Austin, TX (Law Firm Newswire) February 17, 2017 – If a worker is injured on a jobsite in Texas and files a lawsuit, what happens to a claim for compensation?
In Texas, companies may choose to opt in or to opt out of providing workers’ compensation. If a worker’s employer has chosen to opt in and that individual is hurt on the job, they cannot sue the employer. If the employer has chosen to opt out and there is a workplace accident, the injured worker may file a personal injury claim. Additionally, if a worker is killed, the family of the decedent may file a wrongful death claim.
“In Texas, we have what is referred to as an exclusive remedy system if the employer has opted into workers’ compensation,” pointed out work injury attorney Brooks Schuelke, “you cannot, in most cases, file a work injury lawsuit against the employer and a workers’ compensation claim.”
But an employer having workers compensation insurance does not mean that a worker cannot file a lawsuit. While the worker cannot sue the employer, they can often sue third parties who cause a worker's injuries.
“In order to file against a third party, the plaintiff must show that the named party was negligent and that the negligence was the direct cause of any injuries sustained,” said Schuelke. “There are a number of examples of these types of suits that our office has handled. For example, many employees are injured in car wrecks while on the job. If the employer has workers’ compensation insurance, the employee is entitled to recover workers’ compensation benefits from the employer and file a lawsuit against the third party who caused the wreck.”
For construction injuries, it is common for an employee to be injured by another subcontractor or the general contractor. In that instance, when the employer has worker’s compensation insurance, the injured employee cannot sue the employer but usually can sue the contractor who caused the injuries.
In these instances where a third party can be sued, if there is recovery in a lawsuit, the injured plaintiff is required to pay workers’ compensation benefits back because there is double compensation for the same benefits (wage loss, medical costs). The law frowns on a plaintiff being paid twice for the same losses. However, there are complicated rules about how much the workers’ compensation insurance company must be paid back.
A third tricky situation in work injuries is determining whether the employer has a true worker’s compensation insurance policy. Many employers tell their workers the employers have worker’s compensation, but the policies are not official policies approved by the state of Texas. In those cases, the employee is still able to sue his or her employer.
“For anyone in a difficult situation such as this one, we highly recommend seeking competent legal counsel and discover what your options are for filing a work injury lawsuit and/or an injury claim,” added Schuelke.
Perlmutter & Schuelke, PLLC
206 East 9th Street, Ste. 1511
Austin, TX 78701
Call (512) 476-4944
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