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February 22, 2022 by Greg Baumgartner
This is a question that frequently arises in our Houston personal injury law practice. Someone is injured on the job and wonders about the appropriate procedure to obtain necessary compensation for their injuries. In Texas, it can be challenging to determine whether an on-the-job injury constitutes a workers’ compensation claim or a personal injury case.
Whether the claim is a personal injury, one covered by workers’ compensation, or both will depend on the facts and circumstances of the accident.
Generally, on-the-job injuries are personal injuries; if covered by workers’ compensation, a claim against your employer would be a workers’ 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 workers’ comp claim.
If you were injured on the job and your employer did not have workers’ comp insurance, you may be able to pursue a “non-subscriber” case against your employer.
You must answer three questions to determine how to proceed with your injury claim.
In Texas, Workers’ Compensation is available to employers who purchase it. If Worker’s Comp covers you, your case against your employer will be limited to a Worker’s Compensation claim in Texas.
The most significant difference between a personal injury claim and a workers’ compensation claim is that with workers’ compensation, if you are injured on the job, and your employer has workers’ compensation, you do not have to prove fault to collect benefits.
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 includes weekly benefits, permanent impairment benefits, medical expenses, and rehab.
Suppose your employer had workers’ compensation coverage in effect during your accident. In that case, your claims against your employer will be limited to those benefits available under Workers’ Compensation in Texas.
One exception is when the accident is fatal and the employer is grossly negligent. In that situation, you might be able to sue for punitive damages.
In short, you can’t sue your employer for the on-the-job injury; your recourse is the Workers’ Compensation system.
Most Workers’ Compensation victims with severe injuries are left holding the bag, except for their medical expenses, as the statutory scheme does not allow for items of compensation available to other personal injury victims.
For example, in the case of a construction accident, Workers’ Comp will typically cover medical bills and provide very little compensation for non-economic damages, such as pain and suffering. That is where third-party cases come in, when applicable.
If Comp covers you, You Don’t have to Prove Fault by your employer in Texas.
The requirements to be paid from workers’ compensation in Texas are that you were injured on the job and your employer has coverage. Proving fault is not necessary.
Many companies have used an alternative insurer other than Workers’ Compensation to reduce costs.
These plans, unless registered as workers’ compensation with the state of Texas, generally do not automatically qualify the employer for the benefits of workers’ compensation immunity in the event of a job-related accident.
Texas provides a method to determine if your employer had workers’ compensation coverage at the time of your accident. You can also contact the HR department for coverage verification.
You can contact the State of Texas Workers’ Compensation Commission for questions regarding workers’ compensation, benefits, and claim procedures.
It is important that the injured worker not sign paperwork without speaking with an attorney about the consequences of such a signature, particularly when dealing with an insurance policy other than WC.
If your injury occurred on the job, but your employer was not a subscriber to workers’ compensation in Texas, you may be able to bring a “nonsubscriber” case against your employer.
Texas Labor Code Sec. 406.033 covers the law for nonsubscriber cases in Texas.
(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.
The differences between a worker’s compensation claim and a nonsubscriber case against your employer, in general, are:
Yes, employees harmed in an accident due to a lack of training or poorly maintained equipment may be entitled to financial compensation and possibly even punitive damages.
Employers who fail to meet their obligations in providing a safe work environment can be exposed to legal action.
Yes, the employer is required to enforce provisions for required safety gear.
Yes, the employer should ensure that equipment is safe and properly maintained.
Yes, employers are required to provide proper training for their employees.
The employer must provide a safe work environment for their employees.
Yes, employers must inform employees whether or not they are participating in the workers’ compensation program.
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 your company, you might have a third-party case.
Third-party cases prove that another company or person (not an employee of your employer caused the injury.
By way of example, if you were injured in a 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 this case, you may recover both workers’ comp and personal injury damages.
The personal injury claimant must prove someone else was at fault or at least that someone else was more at fault than they were.
For on-the-job workers, your employer may have workers’ compensation coverage, which 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 referred to as a third-party claim.
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 Workers’ Comp.
A few other examples include injuries caused by a dangerous or defective machine or another person not employed by your company.
These are referred to as “third-party” claims, and victims can simultaneously pursue both Workers’ Compensation and third-party cases.
Read more: Houston Construction Accident Lawyer
It is noteworthy that Workers’ Compensation in Texas includes statutory subrogation claims. 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 must pay workers’ compensation back.
Damages and Workers’ Compensation claims are extremely limited and defined by statute. Damages in personal injury cases are much different because damages are generally determined in an agreed settlement or by a jury.
Read more: Third-Party Claims in Texas Personal Injury Cases
Personal injury damages include such things as:
* Physical pain
* Disfigurement
* Impairment
* Medical expenses
* Lost wages.
Individuals seriously injured on the job should inquire about the workers ‘ compensation situation with their employer.
Also, consider speaking to a personal injury attorney in Houston about whether a third-party claim against others may be possible if you believe another person or company (other than your employer) was at fault.
If you’ve been injured on the job in Houston and would like to speak with an attorney about a potential third-party claim, contact us at the Baumgartner Law Firm Personal Injury Lawyers for a no-obligation consultation regarding your rights and options.
Our goal is to maximize in-pocket compensation for you.
Ask us about our no-fee promise – you will pay us no fee unless we win your case.
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Since establishing Baumgartner Law Firm in 1985, Greg Baumgartner has built a reputation as one of Houston’s leading personal injury attorneys, dedicated to representing severely injured victims and families who have lost loved ones due to negligence.
Greg holds two law degrees, a distinction earned by less than 1% of all attorneys, demonstrating his exceptional legal expertise. He is also a prestigious Trial Lawyers College graduate, further enhancing his skills in trial advocacy and litigation.
His relentless commitment to legal excellence and client advocacy has earned him recognition from prestigious organizations, including Super Lawyers, the Top 100 Trial Lawyers, and many others.
With decades of experience, Greg has consistently received top peer reviews. He holds a preeminent rating, a testament to his unwavering dedication to securing justice and maximum compensation for his clients.
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