(281) 587-1111

On the Job Injury in Texas-is it Worker’s Comp or a Personal Injury Case?

Texas Personal Injury or Worker’s Compensation Claim?

This is a question that comes up frequently in our Houston personal injury law practice. Someone is injured on the job and wonders what is the appropriate procedure to obtain necessary compensation for their injuries.

The answer whether the claim is a personal injury one or one covered by worker’s compensation, or both will depend upon the facts and circumstances of the accident.

worker's comp or personal injury?

Generally, on-the-job injuries are personal injuries, and if covered by worker’s compensation a claim against your employer would be a worker’s comp claim.

However, if a 3rd party was a cause of the on-the-job injury, you may be able to pursue the third party with a personal injury lawsuit. In addition to making a worker’s comp claim.

If you were injured on the job and your employer did not have worker’s comp insurance, you may be able to pursue a “non-subscriber” case against your employer.

To determine which direction to proceed with your injury claim you must answer three questions.

Questions about on the job injury in Texas

Texas Worker’s Compensation Claims

in Texas, Worker’s Compensation is available to employers who choose to purchase it. If you are covered by Worker’s Comp, in Texas, your case against your employer will be limited to a Worker’s Compensation claim.

The biggest difference between a personal injury claim and a workers’ compensation claim is that with Worker’s Compensation if you are injured on the job and your employer has Worker’s Compensation you do not have to prove fault to collect benefits.

Worker’s Comp Medical Benefits are Generous

With Worker’s Compensation, the injury victim is usually well taken care of from a medical perspective but human damages such as pain and suffering are little to nothing.

Compensation with WC does include such things as weekly benefits, permanent impairment benefits, medical expenses, and rehab.

You Can’t Sue Your Employer if They Have Comp!

If your employer had workers’ compensation coverage in effect at the time of your accident, your claims directly against your own employer will be limited to those benefits available under Worker’s Compensation in Texas.

In short, you can’t sue your employer for the on-the-job injury and your recourse is the Worker’s Compensation system.

Human Damages are Limited with Worker’s Compensation.

Most Workers’ Compensation victims with very serious injuries are left holding the bag except for their medical expenses as the statutory scheme does not allow for items of compensation that are available to other personal injury victims.

You Don’t Have to Prove Fault with WC.

If You are Covered by Comp You Don’t Have to Prove Fault

The requirements to be paid from worker’s comp in Texas is that you were injured on the job and your employer has coverage. Proving fault is not necessary.

Is it Worker’s Comp or a Private Insurance Policy?

Many companies have gone to an alternative insurer other than Worker’s Compensation to reduce costs.

These plans if they are not registered as workers’ compensation with the state of Texas and generally do not automatically qualify the employer to the benefits of worker’s compensation immunity for the employer because of an accident on the job.

Texas provides a method to determine if your employer has Worker’s Compensation coverage in effect at the time of your accident. Or you can reach out to the HR department for verification of coverage.

You can contact the state of Texas Worker’s Compensation Commission for questions regarding workers’ compensation, benefits, and claim procedures. See https://www.tdi.state.tx.us/wc/.

With Private Insurance Be Careful What You Sign

It is important that the injured worker not sign paperwork without speaking with an attorney about the consequences of such signature, particularly when dealing with an insurance policy other than WC.

Nonsubscriber Cases Against Your Employer

If your injury occurred on the job but your employer was not a subscriber to worker’s compensation in Texas, you may be able to bring a “nonsubscriber” case against your employer.

Texas Law on Nonsubscriber Cases

Texas Labor Code Sec. 406.033 covers the law for nonsubscriber cases in Texas.

Texas Labor Code Sec. 406.033 provides:

(a) In an action against an employer by or on behalf of an employee who is not covered by workers’ compensation insurance obtained in the manner authorized by Section 406.003 to recover damages for personal injuries or death sustained by an employee in the course and scope of the employment, it is not a defense that:

(1) the employee was guilty of contributory negligence;

(2) the employee assumed the risk of injury or death; or

(3) the injury or death was caused by the negligence of a fellow employee.

(b) This section does not reinstate or otherwise affect the availability of defenses at common law, including the defenses described by Subsection (a).

(c) The employer may defend the action on the ground that the injury was caused:

(1) by an act of the employee intended to bring about the injury; or

(2) while the employee was in a state of intoxication.

What are the Differences between WC and Texas Nonsubscriber Cases?

The differences between a worker’s compensation claim and a nonsubscriber case against your employer in general are:

  1. With nonsubscriber cases, you must prove some fault on your employer.
  2. With nonsubscriber cases, you are not as limited in damages.
  3. Nonsubscriber claims likely are not covered by insurance and collection of damages can sometimes be an issue.
  4. Contributory negligence (by you) is not a defense for the nonsubscriber.
  5. Nonsubscriber cases are like personal injury cases (with some exceptions).

On the Job Personal Injury Cases in Texas (Third Party Cases)

To recover damages in a Texas personal injury case, you must prove that the person who caused the accident owed you a duty and caused you legally recoverable damages. If your injury was caused by the actions of another person (not a co-employee) or company, you may have a third-party case.

Some Common Examples of Personal Injury and Worker’s Compensation

By way of example, if you were injured car accident and someone else is at fault, this would be a personal injury case. (But if you were on the job at the time of the crash and your employer had WC, it may be both a personal injury case against the negligent driver and a WC claim with your employer). In which case, you may be able to recover both worker’s comp and personal injury damages.

Third-Party Personal Injury and Non-Subscriber Claims Require Fault

The personal injury claimant must prove someone else was at fault or at least that someone else was greater at fault than they were.

For on-the-job workers, your employer may have workers’ compensation coverage which in effect limits your claims against the employer to the workers’ compensation statutory scheme.

However, if another person or company was partly at fault for the on-the-job accident, you may be able to file a personal injury lawsuit against that party. That case is called a third-party claim.

Third-Party Cases in Addition to Worker’s Compensation

If parties other than your employer may have been responsible for the accident, you may be able to sue such parties and not be barred by Worker’s Comp.

A few other examples would be where your injury was caused by a dangerous or defective machine or by another person not employed by your company.

These are called “third-party” claims and victims are allowed to pursue both Worker’s Compensation and third-party cases at the same time.

Subrogation or Payback of Comp Benefits

It is noteworthy that Workers’ Compensation in Texas includes subrogation claims which are statutory. Victims often must repay workers’ compensation out of third-party compensation in personal injury cases. In short, if you get comp benefits and win damages from a third party, your lawyer will need to pay worker’s compensation back.

Damages are More Generous with Third-Party Cases

Damages and Workers’ Compensation claims are extremely limited and defined by statute. Damages in personal injury cases are much different in that the amount of damages is generally determined in an agreed settlement or by a jury.

Personal injury damages include such things as:

Physical pain

* Mental anguish

* Disfigurement

* Impairment

* Medical expenses

* Lost wages.

Individuals who have been seriously injured on the job should inquire about the Worker’s Compensation situation with their employer.

Also, consider speaking to a personal injury attorney in Houston regarding whether a third-party claim against others may be possible if you believe another (other than your employer) person or company was at fault.

Contact a Leading Personal Injury Lawyer in Texas

If you’ve been injured on the job and would like to speak with an attorney about a potential third-party claim, contact us at the Baumgartner Law Firm Accident & Injury Lawyers for a no-obligation consultation regarding your rights and options.

Our goal is to maximize in-pocket compensation for you.  While we do not handle workers comp claims we have been extremely successful with 3rd party lawsuits.

Ask us about our no fee promise – you will pay us no fee unless we win your case.

Call (281) 587-1111 or Text Us!

 

 

 

 

Greg Baumgartner

attorney greg baumgartner

Greg Baumgartner has practiced personal injury law since 1984. He holds not one but two law degrees and is a graduate of Trial Lawyers College. He is licensed in Texas and Colorado. Mr. Baumgartner has earned a reputation for exemplary results for his clients. And has been preeminent rated for decades and recognized by Top 100 Trial Lawyers, Super Lawyers, Expertise, Newsweek, Houstonia magazine, and many others. He has given educational talks to lawyers and many media interviews regarding personal injury cases.