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Often yes, but two questions decide how. First, did your employer carry workers compensation insurance? Second, is the defendant the property owner rather than your employer? If so, Chapter 95 of the Civil Practice and Remedies Code may apply, and it can be a near-complete defense unless two specific conditions are met.
Under Section 406.002 of the Texas Labor Code, most private employers can choose whether to carry workers’ compensation insurance. Those two answers decide whether there is a lawsuit, who it is against, and what has to be proven. What cannot wait is the site itself. Scaffolding is struck, equipment goes back to the rental yard, and the scene is cleaned before the next shift. Call 713-521-0059.
An employer without workers compensation is called a non-subscriber, and Texas takes away its most useful defenses. Section 406.033 of the Labor Code covers an action by an employee against an employer who does not carry workers compensation insurance, for an injury in the course and scope of employment. In that action, it is not a defense that the employee was contributorily negligent, that the employee assumed the risk, or that the injury was caused by the negligence of a fellow employee.
In plain terms, a non-subscriber cannot blame you, cannot say you knew the job was dangerous, and cannot blame your coworker. You still must prove the employer’s negligence, but the usual defenses are largely gone. The statute leaves the employer two defenses under Section 406.033(c). One is that the injury was caused by an act of the employee intended to bring about the injury. The other is that it occurred while the employee was intoxicated.
Many Texas construction employers are non-subscribers, and some offer an in-house “occupational injury benefit plan” that looks like workers compensation and is not. These plans often come with an arbitration agreement and a release attached.
Texas voids a waiver of these claims signed before the injury. A waiver signed after the injury can be valid if it meets the conditions in Section 406.033(f), so have the paperwork read before you sign it. Whether your employer subscribed is a question of fact that can be checked. Our page on non-subscriber work injuries goes further.
Under Section 408.001 of the Labor Code, workers compensation benefits are the exclusive remedy against the employer for a work-related injury or death.
Section 408.001(b) keeps one door open. It does not bar recovery of exemplary damages by the surviving spouse or heirs of the body of a deceased employee, where the death was caused by an intentional act or omission of the employer or by the employer’s gross negligence. The exception is limited to a death case and to exemplary damages. On a fatal site, it can be the main claim against the employer.
Exclusive remedy protects the employer and its agents and employees, but it usually does not protect other companies on the site, and a construction site usually has several.
Sometimes, but Chapter 95 makes it hard. Chapter 95 applies to a claim against the owner of property used primarily for commercial or business purposes, or a contractor or subcontractor, for injury to a contractor, subcontractor or their employee. The claim must arise from the condition or use of an improvement to real property where that person constructs, repairs, renovates or modifies the improvement.
Where it applies, the property owner is not liable, including for failure to provide a safe workplace, unless both of the following are true.
Both prongs are required, and the knowledge must be actual, not constructive. Control and knowledge are proven or lost in the paperwork. That means contract documents, safety manuals, daily reports, toolbox talk records and the owner’s own inspection notes, and the defendant holds most of them.
These third parties are often the real defendants in a construction case.
Finding every party usually starts with simple documents. The site sign, the building permit, your badge or sign-in sheet and the logo on the equipment each name a company. Photographs of those items, taken early, can save weeks of searching later.
An OSHA citation is not a private cause of action and does not itself create civil liability. It is still valuable, because it produces a contemporaneous investigation, witness statements, photographs and admissions, and it shows what the industry standard was. Request the OSHA file early.
Your immigration status does not, by itself, bar a personal injury claim in Texas. If you were hurt on a Texas construction site, get an answer about your rights before deciding not to ask.
Commonly recovered expenses and damages include:
Under Section 41.0105, recovery of medical expenses is measured by the amount actually paid or incurred, not the amount billed. Cost and necessity can be proven by affidavit under Section 18.001, unless a controverting affidavit is properly served. The affidavit does not establish causation.
Lost earning capacity is usually the largest number, because a worker who cannot return to the trade loses a career, not a paycheck. Proving that loss takes vocational and economic evidence, not a pay stub. Tell your doctors at each visit what you can no longer do, so it is in your medical records.
If a worker was killed, the family has two separate claims. The spouse, children and parents have a wrongful death claim under Chapter 71. The estate has a survival claim for what the worker suffered before death. They are often confused, and they are not the same claim.
Under Section 16.003(a), suit generally must be filed within two years after the day the claim accrues, which is usually the date of the injury. For a death claim, Section 16.003(b) runs the period from the date of death. Workers compensation has its own, much shorter reporting and claim deadlines that run separately. If you have not reported the injury to your employer, ask about the reporting deadline right away.
Every statute and case linked above was read at its primary source. Texas statutes change every legislative session and case law is constantly changing.
This page is general information about Texas law. It is not legal advice about your situation, and reading it does not create an attorney-client relationship.
Evidence on an active site changes fast. Photographs, the OSHA file, daily reports and the equipment itself need to be preserved right away. Keep copies of everything you receive from your employer or an insurer, and do not sign anything you have not had read. A written preservation request can go out in the first days.
We start by finding out whether your employer subscribed, because that one fact reshapes the entire case and most injured workers do not know the answer. Then we identify every party on the site and request the OSHA file, and the first step with each party is written notice to keep the equipment and the daily records.
Schiffer Law Firm is a Houston personal injury firm with 50 plus years of combined experience representing injured people across Texas.
There is no charge to talk, and no attorney’s fee unless there is a recovery.
Written by Jacob Schiffer, Attorney, Schiffer Law Firm. State Bar of Texas No. 24105175.
Call 713-521-0059.
If your employer carried workers compensation insurance, benefits are generally your exclusive remedy against that employer under Section 408.001 of the Labor Code. If your employer did not carry it, you can usually sue. Under Section 406.033, the employer cannot argue contributory negligence, assumption of the risk, or the negligence of a fellow employee.
A Texas employer that has declined to carry workers compensation insurance. Under Section 406.002 of the Texas Labor Code, most private employers can choose whether to carry workers' compensation insurance. A non-subscriber loses its three most useful defenses in a suit by an injured employee.
Usually only in limited circumstances. Where Chapter 95 of the Civil Practice and Remedies Code applies, you must prove two things. The owner retained control over how the work was performed, and the owner had actual knowledge of the danger and failed to warn. Both prongs are required.
Not by itself. OSHA does not create a private cause of action. The citation and the underlying investigation file are still valuable evidence of what happened and what the safety standard required.
It does not, by itself, bar a personal injury claim in Texas. It is sometimes raised to discourage a claim rather than to defend one.
The family may have a wrongful death claim under Chapter 71 and the estate a separate survival claim. If the employer had workers compensation, Section 408.001(b) still permits the surviving spouse or heirs of the body to seek exemplary damages where the death was caused by the employer's intentional act or omission or by its gross negligence.