I was Injured at Work. Can I Sue My Employer?

on the job injury

Texas has created a workers’ compensation program under the Texas Workers’ Compensation Act (the “TWCA”). The TWCA was adopted to provide prompt remuneration to employees who sustain injuries in the course and scope of their employment. The act relieves employees of the burden of proving their employer’s negligence, and instead provides timely compensation for injuries sustained on-the-job. In exchange for this prompt recovery, the act prohibits an employee from seeking common-law remedies from his employer, as well as his employer’s agents, servants, and employees, for personal injuries sustained in the course and scope of his employment.

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Employers may opt-out of the workers’ compensation program. When they opt-out, they are considered a “non-subscribing employer,” and they forgo certain benefits provided by the TWCA. In particular, the TWCA vests employees of non-subscribing employers with the right to sue their employers for work-related injuries, and the TWCA deprives the non-subscribing employer of the traditional common law defenses of contributory negligence, assumption of risk, and the fellow-servant rule. The Texas workers’ compensation construct contemplates two systems, one in which covered employees may recover relatively quickly and without litigation from subscribing employers and the other in which non subscribing employers are subject to suit by injured employees to recover for their on-the-job injuries.

Although Texas law creates an incentive for employers to obtain workers’ compensation insurance coverage by eliminating certain defenses, a non-subscribing employer is not automatically obligated to compensate an injured employee. Instead, an employee-plaintiff must prove the elements of his negligence or other claim just as any other litigant. Section 406.033(d) of the Texas Labor Code provides that in an action against a non-subscribing employer, “the plaintiff must prove 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.” Tex. Lab. Code Ann. § 406.033(d). The TWCA creates a system in which the employee of a non-subscribing employer must prove the negligence of the employer, but the employer cannot rely on the defense of contributory negligence, assumption of risk, or the fellow-servant rule. 

Texas law recognizes that an employer owes its employees certain non-delegable duties, including:

  • To provide them a safe place to work.
  • To furnish the employee with safe and suitable equipment so that he may carry on the work with reasonable safety.
  • To provide proper instruction and training for performing assigned tasks. 
  • To provide adequate help in performing a work assignment. 
  • To warn employees of potential hazards. 
  • To affirmatively provide medical care and assistance to an employee when the employee is incapable of helping himself and has an immediate and urgent need for medical assistance. 

An employer must exercise ordinary care, based on standard negligence principles, in carrying out these duties. If an employer is negligent in carrying out these duties and causes the employee’s injury or death, the employer may be liable to pay damages. 

If you or a loved one has been killed or seriously injured in an on-the-job injury, contact the law firm at (833) 712-4472 to learn more about your options. Your initial consultation is completely free and confidential.

The law firm can meet you at home, in the hospital, or at the law firm’s office. The law firm can also meet you via videoconferencing for a contactless discussion.