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Often the company that controlled the work, the manufacturer of the machine, or both. Machinery amputations and crush injuries can often be traced to a guard that was removed, a lockout that was skipped, or a machine that was not designed to be safe.
These injuries have a cause, and the cause is usually documented. Machine guarding, energy control procedures and maintenance history are records, not opinions. What cannot wait is the machine itself, before it is repaired or its settings are changed. Call 713-521-0059.
Presses, conveyors, rollers, augers and pipe handling equipment cause amputations in a predictable way. So do forklifts and unsecured loads. The question is usually not only how it happened but why the protection that should have prevented it was absent.
A guard may have been removed to speed up production. A lockout may have been skipped because it took too long, or because no one was trained on it. A machine may have been built or sold without a guard at all. Each of those possibilities leaves a different trail of records, and each points to a different company.
Sometimes both, and they are separate claims. A machine that was defectively designed or sold without adequate guarding raises a claim against the manufacturer. A guard that was removed on site, or an energy control procedure that was not followed, raises a claim against those who controlled the work.
Because responsibility in Texas is apportioned by percentage, identifying every responsible party matters to what is recoverable. Under Chapter 33 of the Civil Practice and Remedies Code, a claimant may not recover if found more than 50 percent responsible. Otherwise, your recovery is reduced by your own percentage of responsibility.
Under Section 406.002 of the Texas Labor Code, most private employers can choose whether to carry workers’ compensation insurance. If yours does not, Section 406.033 of the Texas Labor Code bars it from arguing contributory negligence, assumption of the risk, or the negligence of a fellow employee. See our page on non-subscriber work injury claims.
If your employer does carry coverage, Section 408.001 of the Texas Labor Code generally makes workers’ compensation benefits your exclusive remedy against that employer. The statute preserves one exception, for a worker’s death. Where the employer’s intentional act or omission or gross negligence caused the death, the surviving spouse or heirs of the body may recover exemplary damages. That rule protects your employer and its agents and employees. The manufacturer, a contractor or the site owner may also be involved. A claim against a company other than your employer can be separate from workers’ compensation. A general contractor can be different. Under Section 406.123, a general contractor that has agreed in writing to provide workers’ compensation coverage to a subcontractor’s employees may be treated as their employer for workers’ compensation purposes.
An amputation is valued over a lifetime, not over a treatment period. A prosthesis is not bought once. It is fitted, replaced as it wears and as your body changes, and replaced again, and each replacement has a cost that can be proven now. The same is true of revision surgeries, pain management, therapy, and the changes a home or a vehicle may need.
Texas law recognizes several separate categories of loss. They include the reasonable cost of the medical care you will need in the future and the earning capacity you have lost. They also include the physical impairment that limits what you can do, disfigurement, and physical pain and mental anguish.
Lost earning capacity is not the same as lost wages. It is what you could have earned over a working life in the occupations open to you, and it usually takes a vocational expert and an economist to prove. A life care plan, built by a qualified professional and priced, is how the future is proven rather than guessed at. Because the future is most of the value, that work has to start early. It is the same work described on our page on catastrophic injury claims.
One of the most important early steps is preserving the equipment in the condition it was in. Machines get repaired, guards get reinstalled and settings get changed, often within days and usually without any intent to destroy evidence. Once that happens the defect case becomes an argument instead of a demonstration.
A written request to the employer, the site owner and anyone else who controls the machine can ask that it be kept as it is. If a coworker can safely photograph the machine and the area around it, those photographs help. Write down the make, the model and any serial or asset number you remember, and the names of everyone who saw it happen.
A Texas personal injury claim generally must be filed within two years after the day the claim accrues, which is usually the date of the injury. That rule is in Section 16.003 of the Civil Practice and Remedies Code. Evidence in an industrial setting moves faster than that. The machine, the maintenance log and the witnesses can all change long before the deadline.
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.
The records that answer these questions belong to the employer, the site owner and the manufacturer. The machine itself is one of the most important pieces of evidence, and it is also one of the easiest to change. A written preservation request made in the first days can help protect the evidence your case may depend on.
We start with the machine: who made it, who controlled it, and whether it is still in the condition it was in that day. Then we build the lifetime side of your claim, including prosthetics and their replacement, future surgeries, lost earning capacity and a priced life care plan.
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.
Sometimes, and they are separate claims. A defectively designed machine raises a claim against the manufacturer, and a removed guard or a skipped lockout raises a claim against those who controlled the work. If your employer carries workers' compensation, a claim against it is generally limited by Section 408.001, with a limited exception for exemplary damages in a death case.
A prosthesis is not bought once. It is fitted and replaced as it wears and as your body changes, and each replacement has a cost that can be proven now. The same is true of revision surgeries, therapy and changes to a home or vehicle.
It is what you could have earned over a working life in the occupations open to you. It is not the same as lost wages, and it usually takes a vocational expert and an economist to prove.
Section 406.033 of the Texas Labor Code bars a non-subscribing employer from arguing contributory negligence, assumption of the risk, or the negligence of a fellow employee.
Under Chapter 33 of the Civil Practice and Remedies Code, your recovery is generally reduced by your share of responsibility. You may not recover if you are found more than 50 percent responsible.
A Texas personal injury claim generally must be filed within two years after the day the claim accrues, which is usually the date of the injury. That rule is in Section 16.003 of the Civil Practice and Remedies Code. The machine and the records can change much sooner.