Hurt at Work? What You Need to Know About Workers’ Comp Non-Subscribers in Texas

Texas Non-subscriber vs Workers’ Compensation

In Texas, employers have a unique choice regarding how they handle employee injuries on the job: they can either subscribe to the state’s workers’ compensation system or opt- out and become “non-subscribers.”

If you’ve been injured on the job in Texas, you might be feeling overwhelmed and uncertain about how to handle your medical bills and lost wages. This guide from Genthe Law Firm in Dallas will help you understand your options, especially if your employer doesn’t have workers’ compensation insurance.

Understanding Workers’ Compensation

Workers’ Compensation is a type of insurance that covers your medical bills and lost wages if you get hurt at work. In Texas, not all employers are required to have this insurance. Employers who do have it are called “subscribers.” If your employer has workers’ compensation, you usually can’t sue them for your injury. Instead, you get benefits from the insurance. But if they don’t have Workers’ Comp – you CAN sue them.

What is a ‘Non-Subscriber’ Employer?

In Texas, employers are not legally required to carry workers’ compensation insurance. Employers who choose not to are known as non-subscribers. While it is perfectly legal for an employer to be a non-subscriber, this choice carries significant risks and responsibilities.

When an employer opts out of workers’ compensation, they have:

• Legal Responsibility: Non-subscriber employers can be directly sued by their employees for work-related injuries. This means employees can take legal action to recover damages.
• No Immunity: Unlike subscribers who have workers’ compensation insurance, non-subscriber employers do not have immunity from lawsuits related to workplace injuries. This means that they can be held fully accountable for any negligence that leads to an employee’s injury.
• Limited Defenses: Non-subscriber employers have limited defenses available in court. They cannot argue that the employee’s negligence contributed to the injury, which is a significant advantage for the injured worker.
• Risk of High Penalties: Without workers’ compensation insurance, non-subscriber employers face potentially high penalties if they are found liable for an employee’s injury.

Statistics on Non-Subscribers

According to the Texas Department of Insurance, about 28% of private, non-government employers in Texas do not have workers’ compensation insurance. This figure represents a significant portion of the workforce, as these non-subscriber employers account for approximately 20% of all private-sector employees in the state (source: Texas Department of Insurance, Workers’ Compensation Research and Evaluation Group).

Industries Less Likely to Have Workers’ Compensation in Texas

In Texas, certain types of employers and industries are more likely to be non-subscribers to workers’ compensation insurance. Understanding which sectors tend to opt-out can help you be more prepared if you work in these industries. The prevalence of non-subscribers varies significantly by industry. For example:

1. Construction: Approximately 40% of construction employers in Texas are non-subscribers. Many small to mid-sized construction companies in Texas choose not to carry workers’ compensation insurance due to the high costs. This industry often sees higher rates of workplace injuries, making the lack of coverage particularly concerning.
2. Agriculture: Around 50% of agricultural employers do not carry workers’ compensation insurance. Farms and ranches, especially smaller operations, often opt out of workers’ compensation. The agricultural sector is known for its physically demanding and potentially hazardous work conditions.
3. Retail and Hospitality: These sectors also have high rates of non-subscription, with estimates ranging between 30% to 40% depending on the specific type of business.
   • Retail: Smaller retail businesses sometimes forego workers’ compensation to save on expenses. These businesses often face high turnover and may prioritize other types of insurance over workers’ compensation.
   • Hospitality: Restaurants, hotels, and other hospitality-related businesses, particularly smaller ones, are known to be frequent non-subscribers. The industry’s relatively low-profit margins can lead to cutting costs in areas like insurance.
4. Healthcare: Surprisingly, some healthcare facilities, especially smaller clinics or privately owned practices, may opt out of workers’ compensation. The high costs associated with medical malpractice insurance and other operational expenses can lead to this decision.

“Some employers buy accident and health insurance policies or disability policies or create employer indemnification agreements as less costly alternatives to workers’ compensation insurance coverage. Even though these policies may provide benefits to an injured employee, Texas law does not recognize them as substitutes for workers’ compensation insurance coverage.” – Texas Dept of Insurance

How to Find Out if Your Employer Has Workers’ Compensation

Your employer should post information about their workers’ compensation insurance at your workplace or include it in the employee handbook. If you can’t find it, you can call the Texas Department of Insurance’s Division of Workers’ Compensation at (512) 676-6000 or check their website.

Kroger Non-Subscriber Claims in Texas

In Texas, Kroger is among the major employers that opt out of the state’s Workers’ Compensation Act, choosing instead to manage work injuries through their own insurance under the Employee Retirement Income Security Act (ERISA). This status as a non-subscriber significantly alters the legal landscape for injured Kroger employees. Unlike typical workers’ compensation scenarios, Kroger cannot defend against claims by arguing employee fault or assumed risk, potentially facing substantial damages if found negligent.

Nearly 44% of Texas employers are non-subscribers, often citing high insurance premiums and a belief that they can provide better care independently as reasons for opting out. However, this means they lose certain legal defenses normally available under workers’ compensation law, such as claims related to employee negligence or the acceptance of known risks by the employee.

For Kroger employees, this opens a pathway to suing for negligence if they can prove their injury was due to the employer’s lack of care. Successful claims may lead to high damage awards covering medical expenses, lost wages, and even punitive damages.

Can You Sue a Non-Subscriber Employer?

Yes, if your employer doesn’t have workers’ compensation insurance and their negligence caused your injury, you can sue them. Texas law makes it easier for employees to win these cases. Here’s how it works:

• Negligence: You need to prove that your employer was careless and that this carelessness caused your injury.
• No-Fault Argument: Unlike other personal injury cases, a non-subscriber employer can’t argue that you were partly to blame for your injury. If they are even a little bit at fault, they might have to pay all your damages.

What Can You Get from a Lawsuit?

If you win your case against a non-subscriber employer, you might get money for:

• Lost Wages: Both past and future wages you couldn’t earn because of your injury.
• Medical Bills: Costs for past and future medical treatment.
• Pain and Suffering: Compensation for the physical pain and emotional stress caused by your injury.
• Mental Anguish: Compensation for any mental suffering.
• Punitive Damages: Extra money to punish the employer if they were extremely careless.

What to Do After a Workplace Accident

If you’ve been injured at work, it’s crucial to take the right steps to protect your rights and build a strong case. Here’s what you should do:

What You Should Do

1. Seek Medical Attention Immediately: Your health is the top priority. Get medical help as soon as possible, even if the injury seems minor.
2. Report the Injury: Notify your supervisor or employer about the injury as soon as possible. Make sure the report is in writing and keep a copy for your records.
3. Document Everything: Keep detailed records of the incident, including:
   • Date, time, and location of the accident
   • Names and contact information of any witnesses
   • Photos of the injury and accident scene
   • Medical reports and bills
   • Communication with your employer regarding the injury
4. Follow Medical Advice: Follow all treatment plans and attend all follow-up appointments recommended by your healthcare provider.
5. Consult an Attorney: Speak with a personal injury lawyer who specializes in workplace injuries to understand your rights and options.

What You Should NOT Do

1. Don’t Delay Reporting: Failing to report the injury promptly can harm your case.
2. Don’t Sign Anything Without Legal Advice: Don’t sign any documents from your employer or their insurance company without consulting a lawyer.
3. Don’t Downplay Your Injury: Be honest about the severity of your injury with medical professionals and your employer.
4. Don’t Discuss the Accident Publicly: Avoid discussing the details of your accident on social media or with coworkers, as it might be used against you.

What Employers Might Argue

Your employer might try to defend themselves by:

• Claiming your injury didn’t happen the way you said it did.
• Arguing that you were entirely responsible for your own injury.
• Saying you weren’t doing your job when you got hurt (e.g., you were goofing off).
• Suggesting your injury isn’t real or is due to a preexisting condition.

While employers might present these defenses, it’s important to remember that they are often tactics to reduce their liability. Even if your employer argues that you were at fault or questions the severity of your injury, you should still pursue your lawsuit if you believe their negligence caused your injury. Consulting with an experienced attorney can help you navigate these defenses and build a strong case. At Genthe Law Firm, we are dedicated to helping you fight for the justice and compensation you deserve

How Genthe Law Firm Can Help

At Genthe Law Firm, we understand how challenging it can be to deal with a work-related injury, especially when your employer doesn’t have workers’ compensation insurance. Our experienced attorneys are here to guide you through the process and fight for the compensation you deserve. We can help you:

• Investigate Your Case: We’ll gather the evidence needed to prove your employer’s negligence.
• File Your Claim: We’ll handle all the paperwork and legal details to ensure your claim is filed correctly.
• Negotiate Settlements: We’ll work to get you a fair settlement that covers all your expenses and losses.
• Represent You in Court: If your case goes to trial, we’ll be there to represent you and fight for your rights.

FAQs on Worker’s Comp & Work Injuries in Texas

What is Texas non-subscriber workers’ compensation?

In Texas, employers are not required to carry workers’ compensation insurance. Employers who choose not to have this insurance are known as non-subscribers. Non-subscriber employers can be directly sued by their employees for work-related injuries. While this is legal, non-subscribers face higher risks and responsibilities, including potential lawsuits without the usual legal protections that workers’ compensation insurance provides.

What is the employer’s responsibility when a worker is injured in Texas?

When a worker is injured in Texas, the employer’s responsibilities include:

• Providing Immediate Medical Care: Ensuring the injured worker receives prompt medical attention.
• Reporting the Injury: Documenting and reporting the injury according to state regulations.
• Cooperating with Investigations: Working with relevant authorities and insurance providers to investigate the incident.
• Maintaining a Safe Workplace: Addressing safety issues to prevent future injuries.

For non-subscribers, these responsibilities also involve preparing for potential legal action from injured employees.

What are the rules for workers’ compensation in Texas?

Key rules for workers’ compensation in Texas include:

• Coverage: Employers can choose whether to carry workers’ compensation insurance.
• Reporting: Injuries must be reported promptly to the employer and the Division of Workers’ Compensation.
• Benefits: Workers’ compensation covers medical expenses and a portion of lost wages.
• Legal Protection: Employers with workers’ compensation insurance (subscribers) have legal protections against most lawsuits from injured employees.

What employees are exempt from workers’ compensation in Texas?

In Texas, certain employees are exempt from workers’ compensation coverage, including:

• Domestic Workers: Such as housekeepers and nannies.
• Farm and Ranch Workers: Those working on small farms and ranches.
• Certain Independent Contractors: Depending on the nature of their work and their contracts.
• Casual Employees: Those employed for non-regular, temporary, or non-continuous work.

What is the difference between subscriber and non-subscriber?

• Subscribers: Employers with workers’ compensation insurance. They have legal protections against most employee injury lawsuits and provide benefits through their insurance policy.
• Non-Subscribers: Employers without workers’ compensation insurance. They can be sued directly by employees for work-related injuries and face limited legal defenses in such cases.

What is the minimum payroll for workers’ compensation in Texas?

In Texas, there is no specific minimum payroll requirement for workers’ compensation insurance. However, employers with fewer than five employees who are not in certain hazardous industries might choose to opt out. Each business must assess its needs and risks to determine the appropriate coverage.

Can you terminate an employee while on workers’ comp in Texas?

While it is not illegal to terminate an employee who is on workers’ compensation, employers must be cautious. Termination should not be retaliatory or related to the employee’s claim. Employers must have a valid, non-discriminatory reason for termination, such as documented performance issues or company-wide layoffs.

How does workers’ comp pay you in Texas?

Workers’ compensation in Texas provides the following types of payments:

• Medical Benefits: Coverage for medical treatment related to the injury.
• Income Benefits: Payments for lost wages, typically a percentage of the worker’s average weekly wage.
• Temporary Income Benefits (TIBs): For workers who are temporarily unable to work.
• Impairment Income Benefits (IIBs): For workers with permanent impairment.
• Supplemental Income Benefits (SIBs): For workers with significant impairment who cannot earn their pre-injury wages.
• Lifetime Income Benefits (LIBs): For severe, life-altering injuries.

Can you work while on workers’ comp in Texas?

If your doctor approves, you can work while receiving workers’ compensation benefits. You might be assigned light-duty or modified tasks that accommodate your injury. It’s essential to follow your doctor’s recommendations and report any changes in your work status to your employer and the workers’ compensation insurance carrier.

Your Path to Recovery

Getting injured at work can be overwhelming, especially if your employer doesn’t have workers’ compensation insurance. Understanding your rights and options can help you get the compensation you deserve. If you’re unsure about anything, consider speaking with a lawyer who specializes in workplace injuries.

At Genthe Law Firm, we’re here to help you every step of the way. Contact us today at (214) 957-0898 for a free consultation and let us help you get back on your feet.