What is a Work Injury “Nonsubscriber” Claim?

Oct 31, 2022 | Guides, Work Accidents

Unlike most states, Texas law doesn’t require companies to carry workers’ compensation insurance. Therefore, many companies don’t have this coverage. However, there’s a tradeoff. When such cases go to court, uninsured companies cannot use the most effective negligence defenses, like comparative fault and assumption of the risk. So, it’s easier for job injury victims to prove negligence or a lack of care and obtain compensation.

That’s the most common kind of nonsubscriber case. Others are related to employment insurance fraud. For example, employers intentionally misclassify about two million workers yearly as independent contractors or non-employees. When insurance companies uncover such false statements, they usually deny coverage. Therefore, a job injury case goes to civil court, where the above applies.

Because nonsubscriber claims are so common in Texas, a job injury lawyer in Houston must always be ready to battle in civil court or the workers’ compensation system. As outlined below, these claims have some significant procedural differences. More importantly, the available compensation is different. Frequently, job injury victims may choose a legal option. Each choice has some pros and cons.

Workers’ Compensation Claims

Briefly, workers’ compensation is employer-provided, no-fault insurance which applies to injuries that happen at work. Workers’ compensation benefits usually include two-thirds of the victim’s average weekly wage (AWW) for the duration of a temporary disability and all reasonably necessary medical bills. An insurance company lawyer could dispute the number of benefits in each category.

The AWW isn’t limited to average, regular cash compensation over the last few weeks or months. If the victim recently changed jobs, this calculation might be meaningless. Additionally, the AWW is also forward-looking. The calculation must include things like lost future overtime opportunities.

Furthermore, job injury victims and insurance company adjusters have different opinions about what’s “reasonable.” Victims want and need the best possible medical treatment. Insurance company adjusters only approve the cheapest medical treatment.

Nonsubscriber Negligence Claims

So, although workers’ compensation claims are technically no-fault claims, some complex issues are usually involved. However, that’s nothing compared to the complex matters in a nonsubscriber negligence claim.

Most work injuries include falls, trauma, hearing loss, or other occupational diseases. In such claims, a Houston work injury lawyer must prove that the employer had a duty to provide a safe environment and the employer knew or should have known, about the hazard that caused the injury.

In terms of legal duty, employees are invitees in Texas. Invitees have permission to be on the property, and their presence benefits the owner. However, the duty of care is high. Employers must create safe environments and address injury hazards like loose rails and wet floors.

A Houston work injury lawyer may use direct or circumstantial evidence to prove knowledge. 

Restroom cleaning reports, “cleanup on aisle six” announcements, and other direct evidence of actual knowledge are usually available. Circumstantial knowledge of constructive knowledge (should have known) generally involves the time-notice rule. If a grocery store worker slipped and fell on a wet piece of lettuce, the owner may not be legally responsible for the recent hazard. If a grocery store worker slipped and fell on a wilted piece of lettuce, that’s different.

Third-party assault claims are a bit different. In addition to duty and knowledge, victims/plaintiffs must also prove foreseeability (possibility) of injury. Evidence of foreseeability includes prior similar incidents at that location or in the general area.

At this point, insurance company lawyers may usually introduce comparative fault defenses to reduce or deny compensation to victims. However, insurance companies cannot use these defenses in nonsubscriber claims. Therefore, a bare-bones negligence claim is usually enough to obtain maximum compensation.

This compensation usually includes money for economic losses, such as medical bills, and noneconomic losses, such as pain and suffering.

Extreme Negligence Claims

The “nonsubscriber” term also includes job injury claims that workers’ compensation doesn’t cover. Such cases aren’t prevalent, but they do happen.

Employer recklessness is a good example. If the boss knowingly sends employees into a dangerous situation, that’s no “accident.” Examples include failing to provide demolition workers with proper asbestos protective equipment, sending workers into areas like non-reinforced open pits, and forcing workers to do dangerous jobs as punishment.

The pros and cons come into play in these situations. Workers’ compensation claims are easier to win since they’re no-fault claims. But successful victims/plaintiffs are limited to economic losses. On the other hand, negligence claims are more difficult to win since the employer can use a full range of legal defenses. But successful victims/plaintiffs are entitled to additional compensation.

These same issues apply in other extreme negligence claims, like a negligent co-worker who caused injury and defective product injury claims.

Workers’ compensation usually, but doesn’t always, apply to work-related injuries. For a free consultation with an experienced work injury lawyer in Houston, contact Williams Hart & Boundas LLP. Virtual, home and hospital visits are available.

Disclaimer: This material is provided for informational purposes only. The provision of this material does not create an attorney-client relationship between the firm and the reader and does not constitute legal advice. Legal advice must be tailored to the specific circumstances of each case, and the contents of this newsletter are not a substitute for legal counsel. Do not take action in reliance on the contents of this material without seeking the advice of counsel.

The information contained in this blog may or may not reflect the most current legal developments. Accordingly, information in this blog is not promised or guaranteed to be correct or complete, and should not be relied upon as such. Readers should conduct their own appropriate legal research.

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