Practice · Workplace
In Texas, workers’ compensation is optional
Texas is the only state that does not require private employers to carry workers’ compensation. Whether your employer opted out changes everything about your claim.
The first question
Subscriber or non-subscriber?
A Texas employer that carries workers’ compensation is a subscriber. In exchange, it generally receives immunity from most injury suits by its employees, and your recovery is limited to statutory benefits regardless of how badly the employer behaved.
An employer that opted out is a non-subscriber, and the trade runs the other way. A non-subscriber can be sued directly for negligence, and it loses the common law defenses that would normally protect it. It generally cannot argue that you were contributorily negligent, that a co-worker caused the injury, or that you assumed the risk of the job. That is a significantly stronger position than the compensation system offers.
Non-subscriber negligence claims
Unsafe equipment, inadequate training, insufficient staffing, or a known hazard left unaddressed. Damages are not capped by a benefit schedule.
Third-party claims
Even when comp applies, an at-fault party who is not your employer can be sued separately. Property owners, contractors, equipment manufacturers and negligent drivers are all common.
Construction site injuries
Multiple contractors on one site means multiple potential defendants and a genuine question about who controlled the work.
Vehicle injuries on the job
A crash while working can generate both a comp claim and a claim against the at-fault driver at the same time.
Before you sign
The paperwork matters more than people expect
Many non-subscribing employers run an occupational injury benefit plan that pays medical costs and some wage replacement. These plans commonly require arbitration, contain a waiver of the right to sue, or make continued benefits conditional on signing a release.
Whether such a waiver is enforceable turns on when it was signed, how it was presented, and what the employee received in exchange. It is worth having reviewed before you sign anything, not after. The same goes for a recorded statement, which is routinely requested early and can be used to narrow the claim later.
- Report the injury in writing
- Ask whether the employer subscribes
- Keep a copy of every form
- Photograph the scene and equipment
Next step
Tell me what happened
There is no cost to ask and no obligation after. If your matter is not one I should handle, I will point you to someone who should.