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Can you sue your employer if you’ve sustained a serious injury at work? The answer, as in many areas of law, is not straightforward. Whether or not you can bring a personal injury claim for work related injuries depends on various factors, including the nature of your work, the cause of the accident, and the specific circumstances of your case. We’ll first explain worker’s comp, how to make a claim, and how to find out the status of your employer. Then we’ll get into how and when to file a lawsuit.

Understanding Workers’ Comp: The General Rule

Generally speaking, when an employee sustains an injury at work, the primary source of recompense is through a workers’ compensation claim. Workers’ compensation is an insurance program designed to provide compensation to employees who suffer job-related injuries. It is a no-fault system, meaning that it doesn’t matter who is at fault for the accident; the injured worker can collect workers compensation benefits even if they were at fault.Workers’ compensation laws establish that as long as the injury happened while you were performing work duties, you’re eligible for workers’ compensation benefits. Whether your work-related injury occurred on-site or during a work-related errand off-site, you’re covered.

Filing a Workers’ Comp Claim

To initiate a workers’ compensation claim in Texas, there are several crucial steps that injured workers should follow. First, the workplace injury must be reported to your employer as soon as possible. Ideally, this should be within 30 days from when the injury occurred or from when you realized you had a work-related injury or illness.Your employer is responsible for providing you with a DWC-1 claim form, the official form for workers’ compensation benefits. In situations where your employer hasn’t provided the DWC-1 claim form, you can get it from the Texas Department of Insurance website.After the DWC-1 form is filled out and signed, it should be sent to your employer’s insurance company. Your employer is responsible for providing this information. It’s important to keep copies of all documents and notes related to your injury and treatment, including the DWC-1 form.

Common Mistakes When Filing a Claim

One of the most common mistakes injured workers make is failing to report the injury promptly. Delaying this report can cause skepticism about the claim and make it harder for the injured worker to get their benefits.Another common mistake is not getting comprehensive medical evaluation and treatment. Medical records are one of the most significant pieces of evidence in workers’ compensation claims, and a lack of documentation can harm your claim. Always ensure that you seek immediate medical care after a work-related injury and follow your doctor’s treatment plan.Additionally, you should be careful about what you post on social media during the claims process. Insurance companies often use social media posts as evidence to deny or reduce workers’ compensation benefits. If you post pictures or updates on your medical treatment that suggest your injuries are less severe than claimed, this could negatively impact your claim. Do not discuss your work injury with anyone other than your lawyer and your medical team.

Workers’ Comp Benefits

Once your claim is filed, if approved, the workers’ compensation insurance will cover your medical treatment related to the workplace injury. It also includes disability benefits for the portion of your lost wages if you’re unable to work during your recovery.Remember, workers’ compensation operates as a no-fault system. This means you can collect workers’ compensation benefits regardless of who was at fault for the workplace injury. However, it’s also crucial to know that accepting workers’ compensation benefits typically means you cannot sue your employer for the injury.

Understanding Workers’ Comp Insurance Coverage in Texas

In the state of Texas, workers’ compensation operates differently than it does in many other states. Private employers have the option to provide workers’ comp insurance coverage (a status known as being a subscriber), but it’s not mandatory in most instances. However, for all Texas governmental entities, including public schools, utilities, cities, or counties, carrying workers’ compensation coverage is a requirement.A workers’ compensation insurance policy is a form of assurance that employees who suffer a workplace injury will have access to lost wages and medical benefits. Many Texas workplaces have worker’s comp, but many do not.

Subscribers Covered by a Licensed Texas Insurance Carrier

“Subscribers Covered by a Licensed Texas Insurance Carrier” are employers that offer workers’ compensation benefits to their injured workers by purchasing coverage through an insurance carrier.The list of subscribers includes governmental entities and private companies. To verify the coverage of such employers, you can visit the TXCOMP NCCI website.

Certified Self-Insured Subscribers

Certain private employers opt to pay their own workers’ comp losses rather than purchase an insurance policy. These employers can attain a certified self-insured status by applying with the Texas Department of Insurance, Division of Workers Compensation (DWC).Verification of coverage and certification can be done at the Texas Certified Self-Insurers website.

Governmental Entities that Self-Insure

Some governmental entities, like public schools, utilities, cities, or counties, decide to fund their own workers’ comp program or join a pool with other governmental entities. The coverage of these entities can be verified at the TXCOMP Locate Self-Insured Government Employer website.


Employers that opt not to provide workers’ comp coverage to their injured workers, known as non-subscribers, are obligated to notify their employees of this status (and the DWC). A list of registered non-subscribers is available at the Texas Open Data Portal – Non-Subscriber.

Unknown Coverage

In situations where the coverage status of an employer is uncertain, the DWC provides a resource to inquire about the coverage status. An email can be sent to [email protected] containing the name and physical address of the employer, along with the date of injury. A DWC representative will respond within one business day providing coverage information.

Exceptions to Workers’ Comp: When Can You Make Personal Injury Claims Against an Employer?

While workers’ compensation is the primary avenue for compensation following a workplace injury, there are exceptions where you can sue your employer directly.Typically, the workers’ compensation system serves as the primary avenue for financial recovery following a work-related injury. If you do receive worker’s comp, you cannot sue your employer.However, circumstances do arise that may permit an injured worker to sue their employer directly. Understanding these exceptions is critical in seeking full compensation for your losses: your lawyer can tell you more after reviewing the specifics of your case.

When Your Employer Doesnt Have Workers Comp

Texas law does not mandate all employers to carry workers’ compensation insurance. If your employer falls into this category, and you’re injured on the job, you have the option to sue your employer directly in court. Unlike in a workers’ compensation claim, you could recover damages for pain and suffering and emotional distress in such a lawsuit.

When You’ve Been Injured by Defective Products, Toxic Substances, or Anothers Negligence

In some instances, workplace injuries are the result of factors outside your employer’s control. If a defective product, toxic substance, or a third party’s negligence caused your injury, you might have grounds to file a personal injury lawsuit against the responsible party. This lawsuit would be separate from and in addition to your workers’ comp claim.

When Your Workplace Violated the OSHA Act of 1970

The Occupational Safety and Health Act (OSHA) of 1970 requires employers to provide a safe and healthy workplace. If your employer has willfully violated OSHA regulations leading to your injury, they may lose their employer immunity, granting you the right to sue for damages.

When Workers Comp Isnt Sufficient to Cover Your Damages

There are also situations where the workers’ compensation benefits provided are not adequate to cover the injured worker’s damages. This may be the case if the injury leads to long-term or permanent disability, or if there is severe emotional distress or pain and suffering. In these cases, a personal injury lawsuit may be a necessary step to secure the full compensation you’re entitled to.

Seeking Damages for Emotional Distress and Pain and Suffering

Workers’ compensation covers your medical expenses and lost wages, but it doesn’t compensate for pain and suffering or emotional distress. However, you can sue your employer or a third party for pain and suffering, also known as non-economic damages, under certain circumstances.For instance, if your employer intentionally caused your injury or if a third party’s negligence led to the accident, a personal injury lawsuit may allow for compensation for pain and suffering. Always talk to your lawyer about whether you have a case and how to get the maximum compensation for your damages and pain and suffering.

Worksite Owners and Liability

If you were injured on a job site owned by an entity that is not your employer, you might not sue your employer but the actual owner of the site. Deciding whether you sue your employer or someone else is complicated to work out and depends on various factors.Generally speaking, if the owner had control over your work or failed to maintain safe conditions, they could potentially be held liable. If the owner simply hired your employer and otherwise had little to do with the worksite, and assuming they kept the worksite safe, then you would probably not be able to sue the property owner.

How to File a Work-Related Injury Lawsuit and Recover Compensation

Suing your employer for a workplace injury involves different steps than filing a workers’ compensation claim. Unlike a workers’ comp claim, you need to prove that your employer or a third party was negligent and that this negligence caused your injury. An experienced lawyer can guide you through the process, helping you gather evidence, file the necessary paperwork, and present your case in the best possible light.

Understanding the Difference: Workers’ Compensation System and Personal Injury Lawsuits

It’s important to distinguish between workers’ compensation and personal injury lawsuits. Workers’ compensation is designed to protect employees who sustain job-related injuries. On the other hand, a personal injury lawsuit requires proving that the defendant’s negligence caused the injury.

Workers’ Comp Claims vs. Lawsuits: Pros and Cons

There are advantages and disadvantages to both avenues of compensation. Workers’ compensation claims are typically faster to process and don’t require proving fault. However, they also don’t cover non-economic damages like pain and suffering or emotional distress.On the contrary, a personal injury lawsuit can provide full compensation, including non-economic damages. However, lawsuits can take longer to resolve, and there’s a risk of losing if you cannot adequately prove the defendant’s negligence.

Defective Product Liability and Workplace Injuries

One instance where you might opt for a personal injury lawsuit over a workers’ compensation claim is if your injury was caused by a defective product. If a piece of machinery or equipment at your workplace was faulty and caused your injury, you could have a claim against the manufacturer of the defective product. This is separate from your workers’ compensation claim and does not involve your employer.

Discovering Injuries Later

Sometimes, a work-related injury doesn’t manifest immediately or worsens over time. Examples of this would be a repetitive strain injury or an illness caused by exposure to a toxic substance at work.In such cases, workers’ compensation still applies. However, the timing for reporting the injury and seeking workers’ compensation benefits may vary. It’s crucial to consult an experienced lawyer to understand the specific time limits in these scenarios.

The Role of an Attorney in Your Claim

You might be wondering, “Do I need an attorney?” While it’s possible to file a workers’ compensation claim and even a personal injury lawsuit on your own, having an experienced attorney on your side almost always means a better outcome. Attorneys can help navigate the complexities of workers’ compensation laws, negotiate with insurance companies, and guide you through a personal injury lawsuit if necessary.If you’re hoping to get the most possible compensation for your job related injury, including possible compensation for pain and suffering, it’s important to work with a work injury lawyer who has experience in the field of work injury and who understands the nuances of Texas law in particular.

Consultation with an Attorney: What to Expect

The first step in engaging an attorney is usually an initial consultation. Most law firms, including ours, offer a free consultation to discuss your case. During this meeting, you can explain how the injury happened, provide as many details as possible, and ask any questions you may have. Based on this discussion, the attorney can assess your case’s merits and discuss potential legal strategies.

Post-Injury Steps and Legal Advice

Upon suffering a workplace injury, immediate medical care is vital. Seek a comprehensive medical evaluation to diagnose your injury and start treatment. Simultaneously, report the incident to your employer as soon as possible. You should also avoid sharing details of the injury or your workers’ compensation claim on social media, as this can harm your case.Once you’ve engaged an attorney, it’s essential to refer any settlement offer to them before accepting. Also, keep track of all injury-related losses, including medical bills and lost wages, as this can assist in calculating the compensation you’re entitled to.

Recovering Losses in a Work Injury Lawsuit

The losses you can recoup in a work injury lawsuit go beyond what is typically covered by workers’ comp. Besides medical expenses and lost wages, a personal injury lawsuit allows you to seek compensation for pain and suffering, emotional distress, and, in some severe cases, punitive damages intended to punish the defendant and deter others from committing similar actions.

The Timeline for a Personal Injury Lawsuit

While every case is unique, personal injury lawsuits generally take longer to resolve than workers’ compensation claims. This is due to the need for thorough evidence gathering, negotiations with the defendant’s insurance company, and potentially a trial. Although a settlement can be reached at any point in the process, some cases may take months or even years to resolve.

Statute of Limitations in Texas

In Texas, the statute of limitations for filing a personal injury lawsuit is two years from the date of the injury. This time limit is crucial. If you fail to file a lawsuit within this period, you may lose your right to seek compensation for your injuries.Whether you’ve suffered a workplace injury, been exposed to a toxic substance, or encountered a defective product, understanding your rights and the available avenues for compensation is crucial. Contact Brian C. Gutierrez, Attorney at Law, at 979-271-5338 right away to set up a free consultation and find out more about how the law applies in your specific circumstances. Don’t let too much time pass: the sooner you start pursuing your rights, the faster you can get the compensation you deserve.

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