Defending Workers’ Compensation Non-subscribers in Texas


While the majority of states require employers to offer workers’ compensation coverage to employees, Texas does not. In Texas, a business whose employees could be eligible for the program can make the choice to opt out of the system, commonly known as non-subscription. 44% of all Texas Employers are non-subscribers and over 20% of all employees are no longer covered under workers’ compensation. Non-subscribing businesses typically establish their own plans to address workplace injuries and subsequent injured worker claims. Texas has given business owners this option since 1913; however, many businesses do not know that they are not required to subscribe to workers’ compensation. Any size business can be a non-subscriber, from local small businesses to Fortune 500 companies. When facing an employee claim of negligence concerning a workplace injury, it is in the best interest of a non-subscriber to find employment law attorneys with in-depth knowledgeable of the ins-and-outs of the Texas Labor Code and the case law that serves to defend its claims in court or to resolve the matter through arbitration or other such proceedings.

When an employee files a claim for compensation as the result of injuries suffered in a workplace accident against a non-subscriber employer, they are leveling a claim against the company itself. Most uncovered businesses plan for a lawsuit to be filed, and have a response prepared for these claims, as many injured workers do deserve to be compensated. However, many insurers and employers are asked for compensation that is not on par with the injury or recovery.  Employers who are forced to overpay for their employees’ injuries can quickly go out of business, since payment is coming out of pocket. Employees may also be at fault for their injuries and try to blame the business owner to get benefits they do not rightfully deserve. One such situation occurred in O’Donnell, Texas when a farm worker was killed in a single-vehicle rollover accident while working on a farm. The employer was a nonsubscriber under the Texas Workers Compensation Act and the widow of the farm worker filed a lawsuit alleging negligence and gross negligence. Because the worker was intoxicated at the time of the incident and tested positive for multiple controlled substances, the widow’s claims were barred as a matter of Texas law.  A trial court granted the farm owner’s motion for summary judgement. A Texas appeals court affirmed the trial court’s decision after the widow appealed.

Companies that subscribe to workers’ compensation cannot be sued by injured workers in most circumstances, but non-subscribers can be sued.  The Texas legislature wants to encourage employers to participate in workers’ compensation programs; therefore, the legislature has attempted to strip companies of defenses.  Many defense lawyers will say that employers have all their common law defenses stripped except for sole proximate cause, but lawyers familiar with non-subscriber lawsuits know this is not the case.

The statute expressly states that the employer may defend the action on the ground that the injury was caused by an act of the employee intended to bring about the injury and while the employee was in a state of intoxication. More importantly, the statute states that this section does not reinstate or otherwise affect the availability of common law defenses.

As seen above, Texas law does provide defenses that employers and their legal teams can use to deny a worker’s unreasonable claim for damages. Besides the statutory defenses, courts have upheld inferential rebuttals, procedural defenses, and common law defenses. The reason these defenses can be very effective is that the burden of proof in a Texas non-subscriber case lies with the injured worker. The injured party must prove the following four elements to be successful in their case against their employer:

  • A duty of reasonable care in providing a safe work environment was owed to the injured worker.
  • The employer breached a duty that was owed the injured worker through error, default, omission, or carelessness.
  • The employer’s breach of the duty owed caused the employee’s accident.
  • The breach of duty owed resulted in losses or damages suffered by the injured worker.

Several defenses directly attack the third element that the injured worker must prove – causation. In all Texas work injury cases, the injured worker must prove all four elements to recover damages.

Under the Workers’ Compensation Act, Texas employers are prevented from arguing contributory negligence. Even if an employee was 98% at fault and the employer was 2% at fault, the employee can still recover, but sole proximate cause is a defense in the non-subscriber arsenal. If the jury finds that some party other than the employer was the sole proximate cause of the employee’s injuries (even if it is the employee who is 100% at fault), then the employer is not liable. In other words, the employer did not cause the injury. Other defenses available that strike at the employee’s obligation to prove causation are new and independent cause and even unavoidable accident.

Another defense to the non-subscriber’s liability is commonly known hazard. When an employee sustains an injury on the job after willingly entering into a situation with complete knowledge of all risks involved, an attorney may choose the assumption of risk defense. When an employee chooses to put themselves into a situation in which they know they are at risk of injury, they are responsible for the consequences that result from their choice. Many employees consciously ignore the risks or hazards associated with their work environments. This may include ignoring warning signs, choosing not to wear protective equipment provided by their employer, choosing to perform work outside the scope of their employment, or other negligent behaviors. Employers regularly train their employees on the risks and hazards associated with their job duties and what is and is not with in the scope of their employment. This means employees are well-aware of what is going to potentially cause injury and the employer should not be held responsible after putting in the effort to keep their employees safe. Case law has made it clear that an employer does not owe a duty to its employees to warn them about hazards that are blatantly obvious.

Additionally, if an employee was not in the course and scope of their employment, no duty is owed. If an employee engages in horse play or significantly deviates from their duties, they are not acting in the employer’s benefit. If an employee is injured while doing non-work tasks, the employer is not at fault. A non-subscriber can also still argue sudden emergency. The duty that a non-subscriber has is to act as a reasonable employer in the same or similar circumstance. If a sudden emergency appears, the jury is asked not to judge what a reasonable employer would do, but rather, what a reasonable employer should do if they are in a situation of a similar emergency.

Finally, an attorney for a non-subscriber should always examine procedural defenses such as statute of limitations and whether the injured party is an employee or actually a contractor.  If they are a contractor, then the non-subscribing employer should not be sued.

Multiple other defenses exist for non-subscribers facing a claim from an injured employee. These include the injury being a result of an act of God, the employee having a contributing injury before the accident occurred, an injury caused by recreational activity on the jobsite, or even a self-inflicted injury meant to defraud the company. Speaking to an experienced employment law attorney is the best way to navigate complicated work injury claims. MehaffyWeber is in the unique position to have employment lawyers experienced in non-subscriber law who also try cases.