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I'm Hurt And My Employer Doesn't Have Workers' Comp! What Can I Do?

Posted by Jimmy Sunosky | Apr 08, 2020 | 0 Comments

Navigating a Non-Subscriber Claim in Texas

Imagine the scenario: You're working and are injured while working. You find out your employer hasn't subscribed to Texas workers' compensation insurance. Meaning, they don't have workers' comp to compensate you for your injuries and pay you while you are off work due to your injuries. In Texas, there is still a way for the worker to be compensated for injuries sustained while working for a “nonsubscriber,” an employer that doesn't have workers' comp insurance. You should understand it isn't a requirement for employers to subscribe to workers' comp, and if they choose not to carry workers' comp insurance, Texas law in certain ways “punishes” these employers for not carrying this type of employee protection. However, this does not mean it is easy. The law is complex and you will need an experienced attorney, well-versed in these issues, to guide you through the process.

What do I need to prove?

First, an injured employee must prove she was injured while in the “course and scope of her employment.” This sounds simple, but a common defense set forth by non-subscribing employers is the injured person was not in the course and scope when she was injured. The term “course and scope” has a specific legal meaning, and you will have to prove your injury resulted from working.

Second, and probably the most important, you'll have to prove the negligence of your employer or a co-worker. Negligence also has a specific legal definition and basically means the employer failed to act or acted in an unreasonable manner under the given circumstances. Each case is different and negligence can be broad. However, Texas Courts have routinely held the following are acts of negligent conduct:

  • Failing to provide proper training

  • Negligent hiring

  • Providing employees with faulty or dangerous equipment

  • Having policies and procedures that are inadequate

  • No procedures or policies to address known hazards

  • Negligent supervision

  • Failure to ensure employees follow OSHA guidelines

Third, you'll also need to defend yourself against the defenses that are likely to be asserted by your employer. These defenses work differently in a non-subscriber case, which is why it is important that you have an attorney that is well-versed in lawsuits involving non-subscribers.

What defenses can I expect from a non-subscribing employer?

Your employer is likely to assert standard defenses to defend against your claim. These defenses include things like contributory negligence (i.e. the accident was your fault), “unavoidable accident,” (the accident happened without anyone acting negligently), and other commonly used defenses.

However, a non-subscribing employer is only allowed to use certain defenses under Texas law:

  • Intentional acts. Your employer can claim you injured yourself on purpose. 

  • Intoxicated employee. Your employer can claim you were intoxicated and that's why you were injured, not because of their negligence.

  • The employee signed an enforceable post-injury waiver. This is essentially an agreement that you sign after your accident that allows for benefits and medical care provided by your employer, even if they are a non-subscriber. However, this also states no lawsuit will be filed in exchange. In reality, however, this isn't really a "defense" that your employer can use against you; it bars your case from recovery.

  • Sole Proximate Cause. This is an argument that your employer can use, exclusively pointing the blame at you, the injured worker. If your employer can establish that the accident was caused solely by you, then they can avoid being held liable for the injury at question. 

  • The accident was the result of a commonly known hazard. This is self-explanatory, but an employer can argue that their employee was injured while doing something that involved a commonly known hazard and that the employee wasn't owed any kind of warning. For example, an employee while mopping, slipped on the wet floor.

  • The employee was performing a routine job. For many workers, there are parts of their job, like lifting heavy items, that are routine and not at all out of the ordinary. Usually, an accident happens because of something unusual that posed a threat.

  • Other tactics. The employer will always try to use other tactics to show a jury that you're not a “good person.” They may bring up issues to take away from your character and may use tactics like surveillance or monitoring your social media outlets.

Experienced work injury attorneys can help you when your employer seeks to use these defenses.

What should I do?

You should immediately contact attorneys experienced in this type of claim. Non-subscriber law is intricate and complex, and you are dealing with an employer who has a team of lawyers working for them. The attorneys at Hernandez Redden Sunosky, LLP can take a look at your case, evaluate the facts and will provide a 100% free consultation. Don't go it alone, call Hernandez Redden Sunosky, LLP today to discuss your case at (713) 981-4100 or email us at [email protected].

About the Author

Jimmy Sunosky

Jimmy Sunosky is an AV Preeminent rated lawyer and has been recognized as a Super Lawyer by Thompson Reuters, a Top Lawyer by Houstonia Magazine and a Top Lawyer H by Texas Magazine. He is dedicated to helping accident victims and their families find justice and obtain financial compensation after suffering serious injuries or death. Before co-founding Hernandez Redden Sunosky, LLP, he worked as an insurance defense lawyer. He applies the knowledge and experience gained while working with insurance companies to his work as an advocate for the injured.


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