Work Injuries
It turns on one fact most workers do not know: Texas is the only state where carrying workers’ compensation is optional. If your employer subscribes, comp is normally your only remedy against them. If your employer is a non-subscriber, you can sue them directly — and they lose the defenses that would normally protect them.
Texas lets a private employer opt out of workers’ compensation altogether. Roughly a fifth do, and construction, staffing and hospitality are heavily represented among them.
If your employer subscribes, comp benefits are generally your exclusive remedy against the employer. You get medical care and wage replacement without proving anyone was at fault, but you cannot sue them for pain and suffering.
If your employer does not subscribe, you can sue in ordinary negligence — and Texas strips the employer of its usual defenses. It cannot argue you were careless, cannot blame a co-worker, and cannot say you assumed the risk of the job. All you have to prove is some negligence by the employer.
Even where comp covers you, it does not touch anyone other than your employer. Most serious work injuries involve someone else: a general contractor, a subcontractor, a property owner, an equipment manufacturer, a maintenance company, or the driver who hit your work vehicle.
That third-party claim runs on ordinary negligence and recovers what comp never does — pain, mental anguish, physical impairment and disfigurement.
Where comp has paid your medical care, the carrier normally holds a subrogation interest in what you recover from the third party. That has to be handled deliberately, because it decides how much of a settlement you actually keep.
Report the injury to your employer within thirty days. Late reporting is one of the most common ways a legitimate comp claim is lost.
A comp claim must be filed with the Division of Workers’ Compensation within one year of the injury, which is half the ordinary Texas injury deadline.
A negligence claim — against a non-subscribing employer or a third party — runs on the usual two years. An occupational disease with a delayed onset runs from when you knew or should have known the illness was work related.
Texas prohibits discharging or discriminating against an employee for filing a workers’ compensation claim in good faith, or for hiring a lawyer to represent them in one.
That is a separate cause of action with its own remedies, and it survives even where the underlying injury claim is modest. If the timing of a dismissal lines up with a report, say so early.
Report it in writing and keep a copy. A verbal mention to a foreman is what later becomes a dispute about whether you reported at all.
Ask, in writing, whether your employer carries workers’ compensation. You are entitled to know, and the answer determines which claim you have.
Get treatment and say clearly that it happened at work.
Photograph the equipment, the site and the conditions before anything is repaired or cleared, and note who else was present.
If they do not carry workers’ compensation, yes — and they lose the defenses of your own negligence, a co-worker’s negligence, and assumption of risk. If they do carry it, comp is generally your exclusive remedy against them.
Ask in writing. You are entitled to know, and the answer decides what kind of claim you have.
A negligence claim against someone other than your employer — a contractor, property owner, equipment maker or driver. It recovers pain and impairment, which workers’ compensation never pays.
Report to your employer within thirty days; file a comp claim within one year; a negligence claim runs two years from the injury.
Not lawfully. Retaliating against an employee for a good-faith comp claim is prohibited and is a separate cause of action.
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