As an experienced Injury Lawyer in Tyler, I know on the job injuries can occur in any occupation but are much more likely to occur in the more dangerous industries such as the construction, oilfield, or manufacturing industries. To qualify as on-the-job injury the accident must have taken place while the injured worker was acting in furtherance of the business purposes of the employer. Thus if the injured employee was performing some part of the job for which they were hired or other activity which benefited the employer then they will likely be found to be acting in the course and scope of their employment. Employer liability for on-the-job injuries is fault based. Thus the injured employee must prove that some act or omission of the employer which amounted to negligence caused the accident and the resulting injuries.
Workers’ Compensation Subscribers
There are many misunderstandings about fault-based employer liability for on-the-job injuries because of the prevalence in Texas of workers’ compensation insurance. Workers’ compensation insurance is completely different than a direct action against an employer. Injured workers must first determine if their employer is a “subscriber” to the Texas Workers’ Compensation program. An employer becomes a subscriber by purchasing an approved policy from an insurance carrier licensed to sell an insurance policy approved by the Texas Workers’ Compensation Act. Workers’ compensation policies are “no fault.” It is irrelevant whether the act or omissions of the employer, a co-worker, or the injured worker himself actually caused the accident because the worker is nonetheless entitled to benefits.
Workers’ Compensation Benefits
Workers’ compensation benefits are comprised mainly of limited lost wage benefits which are calculated pursuant to a formula and medical benefits for reasonable and necessary accident related medical care. If an employer purchases an approved policy then the employer is entitled to immunity from negligence lawsuits which result in non-fatal injuries to employees. Employers may establish a “self-insured” workers’ compensation program but the program must be specifically approved under the mandates of the Texas Workers’ Compensation Act. This is an option which is used by only the largest of employers.
Imitation Workers’ Compensation Policies
Injured workers should be aware of “look-alike” or imitation workers’ compensation programs. Many employers have sought to avoid high workers’ compensation insurance premiums by purchasing a policy which looks somewhat the same and provides more limited wage and medical benefits. Although these programs may be presented to the employee as a workers’ compensation program they do not qualify the employer for immunity and the employer may still be sued for ordinary negligence. Some common tell-tale signs these look-a-like programs are the employer’s right to make decisions regarding the payment of wage or medical benefits and the employer’s right to designate the treating physicians.
Intentional and Gross Negligence Claims
There are several very important exceptions to the immunity an employer obtains by purchasing workers’ compensation insurance. There’s no immunity for intentional acts by or at the direction of the employer. There’s also no immunity for fatal injuries to an employee which were caused by the gross negligence of the employer. In a gross negligence death case the family of the injured worker has a right to recover both workers’ compensation benefits and to sue the employer for punitive damages. The gross negligence cause of action accrues to the spouse and heirs of the body of the deceased worker.
Gross Negligence Wrongful Death Workers’ Compensation Claims
Gross negligence claims against subscriber employers are governed by Texas Labor Code Section 408.001(b). The family of the deceased worker must establish that:
- The employer’s act or omissions created an extreme degree of risks;
- That the employer had actual subjected awareness of the extreme degree of risks created by their conduct;
- That the employer nonetheless proceeded with conscience indifference to the safety and well-being of the worker.
Gross negligence must be established by clear and convincing evidence. The grant of immunity to employers who carry workers’ compensation insurance has caused some employers to be lax about safety resulting in an increasing number of gross negligence death cases.
Employers Without Workers’ Compensation Insurance
If a Texas employer elects not to carry workers’ compensation insurance then they are said to be going “bare.” A bare employer loses their right to assert their common law defenses of contributory negligence and assumption of the risk. The common law defense of contributory negligence would normally give the negligent employer the right to assert that the accident was caused in part by the contributory negligence of the injured worker thereby reducing the amount of the damages that the worker could recover from the employer. The common law defense of the assumption of the risk would normally give the employer the right to assert that the injured worker was actually aware of the risk associated with their job and assumed or accepted that risk thereby precluding them from recovering from the employer. Without these two common law defenses an injured employee may recover all of their damages from an employer if the negligence of the employer caused any part of the accident and resulting injuries.
Texas employers have a non-delegable duty to provide a safe work environment and safe instrumentalities with which an employee performs their job related duties. Thus an employer that does not subscribe to the Texas Workers’ Compensation system may be held liable for an accident and injuries caused by defects in stairways, walkways, lighting or other utilities, the lack of or the failure to enforce safety rules and procedures, or the faulty condition of trucks, forklifts, or other equipment.
After more than twenty-nine years and thousands of personal injury cases there is virtually nothing that we haven't seen and successfully handled. There is no substitute for experience. If you want the assistance of an experienced Board Certified Personal Injury Attorney in the Tyler / Longview / East Texas area contact us today.