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Your claim usually depends on whether your employer carries workers’ compensation. A Texas work injury can produce a comp claim, a negligence suit, or both. Which one you have depends on choices your employer made before you were hurt.
The records that explain how you were hurt are made on the job, and some are destroyed on a retention schedule. The job safety analysis, the incident report and the equipment are the evidence. Ask for them before they are gone. Call 713-521-0059.
If it does not, you are not confined to a benefit schedule. You usually have an ordinary negligence case with a jury and the full range of damages.
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. Those arguments would otherwise let an employer blame the worker. Our page on non-subscriber work injury claims explains how these cases work.
Ask your employer, in writing, whether it carries workers’ compensation. You can also ask the insurer on any claim paperwork you receive. The answer shapes everything that follows.
Usually not. Comp generally resolves the claim against the employer. Section 408.001 of the Texas Labor Code makes workers’ compensation benefits the exclusive remedy against a subscribing 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. The protection covers the employer and its agents and employees.
A claim against a company other than your employer can be separate from workers’ compensation. That company might be a premises owner who controlled the hazard, a contractor who directed the work, an equipment manufacturer, or a staffing agency. There are limits. 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. A staffing agency that carries the coverage can be protected as the employer.
Many serious workplace injuries in this region happen to contractors working on somebody else’s premises. That is where a third-party claim is most likely to exist. A plant, a refinery or a construction site can have several companies on it, each with its own role and its own insurance.
Responsibility follows control. The company that owned the site, the company that planned the work, the company that made or maintained the equipment, and the company that placed you there can each bear a share.
Texas divides fault by percentage under Chapter 33 of the Civil Practice and Remedies Code. You generally may not recover if you are found more than 50 percent responsible. Otherwise your recovery is reduced by your own percentage. Identifying every company with a role can change how that fault is shared.
The job safety analysis, the contract between the premises owner and your employer, training records, equipment maintenance history, and any incident or root cause investigation. Most of it exists on day one. Some of it is destroyed on a retention schedule.
Other evidence lives with people. Coworkers change jobs and phone numbers. Write down the names of everyone who saw what happened or helped you afterward. Keep any photos, texts or group messages about the incident. Do not sign a written statement for an insurer until you understand what it says.
Report the injury to your supervisor in writing and keep a copy. Get medical care and tell each provider that you were hurt at work and how. Follow the treatment plan, and keep every appointment you can.
Keep a folder of everything: pay stubs, medical bills, letters from any insurer and your own notes on how the injury affects your work and home life. In a lawsuit, Section 41.0105 of the Civil Practice and Remedies Code limits recovery of medical expenses to amounts actually paid or incurred. Your bills and payment records matter for that reason. Our page on who pays your medical bills covers the months while a claim is pending.
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.
If a worker was killed, the surviving spouse, children and parents may bring a wrongful death action under Section 71.004 of the Civil Practice and Remedies Code. Section 71.021 allows a survival action for the worker’s own claim. For a death claim, Section 16.003(b) generally runs the two years from the date of death.
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 first two questions decide who can be sued. The records decide what can be proved. Most of those records belong to the companies involved, which is why they are asked for early.
We start by finding out whether your employer carries workers’ compensation and which other companies were on the site. Then we ask each of them to keep the records and equipment, and we look at every claim you have, not just one.
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.
Ask your employer in writing, and look at any claim paperwork you receive. The answer usually decides whether you can sue your employer or are limited to comp benefits against it.
Usually yes. Comp generally resolves the claim against your employer. A claim against a premises owner, a contractor who directed the work, an equipment manufacturer or a staffing agency can be separate. A general contractor that agreed in writing to provide your coverage under Section 406.123, or a staffing agency that carries it, may be protected as your employer.
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.
Section 408.001 of the Texas Labor Code generally makes comp the exclusive remedy against a subscribing employer, with a limited exception for exemplary damages in a death case.
Under Chapter 33 of the Civil Practice and Remedies Code, you generally may still recover against a third party if you are not more than 50 percent responsible. Your recovery is reduced by your share.
In most cases, two years after the day the claim accrues, which is usually the date of the injury, under Section 16.003 of the Civil Practice and Remedies Code. The records you need can go sooner.