Subscriber Claims & Workers Compensation

Houston Work Injury Attorney Michael Grossman Explains Texas Workers’ Compensation Act

The Texas Workers’ Compensation Act defines workers’ compensation laws in the State of Texas and was designed to safeguard both the employee and the employer.

When an employee suffers an injury while engaged in performing his or her job AND the employer has workers’ compensation insurance, then the rules outlined in the act go into effect. Employers are not required to take part in the protection provided by the act and may choose whether or not to purchase workers’ compensation insurance. An injured employee then must pursue compensation through one of two sets of rules depending upon whether or not the employer has chosen to purchase workmen’s compensation, governed by Workers’ Comp Law or those that don’t and are governed by Nonsubscriber Law.

Workers’ Comp Law

Employers benefit from the Texas Workers’ Compensation Act by receiving protection against lawsuits from injured employees. Even if the employee is paralyzed due to the employer’s gross negligence, he or she cannot sue an employer who subscribes to workmen’s compensation insurance under the protection of the Act.

On the other hand, employers benefit because they are guaranteed some sort of insurance to provide for the physical and financial harm created by a work-related injury. In theory, workers’ comp insurance should compensate the injured employee for medical expenses, so long as the worker can prove his or her injuries were sustained while working on the job. Often times, nonsubscribing employers cannot afford to provide any assistance to injured employees, so at least if the employer subscribes to workers’ comp insurance then the employee will receive some compensation. Employees who work for an employer who subscribes to workers’ comp insurance is also entitled to receive a percentage of lost salary up to a limit of a certain amount of time. The severity of the injury determines how many weeks of lost wages the employee can recover. In most cases, injured employees cannot recover lost wages for the first seven days of worked missed unless they miss over 30 days of work. Thus, if an employee is out of work for 15 days, he or she will only be compensated for eight. However, if that employee misses 31 days, then he or she will retroactively receive payment for the first seven days.

However, this method of workers’ comp reimbursement is the way it is supposed to work, but it’s not always the way it does work out. Sadly, many employers ignore the rules in order to keep their workers’ compensation premiums from increasing. Many employers will behave unscrupulously, unfairly and even illegally. Moreover, many employers force injured employees to visit a doctor of their choosing who may or may not be concerned with the best interests of the injured party. If you’re running into opposition from the insurance company or your employer, then your case will likely go before the Texas Workers’ Compensation Commission, and you will need the help of a Houston workers’ comp lawyer if you want the case resolved in your favor.

Challenges of Workers’ Comp Laws

Many different obstacles can complicate Texas workers’ compensation cases. Since the adapting of new workers’ comp laws in 1992, many lawyers refuse to take cases involving work-related injuries. Prior to 1992, injured workers could secure a lump sum payment from their employer or the insurance carrier for past-owed monies. However, the new laws did away with these types of payments and limited the fees an attorney could charge, discouraging many lawyers from taking the cases. Therefore, many injured workers are left without representation and can’t match the skilled defense specialists employed by the insurance company once the case comes before the Commission.

Exceptions to Workers’ Compensation Laws

There’s only one instance in which an employer who subscribes to workers’ compensation insurance can be sued. But, the following conditions must be met:

• The employee dies as a result of his or her injuries.
• Dependents counted on the employee financially.
• The employer’s gross negligence caused the victim’s death.

The other main exception to workers’ compensation law is when the employer chooses not to subscribe to workers’ comp insurance at all.

Non-subscribers

Many employers choose not to subscribe to workers’ comp insurance. If you want to secure the compensation you deserve from a so-called non-subscriber, then you will likely need the help of an experienced attorney to force the non-subscribing employee to provide you with damages.

The good news is that workers compensation laws in Texas are designed to punish non-subscribers, so the compensation injured workers can receive will be greater than if your employer had subscribed to workers comp insurance. Moreover, victims merely carry the burden of proof for establishing the negligence of the employer, rather than gross negligence.

Since the law only gets more complex in non-subscriber cases, you will need the guidance of a well-seasoned and knowledgeable Houston workers’ compensation lawyer to help you through the daunting process.

First, the victim, also known as the plaintiff, must inform the employer of the injury by filing a claim that also requests the level of compensation expected for the harm caused. The employer has the options of paying or negotiating a settlement, and then the case will be resolved, permitting all of the parties involved to return to their normal lives. Unfortunately for you, that’s just not the way most non-subscriber claims play out. More often than not, the employer declines to pay or negotiate, forcing the victim to file a lawsuit to obtain the restitution he or she is entitled to. As the injured party, the plaintiff carries the burden of proof for showing that the negligence of the employer caused the injury and that the injury has incurred medical expenses, lost wages, pain and suffering. Fortunately for the injured, the standard of proof for negligence is much easier to meet than gross negligence and is fairly easy to prove.

Defenses of the Non-Subscribers

If your employer or the employer of your deceased loved one opted not to purchase workers’ compensation insurance, then he or she probably isn’t going to volunteer payment to an injured employee or the loved ones of a wrongfully killed employee for the harm done to him or her. But workers’ compensation laws afford only one defense for non-subscribing employers in order to punish them for creating more litigation.

Sole Proximate Cause

The only true defense allowed non-subscribing employees against an injured employee is the sole proximate cause defense. That means they are going to blame the victim. The sole proximate cause defense is to prove that the employee caused his or her own injury 100 percent with his or her own negligence. In order to invoke this defense, the non-subscribers will attempt to besmirch your reputation or that or your deceased loved one by attempting to show that you or your loved one was routinely negligent, and that negligence finally led to your injuries or your loved one’s death.

While the non-subscribing employer wouldn’t spend money on workers’ comp coverage to safeguard his or her employees, they usually spare no expense when hiring lawyers to protect their own assets from a lawsuit. In most cases, they will arm themselves with experienced workers’ compensation defense specialists who know how to make victims appear negligent if they don’t have an equally adept attorney to deflect liability back onto the negligent employer where it belongs.

Employer-Employee Relationship

Granted, the sole proximate cause defense is the only way non-subscribers can avoid liability after an injury happens, but many non-subscribers begin trying to avoid that responsibility before accidents occur by hiring their employers as so-called “contractors.” Employers owe no responsibility for supplying safety to contractors or temporary workers. If the employer calls you a contractor, then he or she thinks compensation can be avoided by denying the existence of an employer-employee relationship. Why should an employer be responsible for injuries to someone who doesn’t actually work for them?

While many Houston employers will attempt to claim that their workers are contractors, they often know that an employer-employee relationship exists in the eyes of the law. In many of these cases, an injured worker can still obtain compensation by proving that he or she is considered an employee from a legal perspective.

You need a Houston workers’ compensation attorney who knows how to prove the employer-employee relationship. Our attorneys know your working situation must meet at least one of the following standards to be considered an employer-employee relationship:

• Social security or taxes were withheld from your paycheck by the employer.
• The essential equipment for the job was provided by the employer.
• The employer set a specific work schedule for the job that you were expected to maintain.
• The employer regularly managed, oversaw or inspected your work.
• You limited your rights while working for the employer by performing a task or signing a document, for example: taking a drug test or signing a document that states compliance with an employee handbook.
• You have been employed not just for a solitary job but for an undetermined period of time.
• You are paid by an hourly wage or salary and not on a job-by-job basis.

Our attorneys will use a thorough investigation to prove your employer-employee relationship by demonstrating the existence of one of these standards. We find pay stubs, depose co-workers, and review contracts to prove that you were an employee when you were injured on the job.

We Can Help

If you hire the workers compensation lawyers at Grossman Law Offices, you will not be alone when you go in front of the Commission. We can even the sides in your battle against an insurance company or the lawyers of a non-subscribing employee. Don’t let yourself be taken advantage of because you don’t have legal representation.

If the workers’ compensation insurer tries to argue that you were hurt elsewhere than on the job – in the shower, lifting something heavy at home or mowing the lawn, then our attorneys will produce medical experts to attest to the severity of your injuries and the approximate way in which the injury occurred.

No matter what the circumstances of your injury, call Grossman Law Offices today for a free consultation at 1-855-392-0000 (toll free), and we can answer any questions you might have and inform you how we can help resolve your situation.