Can My Employer Argue that My Injuries Were Pre-Existing and Therefore Not Covered by Non-Subscriber Work Injury Laws?

About two out of every 100 workers experienced a nonfatal work injury or illness in 2021 in Texas. For those in the transportation and warehousing trades, the work-related injury or illness rate rose to 3.7 for every 100 employees.

Those in the agriculture, forestry, fishing, and hunting category of employment experienced a rate of 3.4 illnesses or injuries for every 100 workers. 

Unlike most states in the USA, Texas does not require most employers to subscribe to a state-approved workers’ compensation plan.

Instead, employers may carry coverage of their choosing or no plan at all. Employers that opt out of the state-approved workers’ compensation plan are called “non-subscribers.” 

Your Rights As a Texas Workers Comp Non-Subscriber

When workers experience a work accident or environment that worsens a pre-existing condition or injury, they may wonder what their rights are if their employer does not carry workers’ compensation insurance.

They may ask themselves, “Can my employer argue that my injuries were pre-existing and therefore not covered by non-subscriber work injury laws?” As is the case with many questions, the response is, “It depends.” 

Armstrong Lee & Baker LLP provides outstanding representation to injured workers throughout the Lone Star State. We are well-versed in Texas’s unique and nuanced subscriber and non-subscriber laws.

We have helped dozens of clients pursue compensation for their work injuries because of negligent employers who cut corners to save a dime. 

Can You Pursue Compensation for a Worsened Pre-Existing Injury Under the Non-Subscriber Law in Texas?

Can you pursue compensation for a worsened pre-existing injury under the non-subscriber law in Texas? You may be able to pursue compensation for aggravation or worsening of a pre-existing injury due to a work accident or environment.

The fact that an underlying injury is pre-existing does not bar you from recovering compensation by filing a personal injury claim.

Instead, what determines whether you are entitled to damages is the circumstances, the applicable law, and the validity of any defenses your employer asserts.

It is up to the employee to prove that the non-subscribing employer is liable for the worsening or re-aggravation of pre-existing injuries. 

If the employer carries workers’ compensation insurance, the Texas Labor Code limits when an employee may receive benefits for a pre-existing injury. 

What Are the Employer Defenses Under Texas’s Labor Code?

Having a pre-existing condition does not preclude you from claiming compensation if you can prove that your employer is at fault or liable for worsening your injuries. That said, there are defenses that your employer may assert to avoid compensating you for the suffering you experienced.  

The Texas Labor Code lists the following as types of defenses an employer can use to respond to a claim:

• The employee intended to injure themselves; 
• The employee was intoxicated, or
• The employer was not negligent at all.

It is up to the employer to prove that these defenses apply to the current claim. If the employer asserts one of these defenses, the employee can file an objection to the defense. 

The Employee Intended to Injure Themselves

Some employers may try to argue that the injury was caused by the employee’s intentional act. If the employer successfully shows that this is the case, the employee may not be able to recover.

Employees can rebut this counterclaim by showing that they followed the proper protocol or by presenting other evidence. 

The Employee Was Intoxicated

If an employee is intoxicated on the job and suffers an injury, they may not be able to recover compensation for their injuries. The employer would likely have to prove that the employee had more than a few drinks and was at or above the legal limit for blood alcohol content to prevail on this claim. 

The Employer Did Not Act Negligently

When you file a personal injury claim against a non-subscribing employer in Texas, one of the claims you typically make is that the employer or someone who works for them was negligent.

For example, you might allege that the department manager at the warehouse did not implement safety protocols, and this caused your pre-existing injury to worsen. In response, the employer may try to claim that they or their agents were not negligent or were allegedly following industry standards. 

Armstrong Lee & Baker: Texas Work Injury Lawyers

When an incident at work aggravates a pre-existing injury, it can have a devastating impact on you and your family. Our team has seen firsthand how this can cause financial and relational stress, especially if you are concerned that your employer will not pay compensation because the injury involves a pre-existing condition. But you have options. 

Our dedicated team of Texas work injury lawyers is here to help. We are trusted advisors called on by prominent lawyers throughout Texas to help them unravel complex legal issues.

We have experience successfully going up against some of the largest companies. Our goal is to help you get back on your feet and to hold the at-fault party accountable for what happened. 

If you suffered a work injury in Texas, call our firm today at 832-402-6637 or contact us online to schedule a consultation.