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Texas Workers’ Comp: How to Get Paid Even if Your Employer Is a ‘Nonsubscriber’

Uniquely among U.S. states, Texas allows any employer to opt out of the workers’ compensation system, becoming “nonsubscribers.”

About 28 percent of Texas’ year-round, private employers are nonsubscribers, according to data compiled by the Texas Department of Insurance. Hundreds of thousands of people, nearly 20 percent of Texas’ private workforce, are clocking in without the benefit of a workers’ comp safety net.

Some nonsubscribers carry alternative occupational benefit plans that cover many of the same costs as workers’ compensation, but legally, those plans are not workers’ compensation. This means nonsubscribers have opted out of the tradeoff at the core of workers’ compensation: they don’t get immunity from civil lawsuits by the employee for injuries sustained on the job.

Whether your employer is a workers’ comp subscriber or not makes a huge difference in how compensation is pursued. In both scenarios, an experienced Texas work injury lawyer can help you make a claim and negotiate for maximum compensation.

Texas’ unique workers’ comp program

In general, workers’ comp provides wage and accident-related medical benefits to people who were injured on the job. It also protects subscribers from injury-related lawsuits by employees.

When the employer is a subscriber, it rarely matters who is at fault in a workplace accident. Workers’ compensation pays for the full cost of medical expenses and a portion of your lost wages, regardless of fault, with only limited exceptions for specific types of misconduct on the part of the injured worker.

Again, nonsubscribers can provide injury benefits through a private plan, but private plans are not the same as workers’ comp. Nonsubscribers with private plans do not get the same legal protections as subscribers.

Nonsubscribers and injured workers

If an employer doesn’t have workers’ comp, an injured employee often must sue the employer directly to recover compensation for medical bills, lost wages, and other costs such as pain and suffering.

A nonsubscriber injury claim is similar to most other personal injury lawsuits, with one major difference: negligence is “all or nothing.” In a regular personal injury claim, Texas uses modified comparative negligence with a 51% bar: if the injured person is partially at fault, their recovery is reduced by their percentage of fault, and if they are more than 50 percent at fault, they can’t recover at all.

In a nonsubscriber claim, though, this doesn’t apply. If a nonsubscriber is even slightly at fault for their employee’s work injury, they must pay 100% of the damages.

Key elements of a Texas nonsubscriber lawsuit

To get money for your injuries out of a non-subscribing employer, you must meet the following requirements:

Notice. You must notify your employer that you were hurt on the job. The notice must be in writing and delivered within 30 days of the incident.

See a doctor. Getting prompt medical attention not only protects your health, but also creates a record of your injuries. There are no official preferred doctors in a nonsubscriber situation; you can choose who to see.

Prove negligence. To prove your case, you will have to show that:

  • You were operating within the “course and scope” of your employment at the time of the accident
  • The employer failed to meet safety standards
  • This failure led to your injury

How much money is my accident worth?

If you were injured in a workplace accident at a nonsubscriber company, you may be able to sue your employer for:

  • Pain and suffering
  • Lost wages
  • Medical expenses
  • Loss of enjoyment of life
  • Diminished earning potential

Remember, once you accept a settlement offer for an injury, that’s it; you generally cannot go back for more. It’s best to discuss your situation with an experienced work injury lawyer before you sign anything.

The four types of workers’ comp benefits in Texas

While employees of nonsubscribers can go after compensation for many kinds of damage, the workers’ comp system is more limited.

Medical — This pays for all “necessary” accident-related treatments that are recommended or approved by a doctor. There is no policy limit and no end date; if your work injury requires treatment years after the injury itself, or pain management medication for the rest of your life, that is covered. You may also be able to recover travel expenses for medical treatments that are 30 or more miles away.

Vocational rehabilitation — For those who cannot return to work due to their injuries, you may be eligible for Texas’ vocational rehab program. Rehab seeks to give people new job skills and assistance finding appropriate work for their new physical limitations.

Wage — There are various types of wages benefits a person can receive under Texas’ workers’ comp program. Typically, you can receive workers’ comp for up to 104 weeks. If necessary, you can file for an extension. The four types of wage benefits are:

  • Temporary — Usually, this benefit is 70% of your pre-accident wages. The maximum weekly benefit in Texas is about $970.
  • Impairment — If you’ve recovered from your workplace injury as much as possible, but you have not regained the full range of functions necessary for work, you may be eligible for impairment pay. The rate is 70% of your pre-accident wage. The more impaired you are, the longer you will receive benefits.
  • Supplemental — Once your impairment benefits run out, you may be eligible for supplemental income benefits. People who qualify have a permanent impairment rating of 15% or higher, are not able to return to work or earn 80% of pre-accident wages and are actively looking for work can get supplemental pay for up to 401 weeks.
  • Lifetime — Sometimes referred to as “total disability,” lifetime benefits may be owed to people with severe and permanent work-related injuries. These may include amputation, spinal injuries, blindness, traumatic brain injury (TBI), or massive third-degree burns. This benefit is 75% of your pre-accident wages.

Death — If you lost a loved one in a workplace accident, you may be owed money for funeral expenses and lost wages, among other damages. 

The workers’ compensation process in Texas

Notice. An injured employee must notify their employer of an injury within 30 days of the incident. It is best to notify your employer as soon as possible and do it in writing so there is a record of the notification. The longer you wait, the more skeptical insurance companies become of your claim.

See a doctor. Subscribers have preferred doctors that an injured employee must see first to successfully apply for workers’ comp. The first doctor’s visit gives the insurance provider and company a medical report. Depending on the situation, you may see your own doctor for follow up treatment and checkups.

File a claim. The actual filing of the workers’ comp claim happens when you submit your Employee’s Claim for Compensation for a Work-Related Injury or Occupational Disease (DWC Form-041) form. This document must be completed and filed within one year of the workplace accident or awareness of a work-related illness.

Outcome. Your employer will be notified of the claim and the company’s insurance provider will review it. An adjuster will decide whether to accept or reject the claim.

Appeal. If your claim is rejected, you can appeal the decision. Texas provides benefit review conferences and hearings with workers’ comp judges to settle disputes. If you don’t already have a lawyer, you should seriously consider getting one to handle your workers’ comp appeal.

Fight for your rights with an attorney on your side

Nearly all Texas work injury lawyers offer free case evaluations and work on contingency. When lawyers work on contingency, there is no retainer or hourly rate for you to pay. The attorney’s fee is calculated into your final settlement, award, or verdict and paid for by insurance providers and employers. Lawyers on contingency only get paid when they win.

Again, the workers’ compensation system is complex, and you don’t need to face it alone. Contact an experienced Texas work injury attorney in your area today.

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