage driven to and from places where you obtained medical treatment, prescriptions, and other necessary medical supplies.
100% coverage or reimbursement for any medical treatment, prescriptions, or over-the-counter medications and supplies related to the specific injury in question.
Non-subscriber Lawsuits
If your employer is not a Workers’ Compensation Insurance subscriber, you may pursue any of the following legal remedies:
Construction Accident Law Suit – This kind of lawsuit can help you recover:
Past and future medical expenses.
Lost wages from time spent recovering from injuries.
Compensation from lost earning capacity due to your injuries.
Compensation (damages) for your physical pain and mental anguish.
What if my Employer Thinks They are not Liable Because I was Working Alone and the Accident was my Fault?
Many construction companies may think that makes it a clear-cut case in their favor, but the truth is, that even if you were working alone, your employer was responsible for providing you with the proper tools and safety training. Consider the following:
Did they provide you with proper training for lifting heavy objects, working high above the ground, or handling hazardous materials?
Did they provide you with proper safety equipment that was maintained and in good repair?
Did they fail to provide you with enough fellow employees to assist you in the task in which you were injured that the injury could have been prevented?
If the answer to any of these questions is NO, then your employer may still be liable for your injuries if they are a nonsubscriber. Our experienced attorneys can trace back through the factors involved in your workplace accident and uncover any parties who may share liability for your injuries and help you assess which legal remedies are worthwhile for you to pursue.
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Are You a Contractor or an Employee?
Because Texas law says only general employees are eligible to file construction work injury suits or workers’ comp claim, many employers in the construction industry believe that having workers sign waivers that state they are contractors renders them immune to personal/workplace injury lawsuits.
However, the State of Texas has case laws that have been established that protect workers from falling into this trap by instituting standard criteria by which the existence of an employer-employee relationship is established regardless of whether you are listed by the company as a contractor or otherwise. These standard criteria evolved out of a volume of related cases in which similar determinations were made by the courts.
Based on Texas case law, an employer-employee relationship may be proven if:
The contract states the worker is an employee
The worker is working exclusively for that company
The employer provides the tools or materials the worker uses to complete the work
The employer manages the worker at various points throughout the project
The amount of time the employer is expected to continue working for the employee is not specified
If the worker is paid by the hour¸ rather than by the project
The borrowing employer can hire or fire the employee
The borrowing employer requested to use a specific employee
The borrowing employer provides the tools and materials necessary for the worker to complete his or her job
The lending employer cannot interchange the borrowed employee with any other worker
The borrowed worker is used to fill a position that almost anyone could fill
The borrowing employer pays the worker’s taxes and social security
These very technical details along with your employer’s status as a subscriber are critical in determining what benefits you are eligible to receive and whether you have been receiving them fairly.
To ensure that you are not cheated out of the economic relief and potential damages you deserve, make sure that you absolutely DO NOT accept any offer of payment from a construction company. DO NOT sign any documents without having them reviewed by an attorney. DO NOT make or write out any statements detailing the incident.
Our Law Office has been handling construction accident injury cases in and around Texas for more than 20 years, and we are here to help you understand your rights and responsibilities so that you can get the best legal remedy you deserve.
If you think that you may be ineligible to recover benefits because you were a contractor, our construction law experts can review the criteria of your employment with the construction company and determine if you are actually still eligible for legal treatment as a general employee by meeting the credentials established in Texas state law.
Why Should I Choose Your Law Office to Help me With my Case?
We have been helping injured parties with both subscriber and non-subscriber cases all over the state of Texas for more than 20 years.
Our experienced lawyers can efficiently determine which kind of case you have and what potentially liable parties you should pursue to get the best possible outcome.
We have won cases against almost every major insurance provider in the United States and have a proven track record that encourages many defendants to make generous out-of-court settlements, which saves you time and money. Our dedicated attorneys care about you and will do everything possible to get you through the process as quickly and painlessly as possible. We will fight to ensure you get the compensation you need to get back on your feet and help ensure that the punitive remedies in your case encourage the construction company to be less negligent and understand that safeguarding their employees is of the utmost importance if they wish to remain in business.
Call us today for a free consultation.
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