Industrial Accidents

Non-Subscriber Work Injury.

Texas is the only state where employers can opt out of workers' comp.

Texas is the only state where an employer can simply choose not to carry workers' compensation. That choice comes with a price the company does not advertise.

An employer that opts out is called a non-subscriber. If you are hurt on the job because a non-subscriber was negligent, you are not limited to a workers' compensation claim. You can sue the company directly, in court, for your full damages, including the pain and the lost future the comp system caps or ignores.

The law goes further. To keep opted-out employers from having it both ways, Texas strips them of the defenses that usually blame the worker. A non-subscriber cannot argue that you were partly at fault, that you assumed the risk of the job, or that a co-worker caused it. You still have to prove the company was negligent, but you prove it without fighting through those defenses.

Texas Labor Code Section 406.033 bars a non-subscribing employer, in a suit by its injured employee, from asserting contributory negligence, assumption of the risk, or the fellow-servant rule. The employee must still prove the employer's negligence caused the injury.

From The Night Docket

On duty and blame:

One Word: Serious Violation →

Serious violation: the word on the OSHA citation after a worker is hurt sounds like a verdict, and it is not. The statute defines it by what could have happened and by what the employer knew or should have known, not by what did happen; the citation runs on its own clock, six months to issue and fifteen working days to contest; the penalty number says as much about the size and history of the company as about the hazard; and the statute itself says it neither enlarges nor diminishes anyone’s rights in a civil case. What the word means, how a citation is issued, priced and fought, why the number can shrink without the hazard shrinking, what the citation is and is not in a Texas injury case against a subscriber, a nonsubscriber or a third party, and the file a family should ask for before it is gone.

Dispatch: Hours Later →

A plant fire puts a column of smoke over a town, and the people who breathe it are sorted, without knowing it, by chemistry. Some gases announce themselves the instant they are breathed. Others say almost nothing, and those are the ones that put a person who walked away feeling fine into an emergency room that night. What the federal medical guidelines say, gas by gas, about which ones burn at once and which ones wait hours to fill the lungs, the process-safety duty a plant owes when it holds dangerous chemicals in quantity, why comp is a floor and not a ceiling for the worker, what the family next door has to ask, and why the record made early is the case.

Duty →

The safety obligation an employer owes the people who work for it.

Foreseeable →

Preventable harm, and who answers for it.

Common Questions

How do I know if my employer is a non-subscriber?

Texas employers must notify workers and the state whether they carry workers' compensation. If your employer opted out, it is a non-subscriber, and you can generally sue it directly for a work injury caused by its negligence.

What defenses does a non-subscriber lose?

Under Labor Code Section 406.033, it cannot argue you were contributorily negligent, that you assumed the risk, or that a fellow employee caused the injury. You still must prove the employer's negligence, but without those defenses in the way.

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