Texas is the only state that allows employers to opt out of workers’ compensation insurance and many employers have done so. According to the Texas Department of Insurance, 44 percent of employers have opted out of carrying workers’ compensation insurance and have become non-subscriber employers. However, by doing so, employers lose some powerful defenses to a work injury claim, which can be very beneficial to an injured worker.
How Injured Employees Benefit When Employers Cannot Raise These Defenses
In a non-subscriber work injury case, the employee must prove that his injuries were caused in part by the employer’s negligence by failing to provide a safe workplace. In these cases, the employer is not allowed to use these common negligence defenses:
- Contributory negligence. In other personal injury lawsuits, the party who is sued can raise contributory negligence as a defense, which says that the injured person caused his own injuries in part by his own negligence and that his compensation should be reduced because of this. However, even if an employee is partly responsible for his own injuries in a work-related accident, the non-subscriber employer cannot raise this as a defense. This means that even if the employee was 95 percent at fault and the employer was only 5 percent at fault in causing the accident, the employer would have to pay 100 percent of the employee’s damages if the employee proved his case.
- Assumption of the risk. If a party is using this defense, he is claiming that the injured party knew that what he was doing could result in injuries and he assumed the risk of being injured by doing it. Therefore, he should not be entitled to any compensation. However, a non-subscriber employer is prohibited from raising this defense.
- Pre-injury waiver of liability. Sometimes before a person can participate in an activity, the person or business hosting it will require the person to sign a contract agreeing not to sue if he gets injured. Non-subscriber employers are prohibited from using pre-injury waivers to avoid liability if an employee is injured at work. However, there is an exception to this. Employers are allowed to require employees to sign an arbitration agreement where they agree to settle any dispute regarding a workplace injury in front of mediators instead of filing a lawsuit in court.
- Fellow servant doctrine. An employer using this defense would be claiming that another employee caused the worker’s injuries and that this employee, not the employer, should be responsible for the injured worker’s damages. Non-subscriber employers cannot use this defense and could be responsible for the injured worker’s injuries even if another employee is also liable.
An employee injured on the job can suffer life-altering injuries—like burns, paralysis, traumatic brain injury, and spinal cord damage—or death. Fortunately, if he is forced to sue his non-subscriber employer for the compensation he could be entitled to, he will not have to defend against these common defenses that could reduce the amount of damages he is awarded.
Have you been injured in a workplace accident with a non-subscriber employer? Was a family member killed? Start an online chat to learn about your legal options and how we can help you get the compensation you could be entitled to.