Bruce Kaye Criminal Defense Attorney Dallas, TX, Personal Injury, Entertainment Law

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Success in Litigation for over 25 Years

Changing Lives One Case at a Time

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Success in Litigation for over 25 Years

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NON-SUBSCRIBER INJURY

“What’s in a name? That which we call a rose by any other name would smell as sweet.” —Shakespeare

Some people call it “non-subscriber” workplace injuries. Others call it “self-insured” workplace injuries. Others still call it “no workman’s comp” injuries. It really does not matter what you call it. The bottom line is this: if you have been injured at a workplace that does not have coverage for you under the Texas Workman’s Compensation plan but does have coverage for you under some other kind of insurance policy, your injury is called a Non-Subscriber Injury.

NON-SUBSCRIBER INJURY ATTORNEY IN DALLAS, TX

For 25 years, I’ve been helping people just like you. People who are caught in the maze, the trap, the hamster wheel of trying to get help when you are injured at a workplace in Texas that does not cover your injuries under Texas Workman’s Compensation.

BRUCE KAYE, ATTORNEY AT LAW

And Oh, What a Wicked World it is!

For instance, everyone knows that if you are injured on the job and the employer has coverage under Texas Workman’s Compensation, you cannot be fired for being injured and unable to work. Guess what? This does not apply to you because an employer who has coverage for you outside of Texas Workman’s Compensation plan may fire you for any reason at any time.

Yes, even if you are injured and under a doctor’s order, your employer may (and usually does) fire you on the spot! Is that fair? Of course it isn’t! But that is just one of the many landmines you must be aware of when trying to seek help for your injury.

"How Can I Win?" You Might Ask Yourself.

In order to prevail, you need a few things. First, your damages have to be serious. Your medical bills have to be pretty big. Your medical diagnosis has to be pretty bad. Finally, you must be able to show that the accident was caused by your employer’s negligence (something they did that caused the accident).

You see, when your employer chose not to get you coverage under the Texas Workman’s Compensation plan, they waived all of the defenses they have at trial (such as contributory negligence which is a fancy way of saying that if you played any role in causing the accident, the employer is only responsible for the damages their actions caused and not yours) except one:

If you are the sole cause of your accident, then the employer can walk away without paying you a cent (if the jury believes your employer). However, if the employer is responsible for your injuries due to their negligence (even just 1 percent negligence), then the jury cannot let them off the hook and they are responsible for 100 percent of your damages.

Bottom Line is This:

If you were 100 percent responsible for your accident, then you lose – if your employer is responsible for even only 1 percent of the accident, you can hold them accountable for all your damages. Like all injuries in Texas, you only have two (2) years to file your lawsuit for any injury you sustained at your Non Subscriber worksite. Don’t wait until it’s too late to do anything.

Workers Compensation vs. Non-Subscribers

Workers' compensation is a state-regulated insurance system, regulated by the Division of Workers’ Compensation (DWC), that ensures medical bills and some lost wages are paid for employees injured on the job. Workers’ compensation provides covered employees with income and medical benefits if they are injured on the job or have a work-related injury or illness.

Texas employers, except for public entities, can choose whether or not to provide workers’ compensation insurance coverage for their employees. 

When an employer purchases a workers' compensation policy or is certified to self-insure, the insurance company (or a third-party administrator in the case of self-insurance) pays medical and income benefits.

Employers who choose to provide workers' compensation insurance coverage must do so in one of the following ways:

  • Buy a workers' compensation insurance policy from an insurance company licensed by the Texas Department of Insurance (TDI);
  • self-insure, if the employer can meet the requirements to self-insure under the Texas Workers’ Compensation Act (the Act) and is certified through the DWC;
  • join a self-insurance group that has received a certificate of approval from TDI; with a group of same or similar private employers;
  • if a governmental entity, purchase a workers’ compensation policy from a private insurance company, or self-insure either individually or as a group.

With few exceptions, workers’ compensation insurance limits the employer’s liability for a work-related injury or death sustained by the employee. Injured employees may get medical and income benefits set by state law, but generally may not sue their employers. 

Employees covered by workers’ compensation insurance coverage receive benefits based on the type and severity of their injuries.

Benefits can include:

  • Medical benefits for medically necessary treatment of work-related injuries and illnesses;
  • Disability income benefits for a specified period of time up to a certain dollar limit set by law;
  • Compensation for burial expenses for employees killed on the job;
  • Death benefits for dependents of employees killed on the job.

If there is a workers’ compensation claim for benefits, an employee's family may be entitled to additional benefits if the employee is killed and the death was caused by the employer's gross negligence or intentional act or omission.

Because Texas law does not require most private employers to have workers' compensation insurance coverage, your employer can opt not to subscribe to workers' compensation. Employers not providing workers' compensation insurance coverage are referred to as non-subscribers. 

Non-subscribers lose important legal protections, including immunity from most lawsuits by injured employees. They could also be forced to pay high damage awards if an injured employee can prove in court that the employer was negligent in any way. 

Non-subscribers must comply with certain workers’ compensation requirements. Texas law requires all employers, with or without workers’ compensation insurance coverage, to comply with reporting and notification requirements under the Texas Workers’ Compensation Act. 

Non-subscribers must report that they elect not to obtain workers’ compensation insurance coverage to the Division of Workers’ Compensation (DWC), each year, unless the employer’s only employees are exempt from coverage under the Texas Workers’ Compensation Act (for example, certain domestic workers, certain farm and ranch workers).

An employer who terminates workers’ compensation insurance coverage must also report to the DWC. Failure to report the termination of workers’ compensation insurance coverage when required may subject the employer to administrative penalties.

Non-subscribers with five or more employees must report each work-related fatality, occupational disease, and injury that results in more than one day of lost time to the DWC. 

Non-subscribers are not given the legal protection that limit their liability for work-related injuries of employees. This means that if an injured employee files suit and is able to prove that the injury was due to the employer’s negligence, the non-subscriber could be subject to high damage awards, including punitive damages and damages for pain and suffering. The employer might also be required to pay defense-related legal expenses, such as attorneys’ fees.

Non-subscribers also lose certain common-law defenses, including:

  • The injured employee's negligence caused the injury;
  • The negligence of fellow employees caused the injury; or  
  • The injured employee knew of the danger and voluntarily accepted it. 

Non-subscribers must post written notice at their workplace telling their employees that they do not have workers’ compensation insurance. This notice must be in English, Spanish, and any other language that is appropriate.

This notice must be placed in the employer’s personnel office (if any) and in a prominent place where employees can see it regularly. The notice must be in the wording and format adopted by the Division of Workers' Compensation (DWC). If this notice is not properly posted in the workplace, an employer will be liable for any administrative violations.

Non-subscribers must give written notice of non-coverage to new employees upon hire. The DWC encourages all employers to keep a copy of the notice provided to each new employee. The notice may be signed and dated by the employer and the new employee. If this notice is not provided to new employees, an employer will be held liable for any administrative violations.

Some employers buy accident and health insurance policies or disability policies or create employer indemnification agreements as less costly alternatives to workers' compensation insurance coverage. Even though these policies may provide benefits to an injured employee, Texas law does not recognize them as substitutes for workers' compensation insurance coverage. TDI rules prohibit insurance companies from representing that alternative coverages are substitutes for workers' compensation insurance coverage.

Unlike workers' compensation insurance coverage, alternative coverages typically have specific policy limits on medical benefits for each covered employee. In addition, alternative coverages usually have shorter maximum payment periods than those provided by Texas workers' compensation laws.

Employers that buy alternative coverages do not have workers’ compensation liability protections. They may be sued by their injured employees and lose their right to use key common-law defenses in the suit. Moreover, many alternative coverages do not provide coverage for judgments for pain and suffering, punitive damages and attorneys’ fees. 

A company must be licensed to provide workers’ compensation insurance. Texas law does not recognize insurance policies sold by unlicensed companies, including those legally selling surplus lines of insurance. Surplus lines of insurance provide coverage for unusual risks that most licensed companies are unwilling to insure. Companies and agents that sell this kind of insurance must be licensed in their home state or country and authorized to sell surplus lines insurance in Texas.

Employers purchasing workers’ compensation insurance from unlicensed companies do not have the liability protections provided to employers purchasing policies from licensed companies. They may be sued by their injured employees and lose their right to use key common-law defenses in the suit. Moreover, unlicensed companies do not provide coverage for judgments for pain and suffering, punitive damages, and attorneys’ fees.

The Texas Property and Casualty Insurance Guaranty Association, which pays policyholder claims against licensed insurance companies that become insolvent, does not cover unlicensed companies. Claims against unlicensed companies will likely go unpaid if the company becomes insolvent. 

Workers’ Compensation

  • Benefit levels are determined by Texas law.
  • The Insurance Company pays medical and lost-income benefits.
  • The Insurance Company pays the employer's legal fees.
  • Benefits are protected by a guaranty association.
  • An injured employee cannot win judgments for pain and suffering and punitive damages except in certain circumstances.

"Alternative" policy (Employee Retirement Income Security Act (ERISA) plan)

  • Benefit levels are determined by the Court or an alternative dispute resolution.
  • The insurance company pays medical and lost-income benefits up to policy limits. The employer pays the rest.
  • The party that pays the employer's legal fees is governed by the policy terms.
  • Benefits have limited protection by a guaranty association.
  • An injured employee can win judgments for pain and suffering and punitive damages up to certain limits.

Unauthorized Insurance Policy/Surplus Lines

  • Benefit levels are determined by the Court or an alternative dispute resolution.
  • The terms of the policy determines who pays the medical and lost-income benefits.
  • The party that pays the employer's legal fees is governed by the policy terms.
  • Benefits are not protected by a guaranty association.
  • An injured employee can win judgments for pain and suffering and punitive damages up to certain limits.

No Coverage

  • Benefit levels are determined by the Court.
  • The employer pays medical and lost-income benefits.
  • The employer pays for their own legal fees.
  • Benefits are not protected by a guaranty association.
  • An injured employee can win judgments for pain and suffering and punitive damages up to certain limits.

 

Workers Compensation and Non-Subscriber Law information provided courtesy of tdi.texas.gov

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