Do You Have a Worker’s Comp or Personal Injury Case?
Worker’s comp and personal injury work differently. In either case, you can hold your employer responsible for work-related injuries.
Did you know Texas is the only state in the entire United States that does not require companies above a predetermined size to carry worker’s compensation?
Sounds crazy, but it’s true!
And here’s the good news: it’s usually easier to recover financial compensation from companies that do not subscribe. Many of the legal defenses “subscribers” get are not available to “non-subscribers.” The Texas legal system punishes them for their actions.
Most Texas employees, about 81% of the workforce, are covered. However, according to the New York Times, about 6% (500,000) are not. Some claim the Texas’ worker’s comp system protects businesses better than it does the workers. Others note that actions against insurers have increased while fewer injuries get reported. It’s got some pros and cons, but it’s the system we have.
Here’s how you decide whether you have a worker’s comp or a personal injury claim:
Determine Whether Your Dallas Workplace Subscribes to Worker’s Comp
This is actually harder to do than you think. Some employers do act as if they carry it without really having it. They may make regular payments associated with worker’s comp, but have no formal relationship with it. You may need to hire a Dallas work accident attorney to figure this out before taking action.
If They Are a Subscriber, You Have a Worker’s Comp Claim
Pretty straightforward here. You can’t file a personal injury claim if your employer is a subscriber. You have to trudge your way through the system. The main benefit for workplaces that carry it is they cannot be sued via a personal injury lawsuit. An exception does exist, however, if the worker died as a result of the injuries sustained due to gross negligence.
The Trouble with Worker’s Comp…
Is that what you get out of it is rarely enough to cover the costs of your actual damages. There is one way around this, though. If a third party was involved, such as a manufacturer of defective equipment, you can file a personal injury claim against the third party, while also filing the worker’s comp claim. This would include, for example, if you were injured in a motor vehicle collision caused by a distracted driver while you were operating a motor vehicle in the course and scope of your employment.
If Your Employer Doesn’t Have Worker’s Comp…
You have a personal injury claim. And this can actually be a better situation for you because of all the legal defenses your workplace loses when they don’t offer worker’s comp.
Act Fast; Speed is Key in Work Accident Claims!
The faster you act, the better. Juries believe that honest people act quickly, so it’s easier to convince them your case is valid when you file your injury claim fast. Also, the necessary evidence can get lost or intentionally damaged or destroyed the longer you wait.
If you’ve been injured at work, act fast to protect your rights. Call Mullen & Mullen today!
Our Dallas work accident attorneys have 39 years of experience winning compensation for Texans hurt on the job.
If you were injured on the job in Texas, our Dallas work accident attorneys may be able to help you recover damages. Mullen & Mullen Law Firm has been helping Texans who were injured at work for 39 years.
Our Dallas work accident attorneys can likely assist you in recovering damages if your employer’s or a co-worker’s negligence caused your injury and the company does not subscribe to benefits.
Also, if your injuries were caused by the negligence of a third-party other than your workplace or a co-worker (regardless of whether your employer subscribes to benefits or not), or if a loved one was killed at work due to the gross negligence of his or her job, we can assist you.
Some people incorrectly assume they cannot file a Dallas work accident claim if they were hurt on the job.
But in fact, in some circumstances, you can file a work accident claim in Texas even if you were injured during the course and scope of your employment. For example:
- Our Dallas work accident attorneys can assist you if a loved one was killed at work due to the gross negligence or intentional action(s) of his or her workplace, even if the employer subscribes to the Texas Workers’ Compensation Act; and
- Our Dallas work accident attorneys can assist you if your injuries occurred at work or during the course of your employment if the injuries were a direct result of the negligence of a person or company other than your employer; and
- Our Dallas work accident attorneys can assist you if your injuries occurred at work or during the course of your employment and your workplace or co-worker was negligent and the company is a Non-Subscriber to benefits.
How can you determine if you may be entitled to file a Dallas work accident claim against your current or former employer?
This can be fact-intensive and is based on several factors. For additional information about on the job injuries and if a claim can be filed, click any link below to jump to that section or just call us for a free consultation at (214) 747-5240 now.
The Impact of Subscriber vs. Non-Subscriber Work Accident Claims
Can you file a Dallas work accident claim if the company offers Workers’ Compensation benefits and you were injured on the job due to negligence?
Probably not. If your workplace offers Workers’ Compensation benefits they are deemed a “Subscriber” to the Texas Workers’ Compensation Act. In most instances where the company is a Subscriber and the company or your co-worker is negligent your sole legal remedy is to file a Texas Workers’ Compensation claim.
Remember: You can file a wrongful death case against your loved one’s workplace even if they are a “Subscriber” if they were killed due to the company’s gross negligence.
Also Remember: If you were injured on the job or during the course and scope of your employment, but your injuries were due to the negligence of a third-party (not your workplace or a co-worker) you can file a work accident claim case even if the company is a subscriber to the Texas Workers’ Compensation Act.
Can you file a Dallas work accident claim if the company does not offer Workers’ Compensation benefits and you were injured on the job due to negligence?
Probably so. If the company does not offer Workers’ Compensation benefits they are deemed a “Non-Subscriber” to the Texas Workers’ Compensation Act and you are generally allowed to file a work accident claim against them.
Remember: If your employer is a Non-Subscriber to the Texas Workers’ Compensation Act you must still establish the company or co-worker was negligent for causing you injuries. You do not “automatically” win. You must demonstrate your workplace or co-worker did something wrong but…
Also Remember: The State of Texas wants companies to provide Workers’ Compensation benefits to employees. Accordingly, if a company is a Non-Subscriber to the Texas Workers’ Compensation Act they are punished in the sense that they are denied several common law defenses including:
- Assumption of the Risk: If the company is a Non-subscriber to the Texas Workers’ Compensation Act they cannot assert that you assumed the risk of injury or death associated with your employment.
- Contributory Negligence: If your employer is a Non-subscriber to the Texas Workers’ Compensation Act they cannot assert that you were guilty of contributory negligence. They can, however, argue that you were solely responsible for your injuries.
- Fellow Servant: If the company is a Non-subscriber to the Texas Workers’ Compensation Act they cannot defend the case on the basis that your injury or death was caused by the negligence of a co-worker.
How Can Our Dallas Work Accident Attorneys Help?
Mullen & Mullen Law Firm has represented hundreds of clients who were injured on the job when the employer didn’t have Workers’ Compensation coverage. Our Dallas work accident attorneys have their own well trained accident investigator with experience helping to establish as much evidence as possible to develop your case. If needed, we won’t shy away from retaining Certified Safety Experts and OSHA Experts to establish liability against workplaces for causing your injuries. This type of case requires strategy, strategy, and more strategy. This is how our Dallas work accident attorneys will give you the potential winning advantage you deserve.
Are there situations where it doesn’t matter if the company is a Subscriber or Non-Subscriber to the Texas Workers’ Compensation Act?
Yes. For example, if you were injured at work or during the course and scope of your employment and your injuries were caused by someone other than your employer or co-worker you are always free to pursue personal injury damages against the negligent third-party.
Remember: If your loved one was killed at work due to the gross negligence of his or her employer you can pursue punitive damages against the workplace whether or not they are a Subscriber or Non-Subscriber to the Texas Workers’ Compensation Act.
What are some examples that illustrate the impact of Subscriber vs. Non-Subscriber status on your Dallas work accident claim?
Take a look at the examples below to better understand how your employer’s classification as a Subscriber or Non-Subscriber may impact your legal rights.
An Example: The company you work for as a delivery driver is a Subscriber to the Texas Workers’ Compensation Act. While you are making a delivery in a company van you get rear-ended by a negligent driver. You are entitled to file a Workers’ Compensation Claim because your injuries occurred during the course and scope of your employment.
You are also entitled to file a personal injury claim against the at-fault driver because your injuries occurred as a result of the negligence of a third-party.
Another Example: You work in the warehouse for a company and operate a forklift for a living. The company is a Subscriber to the Texas Workers’ Compensation Act. One of your co-workers isn’t paying attention and collides with your forklift knocking you to the ground and causing you to sustain injuries. You are entitled to file a Workers’ Compensation Claim because your injuries occurred during the course and scope of your employment. You are not entitled to file a personal injury claim because your injuries resulted from the negligence of your workplace and/or co-worker.
Yet Another Example: Assume similar facts to the above example BUT the company is a Non-Subscriber to the Texas’ Workers Compensation Act. Since your employer does not offer Workers’ Compensation benefits you ARE entitled to file a personal injury claim against the company for the negligent actions of your co-worker and/or negligent action(s) of the company itself.
Negligent Third-Parties in Dallas Work Accident Claims
If your workplace offers Workers’ Compensation benefits can you still file a personal injury action against a negligent third-party that caused you injuries?
Yes. If the company is a Subscriber and offers Workers’ Compensation benefits you can pursue BOTH a Workers’ Compensation claim AND a personal injury claim.
Remember: If the company offers Workers’ Compensation benefits you generally cannot pursue a personal injury claim against your employer or co-worker even if they were negligent. You can, however, pursue a personal injury claim if you were injured by a negligent third-party.
An Example: Let’s say you work at an assembly plant and your workplace offers Workers’ Compensation benefits. If a co-worker was running through the plant – not watching where he was going – and collided with you causing you injuries you could not file a personal injury action against your employer. If, however, a UPS employee entered the plant to deliver a package and collided with you because he or she was not paying attention you COULD pursue a personal injury claim since the UPS driver is a negligent third-party.
Another Example: Let’s say you work for Best Buy’s Geek Squad for a living and Best Buy offers Workers’ Compensation benefits. While you are driving to an installation a driver runs a red light and T-Bones your VW Beetle. You CAN file a Workers’ Compensation claim because you were injured in the course and scope of your employment with Best Buy. You can ALSO file a personal injury claim with the at-fault driver’s liability insurance company.
Establishing Liability Against an Employer if Hurt on the Job
If your workplace does not offer Workers’ Compensation benefits and you get hurt at work will you automatically win your Personal injury case?
No. If your employer is a Non-Subscriber you must still demonstrate the workplace or a co-worker was negligent and that the negligence caused your injuries. In shirt, you still have to prove your employer or co-worker did something wrong.
An Example: Your employer is a Non-Subscriber and does not provide Workers’ Compensation benefits. Your workplace provides you with a back brace for lifting heavy items. Your job duties require you to be able to lift at least 50 pounds. While lifting a 15 pound piece of equipment you suffer a freak injury and strain a back muscle. It is unlikely that the employer would be found to be negligent since they provided you with a back brace and 15 pounds was less than the maximum amount of weight you were required to lift.
How do you establish liability on the employer?
Establishing liability against your workplace can be done in countless ways. To win your case you will have to show your employer was negligent, i.e. failed to act as a reasonably prudent company would have acted under like and similar circumstances. You have to show your employer did something wrong that caused you to be injured.
What are some scenarios in which my workplace might be negligent for my injuries?
Remember that injuries can occur in a number of ways and any number of factors could have played a role in causing them. The below examples are far from exhaustive. If you have any doubts whatsoever whether your employer’s conduct (or lack of action) could have a played a part in your injuries get a free consultation from a personal injury lawyer.
- Negligent Supervision: Your employer may have liability if your injuries were caused by your workplace negligently supervising your co-workers or even – perhaps – if you were not properly supervised. For example, if you were just starting to lean how to weld and your employer left you alone and unsupervised.
- Negligent Training: Your employer may have liability if the workplace negligently trained either you or a co-worker if that negligent training caused your injuries.
- Not Providing Proper Equipment: If your job requires you to lift 50 pounds regularly and your employer did not provide you with a weight belt you could argue the workplace was negligent because it failed to provide proper equipment to is employees.
- Not Implementing Proper Policies and Procedures or Not Enforcing Policies and Procedures: Your employer could be liable if the workplace either never put proper policies and procedures in place or if they had policies and procedures in place but failed to enforce them.
- Not Warning You of Known Dangers: If your employer knew an activity was dangerous or an area of the premises was dangerous and failed to warn you of the danger(s) the workplace could be liable… and in many other ways.
Dallas Work Accident Claims Involving Death and Gross Negligence
If your loved one was killed due to his or her employer’s gross negligence can our family file a wrongful death action?
Whether the employer is a Subscriber or Non-Subscriber the family could bring a suit and seek punitive damages due to the workplace’s gross negligence.
Remember: If your loved one was killed at work due to the employer’s ordinary negligence punitive damages are not available.
How Can Our Dallas Work accident Attorneys Help?
Our Dallas work accident attorneys spend the money necessary to retain experts to attempt to establish gross negligence so that punitive damages would be recoverable. Gross negligence is difficult to prove and requires aggressive legal counsel to pursue.
If your loved one suffered catastrophic injuries due to his or her workplace’s gross negligence are punitive damages potentially recoverable?
No. Punitive damages are only recoverable if the workplace was grossly negligent and your loved one’s injuries resulted in death.
Multi-Employer Work Sites
What is a multi-employer work site?
A multi-employer work site is best represented by a construction project. On construction projects multiple companies are likely to have some of their employees at the same work site. For example, a general contractor hires sub-contractors which would include electricians, plumbers, roof experts, flooring experts, etc.
Remember: If you were injured by a co-worker’s negligence and your workplace Non-Subscriber the filing of a Workers’ Compensation claim is likely your sole remedy for the injuries you sustained. If, however, you were on the work site as working for ABC Electricians and you were injured due to the negligence of an employee of NOP Flooring you would be able to file both a Workers’ Compensation claim and a personal injury claim against NOP flooring since a negligent third-party was responsible for your injuries.
Remember: The general contractor and/or entity that owned the work site could have liability if they failed to properly supervise the work site.
Getting Medical Treatment for Work-related Injuries
If you were hurt at work are you entitled to any necessary medical treatment?
Possibly. If your employer subscribes to benefits you will most likely receive some medical treatment. If your workplace does not offer Workers’ Compensation benefits they may still attempt to get you to a medical provider the company uses on a regular basis.
Remember: Many clinics recommended by workplaces are recommended for a reason. These clinics are generally pro-employer and usually try and have you return to work after only a limited number of therapy sessions.
How Can Our Dallas Work accident Attorneys Help?
Our Dallas work accident attorneys have access to an extraordinary network of medical providers who provide services to injured workers. These providers are truly concerned about your health and will not release you back to duty unless it is absolutely safe to do so. The types of providers our Dallas work accident attorneys partner with include: medical doctors, surgeons, chiropractors, MRI facilities, pain management doctors, and surgical clinics or hospitals.
How much is all of this medical treatment going to cost you?
Following a work accident life is challenging and medical bills mount. We work with medical providers who agree to delay billing you for their services until the conclusion of your work accident claim. You have no initial out-of-pocket expenses to receive quality care.
Should you avoid seeing the Workers’ Compensation doctors?
Generally no. Remember that in many cases you may have the right to file both a Workers’ Compensation claim AND a personal injury claim. It is almost always recommended that you make your medical appointments with the “company doctor” as failing to follow your employer’s instructions or missing appointments could be grounds for banning your work accident claim. You do not want to become ineligible for benefits due to non-compliance.
Qualifying for a Law Loan When Filing a Dallas Work accident Claim
If you were injured at work could you be eligible for a law loan to use to pay bills while you are recovering from your injuries?
Yes, you could. The law loan company will evaluate the risk of your case to determine if they are comfortable enough to loan you funds in exchange for an assignment in the settlement proceeds of your case.
How Can Our Dallas Workplace Injury Attorneys Help?
Our attorneys are not aware of any law loan companies that will advance money on a claim if the injured worker is not represented by a lawyer. We have a relationship with a law loan company that charges a flat interest amount instead of payments that escalate and escalate.
Recoverable Damages in Work accident Claims
What damages are potentially available to you in a work accident claim against your Dallas workplace if they are a Non-Subscriber to the Texas Workers’ Compensation Act?
If your employer does not subscribe to coverage and you are injured at work due to the company or a co-worker’s negligence you are allowed to recover damages against the company. Potential damages include past and future mental anguish, past and future physical impairment, past and future pain and suffering, loss of earnings in the past, loss of earning capacity in the future, recoupment of past medical expenses, and any necessary future medical expenses.
Remember: If you were injured while working, whether at your office or off-site, and your injuries were caused by a negligent third-party (as opposed to your workplace or co-worker) all of the above potential damages are also available to you.
What damages are potentially available if the employer was grossly negligent and the injured worker died from his or her injuries?
Answer: Punitive damages.
Workers’ Compensation Liens
Can the Workers’ Compensation Carrier place a lien on the proceeds of any settlement you might reach with a negligent third-party that was responsible for your injuries?
Yes, and they likely will. The Workers’ Compensation carrier’s right to recover a portion of your third-party settlement is referred to as the right of subrogation.
Do Workers’ Compensation carriers reduce the amount of their lien or agree to accept less than what they are owed?
Yes, most carriers will at least reduce their lien amount somewhat. Sometimes they are obligated to do so (if you are represented by an attorney and they do not retain their own legal counsel, for example). Often times they are not required to reduce but will agree to a reduction in an effort to guarantee the recovery of at least a portion of funds.
How Can Our Dallas Work-related Injury Attorneys Help?
Our Dallas work accident attorneys are well-trained in negotiating down Workers’ Compensation liens so that our clients are left with extra money in their pockets. Our Dallas work accident attorneys interact with all major subrogation recovery organizations on a regular basis.
What reduction are you generally entitled to if your injuries were caused by a negligent third-party and the workers’ compensation carrier does not hire its own counsel to aid in recovering damages against the at-fault party?
Typically you are entitled to reduce the workers’ compensation lien amount by 1/3. For example, if the carrier paid $150,000 in indemnity expenses (lost wages) and medical expenses they would likely agree to reduce their lien amount to $100,000.
What if Your Employer Fires You After Being Injured on the Job?
Fired with eerily short notice after you got injured at work? Here’s what to do if you suspect your employer of firing you for getting injured at work.
It’s a nightmare scenario: you get hurt on the job. Then mysteriously, you get fired not long after the injury.
You can’t be fired for an on-the-job injury. Your workplace would have to be insane for telling you that’s the reason for your termination. This is often referred to as “retaliatory discharge.” That’s because it would be easy to sue them if they said that.
But it’s easy for your employer to get around it. They could say you’re not meeting performance expectations. They could claim the company is experiencing financial difficulties. As long as they don’t explicitly fire you for one of the legally protected reasons, they can fire you if you are an “at-will” employee.
To be an “at-will” employee means the workplace is free to discharge you for good cause, or bad cause, or no cause at all.
In Texas, you are protected by a “public policy exception.” That means that if you are performing an action that complies with public policy, or refusing to perform an action that violates public policy, you can’t be fired. So if you warn OSHA repeatedly about safety violations your employer commits, you can’t be fired for that.
What Can You Do if Your Employer Fires You after a Work Accident in Dallas?
So workplaces have a fair degree of freedom to end your employment at any time. But that doesn’t mean you’re helpless to do anything if you feel you were fired because you got injured at work. Here’s what you can do:
Gather all the Paper You Can That’s Related to Your Injury
This includes obvious documents like medical records, prescriptions, e-mails to your employer, proof of cell phone calls to your workplace, or any workers’ comp claims.
But that could also include less obvious documents that reveal your employer’s attitudes about workplace injuries. For example, you may have an office newsletter, workplace evaluation, or other written exchanges about the injuries. Gather those documents too.
Get a Personal Injury Lawyer Involved ASAP
The minute you suspect your employer of taking any negative actions against you after you experienced a workplace injury, that’s the time to start talking to a personal injury lawyer. For starters, you only have 2 years following your date of injury to file a claim for compensation to cover your injuries.
A personal injury attorney can help you strategize specific methods to build your case against your workplace. The longer you wait, the less credible you look, and the harder it is to recover the full compensation you deserve.
Our Dallas work injury attorneys charge nothing to discuss the facts of your case. You only pay when we win. The worst thing that can happen is you may find out you don’t have a claim. Contact us at (214) 747-5240 now for a free consultation.
Contact us in Dallas, Plano, Frisco, or Fort Worth now, to discuss the facts of your potential case. There is never a fee for our legal services unless we obtain a recovery for you.
Joseph R. Morrison is the Senior Associate Attorney at Mullen & Mullen Law Firm in Dallas, TX, where he represents people personally injured due to the negligence of others. He was recognized by VerdictSearch for obtaining a Top 5 Premises Liability verdict in the State of Texas, and has been quoted in the ABA Journal.