Texas employers have the right to opt out of carrying workers’ compensation insurance. Employers who choose not to purchase workers’ compensation insurance are often referred to as “non-subscribers” because they do not subscribe to the Texas Workers’ Compensation System. Non-subscriber employers often establish their own ERISA occupational injury benefit plans. ERISA plans or alternative coverage are not subject to the regulations imposed by the Texas Department of Insurance – Worker’s Compensation Division.
The Texas Workers’ Compensation Act “discourages employers from opting out of workers’ compensation insurance by prohibiting a nonsubscriber from asserting that its employee was contributorily negligent, assumed the risk, or that a fellow employee’s negligence caused the employee’s injuries.” Thus, the employee of a non-subscribing employer, though not receiving compensation benefits, has a remedy against the employer in the form of a negligence action.
An injured employee has the burden to prove that the negligence of the employer or of an agent or servant of the employer acting within the general scope of the agent’s or servant’s employment caused the employees injury. Experienced Plaintiff attorneys argue that the unavailability of the contributory negligence defense means that an employer whose fault, however slight, that was a proximate cause of the injuries will owe full damages, notwithstanding any perception that the injured employee was also at fault in a way that was a proximate cause of the injuries. Experienced Plaintiff attorneys argue that the employer owes full damages even when the facts suggest that the employer’s fault was as little as 1% of the total causative fault and that the injured employee’s fault was as much as 99% of the total causative fault.
Employers owe a non-delegable duty to provide a safe place to work and safe conditions in which employees may work. The employer has a duty to furnish the employee with safe and suitable appliances so that he or she may carry on the work with reasonable safety. Employers have a duty to use ordinary care in selecting careful and competent co-employees. To establish negligence, an injured employee must establish: a duty, a breach of that duty, and damages proximately caused by the breach. Whether a duty exists is a threshold inquiry and a question of law; liability cannot be imposed if no duty exists. An employer must warn an employee of the hazards of employment and provide needed safety equipment or assistance. An employer must furnish safe machinery and instrumentalities that its employees are to work with and must provide adequate assistance under the circumstances for the performance of required work.
The Texas Supreme Court has held, however, that an employer is not an insurer of its employees’ safety. An employer owes no duty to warn of hazards that are obvious, commonly known, or already appreciated by the employee and owes no duty to provide equipment or assistance that is unnecessary to the job’s safe performance. Section 406.033(c) of the Texas Labor Code also identifies two defenses that implicate the employee’s conduct and on which a non-subscribing employer may rely: (1) the employee intended to bring about the injury; or (2) the injury occurred while the employee was intoxicated.
Reid & Dennis specializes in assisting our nonsubscriber clients with early claim evaluation and formulating a strategy to administer and if necessary, defend an employee injury claim. We have more than thirty years of experience defending employers before judges and juries in state and federal court and arbitrations.
If your business has elected to become a non-subscriber, there are certain steps that are crucial to protecting your business in the event of an employee injury claim. We can answer your questions and provide valuable insight into the paperwork and preparations necessary to help you not only save money but also protect your employees in the event of a workplace injury. It is imperative to retain seasoned attorneys who understand the nuances of nonsubscriber law and the experience to master its application when your employee is asserting a non-subscriber claim.
Reid & Dennis has successfully defended non-subscriber employers by establishing:
- The employer owed no duty to the employee.
- The employee was the sole proximate cause of the accident.
- The employee was injured while performing routine work that is routinely performed without injury.
- The employee was trained and failed to follow the employer’s safety training and warnings.
- The employee was injured by the negligence of a third party.
We understand Texas non-subscriber law and have the experience to guide your business through the nonsubscriber process. Our history and experience give us the ability to evaluate liability issues, preserve evidence and develop a strategy to resolve employee injury claims by settlement, and if necessary, representation before judges, juries, and arbitrators. We understand that you care about the wellbeing of your employees, and we are here to assist and provide you with the information and resources you need to make an informed no-nonsense decision when facing an employee injury claim.
