Question: I was seriously injured at work. My hand got caught in some machinery while I was cleaning it out. The company doctor told me that I need to see a specialist and probably need surgery. But my supervisor keeps ignoring my requests. Can I sue my employer for the accident?
Answer: It depends on whether your employer was a subscriber or a non-subscriber to the Texas Worker’s Compensation Act (TWCA). Under the Texas Labor Code, employers are given the option of subscribing to the TWCA. The Act defines how an injured worker’s claim must be processed and paid for a workplace accident, while also giving the employer some legal protections.
If the employer has a work injury program or carries an insurance policy that complies with the TWCA, then the employer is considered a “subscriber.” If the employer is a subscriber to the TWCA, then injured employees are not permitted to sue the employer for common law damages (except under very few circumstances). Rather, the employee is limited to the benefits provided for under the TWCA including medical expenses, lost wages, physical impairment, and other prescribed benefits. The advantage to the employee, however, is that the employee does not have to prove that the employer was legally negligent in causing the accident. All the employee has to show is that he was injured while on the job without regard to the negligence of either the employer or employee.
If the employer does not have a work injury program or insurance policy that complies with the TWCA, then the employer is considered a “non-subscriber.” In these situations, the employee is free to pursue common law damages and even sue the employer for the injury just like any other legal claim. Additionally, the damages are not limited as with claims under the TWCA. At the same time, however, the employee has the burden of proving that the employer was negligent. If the employee can show that the employer is even the slightest bit negligent, then the employer is 100% liable for the employee’s injury even if the employee was partially responsible.
So, although workers compensation insurance is not required under Texas law, the TWCA does provide some incentives for employers to carry worker compensation for their employees.
If your employer is a subscriber, then you need to hire an attorney who handles worker’s compensation cases to help get your benefits filed. If you employer is a non-subscriber, then you need to contact any personal injury attorney who handles “nonsubscriber” cases. If the attorney agrees to take your case, then the attorney can help you get the medical treatment you need under a “letter of protection.”