What Defenses May Be Available to Non-Subscribing Employers in Work Injury Cases?

According to the U.S. Bureau of Labor Statistics, Texas saw approximately 178,900 work injuries in 2021 in the private sector, which means that about 1.7 workers for every 100 full-time employees were injured on the job.

If a Texas employer does not have workers’ compensation coverage, their employees may file a personal injury lawsuit against them to recover financial awards for their injuries.

You might be wondering what defenses may be available to non-subscribing employers in work injury cases. This article answers that question. 

At Armstrong Lee & Baker LLP, we treat the relationship between our firm and clients as sacred. We put our clients first at all times and strive to achieve the best outcome so they can get back to doing what matters most to them. 

Fundamentals of Texas Non-Subscriber Workers’ Compensation

Under Texas law, employers may elect to subscribe to a state-approved workers’ compensation plan, or they can opt-out and purchase coverage from a private company or choose self-insurance.

Those who opt out are referred to as “non-subscribers” under the law because they do not subscribe to Texas non-subscriber workers’ compensation insurance. 

By not providing workers’ compensation insurance, the employer allows injured employees to file a personal injury claim to recover compensation after a work accident.

To prevail, an injured employee must prove that their employer or another employee caused or is legally liable for their injury and subsequent damages. In response, the employer may argue that one or more defenses apply, which may absolve them of responsibility for the employee’s injury.

What Defenses May Be Available to Non-Subscribing Employers in Work Injury Cases?

Texas law limits the types of defenses available to non-subscribing employers to the following:

• The employee intentionally caused the injury; 
• The employee was intoxicated, and
• The employee waived their right to sue after the injury.

An employer may assert one or more of these defenses when responding to a lawsuit filed by an employee.  

The Employee Intentionally Caused the Injury

The first defense available to an employer is that the employee intentionally caused the injury. For this defense to apply, typically, the employer would need to show that the employee intended to injure themself when they performed the act.

For example, the employer might argue that the employee intentionally did not wear safety gloves or did not follow safety procedures because they wanted to suffer an injury so that they could seek compensation. 

The Employee Was Intoxicated

Another defense is that the employee was intoxicated when the injury occurred and is responsible for what happened to them.

To prove this, the employer might submit evidence that someone saw the employee drinking alcohol at a nearby bar on their lunch break or something to this effect.

If the medical team performed a blood test when the employee sought medical attention after the injury, those records could be used to support the defense. 

The Employee Waived Their Right to Sue After the Injury

In some circumstances, a Texas non-subscriber employer may argue that the employee waived their right to sue after the injury. It is important to note that Texas law limits the ability of the employee to waive their right to sue after an injury.

Typically, the court will presume that any waiver the employee signed is unenforceable. 

A waiver may be enforceable if the employer can prove the following:

• The employee voluntarily and knowingly signed the waiver; 
• The employee signed the waiver 10 or more business days after the injury; 
• Before signing the waiver, the employee was examined by a nonemergency doctor; and 
• The waiver is in writing, signed by the parties, and specifically expresses the intent that it is a waiver of an employee’s rights.

But remember, Texas courts are very cautious about enforcing these waivers and will not do so unless the employer clearly shows the above elements. 

Armstrong Lee & Baker LLP: Zealous Work Injury Lawyers Serving Texas

If you were injured on the job, workers’ compensation can provide you with invaluable assistance while you heal. When you work for a Texas employer that does not subscribe to workers’ compensation, you still have a right to seek compensation for your injuries.

The team at Armstrong Lee & Baker LLP has years of experience helping injured workers get the compensation they need so that they can take care of themselves and their families.

If you were injured in a workplace accident, contact us today to learn more about how we can help you. 

Scott Armstrong

Scott Armstrong obtains remarkable results for his clients. He has successfully tried numerous cases to favorable verdicts and reached significant settlements on his clients’ behalf, recovering millions for them. Our lawyers have 25+ years of combined experience.

Scott is known for his aggressive approach to every case. He has been recognized as a Rising Star by Super Lawyers, an accolade awarded to only 2.5% of attorneys under forty and practicing for less than ten years. Houstonia Magazine, H-Texas Magazine, and others have recognized Scott as a “top lawyer” in Houston.

Get in touch with Scott Armstrong now.