Non-subscriber Insurance Claims for Workplace Injuries

Are you seeking compensation from your employer for an on the job injury? Has your employer not opted in to the Texas workers’ compensation insurance system? Many private employers do not opt in to the Texas workers’ compensation insurance system. If your employer did not opt in, your employer is called a non-subscriber. A claim for compensation against a non-subscriber may be asserted in arbitration or in court through a formal lawsuit. A claim for compensation through the Texas workers’ compensation insurance system is processed differently. The difference between them is significant for an employee who suffers an on the job injury.

Before You Make a Workers’ Compensation Insurance Claim, Determine Which Type of Insurance Program Your Employer Has

All employers must place a notice in the workplace that informs workers whether the employer has workers’ compensation insurance coverage or not. If the employer does not have workers’ compensation insurance coverage, that employer is a non-subscriber, and the posted notice must reflect that status. If you have suffered an on the job injury, the first thing you should do is learn which type of insurance program your employer has.

Kilgore & Kilgore Has Experience with Non-subscriber on the Job Injury Insurance Claims

If you wish to assert a claim for your workplace injury against a non-subscriber, click here to learn more about Kilgore & Kilgore’s employee benefits claims practice. We offer a free review of the facts of your case. Our employee benefits attorneys represent workers who have sustained workplace injuries at non-subscriber companies. We can help employees seek money for disability income, medical bills, pain and suffering, and other damages.

Texas Workers’ Compensation Insurance History

Before the enactment of the Texas Workers’ Compensation Act of 1993 (the Act), codified in Sections 401.001 et seq. of the Texas Labor Code, employees who sustained workplace injuries routinely asserted common law negligence claims against their employers in court. However, many businesses lobbied the Texas legislature to create an administrative workers’ compensation insurance system that would prevent workers from bringing their claims in court. Thus, the Act was passed to remove claims for workplace injuries from juries. The Act also limits the liability of employers and provides employers greater certainty and predictability in the disposition of workers’ claims. The Texas workers’ compensation insurance system is regulated through the Texas Department of Insurance. It was designed as an insurance program that would provide certain disability income, medical, and other benefits to injured workers regardless of a party’s fault or negligence.

Insurance Claims under Texas Worker’s Compensation Insurance

If an employer opts in to the Texas workers’ compensation insurance system, the employer pays regular insurance premiums for workers’ compensation insurance coverage. If an employer has workers’ compensation insurance coverage, an injured worker can potentially recover certain disability income, medical, and other benefits as set by state law. But in general the injured worker is unable to bring a lawsuit for damages against the employer.

Insurance Claims against Employers with Private Insurance Are Handled Differently

Some private businesses, however, do not want to participate in the Texas workers’ compensation insurance system for a variety of reasons. Instead, these businesses elect to opt out of the system, as permitted by Texas law. These employers are non-subscribers. A non-subscriber’s injured worker can file a claim for common law negligence in court or in arbitration to seek damages, including punitive damages, from a jury or arbitration panel. If the injured worker prevails in court or arbitration, then the damages awarded by a jury or arbitration panel could potentially be much greater than the disability income, medical, or other benefits recoverable under the workers’ compensation insurance system.

Good News and Bad News for Insurance Claims against Non-Subscribers

According to Section 406.033(a)(1)-(3) of the Texas Labor Code, a non-subscriber forfeits three important defenses. First, a non-subscriber is unable to assert the defense that the worker’s negligence contributed to the on the job injury. Second, a non-subscriber cannot argue that the worker voluntarily assumed the risk of injury or death by working in a place known to be hazardous. Third, a non-subscriber cannot rely on the defense that the worker’s injury or death was caused by the negligence of a fellow worker. The unavailability of these three important defenses to a non-subscriber can potentially make defending the case more challenging. But, it provides an advantage to the injured worker depending on the facts of each specific case.

However, even though a non-subscriber is not permitted to assert these three defenses, an injured worker will still have to prove each element of his negligence claim. The injured worker must prove that the employer owed a particular duty to him, that the employer breached that duty, and that the employer’s breach of that duty was the proximate cause of the workplace injuries.

If you have suffered an on the job injury, and your employer is a non-subscriber, then you should contact the lawyers at Kilgore & Kilgore so that we can assess your particular situation. To get started, click here Contact Kilgore & Kilgore. We offer a free evaluation of the facts of your case.

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