Non-Subscribing Employer’s Legal Defense for Work Related Injuries
Interviewer: What if you are fired? Does it make it harder to make a claim or does it matter?
Stephen Boutros: Again, the one defense to a non-subscriber case is that an employee was the sole proximate cause of his injury or that an employee is engaged in horseplay. If you’re engaged in horseplay, then you’re subject to termination. That is, if your own horseplay resulted in your injuries.
The punishment that the State of Texas gives to employers who don’t carry Workers Compensation Insurance is that, within the lawsuit, the employee cannot be held comparatively negligent. In essence, if an employee is 99% negligent and the employer is 1% negligent, and the employer does not have Workers Compensation Insurance, then the employer has to pay the entire amount of the damages the employee has suffered. If the employee is 100% negligent, as in now he’s the sole proximate cause, then his recovery is barred, that is a legal defense.
In essence all you have to prove is 1% negligence by a non-subscribing employer and that’s an extremely difficult standard to meet.
No Limits on the Amount of Damages in a Lawsuit against the Employer
Interviewer: Is there a limit to damages that someone can get? Will they include attorney’s fees and Medical bills?
Stephen Boutros: There is no cap on the amount of damages in non-subscriber cases. You’re entitled to your loss of earnings capacity. That’s in essence, your lost wages, but it can be more than that. You’re entitled to all of your medical bills, you’re entitled to money for your physical pain, for your mental anguish, for your physical impairment or your inability to do the things that you otherwise could do if you weren’t hurt, and your disfigurement, if your body has been changed.
If your employer was grossly negligent, then you’re also entitled to an award of punitive damages. That becomes relevant in non-subscriber cases because in the regular personal injury context, to the extent that a plaintiff, an employee in this case would be negligent, their damages would get reduced by their percentage of negligence, but in non-subscriber cases, it’s not that way.
If your 99% negligent and your employer is 1% negligent, you still get to recover all of your damages. In a car wreck case, if they find the defendant is 60% negligent and the plaintiff is 40% negligent, then the plaintiff can only recover 60% of his damages.