Have you been injured on the job?
At Perdue & Kidd, we frequently receive calls from people who have been injured on the job, asking about their rights and what they can expect from their employers and the worker’s compensation system. This article will attempt to explain some of the unique aspects of workplace injuries that occur in Texas.
Worker’s compensation insurance is insurance that is purchased by employers to cover their employees for injuries sustained while working on in the job – called “in the course and scope of employment” for that employer. Worker’s compensation insurance is what is known as “no fault” insurance, meaning that an employee will be paid for a portion of his or her lost wages and all medical expenses related to that injury regardless of fault. The employee need not prove that the employer was negligent. Further, the employee may recover even if he/she was negligent, although there are some exceptions (such as an employee may not recover if intoxicated at the time of the injury). The downside is that an employee may not recover such human damages such as physical pain, mental anguish, physical impairment, or physical disfigurement in a worker’s compensation claim. The employer benefits from worker’s compensation coverage because if an employee is injured on the job, the employee may only recover benefits from the worker’s compensation insurance carrier; the employee cannot sue the employer. The only exception is if the employee dies as a result of the incident, but the employee’s surviving spouse and children must then prove that the employer was grossly negligent. In Texas, the worker’s compensation claim is handled through the Texas Worker’s Compensation Commission as an administrative proceeding.
In every state and the District of Columbia, there is a requirement that employers carry worker’s compensation coverage. Some states require all employers, regardless of the type of entity and number of employees to have coverage. Some states require employers with certain minimum numbers of employees or revenue amounts to have coverage, but the minimum requirements in all states are so low that virtually all businesses are required to provide worker’s compensation coverage.
In New Mexico, all businesses with three or more employees are required to have workers’ compensation insurance. Coverage may be purchased voluntarily if the business has fewer than three employees. Construction businesses must carry coverage regardless of their number of employees. There are exceptions for some types of professions, such as domestic servants and real estate salespeople.
Texas is the only state in the United States that does not mandate worker’s compensation coverage. An employer may elect not to cover its employees. Those employers are commonly called “non-subscribers,” as they do not subscribe to worker’s compensation coverage. Employers that do not subscribe to worker’s compensation coverage usually base that decision on the costs. Worker’s compensation coverage can be quite expensive. However, the risk is that an employee injured in the course and scope of employment may sue a non-subscribing employer and the employer loses the common-law defenses of comparative and contributory negligence. That means that an employee recovers from his/her employer provided that the employer was negligent, regardless of the employee’s negligence. If the employee was negligent, but the employer was also negligent, the employee may recover full damages. Those damages include the human damages discussed above.
There is a trend in Texas among many large employers to become non-subscribers. Many of these are big-box retailers, grocery stores, and hospitals. They create variations of a Texas Workplace Injury Plan. To the employee, those plans look like worker’s compensation plans but they are very different. The plans usually cover medical expenses and lost wages. The primary difference is the Texas Worker’s Compensation Commission has no authority and will not require the employer to make any payments or provide medical care. Upon sustaining a workplace injury, the employee will report the injury within the company. The company will then direct the medical care, either through an in-house specialist or through what is called a third-party administrator. It is vital that the employee know that the person directing the medical care is working on behalf of the employer – NOT THE EMPLOYEE. In our experience, the goal of these people directing medical care is to get that employee back to work as quickly and cheaply as possible. They will often not approve necessary diagnostic testing, surgery, and rehabilitation. Many injuries have limited time during which medical care can help the employee or the injuries will become permanent. Additionally, most, if not all, plans have a mandatory arbitration provision. That means that if you decide to file a lawsuit either to recover medical expenses not approved or covered, or to recover your human damages, the employer will require that the case be heard by an arbitrator rather than a jury. The statute of limitations is two years, meaning that an employee must file suit/arbitration within two years from the date of the incident. It is imperative that an injured employee contact a qualified attorney such as those at Perdue & Kidd because these are complicated proceedings which usually benefit the employer.
Finally, if an employee is injured on the job through the negligence of a third-party, an employee may be entitled to recover worker’s compensation benefits and sue the negligent third-party. We often see this arise in situations where the employee works for a contractor at a refinery or plant, or works for the refinery or plant and is injured because of the negligence of a contractor.
There are other systems in place for employees injured while working for railroads and working either offshore or on navigable waters. We will address these injuries in another blog.
At Perdue & Kidd, we have extensive experience in representing employees who are injured on the job. We have tried these lawsuits in court and have arbitrated these cases when mandated by the employer’s plan. If you are injured on the job, please contact us as soon as possible so that we may protect your rights.