San Antonio Construction Workers' Compensation

Michael Grossman, San Antonio Construction Injury Attorney, Explains Workers' Compensation in Texas

Construction work is unfortunately dangerous, and many workers are injured on the job every year. To make matters worse, the process of seeking compensation from a negligent employer is often extremely complex, and countless workers are cheated out of the compensation they deserve due to the technical nature of workers’ compensation laws and how they often interact with construction accident cases.

Many workers (and a number of inexperienced attorneys) have a few misconceptions about workers’ compensation insurance and how it commonly interacts with construction accident cases. Thankfully, experienced San Antonio workers comp claim attorney Michael Grossman from Grossman Law Offices is here to clear up these misconceptions and help you understand what options are available to you if you are injured in a construction accident. In all likelihood, you do have legal options available to you for seeking the compensation you need, and our attorneys can help you get it.

The most important thing you need to remember is that you cannot always take your employer at his or her word. Construction companies are notorious for trying to hide whether or not they have workers compensation insurance, and they will employ a number of other devious tactics to try to shield themselves from liability. There are a number of a reasons for this behavior (many of which we will discuss presently), but the bottom line is that an experienced lawyer can help you find ways of seeking compensation, regardless of what your employer says.

What is Workers’ Compensation and How Does it Apply to Construction Accidents?

While this seems like a clear-cut question, finding the answer is not always so straightforward. If you have been hurt in a construction accident, there are two broad possibilities: the construction company that employed you has workers’ compensation insurance (called a “subscriber”) or it does not (called a “non-subscriber”). This distinction determines how your case must be approached, so it is imperative that you know whether you have a subscriber case or a non-subscriber case. Unfortunately, asking the construction company does not always provide the correct answer. Whether the construction company has workers’ compensation will determine how much money you are eligible to receive. But construction companies will often say they have workers’ compensation insurance when they do not. Why do they do this?

The answer lies in the fact that workers’ compensation insurance is not really like a standard insurance policy. Workers’ compensation is technically insurance, but it provides many benefits to construction companies and other employers that are not present in other insurance policies. Workers’ compensation is one part of a larger tort reform policy that provides a fund (built up of our tax dollars) that is state regulated, but administered by private insurance carriers. The entire policy is surrounded by miles of red tape and legal technicalities. Subscribing to workers’ compensation insurance is expensive, especially for dangerous industries like construction, but it provides a great deal of legal protection to construction companies that a typical insurance policy does not provide. Do not make the mistake of thinking that workers’ comp is just another insurance policy.

Workers’ compensation provides compensation to workers injured on the job while at the same time making subscribers virtually immune to lawsuits (an exception exists if a worker dies and the employer was grossly negligent, in which case the worker’s family could file a wrongful death lawsuit). Regardless of common misconception, workers’ compensation lawsuits do not exist. If you are injured doing construction work for a company that subscribes to workers’ compensation insurance, you cannot file a work injury claim.

But remember that you cannot take your employer’s word. Our firm has assisted countless construction workers who thought that they had a subscriber case when in fact they were dealing with a non-subscriber. As mentioned before, construction work is dangerous. Because of the risks, workers’ compensation is very expensive for construction companies. Therefore, they often choose not to subscribe. But when a worker is hurt, they may pretend to have workers’ compensation insurance in order to avoid a lawsuit. An experienced workers’ comp claim lawyer, however, can help you dig through any construction company tricks and determine precisely what options are available to you.

Furthermore, construction accident cases often involve more than one potential defendant. Even if your employer truly subscribes to workers’ compensation insurance and you cannot file a work injury lawsuit, you may be able to file a lawsuit against these additional parties. Other defendants in construction accident cases often include the owners of the property where the work is being done, other contractors, the general contractor, equipment manufacturers, and leasing companies. Any of these other defendants could provide you with additional compensation to pay for your injuries. Our attorneys can conduct thorough investigations to determine exactly how your accident occurred, and identify all potential defendants in your case. We are dedicated to finding every possible source to secure the compensation you need.

What Sort of Benefits May I Receive From Workers’ Compensation?

Workers’ compensation insurance does provide you with certain benefits, regardless of any additional defendants. In most cases, a worker injured while working for a subscriber will receive 70% of income lost while you were recovering. But lost income payments are capped at roughly $600 per week, so if you previously made $1200 per week working for a construction company and you are hurt on the job, you will only receive roughly $600 per week in compensation while you are recovering. If you are severely injured and you cannot return to work, you will receive $600 per week for the rest of your life. Obviously, the benefits provided by workers’ compensation coverage are rarely adequate to cover the real expenses associated with a construction accident injury.

As discussed previously, unscrupulous employers will attempt to hide the fact that they do not have workers’ compensation insurance. Some construction companies will even pay for your medical bills and provide you with $600 per week out of their pockets – all as an attempt to convince you that they subscribe to workers’ compensation and are therefore immune to lawsuits. Do not fall for these deceitful traps. Injured workers will often believe that their employers have workers’ compensation. They will then research “workers’ compensation lawsuit” and find that no such thing exists. Then they will give up, without ever realizing that the construction company may be misleading them or that they may have numerous other avenues available for seeking compensation. Our experienced construction accident lawyers can make sure that this does not happen to you.

Filing a Lawsuit Against a Non-Subscriber

Our attorneys can help you investigate your case and determine whether or not your employer truly has workers’ compensation. If he or she does not, then you have a non-subscriber case, and we can help you file a construction accident lawsuit. In a non-subscriber case, you may receive compensation for your past and future medical expenses, lost wages from time spent recovering from your injuries, compensation for lost earning capacity due to your injuries, and even compensation for the mental and emotional turmoil and physical pain caused by your accident. There is no cap on damages you can potentially recover through a non-subscriber lawsuit. But since non-subscribers do not have the same legal protection afforded subscribers, they will usually resort to their only viable defense: convincing a jury that you were entirely responsible for your own injuries.

In some cases, construction companies think that this is an easy process. For example, if you were hurt lifting a heavy object, the construction company might think that it is in the clear. Their lawyers will argue that, since you were working alone, lifting an object by yourself, no one else could possibly be liable for your injuries. But our experienced lawyers know how to combat this sort of argument and link your injuries back to the construction company’s actions. For instance, if the construction company did not properly train you on how to handle heavy lifting, did not provide you with the necessary safety equipment, did not provide you with equipment to life the object, or did not provide you with another worker to help with the lifting, then the construction company might be legally liable for your injuries. Our attorneys know how to thoroughly investigate an accident and uncover the complex web of relationships that can establish liability in a non-subscriber case.

Are You a Contractor or a General Employee?

Many people think that they know the answer to this question (and construction workers often sign on as contractors to begin with). Texas statutes state that only general employees are eligible to file a construction accident or work injury lawsuit. Many construction companies therefore think that they have found the perfect loophole: they hire almost exclusively contractors, thinking that this provides them with immunity to lawsuits while avoiding the expensive subscription fees associated with workers’ compensation insurance. They mistakenly believe that, if their workers sign a contract that basically states, “I am a contractor,” then they are immune to lawsuits.

The truth, however, is more complex. Texas law does not provide clear cut guidelines for when a worker is an employee and when he or she is a contractor. A contract stating that a worker is a contractor does not necessarily make it so from a legal standpoint. In cases where this relationship is not straightforward, our attorneys turn to case law, looking at previous cases. In many cases wherein the working relationship was not clear, judges ruled in favor of the injured worker, even if the worker had signed a contract stating that he or she was a contractor. Numerous conditions can establish an employer-employee relationship and allow you to file a construction accident lawsuit, regardless of whether your employer calls you a contractor or not.

Proving the Employer-Employee Relationship

This relationship can be established in many different ways. Most explicitly, if a contract specifically calls the worker an employee, then that is proof enough. Construction companies have little viable defense against a claim this straightforward.

But even when a contract exists calling the worker a contractor, numerous conditions can establish an employer-employee relationship. The following conditions apply to general employees (i.e. workers who are not borrowed from some other agency or company):

• The laborer’s work is done independently of some company: for example, if an electrician works for many different companies and individuals, he or she is likely a contractor; but if the electrician works exclusively with one construction company, then he or she is an employee.
• The worker brings his or her own tools and equipment: if the employer provides the tools and machinery with which the laborer works, then the laborer is an employee. On the other hand, if the worker brings his or her own machinery, then he or she is probably a contractor.
• The employer does not manage the worker: if the worker conducts all of his or her work independently and only the final product is inspected by the employer, then the worker is probably a contractor. But if the employer manages the worker at various points throughout the project, then the worker is likely an employee.
• The worker has been hired for an inexplicit period of time: if the worker has been hired for a specific project to be completed by a specific date, then the worker is probably a contractor. But if the worker is working for the employer for an unspecified amount of time, then the worker is probably an employee.
• The worker’s method of payment: if the worker is paid by the hour, then he or she is probably an employee, whereas if he or she is paid per project, then he or she is probably a contractor.

As mentioned previously, however, many construction companies employ contractors, borrowing workers from other companies or agencies. The conditions for establishing an employer-employee relationship in these situations are different, but similar to the above. The conditions include:

• The borrowing employer can hire or fire the worker: if the worker can be hired or fired at any time by the borrowing employer, then the worker is probably considered an employee.
• The borrowing employer could select a specific worker: if the lending agency could send any worker they wanted, then the worker is probably a contractor. But if the borrowing company requested a specific worker, then the worker is likely an employee.
• The borrowing agency provides the worker’s tools: if the borrowing agency provides the worker’s tools, then the worker is an employee, whereas if the worker provides his or her own tools, then he or she is likely a contractor.
• The lending agency can substitute the current worker for a new one: if the lending agency can change the worker at any date, then the worker is probably a contractor. But if the lending agency cannot do this, then the worker is probably an employee.
• The worker is employed for an unspecific amount of time: as with general employees, if the worker has been hired for a specific project, then he or she is probably a contractor, but if the worker is working with the borrowing employer for an unspecific amount of time, then an employer-employee relationship is usually established
• The worker has a certain special skill set needed by the borrowing employer: if the construction company has borrowed a worker for a special set of skills needed for a project, then the worker is probably a contractor. If, however, the employer borrows a worker to fill a position that almost anyone could fill, then the worker is likely an employee.
• Responsibility for social security and income tax: if the borrowing employer is responsible for paying the worker’s income tax and social security benefits, then the worker is probably an employee.

Obviously, this is a lot of information to absorb, but the bottom line is this: establishing whether you are a contractor or a general employee is a technical process, but it is imperative to determining the amount of compensation to which you are entitled. Furthermore, you must determine whether or not your construction company truly subscribes to workers’ compensation coverage. If the construction company decides to play dirty, then you need an experienced lawyer to help you avoid the common pitfalls. It is imperative that you do not accept any payments from the construction company, do not sign anything, or make any statements, even if you think that the construction company is a subscriber. Seek experienced legal representation so that you receive the compensation you are owed.

For twenty years, our San Antonio construction accident law firm has been helping construction workers who have been hurt on the job. We know how to address both non-subscriber and subscriber cases, and we know how to quickly and efficiently determine which type of case you have. Furthermore, we know how to determine whether or not you are a contractor, despite what your employer says. We can help you identify additional defendants regardless of any lawsuits brought against your employer. In other words, we have experience with all kinds of construction accident cases, and we can help you seek out all the compensation you deserve from all liable parties. We have gone up against every major insurance provider in the country over hundreds of high-profile construction accident cases. Defense attorneys and insurance adjusters know who we are, and they are often cooperative with our settlement demands because they are afraid to face our lawyers in court. In short, we can help you seek the compensation you need quickly, so that you can get back on your feet. We are dedicated to helping you through this situation, no matter how overwhelming it may seem. If you have been injured in a construction accident, do not let the construction company’s negligence go unpunished. Let experienced San Antonio workers comp claim attorney Michael Grossman from Grossman Law Offices help you seek the compensation you need and the justice you deserve.