Tier 1 Workers Comp Nonsubscriber

Related Articles

Nonsubscriber Work Injuries
Obstacles and Complicating Factors
Be Careful What You Sign
Defenses Not Allowed in a Nonsubscriber Case
Defenses Allowed in Nonsubscriber Case
The Effect of 3rd Party Liability
Employee or Independent Contractor?
Scope of Employment
Compartive Fault in a Nonsubscriber Case
Nonsubscriber Wrongful Death Cases
Employer’s Duties
Employer’s Duties
Employer’s Obligation to Provide PPE
Theories of Liability Used in Nonsubscriber Cases
All About OSHA
What is OSHA?
When Does OSHA Investigate?
What does OSHA Investigate?
OSHA Fines and Penalties
By Occupation
Safety Guidelines for Commerical Fishermen
Safety Guidelines for Product Line Workers
Safety Guidelines for Plumbers
Safety Guidelines for Concrete Workers
——————-
Nonsubscriber Work Injury Attorney

Houston Personal Injury Lawyers » Nonsubscriber Work Injury Attorney

Chat with a Houston Lawyer
Injury and Death Claims Against Workers’ Compensation Nonsubscribing Employers in Houston

work injury law firm in Houston Texas
About 45% of Texas companies do not participate in the state run workers’ compensation program. This classification of employer is called a nonsubscriber. If you have been injured on the job and your employer is a nonsubscriber you will not get automatic compensation as you would if your employer subscribed to workers’ comp. In fact, your rights are quite different.

This article will explain your rights, the compensation you can receive, and how to successfully pursue that compensation. The Houston nonsubscriber workers’ injury attorneys of Grossman Law Offices have been winning these cases for over 20 years. Please feel free to contact us at 1-855-392-0000 to further discuss your work related accident.

Where Do Nonsubscriber Laws Come From?

Technically, there is no such thing as nonsubscribers work injury law. The way it works is that our legislator has passed very specific laws regarding the rights of an injured worker whose employer does subscribe to workers’ compensation and these laws are codified in the Texas labor code. When the employer opts out of this system there is no hard and fast set of rules that says an employer can do X, Y, and Z; instead your rights are derived from the common law. As such, your rights mirror the natural rights that a plaintiff would typically have in any other personal injury case.

What is So Different About Nonsubscriber Cases?

The primary difference between nonsubscriber and workers’ comp cases is that in a nonsubscriber case you typically have to litigate against the employer in order to force them to accept responsibility and force them to pay you. Whereas in a workers’ compensation case there is the presumption that the employer is inherently liable and the benefits you get are automatic.

Is My Employer Inherently Liable?

No. Since a nonsubscriber work injury case is based on common law principles, you are required to prove that your employer was negligent in some fashion. If you cannot prove that the employer was negligent then you simply do not have a valid claim. In other words, just because you were injured on the job it does not mean your employer was responsible in a nonsubscriber case. You must prove they caused your injury directly or indirectly.

How Much is My Case Worth?

Again, in a nonsubscriber case you can sue your employer for all your damages, rather than receive just the paltry benefits that someone who has a workers’ compensation case is eligible to receive. To determine the value of your case you must simply add up all of your individual damages and weigh that against known jury verdicts. Damages that are compensable in a nonsubscriber case are:
Loss of earning capacity
Impairment
Both future and past medical expenses
Compensation for suffering
In Houston, juries are not particularly bias against plaintiffs. So in most nonsubscriber work injury cases we can typically recover the entirety of your damages because a jury is likely to award the entirety of your damages. (On the contrary, in certain parts of Texas, even if you win your case, a jury will pay you less money that what your case is worth.)

How Does a Nonsubscriber Case Work?

Step 1: Talk to an attorney. The very first thing you need to do is speak with one of our attorneys here at Grossman Law Offices so that we may discuss your individual accident.

Step 2: We will do research in the matter which might include an onsite inspection, accident recreation, and product testing. The initial methods that we use to better understand your accident and why it occurred largely depends on the nature of your injury and what we primarily believe to have caused your accident.

Step 3: We will present to you your options and discuss what we think the case is worth, whether we think it is worth you pursuing, and what we think you may stand to gain when it is all said and done.

Step 4: We will then attempt to settle the case out of court and file suit if the defendant does not offer an adequate payment. All of our attorneys at Grossman Law Offices are skilled negotiators; however, we are not willing to compromise on your well-being. We will do our best to reach an adequate payout, but if we feel you are not being offered a fair sum, we will have no problem holding the defendant accountable in court.

Step 5: Now the case is in litigation so we will go through a process where we use subpoenas to obtain documents and information from the company and we will use this to build the case against them. This is where we will find the crucial evidence which can undeniably prove the defendant is responsible for your damages.

Step 6: Once we have gathered additional information, both parties will again meet and discuss the case face to face. A new round of negotiations will begin and if these negotiations fail we will go to trial.

Voluntary Benefits Paid by the Employer

As we mentioned above, your employer does not have to compensate you when they are not a subscriber to workers’ compensation; you must pursue them to get the compensation you need. But, some of you reading this may think “But my employer is paying me voluntarily. Do I still need to file suit against them?” The answer is some employers will purchase insurance that provides proactive payment of injury benefits that functions very similar to a workers’ comp plan; however, this is all done on a voluntary basis and they can cut your benefits off at any time.

As a general rule of thumb, if your injuries are very minor, it is not worth it to sue. If your injuries are minor and your employer is giving you voluntary benefits, you should probably take the money and run. On the contrary, if you have severe injuries they may simply be paying you enough to string you along and ultimately cheat you out of money you deserve. They are only paying you for medical costs and potentially a small amount of your lost wages; however, often you will go months without working and you will require ongoing treatment and surgeries to fully recover.

Unfortunately, through voluntary benefits many employers will only pay for your initial surgery cost and maybe a month of lost wages. This means you have damages for lost wages, medical treatment, and other damages like suffering all of which voluntary benefits will not cover. Your employer is not paying you what they owe you, but they are paying you enough that no attorney will want to sue because you will only be able to recover a limited amount of damages, but you still have the same cost to pursue the claim. Generally, employers who offer voluntary benefits have ulterior motives and they may intentionally mask their nonsubscriber status as workers’ compensation. This also typically prevents you from getting an attorney and resulting in the statute of limitations passing before you even realize you have a claim for further damages.

What if the Accident is Partially My Fault?
The primary benefit to employees who have a nonsubscriber employer is that they only have to show that the employer is partially liable. So unlike every other personal injury case where you have to show the defendant is more liable than you, the nonsubscriber only has to be at least 1% responsible for your injury. As a consequence, the only thing they can do is try to put the blame back on you.

If you’ve been injured in a workers’ comp nonsubscriber case call Grossman Law Offices toll-free at 1-855-392-0000.
=========================

Obstacles and Complicating Factors

Signing an Insurance Release

Houston Personal Injury Lawyers » Signing an Insurance Release

Chat with a Houston Lawyer
Does the Insurance Company Want You to Accept a Settlement and Sign a Release? Be Careful What You Sign!

test

Many times after an employee is injured in a workplace accident, if the employer is a nonsubscriber, they will try and get the employee to sign a document that will limit the employer’s liability and the amount that the employee can recover for the injuries. This article will discuss the different kinds of documents that an employer may ask you to sign when you are injured in a workplace accident. Be advised, you should always consult with an attorney before signing any of these documents.

What is a Nonsubscriber?

In this context, a nonsubscriber refers to an employer that does not subscribe to Texas’ workers’ compensation. This means that if an employee is injured on the job and the employer is found liable, then the employer must pay for the entirety of the employee’s damages. In order to show that an employer is liable for an employee’s injuries, the employee must show that the employer was negligent in causing the accident. However, if you sign away your rights to hold your employer accountable, you may not be able to receive any compensation for your injuries.

Pre-Injury Waiver

A lot of employers will have you sign a document called a pre-injury waiver or release of liability when you are hired. Essentially, the idea is that by signing this document you are agreeing that if you are injured on the job, you will not sue your employer. However, these are not generally enforceable and you are still able to sue your employer and recover damages for your injuries. Also, if you sign a pre-injury waiver and later sue your employer because of a workplace injury, it cannot later be used against you in court as a defense to liability.

Post-Injury Waiver

A post-injury waiver is a document that is signed by an employee, after the employee is injured in a work place accident, stating that the employee agrees not to sue their employer and that the employee waives the employer of liability. Although they are typically binding, there are circumstances where they can become invalidated; such as if they were signed under duress or if a certain term in the waiver makes it unenforceable.

What Should You Do if You Have Already Signed a Post-Injury Waiver?

If you have been injured in a workplace accident and have signed a post-injury waiver, you should still contact an attorney to see if there is anything that can be done to invalidate the waiver. We have had cases where we were able to show that waivers were unenforceable because of some of the terms they contained, and our clients were able to sue their employer and recover compensation.

Settlement or Release Documents

If you are dealing with an employer’s insurance provider they may ask you to sign a settlement that contains a release. This means that although you would get the settlement money, you would be barred from bringing a future claim against your employer regarding this injury and would not be able to receive further compensation.

You should make sure that you are being fully compensated by the settlement amount before you sign a release. The best way to know if the settlement amount is enough is to have it analyzed by an attorney who can tell you the total damages of your claim and if the settlement amount is sufficient to cover these damages.

Binding Arbitration Agreement
A binding arbitration agreement is usually signed when you are hired. It states that in the event that you are injured in a workplace accident, you agree to go to arbitration rather than file suit in a court. Unlike a pre-injury waiver, an arbitration agreement is still enforceable even if it is signed before you are injured in a workplace accident.

Although this does not prevent you from bringing a claim, it does prevent you from filing suit in court and going before a jury. This can be problematic because a jury can sympathize with you if you are injured, whereas an arbitrator is likely to only look at the facts of the case and take emotion out of it.

Documents That You Can Sign

There are some it would be okay to sign, however it is always a good idea to have a lawyer look over anything beforehand. It is usually okay to sign anything related to your medical care given to you by a hospital employee. However, medical records can be used in court as evidence, so only sign it if you are okay with a jury potentially finding out about it. It is also generally okay for you to sign a document given to you by a police officer, such as an incident report describing the circumstances surrounding the accident.

You Should Consult With An Experienced Attorney Before Signing Anything

Houston work injury lawsuit
By signing a document that you do not completely understand the full effects of you could potentially limit some of your available rights under the law. The best way to become fully aware of what potential limits are contained in a document is to consult with an experienced attorney and have them review it.

Do you have a legal issue or question?
Enter your phone number to speak with us now.

Our attorneys at Grossman Law Offices have over twenty years of experience and have dealt with hundreds of workplace injury cases where the employer attempted to get the employee to sign away liability. If you have been injured in a workplace accident and have been asked by your employer to sign something you should call one of our attorneys today for a free consultation at 1-855-392-0000.
===========================

Defenses Not Allowed in a Nonsubscriber Case

Houston Personal Injury Lawyers » Defenses Not Allowed in a Nonsubscriber Case

Chat with a Houston Lawyer
When an Employer Does NOT Subscribe to Texas’ Workers’ Compensation Program, They Lose the Ability to Use Certain Defenses to Avoid Liability

work injury lawyer in Houston
Our legislature has made it very clear that they wish for all Texas employers to subscribe to workers’ compensation. Workers’ compensation is a state regulated insurance policy that employers can choose to subscribe to in order to limit their liability in the event that an employee is injured on the job. When an employer opts out of this state run workers’ compensation plan they are considered to be a nonsubscriber. In the event that your employer chooses not to subscribe to worker’s compensation, an injured employee who brings a negligence claim against a nonsubscriber benefits from the fact that the nonsubscribing employer is forbidden by law from using certain defenses. As a consequence, it becomes easier for a plaintiff to win their case against the nonsubscriber; this article will discuss the defenses that a nonsubscribing employer cannot use.

What Defenses are Unavailable to a Nonsubscriber?

Contributory negligence
Contributory negligence essentially states that an injured party cannot receive compensation if they played some role in causing the accident that occurred. As a nonsubscriber, an employer cannot claim that their employee contributed partially to their injury in order to offset their liability. They do not have the luxury of using this defense to escape being responsible for the losses that you have incurred.

Assumption of the Risk
Assumption of the risk is a defense that prohibits the plaintiff from recovering against a defendant if the defendant is able to prove that the plaintiff voluntarily assumed whatever risks were involved in the conduct that caused his/her injury. An example would be if there was something inherently dangerous associated with whatever activity resulted in the accident. However, as a nonsubscriber an employer cannot escape liability by showing that the activity their employee was engaged in at work was hazardous and that they assumed any potential risk.

Pre-injury waiver of liability
A nonsubscriber cannot make you sign any documentation that is a waiver preventing you from suing them in the event that you are injured on the job. However, courts have ruled that a binding arbitration agreement does not constitute a pre-injury waiver, so you will still be bound to that type of an agreement if your employer has had you sign such documentation. Arbitration agreements essentially operate as a way to resolve disputes without having to get involved in formal court proceedings. If your employer has one of these agreements in place then it may be enforceable so long as it is not unduly harsh on you as the employee.

Negligence of a co-worker
If your employer subscribed to workers’ compensation, then they would be able to avoid being held liable for your damages if your injury was caused by the negligent conduct of another employee in their company. However, as a nonsubscriber they cannot use this defense regardless of whether or not the accident occurred because of the actions of one of their other employees.

What Defenses can a Nonsubscriber Use?

Unfortunately, there are defenses that a nonsubscribing employee can use. There are two primary defenses that are often used by nonsubscribers to avoid liability for their employee’s injuries.

Sole Proximate Cause
As an employee, you must prove that the employer was negligent and that this negligence caused your injury. While a nonsubscriber cannot claim the defense of contributory negligence (discussed above) they can claim that you were the sole cause of your injury. If the employer can show that they were not negligent whatsoever and that the employee was entirely responsible for the accident that occurred then they may be able to avoid liability.

The “Routine Job” Defense
The Texas Supreme Court’s ruling in Great Atlantic & Pacific Tea Co. v. Evans established that negligence on the part of an employer does not exist if the employee is injured while doing the usual and customary tasks associated with the job. Basically, if the conduct that caused the accident is the usual customary activity that all the employees are expected to perform then the employer is not liable. The event that resulted in the accident occurring must be somewhat unusual or pose some abnormal danger.
Our Houston Texas attorneys have won hundreds of work injury cases. Call us today to discuss your case. 1-855-392-0000

While these defenses may seem daunting, they can be easily overcome with the assistance of an attorney that is experienced in personal injury nonsubscriber lawsuits. The attorneys at Grossman Law Offices have represented clients in thousands of personal injury lawsuits and as a result we have the skill and expertise necessary to ensure that you are able to get the compensation you deserve for your injury.

Do you have a legal issue or question?
Enter your phone number to speak with us now.

Our attorneys are dedicated to providing each and every one of our clients with the best representation available. To discuss your potential personal injury lawsuit contact us for a free consultation at 1-855-392-0000.

==================
Defenses Allowed in a Nonsubscriber Case

Houston Personal Injury Lawyers » Defenses Allowed in a Nonsubscriber Case

Chat with a Houston Lawyer
Employers Who Do Not Subscribe to Texas’ Workers’ Compensation Insurance Have Only a Few Available Defenses to Skirt Liability

Houston Texas work injury law firm
Not all employers in Texas subscribe to workers’ compensation and those that don’t are referred to as nonsubscribers. Our legislature has created laws that encourage employers to subscribe to the state run workers’ comp program and when an employer chooses not to they may face certain difficulties when asserting a claim against you. The primary advantage to you as an injured worker is that your nonsubscribing employer is limited in the defenses they can use against you. This article will talk about the defense they are allowed to plead and their attempts to limit your chances of obtaining compensation.

Intentional Self Inflicted Injuries

One defense they can use is that the employee caused his own injury on purpose. If an employee tried to hurt themselves to gain benefits the employer is clearly not liable. This means if you intentionally dropped a large, heavy object on your foot crushing it, then your employer is not responsible for your resulting medical bills and lost wages. An employer, even if they are not protected under a subscriber status, is only responsible for injuries that resulted from the company’s negligence. If you intentionally injure yourself you have absolutely no claim for damages.

Injury Caused By Intoxication

If the employee was intoxicated they would not have a valid claim for their injuries. In Texas, intoxicated generally means under the influence. This means if you have consumed alcohol, cocaine, marijuana, or anything that is deemed to impair your judgment and physical capabilities.

For example, say you work a construction company driving large vehicles like a bulldozer. If you consume alcohol while on your lunch break and then operate the heavy machinery you could easily be injured due to your impairment, even if you are not above the legal limit. If you have consumed any alcohol your judgment and capabilities can be considered impaired and your employer will not be responsible for your injuries which were the result of your intoxication.

Enforceable Post Injury Liability Waivers

You also may be prevented from having a valid claim if you entered into an enforceable post injury liability waiver. These are forms which employees have the option of signing after their accident in order to receive medical benefits and payment for their treatment from a nonsubscribing employer. If you have signed one of these waivers you may be prevented from filing a claim against your nonsubscribing employer for further damages. However, it is important to note that not all of these contracts are enforceable. It is imperative that you speak with one of our knowledgeable personal injury attorneys to assess whether your post injury liability waiver is an enforceable contract in order to determine whether this can legitimately be used as a defense by your employer.

The Sole Proximate Cause Defense

Lastly, there is the defense that is derived in the form of an inferential rebuttal known as the sole proximate cause. Essentially, the employee was solely responsible for their own injury due to their own carelessness and the employer did nothing wrong. In this instance even though you may have been injured while working, your injury was in no way the fault of the employer or another employee. As a result, your employer cannot be held liable for your damages. Sometimes people are simply careless or clumsy and they are injured due to no one else’s fault, but their own. The court recognizes that it would be illogical and unjust to sue another person for your own negligence or carelessness and this is commonly cited as a defense for nonsubscribing employers.

test

Do you have a legal issue or question?
Enter your phone number to speak with us now.

Even though nonsubscribing employers are limited in the defenses they can use against you, they still have a great deal to work with. Most nonsubscribers mainly rely on the sole proximate cause defense. They will use this allegation to the best of their ability which often means attacking you personally. They will research your past, question co-workers, and resort to the worst kind of character assassination in an attempt to deflect blame. If you have been injured while on the job and your employer is a nonsubscriber it is very likely that they would use this tactic to reduce or completely eliminate their liability. You need the attorneys at Grossman Law Offices to assist you with these underhanded strategies of these defense attorneys. To learn more about how a nonsubscribing employer may try to attack your claim and to schedule a meeting with one of our skilled attorneys, contact Grossman Law Offices at 1-855-392-0000.
=====================
3rd Party Liability in a Nonsubscriber Case

Houston Personal Injury Lawyers » 3rd Party Liability in a Nonsubscriber Case

Chat with a Houston Lawyer
Claims Involving Defendants Other Than Your Workers’ Comp Nonsubscribing Employer

Did You Know?

Houston work injury attorney

Our Houston work injury attorneys have won thousands of cases. Call us today to discuss your case. 1-855-392-0000

If your employer has elected to not participate in Texas’ workers’ compensation program and you’ve been injured on the job due to the negligence of someone else who’s not your employer (including fellow employees), you may be able to recover compensation for your injuries by filing a third party work injury claim against your employer.

If a negligent third party caused your workplace injuries and your employer is a nonsubscriber, our attorneys may be able to help you recover the compensation from the responsible party that you deserve. Our attorneys have represented injured workplace accident victims in Houston and throughout the state of Texas for more than 20 years and may be able to put the full force of their experience, skill, and techniques they’ve accumulated over their years of practice to work for you.

What is a Third Party for the Purposes of Texas’ Workplace Injury Laws?

For the purposes of a work injury claim, a third party is any party who causes an employee to suffer harm, but is not their employer. For example, the company that owns and/or operates a hotel is a third party for the purposes of Texas’ workplace injury laws when a traveling salesman staying in the hotel for work slips and falls in the hotel’s lobby. Although the salesman was acting in his capacity as an employee when he was injured, his injuries were solely the result of a negligent third party – whoever owns and/or operates the hotel.

Another example of a negligent third party under Texas’ workplace injury laws is a scaffolding rental company who causes a construction accident because the scaffolding was improperly assembled. In this scenario, the injured construction worker will have a claim against the negligent third party scaffolding rental company in addition to any claims he may have against his employers.

How Recovering for Your Injuries Works When Your Employer Subscribes to Texas’ Workers’ Compensation Program

work injury attorney in Houston
If your employer has elected to not subscribe to Texas’ workers’ compensation program (which, if you’re reading this article, they presumably have), your claims are different than those if your employer has elected to participate in the program. The following scenarios illustrate the differences in applicability of Texas’ injury laws based on if your employers subscribes or has opted out of the program.

In work-site injury cases where a person’s employer has elected to participate in Texas’ workers’ compensation program, workers’ comp will pay for a victim’s medical expenses and a portion of their lost wages. In these cases, injured workers are able to assert a lawsuit against the negligent third party for damages they’ve suffered that aren’t covered by Texas’ workers compensation program.

It’s important to note that if you have been injured on the job and your employer participates in workers’ compensation, you should receive benefits, regardless if your employer was at fault. Conversely, recovering compensation from nonsubscribing employers (and third parties) requires you to prove that your injuries stem from someone else’s negligent actions. In cases where an employer is a nonsubscriber, a question often arises of “who will pay for my expenses while I’m pursuing a third party for liability for my injuries?” The answer to that question depends if the facts of your case fall into one of two scenarios:

Scenario One – Both Your Employer and a Third Party Are Responsible For Your Injuries
The first factual scenario your case may fall into is where both your nonsubscribing employer and a third party are responsible for your injuries. To illustrate, let’s analyze a case involving a hypothetical painter injured on a job site while working for a nonsubscribing employer. While at the job-site, the painter was instructed to paint the edge of a balcony but wasn’t provided an appropriate safety harness by his boss. Unfortunately, while painting as instructed, the negligently constructed and maintained railing on the balcony gave way, causing the painter to fall and suffer major injuries.

In this scenario, the worker was injured due to a combination of his employer’s and the third party’s negligence: his employer failed to provide appropriate safety equipment, and the property owner failed to properly maintain and/or construct their balcony. In a scenario where both your nonsubscribing employer and a third party are responsible for causing your injuries, you’ll need to hire an experienced Houston workplace accident attorney to file a lawsuit against both parties to recover compensation for your injuries.
cenario Two – A Third Party is Entirely Liable For Your Injuries
In the second scenario your case may fall into, a worker’s injuries are 100% attributable to a third party. In these cases, a party’s employer is not required to pay anything for their employee’s injuries because they have elected to abstain from participating in Texas’ workers compensation program. In these cases, you’ll need to retain an experienced Houston workplace accident attorney to sue a third party under a negligence theory. Moreover, as your employer did not act negligently, your exclusive remedy is to file a lawsuit against the third party responsible for causing your injuries.

However, a limited exception to this general rule may exist. Some more generous nonsubscribing employers may voluntarily provide their injured workers benefits although not required by Texas law. In these cases, your employer will need to be reimbursed after you recover compensation from the negligent third party. You should note, however, that a nonsubscribing employer voluntarily providing benefits for harm caused solely by a third party is almost unheard of, and the only way you’ll likely recover compensation for your workplace accident injuries is to pursue compensation from the negligent third party under Texas’ negligence laws.

What Damages Are Recoverable From a 3rd Party in a Workplace Accident?

work injury lawyer in Houston
Simply put, a variety of damages may be recoverable in a workplace accident attributable to a third party’s negligence. Specifically, if their negligence cost you your job, you may recover the cost of past and future lost wages. If you lost your health, you can sue for the medical attention you need as a result. If you lost your enjoyment of life or have endured emotional suffering, you may be able to sue for the value of that loss.

Do you have a legal issue or question?
Enter your phone number to speak with us now.

However, although most damages from workplace accident cases are similar, the amount of and types of compensation available in your case can only be determined after a detailed examination of the particular facts of your case. For more information and a free consultation of your case, our attorneys invite you to give them a call any time, day or night at 1-855-392-0000.

=====================
Employee Status vs. Independent Contractor

Houston Personal Injury Lawyers » Employee Status vs. Independent Contractor

Chat with a Houston Lawyer
What is the Difference Between an Independent Contractor and an Employee in Relation to a Workers’ Compensation Injury Claim?

Did You Know?

Houston work injury attorney

Michael Grossman has been fighting for work injury victims` rights for over 20 years. Call Mike to discuss your case. 1-855-392-0000

If you’ve been injured on the job, you may have been told or received correspondence from your employer or their insurance company identifying you as an “independent contractor,” or that your employer does not consider you to be a traditional employee. This article was written to identify the ramifications of being classified as an independent contractor instead of an employee and to discuss the factors courts consider when determining if a worker is an independent contractor or an employee.

Unfortunately, Texas law doesn’t provide a bright line rule for determining if a person is an employee or an independent contractor and requires courts to analyze several factors in making their determination. As the ramifications of a court’s decision may impact you for the rest of your life, it’s important that you retain an experienced workplace accident attorney like those at Grossman Law Offices soon after you’re injured on the job to perform a detailed analysis to your case.

Ramifications of Being Classified as an Independent Contractor or an Employee

Although Texas law presumes that all workers are employees and places the burden of proving otherwise on the employer, your employer and/or its insurance company are likely adept and experienced in defeating that presumption. As a general rule, it is in an injured worker’s best interest to prove that they were an employee rather than an independent contractor. For example, if an accident was your fault and your employer fails to defeat the presumption that you are an employee, it will probably be liable for both your injuries as well as other injuries and property damage that resulted from the accident under the doctrine of respondeat superior. Additionally, and perhaps more importantly to someone who’s been injured on the job, an employer that successfully rebuts the presumption and proves that you were an independent contractor at the time of the accident is not required to pay you workers’ compensation benefits for your injuries and lost wages.

Factors Considered in Determining if You Are an Independent Contractor

Generally, courts consider three broad factors in determining if you were an independent contractor or an employee at the time of the accident. Specifically, courts analyze the extent that the employer controlled the worker’s behavior, the extent of control the employer asserted over the employee, and the type of control the employer asserted over the employee.

In determining the extent an employer controlled a worker’s behavior, courts consider if the employer controlled the manner and methods the worker used in completing the job. In other words, most actions taken by an independent contractor are usually taken with total autonomy and independence from the control of his employer. Whereas an employee’s actions are directly and continuously dictated by his employer. Courts often examine if the worker provided his own tools, materials, set his own hours, or used his own technique and approach to solving a task with limited instruction or supervision from the employer when examining this factor.

In determining the extent an employer has exercised financial control over a worker, courts consider if the worker was given total financial control over a task in such a way that he could have realized a profit or a loss, or if he was insured a profit regardless of the success of his work. Courts also look to see if expenses were reimbursed, and how the worker was paid; courts are more likely to find hourly and salary employees to be employees and workers who receive a flat fee for a particular job to be independent contractors.

In determining what type of control an employer asserted over a worker, courts often examine the language in a written employment contract, if one exists. However, regardless of the existence or contents of an employment contract, courts may determine that a different relationship exists based on the parties’ conduct. Specifically, courts examine several factors, including if the worker was provided benefits such as sick pay, insurance, or vacation time. Courts also consider the duration of the employment, often finding “at will” workers or workers who may retain their position for an indefinite period of time are employees, whereas a worker that is retained for a particular project or for a limited duration of time is more likely to be an independent contractor.

To further complicate things, courts may also consider additional factors not discussed in this article. Thus, if you’ve been injured on the job and suspect that you are be an employee but have been labeled as an independent contractor by your employer or their insurance company, you should contact an experienced workplace accident attorney like those at Grossman Law Offices to advocate your status as an employee.

You Need a Smart and Experienced Attorney on Your Side to Assert Your Rights as an Employee
As you can see, determining if you were hired as an independent contractor or an employee is a complicated and very important determination and likely needs an experienced attorney to identify your employment status.

Do you have a legal issue or question?
Enter your phone number to speak with us now.

If you’ve been injured on the job and have been labeled as an “independent contractor” by your employer or their insurance company but suspect that you are actually an employee, you should contact the experienced workplace accident attorneys at Grossman Law Offices. They are available anytime, day or night, to provide you a free consultation regarding your rights at 1-855-392-0000.
=================
Actions Outside the Scope of Employment

Houston Personal Injury Lawyers » Actions Outside the Scope of Employment

Chat with a Houston Lawyer
Behaviors and Actions That May be Considered Outside the Scope of Employment in Relation to a Workplace Injury

work injury lawyer in Houston
If you have been injured at your place of work, your employer will often try to get out of paying for your work accident. They will often claim that you were acting outside the scope of your employment at the time you were injured in order to avoid liability. Not all the actions that an employee takes constitute as “work;” some actions of an employee fall outside their assigned tasks, or the scope of their employment. The activities that you were conducting at the time of your accident are one of the factors that will ultimately determine whether the employer will be liable. Texas law holds that an employer is not liable for the injuries of their employees when said employees do something they are not instructed to do. To protect yourself from employers attempting to avoid liability by unfairly arguing that you were acting outside the scope of your employment at the time of your work injury, it is important that you contact an attorney to ensure that your rights as an employee are protected.

What is Considered Work?

Work is considered to be the tasks that you perform that are within the scope of your employment. Scope of employment is not just limited to your job description. The scope of your employment is generally considered conduct that furthers the interest of your employer. As such, so long as your actions are legitimately benefiting your employer, it becomes difficult for your employer to argue that you were acting outside of the scope of your employment.

Potential Hypotheticals

Imagine a scenario whereby two men are wrestling or participating in what is commonly referred to as horseplay while at work. These actions are not in anyone’s job description and certainly do not further the interest of their employer. As a result of the horseplay one man gets injured and, even though the activity may have occurred at work and on the clock, the employer will most likely not be liable for the injuries the man sustained. While this example seems easy, they are not always so simple. Another hypothetical would be if a man works at a construction company that builds skyscrapers in downtown Houston, he answers a call on his cell phone, and then while speaking on the phone he trips over a tool belt and falls, resulting in serious injuries. The man’s employer tries to avoid having to pay for the man’s injuries by claiming that the man was acting outside the scope of his employment by taking the phone call while on the job. Would this be considered an action that falls outside the scope of employment? What if the call the man received was from his doctor to reschedule an appointment around the man’s work schedule? Would this change the argument? Certainly his taking that personal call in order work around his work schedule resulted in greater availability to work and therefore help his employer.

The main thing that you need to take away from this topic is that there is no shortage of opportunities for your employer to try to skirt liability in your work injury case. Employers will try to use the slightest misstep to avoid responsibility for the injuries of their employers.

Employer’s Defenses

We are fond of saying that the job of a defense lawyer, the lawyer who represents your employer, is to “throw everything at a wall and see what sticks,” which is to say that they will try every defense, no matter how off the wall, that could potentially help their clients.

Did You Know?

Houston Texas work injury attorney

Our Houston Texas attorneys have won hundreds of work injury cases. Call us today to discuss your case. 1-855-392-0000

Many defenses that an employer’s attorney uses are not used to prove fault in the case, but to limit the amount of damages their client may have to pay. In other words, they don’t have to beat you flat-out; they just have to form arguments that cause your case to suffer in some manner or another.
Grossman Law Offices will protect your rights; we know what arguments the defense will likely make and are ready to defeat them. The attorneys at Grossman Law Offices have more than 20 years of experience in handling personal injury matters just like this; they can help you maximize the recovery that you deserve. Call 1-855-392-000 to schedule your free consultation.
=========================
Nonsubscriber Injury Cases & Comparative Fault

Home » Nonsubscriber Injury Cases & Comparative Fault

Chat with a Houston Lawyer
How Contributory Negligence Can Affect Your Nonsubscriber Work Injury Claim

Houston Texas work injury lawyer
If you’ve been injured on the job, you should be aware that most defendant nonsubscribing employers will attempt to avoid liability for your injuries by arguing that you (the plaintiff) were partially responsible for causing your injuries. This defense is known as “comparative fault,” or “proportionate responsibility.”

However, workplace injury defendants are misled when asserting this defense as all nonsubscribing employers automatically waive this defense when one of their employees files a lawsuit against them in Texas. In other words, if an injured employee can prove that his nonsubscribing employer was even marginally responsible for his injuries, his employer will be liable for all of them.

With the gravity of total reasonableness for an employee’s injuries weighing heavily against them, nonsubscribing employers will attempt to avoid the problems caused by waiving the doctrine of comparative fault in numerous ways. However, the two most common, are: 1) claiming that you were the sole proximate cause of your injuries or 2) a third, unrelated, party was solely responsible for causing them.

Your Employer Will Claim that Your Negligent Behavior Was the Sole Proximate Cause of Your Injuries

One of the essential elements every workplace injury victim injured while employed by a nonsubscriber must prove to a court is that his injuries were caused by the employer’s negligent actions or failure to act. This element (commonly referred to as “causation”) is divided into two components – “actual” and “proximate” cause. Proximate cause is the more difficult to prove of the two components of causation, and essentially requires an injured party to prove that his injuries are reasonably related to the event that caused them. Thus, if your employer can prove that your actions – and your actions alone – were responsible for causing injuries, they will totally avoid liability for causing them.

Attempt to Blame a Third Party

Similarly, your employer will also likely attempt to prove that an unrelated third party was solely responsible for causing your injuries. The arguments they’ll make here are along the vein as discussed in the above paragraph: they will acknowledge that you were injured, but will claim that your injuries were not at all contributable to their own negligent or reckless actions.

Our Experienced Workplace Injury Attorneys May be Able to Help You Recover the Compensation You Deserve

To summarize our discussion in this article, Texas law will not prevent Houston’s workplace accident victims from recovering from their injuries simply because their employer asserts the doctrine of comparative fault. As discussed above, Texas law doesn’t allow responsible nonsubscribing employers to take a “discount” of liability in these cases simply because they claim you were negligent. In other words, Texas injury laws apply an “all or nothing” responsibility on nonsubscribing employers.

Do you have a legal issue or question?
Enter your phone number to speak with us now.

If you would like more information regarding how comparative fault applies in a nonsubscriber case or a free consultation of how our attorneys might be able to help you recover compensation for your injuries, we invite you to give us a call. Our experienced Houston workplace injury attorneys have represented Texas injury victims for more than 20 years, and are available any time, day or night, at 1-855-392-0000.
====================
Nonsubscriber Wrongful Death Cases

Houston Personal Injury Lawyers » Nonsubscriber Wrongful Death Cases

Chat with a Houston Lawyer
Workplace Fatalities and Workers’ Compensation Nonsubscribers in Houston, Texas

Many people assume that if they are injured at work workers’ compensation will cover their injuries and that will be the end of it. Many times this is true and no other action is required by the injured party. However, Texas is one of the few states that do not require their employers to subscribe to workers’ compensation insurance programs, leaving individuals who are injured on the job of a nonsubscriber to their own devises for recovery. While the advantage to this is that there may a bigger recovery at the end of the procedure, the bad thing is that it will require you to have a long path to recovery. The attorneys at Grossman Law Offices want to help you down this path; we have extensive experience in assisting workers injured while working for nonsubscribers and can help you get the recovery that you deserve.

Remedies Against Nonsubscribers

There are several steps on your path to recovery for the death of your loved one from a nonsubscribing employer. The first step is to show that the employer was negligent. The employer will likely try to escape liability by claiming that the deceased party was partly at fault for the accident. Common tactics used by employers are claiming that the deceased was contributory negligent or that they assumed the risk. The attorneys for the employer will try to show that the deceased was at fault in every way possible, or show that they were acting outside the scope of their employment; you need representation that will show the truth and make sure that you are rightfully compensated for the death of your loved one.

Damages From Nonsubscribers

There are two types of damages in a wrongful death case; punitive and remedial. Each of these types of damages has a different distinct reason why they are awarded.

Remedial
Remedial damages are awarded based on the loss that you have suffered as a result of your loved ones death. The purpose is to try to compensate you for what you would have available if no death had occurred. Factors that are considered when determining the amount of damages are the deceased’s income at the time of death, their future potential earnings, age, and the number of dependents they had.

Punitive
Punitive damages are not damages that are based on your loss; rather they are damages that are awarded with the intention of punishing the wrongful acting party. The intention of punitive damages is to punish the employer for their wrongdoing or culture of wrong doing. Punitive damages, when awarded are generally large. However, courts tend to shy away from awarding these damages, absent gross negligence or lack of care for human life.

Pre-Injury Waivers

A rather new development when it comes to nonsubscriber protection is pre-injury waivers. The Texas Supreme Court ruled that employees could ask their employees to waive liability if the employer has an alternative program to workers’ compensation. These pre-injury waivers should never be signed without the advice of an attorney. Many times these are used by employers to relieve them of liability and the benefits for the employee are extremely limited. When you sign a waiver you will be giving up all your common law remedies for injury recovery, which includes prohibiting you from filing a law suit for recovery of damages for the death of your loved one.

Conclusion

Houston work injury law firm
If you have had a loved one injured in the Houston area, you will need the assistance of an experienced attorney that can get you the recovery that you deserve. The attorneys of Grossman Law Offices are here to ensure that you get the maximum amount of damages.

Do you have a legal issue or question?
Enter your phone number to speak with us now.

We have over 20 years of personal injury and trial experience under our belt and we can help you through this time of loss. Call us today to schedule your free consultation at 1-855-392-0000.
====================

Leave a Reply