There are two circumstances in which you can sue your employer for a workplace injury:
- You are injured on the job, your employer fails to cover you with worker’s compensation coverage, and some negligence by the employer contributes to your injury, or;
- You are injured on the job and your employer’s gross negligence caused the injury.
If you are unsure whether one of the above situations applies to you, talk to a work injury lawyer to determine your best course of action.
Injured But No Workers’ Compensation Insurance
A worker in a yellow jacket helps an injured worker on the ground beside an open electric panel.
Texas is unique for many reasons—some good, and some bad. Sadly, the area of worker protection is one of the bad differences. Texas is the only state in the United States that does not require employers to protect their employees with workers’ compensation insurance coverage. Instead, it is considered optional and solely up to the employer.
If your employer chooses not to provide worker’s compensation in Texas, however, you retain the right to sue them. Moreover, the Texas Worker’s Compensation Statute imposes a penalty on employers who choose not to provide coverage. Under this penalty, the employer is forced to waive his common law defenses that he would have otherwise had in a civil lawsuit. The result of this is that if the employer is found negligent and that negligence contributed to the injury-producing incident even 1%, then the employer loses and must pay the entire judgment.
Advantages vs Disadvantages of Workers Compensation
When your employer provides workers’ compensation coverage, worker’s compensation coverage takes negligence out of the equation. It does not matter if your employer was negligent or not. You simply need to prove that you were injured during the regular course and scope of your work. This means things like carpal tunnel syndrome from typing and back injuries from lifting a box are covered under workers’ compensation. However, the benefits you receive are not as extensive as what you can claim in a civil personal injury lawsuit.
On the other hand, if your employer does not provide workers compensation, then you may seek the full compensation permitted under civil law. However, you must prove the employer was at least 1% negligent. If the injury was something like carpal tunnel syndrome for typing or lifting a box wrong, you are left with no recourse.
Injured and Employer was Grossly Negligent
If you were injured on the job and the employer was grossly negligent leading to the injury, you can sue your employer regardless of whether he provided you with workers’ compensation coverage. Employers, as a matter of public policy, are not rewarded for grossly negligent conduct. Thus, if you can prove the injury was the result of your employer’s gross negligence, you can sue them and make a recovery.
Proving Gross Negligence
Although you can sue your employer for gross negligence, finding an attorney to take the case on a contingency fee may be a different story. In Texas, to prove gross negligence, you must convince all 12 jurors to agree that there is clear and convincing evidence that the employer was grossly negligent and that this was a producing cause of the injury. This is the same high standard required for awarding punitive damages in a typical personal injury case. A single dissenting juror can torpedo the entire case. Thus, lawyers rarely want to risk the time and expense of proving a case that depends entirely upon a unanimous jury finding.
Examples of Cases Where Gross Negligence Might Suffice
Generally, the type of cases that lawyers are more likely to take on the burden of proving gross negligence are cases where the industry is regulated by Code or Statute and the employer is acting in flagrant violation of the law. For example, an electrocution injury on the job due to an employer habitually not following lockout tagout requirements or a major industrial accident such as a plant explosion that results from regular and repeated disregard for the law.
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