Which path your claim takes
Texas lets private employers decide whether to carry workers' compensation, and an employer has to tell new hires whether it has coverage and post a notice at work saying so. If nobody told you, ask in writing; the answer decides which path your claim takes.
With workers' comp, you report the injury to your employer within 30 days and file your claim with the Texas Division of Workers' Compensation within one year. A lawsuit, against a non-subscriber employer or against another company, has to be filed within two years of the injury.
Workers' comp, non-subscribers and third parties
If your employer carries workers' compensation, the system pays for your medical care and part of your lost income while you can't work, usually 70% of your average weekly wage, or 75% for the first 26 weeks if you earned under $10 an hour, up to a state maximum. In exchange, workers' comp is generally the only claim you can bring against that employer, even if the employer was careless.
If your employer chose not to carry it (a "non-subscriber"), you can sue the employer for negligence, and the law takes away its usual excuses. A non-subscriber can't argue that you were partly at fault, that you accepted the risk of a dangerous job, or that a coworker caused the accident. You still have to prove the employer was negligent, and the employer can defend itself by showing you were intoxicated or hurt yourself on purpose.
In either situation, if someone other than your employer caused the injury, such as a general contractor on a site, the maker of a defective machine, or a driver who hit your work truck, you can bring a claim against them as well. If you also received workers' comp, the insurance carrier is paid back out of that recovery. A McAllen workplace injury lawyer can sort out which of these claims fit your accident.
Afraid to report the injury?
Many workers wait because they're afraid of losing the job or of questions about their papers, but with workers' comp the employer has to be told within 30 days, and late notice can cost you your benefits unless your employer already knew about the injury or you had a good reason for the delay.
If your employer has workers' comp, it can't fire you or treat you differently for filing a claim in good faith or for hiring a lawyer. If your employer is a non-subscriber and hands you a paper to sign after the injury, read it slowly. A waiver signed before you were hurt is void under Texas law. One signed afterward is only valid if you signed it voluntarily and knowingly, at least 10 business days after you reported the injury, after a doctor examined you outside an emergency, and if the waiver is printed so it stands out.
In a lawsuit, the other side may try to ask about your immigration status. How courts handle that, and what your lawyer can do about it, is explained in our article on injury claims and immigration status.
Steps to take after a work injury
Do these in order, and keep a copy or a photo of everything you hand over:
- Get medical care and tell the doctor the injury happened at work.
- Report the injury to your supervisor in writing, by text or message if that's how your workplace communicates, and keep a copy.
- Ask whether your employer has workers' compensation insurance.
- Take photos of the place where you were hurt and the equipment involved, and write down the names of coworkers who saw it.
- If there is workers' comp, file your claim with the Texas Division of Workers' Compensation on DWC
Form-041 within one year.
- Don't sign a waiver, release or statement before a lawyer has read it.
Serious accidents also leave a paper trail you can use. Employers have to report a work death to OSHA within 8 hours, and an in-patient hospitalization, amputation or loss of an eye within 24 hours. Those reports, and any inspection that follows, can become evidence in your claim.
If you aren't sure which claim fits your injury, call us before the 30 days run out. You can talk to us in Spanish or English, and what you tell us in a consultation stays confidential.
This article is general information. It is not medical or legal advice, and reading it does not create an attorney-client relationship. Read our disclaimer.
J.D., Thurgood Marshall School of Law. Licensed in Texas, admitted to the Southern District of Texas. Handles personal injury and immigration cases at Alex Martinez Law.
