Texas is the only state where private employers may opt out of workers’ compensation. If your employer is a non-subscriber, you can sue it directly, and it loses the contributory negligence, assumption of risk, and fellow-servant defenses. You still must prove negligence. If your employer subscribes, comp is your exclusive remedy, but third-party claims survive.
First question: does your employer carry workers’ comp?
Everything about a Texas work injury branches from this one fact. Texas is the only state where a private employer may opt out of workers’ compensation (Lab. Code §406.002). An employer that carries it is a subscriber. An employer that does not is a non-subscriber, and the two produce completely different claims.
You can find out. Employers are required to post notice of their coverage status at the workplace, and the Texas Department of Insurance Division of Workers’ Compensation can confirm whether a business carries workers’ compensation. Ask before you accept anyone’s description of your rights.
One point that gets asked often and answered wrongly: Texas workers’ compensation covers both citizens and non-citizens, including undocumented workers.
If your employer subscribes: exclusive remedy
Workers’ compensation is a trade. You do not have to prove anyone was at fault, and benefits start without a lawsuit. In exchange, workers’ comp becomes your exclusive remedy against your employer under most circumstances. You generally cannot sue the employer for negligence, and you cannot recover pain and suffering through the comp system.
Workers’ comp pays medical treatment for the work injury and a portion of lost wages, with impairment benefits where an injury is permanent. It does not pay for what the injury did to the rest of your life.
That gap is why the next section matters. Exclusive remedy protects your employer. It does not protect anyone else.
If your employer is a non-subscriber
A non-subscriber gives up the protection that workers’ comp provides. Under Lab. Code §406.033, in a suit by an injured employee, a non-subscribing employer cannot assert that the employee was contributorily negligent, that the employee assumed the risk, or that the injury was caused by a fellow servant. Those three defenses are simply unavailable.
What remains is your burden. You still must prove the employer was negligent. Workers’ comp no-fault rule does not carry over. The employer may also argue that your own conduct was the sole cause of the injury, which is different from arguing comparative fault.
Pre-injury waivers are void under §406.033. A document signed at hiring that purports to give up your right to sue for a future injury does not do what it says. Agreements presented after an injury are treated differently, so do not sign anything post-injury without advice.
Many non-subscribers offer a private occupational injury benefit plan. These are not workers’ compensation. They commonly impose very short internal reporting rules, restrict which doctor you may see, and include an arbitration agreement signed at hire. Have those documents reviewed before you rely on them or assume they control.
The third-party claim most injured workers miss
Exclusive remedy bars claims against your employer. It says nothing about anyone else. A third-party claim targets a party other than your employer whose negligence contributed to the injury, and it can be brought alongside a workers’ comp claim.
Common third parties include the driver who hit you while you were working, a general contractor or another subcontractor on a job site, the owner of the property where you were working, the manufacturer of a defective machine or tool, and a maintenance or staffing company. In those claims, pain and suffering and other non-economic damages are recoverable, with no cap in ordinary negligence cases.
This is the single most common thing injured Texas workers overlook. They accept workers’ comp benefits, assume the file is closed, and let the two-year deadline run on a claim which may be worth far more than the benefits.
Comp claim (subscriber)
Suit against a non-subscriber
Third-party claim
Claim is against
Your employer’s comp carrier
Your employer directly
A negligent party other than your employer
Must you prove fault?
No
Yes, ordinary negligence
Yes, ordinary negligence
Employer’s classic defenses
Not applicable
Contributory negligence, assumption of risk, and fellow servant all barred (§406.033)
Not applicable
Pain and suffering
Not recoverable
Recoverable
Recoverable
Can it run alongside comp?
N/A
No, these are alternatives
Yes
Sources: Lab. Code §406.002, §406.033; CPRC §16.003. General comparison only; the right path depends on the facts.
The workers’ comp carrier’s lien on a third-party recovery
If workers’ comp paid your medical bills and wage benefits and you then recover from a third party, the carrier is entitled to be repaid out of that recovery. That right is called subrogation (Lab. Code §417.001).
It is not a blank check. The lien is reduced to account for the attorney’s fees and expenses that produced the recovery, because the carrier is being repaid from money someone else’s work generated (Lab. Code §417.003). The size of that reduction is worth negotiating and, it changes what you actually keep.
Two practical consequences. First, never settle a third-party claim without resolving the lien, because settling around it can put your benefits at risk. Second, evaluate the third-party claim and the workers’ comp claim together from the start, not one after the other.
Deadlines and what to do now
Report the injury to your employer in writing, keep a copy, and get medical care that documents the injury as work-related. Photograph the equipment, the scene, and any missing guard or warning before it is repaired or replaced, and write down who was present.
A negligence suit, whether against a non-subscriber or a third party, is generally subject to the two-year deadline in CPRC §16.003. Workers’ compensation has its own separate and shorter deadlines for notifying your employer and filing a claim with the Division. Do not assume the two-year deadline covers everything.
Jim Ross Law Group offers a free consultation at 817-275-4100, and there is no fee unless we win.
Frequently Asked Questions
How do I find out whether my employer has workers' comp?
Start with the notice which employers are required to post at the workplace and then confirm with the Texas Department of Insurance Division of Workers’ Compensation. Do not rely on what a supervisor tells you, and do not assume that a company offering an injury benefit plan is a subscriber. Many non-subscribers run private plans that look similar and are not workers’ comp.
I signed a paper at hiring giving up my right to sue. Is that enforceable?
Under Lab. Code §406.033, a pre-injury agreement by an employee to waive a cause of action against a non-subscribing employer is void. What you signed at orientation generally does not bar the claim. Documents signed after an injury are analyzed differently, so bring both to a consultation before assuming either way.
Can I get pain and suffering through workers' comp?
No. The comp system pays medical treatment and a portion of lost wages, plus impairment benefits in some cases. Non-economic damages such as pain, mental anguish, disfigurement, and impairment are not part of it. Those are recoverable only in a negligence claim, either against a non-subscribing employer or against a third party.
I was hurt in a car crash while driving for work. Which claim is this?
Potentially both. If your employer subscribes, workers’ comp should cover the medical treatment and wage benefits regardless of fault. Separately, the at-fault driver is a third party you can pursue for the full range of damages, including pain and suffering. The workers’ comp carrier will then assert a lien against that recovery, reduced by attorney’s fees.
Can my employer fire me for filing a claim?
Texas law prohibits discharging or discriminating against an employee for filing a workers’ compensation claim in good faith, or for hiring a lawyer to represent them in one. Proving retaliation is a separate matter from proving the injury claim, so document the timeline: when you reported, who you told, and what changed at work afterward.
Does workers' comp in Texas cover undocumented workers?
Yes. Texas workers’ compensation covers both citizens and non-citizens, including undocumented workers. Separately, immigration status is not a prerequisite to recovering in a Texas tort claim, including for lost earning capacity. Fear of the status question keeps injured workers from reporting injuries and from getting treated, which damages the medical record a claim depends on.
The workers’ comp carrier is paying my bills. Why would I need a lawyer?
Because workers’ comp benefits are often not the entire claim. If a third party contributed to the injury, that claim is separate, is worth more, and runs on its own two-year deadline. The lien which the workers’ comp insurance carrier will assert against any recovery, is also negotiable. A consultation is free and it costs nothing to find out whether a third-party claim exists.
This page is for general information only and is not legal advice. Reading it does not create an attorney-client relationship. Every case is different and past results do not guarantee or predict a similar outcome in any future case. Jim Ross Law Group, P.C., 2201 E Lamar Blvd #110, Arlington, TX 76006.