Articles Posted in Workers’ Compensation

Injured worker.jpgIf you are injured on the job and your injury was caused by the negligence of a third party and not your employer you can still recover workers’ compensation from your employer’s worker’s compensation insurance carrier. However, if you bring a suit against the third party for your injuries after receiving worker’s compensation benefits, you might be surprised to learn that the worker’s compensation carrier is expecting to be reimbursed from your recovery for the benefits it paid to you. This is known in insurance law as subrogation.

The subrogation interest of the workers’ compensation insurance carrier is generally granted in Chapter 417 of the Texas Labor Code. Section 417.001 gives a subrogation interest or a direct right of recovery to the workers’ compensation carrier. Section 417.002 requires that the third party recovery be exhausted before the carrier is obligated to resume benefits to the injured worker. Section 417.003 sets forth rules for compensating the attorney who obtains the recovery out of which the subrogation interest is paid. Section 417.004 bars the negligent third party from seeking contribution or indemnity from a negligent employer in the absence of a prior agreement.

The statute authorizes the recovery by the carrier to take priority over common law, including the made whole doctrine. Any employee who receives workers’ compensation benefits for an on the job injury must repay the carrier out of the proceeds of any third party settlement or judgment. “Third party” may include certain first party uninsured or underinsured motorist benefits.

Fired.jpgTexas is an employment-at-will state which means that, absent an express agreement to the contrary, either party in an employment relationship may end the relationship or change the terms and conditions of employment at any time for any reason, or for no particular reason at all, with or without notice. Therefore, in Texas, an employee can terminate the working relationship at any time and for any reason. Employers have similar liberties, but there are some restrictions. These restrictions prevent employers from firing people on grounds that violate their legal rights. If your employer terminates you in violation of these restrictions, this is what is known as wrongful termination

The restrictions on the employer’s right to terminate at-will employees are contained in state and federal statutes and by the judicial decisions of the courts.

Statutory restrictions include:

Worker picture.jpgMany people believe that all employers in Texas are required to provide workers’ compensation insurance to their employees when in fact that is not the case. There are many employers in Texas who can’t afford such insurance or simply choose not to provide it for theIr employees, Many employees of such employers believe that if they are injured on the job their medical expenses and lost income will still be taken care of only to discover that they will have to sue their employer if they want to be compensated. This may put them in an awkward position, especially if they want to continue their employment.

The Texas Workers’ Compensation Act is contained in Chapters 401 through 419 of the Texas Labor Code. Under the Texas Workers’ Compensation Act, employers are required to notify their employees as to whether or not the employer has workers’ compensation insurance coverage. The employer must notify each new employee of the existence or absence of workers’ compensation insurance coverage at the time the employee is hired. The employer must also post notices of whether the employer has workers’ compensation insurance coverage at conspicuous locations at the employer’s place of business in order to provide notice to its employees. An employer who obtains workers’ compensation insurance coverage or whose coverage is terminated or canceled must notify each employee that the coverage has been obtained, terminated, or canceled not later than fifteen days after the date on which the coverage, or the termination or cancellation of the coverage, takes effect.

If the employer provides workers’ compensation insurance, the insurance company is liable for compensation for an employee’s injury, without regard to fault or negligence of the employee, if: (1) at the time of injury, the employee has not waived his rights under the Texas Workers’ Compensation Act; and (2) the injury arises out of and in the course and scope of employment. Depending on the type of injury, the insurer must pay the employee the benefits that are described in Chapter 408 of the Texas Labor Code. Many people do not realize that they have the option to waive worker’s compensation benefits and retain rights under the common law to sue their employer for on the job injuries. The Workers’ Compensation Act provides that, unless the employee gives notice to his employer that the employee wants to retain his common law rights against the employer, the employee waives the employee’s right of action at common law or by statute to recover damages for personal injuries or death sustained in the course and scope of the employment and is limited to recovering the benefits provided by the Workers’ Compensation Act. However, if the employee wants to retain a common-law right of action to recover damages for personal injuries or death against his employer, the employee is required to notify the employer, in writing, that the employee waives coverage under the employer’s worker’s compensation insurance policy and wants to retain all rights of action under common law. In order to do so, the employee must notify the employer not later than the fifth day after the date on which the employee: (1) begins the employment; or (2) receives written notice from the employer that the employer has obtained workers’ compensation insurance coverage if the employer is not a covered employer at the time of the employment but later obtains the coverage. The Workers’ Compensation Act specifically prohibits the employer from requiring its employees to retain their common-law rights as a condition of employment.

If the employee has waived coverage or the employer does not provide workers’ compensation insurance for its employees, in a suit brought by the employee against the employer to recover damages for personal injuries or death sustained by an employee in the course and scope of the employment, it is not a defense that: (1) the employee was guilty of contributory negligence; (2) the employee assumed the risk of injury or death; or (3) the injury or death was caused by the negligence of a fellow employee. But the employee must prove that negligence of the employer or of an agent or servant of the employer acting within the general scope of the agent’s or servant’s employment contributed to the injury. The only defenses that the employer has to the employee’s suit is that the injury was caused: (1) by an act of the employee that was intended to bring about the injury; or (2) while the employee was in a state of intoxication. The employee’s right to bring a cause of action may not be waived by an employee before the employee’s injury or death. Any agreement by an employee to waive a cause of action against the employer before the employee’s injury or death is void and unenforceable. Additionally, a cause of action against the employer may not be waived by an employee after the employee’s injury unless: 1) the employee voluntarily enters into the waiver agreement with knowledge of the waiver’s effect; 2) the waiver is entered into not earlier than the tenth business day after the date of the initial report of injury; 3) the employee, before signing the waiver, has received a medical evaluation from a nonemergency care doctor; and 4) the waiver is in a writing under which the true intent of the parties is specifically stated in the document and the waiver provisions are conspicuous and appear on the face of the agreement.
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