San Antonio Workers' Compensation Attorney

San Antonio, Texas Work Injury Attorney Michael Grossman Explains Workers' Compensation & Work Injuries in Texas

If you or someone you love has been hurt on the job, you may be considering filing a lawsuit or seeking some sort of financial compensation. Texas work injury cases are made complicated by workers’ compensation and the immunity to law suits that it may give your employer.

Many injured workers (and many lesser-experienced attorneys) hold a number of misconceptions about Texas work injury laws and workers’ compensation rules, and countless injured workers have been taken advantage of by the system.

Fortunately, experienced San Antonio workers’ compensation attorney Michael Grossman at Grossman Law Offices is here to answer your questions about workers’ compensation insurance and Texas work injury law. Our firm is dedicated to making sure you know what legal options are available to you, so that you will receive fair and adequate compensation for your work injuries.

What is Workers’ Compensation?

When a worker is hurt on the job, there are two possibilities which will largely dictate how the worker will go about seeking compensation: either the employer has workers’ compensation insurance or they do not. Unfortunately, due to the unscrupulous practices many employers use to try to avoid legal liability, many injured workers have a hard time determining whether their employer has workers’ compensation insurance. It is vital to determine whether or not your employer has workers’ compensation coverage or not as this will ultimately determine the amount of money that you may be entitled to. Our experienced lawyers can help you determine what type of case you have.

It is also important to note that workers’ comp coverage is NOT just an insurance policy that your employer buys. Workers’ comp coverage is part of a bureaucratic tort reform policy whereby our tax dollars pay into a fund that is state regulated and administered by private insurance companies within miles of red tape and obscure technicalities. Participation in the coverage is voluntary and costly but it affords companies a great deal of protection that a normal work injury policy does not provide. Do not make the mistake of assuming that workers’ comp is just insurance coverage. Workers’ compensation insurance does two things for an employer: it provides coverage for when an employee is injured, and it makes the employer completely immune to work injury lawsuits (except in cases where a worker dies and the employer was grossly negligent in the death, in which case, the plaintiff has a standard wrongful death claim). Despite common misconception, there is no such thing as a workers’ compensation lawsuit. If you are hurt on the job and your employer has workers’ compensation insurance (in other words, the employer is what we call a subscriber), then you cannot file a lawsuit. You can, however, go through a series of administrative hearings for which you will need an attorney to represent you.

But you may be eligible to receive some level of compensation from your employer’s workers’ compensation insurance. Typically, you will receive 70% of your lost wages, at a maximum of roughly $600 per week, compensation for your medical expenses, and possibly a small sum at the end of your recovery. For example, say you worked as a plumber and received $60,000 per year – approximately $1200 per week. If you are severely injured in an accident and you can no longer continue working, you will receive lost income payments from workers’ compensation (assuming your employer subscribes) for the rest of your life. But these payments will only be $600 per week, due to the cap on workers’ compensation lost wages payments. As you can see, the amount you receive from workers’ compensation benefits is relatively small and unfortunately, these payments are not up for negotiation. This is where an experienced San Antonio workers' compensation attorney can make all of the difference in your case by helping you determine if there is additional coverage or compensation that would apply.

The truth, however, is that many injured workers are lead to believe that their employer has workers’ compensation insurance, when in fact their employer does not. Unscrupulous employers will say they have workers’ compensation insurance when they do not, and some will even go so far as to pay an injured employee the $600 per week and pay for his or her medical bills in order to further the illusion that the employer is protected by workers’ compensation. An injured worker may never think to question this farce. The injured worker may do some research on “workers' compensation attorneys,” realize that there are no workers’ compensation lawsuits, and then give up – never realizing that he or she may actually have a non-subscriber case.

Filing a Lawsuit in a Non-Subscriber Case

Our attorneys can investigate your accident and determine whether you have a workers’ comp case or a non-subscriber case. If you have a non-subscriber case, you can file a lawsuit seeking compensation for many different types of damages, including medical expenses, lost wages while recovering, lost earning potential later in life, and pain and suffering caused by your accident. Non-subscribing employers are not afforded protection from lawsuits like subscribers, so they have one legal defense: they will attempt to prove that you were the sole cause of your injuries.

In certain situations, this may seem to be quite simple for them. For example, say you are injured while lifting a heavy object at a grocery store. Since you were likely acting alone when you were hurt, your employer can easily claim that you were at fault for your injuries. But an experienced lawyer can link your actions back to the employer’s failure to provide training, proper safety equipment, machinery to lift the object, or another worker to help you.

Are You Technically an Employee or a Contract Laborer? The Case Law Decides

Texas statutes state that only general employees are eligible to file non-subscriber work injury claims – not contractors. Employers are often aware of this element of the law (particularly construction companies), and so they will often hire almost exclusively contractors and then not subscribe to workers’ compensation insurance. They think they have found the perfect loop hole: Just make all of your employees sign a document that says they are contract laborers. That way they are not eligible to file a non-subscriber work injury lawsuit and you don’t have to pay for workers’ compensation coverage.

Thankfully for the workers, this is not accurate. While legal statutes do state that only employees are eligible to file non-subscriber claims, the laws do not provide a clear description of exactly what constitutes an employer-employee relationship rather than a contract relationship. Thus our attorneys turn to case law to provide examples of how judges have ruled in the past in cases where it was not obvious as to the nature of the relationship that the employee had with the employer. Texas case law provides guidelines or tell-tale signs that establish an employer-employee relationship, even if the worker was originally hired as a contractor. According to the case law, you are not a contractor just because your employer claims that you are. If the following conditions exist, you are considered to be an employee and you are therefore eligible to file a non-subscriber lawsuit.

Proof of an Employer-Employee Relationship

If a contract exists that specifically states that the worker is an employee, then that is all the proof an employee would need and the worker can file a non-subscriber claim. There is really no defense against something this straightforward.

But even if the employer drafts a contract that specifically states that you are not an employee, the employer’s conduct can establish an employer-employee relationship regardless of any past or present contracts.

Additionally, if the injured worker was performing services particular to a defendant’s business, then the victim is an employee. In other words, if you are in a Burger King restaurant, wearing a Burger King shirt, standing behind a cash register, servicing customers, then you are a Burger King employee, regardless of the details or even the existence of any contract.

In cases where this relationship is not as clear-cut, the employer’s actions can establish an employer-employee relationship as well. Concerning general employees (i.e., not borrowed employees or volunteers), an employer-employee relationship is established by any of the following factors:

• The independence of the laborer’s work: if the plaintiff is an electrician who does electrical work for many different customers, then he or she is likely a contractor. If, on the other hand, the electrician is working for a phone company and no one else, then the electrician is an employee.
• The worker providers his or her own tools: if the worker brings his or her own tools to the job, then he or she is a contractor. But if the employer provides tools to the worker, then the worker is an employee.
• The employer controls the worker’s progress: if the worker makes all of the decisions while working on a project and only the completed product is inspected by the employer, then the worker is a contractor. On the other hand, if the employer manages the worker during various stages of the project, then an employer-employee relationship is established.
• The employer controls the length of time for which the worker is employed: if the worker can leave at any time, then he or she is probably a contractor. If the worker has been hired for an indefinite period of time, then the worker is an employee.
• Method of payment: if a worker is paid by the hour, he or she is more than likely an employee, but if the worker is paid upon completion of a project, he or she is a contractor.

In some cases, an employer will borrow an employee from another company, but even in this situation, the worker can bring a non-subscriber case against the borrowing employer under certain circumstances:

• Whether the borrowing employer can hire or fire: if the borrowing employer can hire or fire the worker, then the worker is an employee.
• The borrowing worker could select the worker: if the borrower selected a specific employee rather than the worker being selected by the lending employer, then an employer-employee relationship is established.
• The borrower owns the tools that the worker is using: if the borrower owns the worker’s tools, the worker is an employee.
• The lending employer can substitute a different worker: if the lending employer can change the worker that the borrower uses at any time, then the worker is a contractor.
• The employer is borrowing the worker for an indefinite amount of time: like with general employees, if the worker is employed for an indefinite amount of time, then he or she is an employee.
• The borrowed employee has specific skills: if, for example, a boat manufacturing company borrows a composite materials expert from a surfboard company, then the worker is a contractor. If the boat manufacturer borrows a worker for a role that almost anyone could have filled, then the worker is an employee.
• Social security or income tax benefits: if the borrower assumes the responsibility of paying the worker’s social security and income tax benefits, then the worker is an employee.

As you can see, determining if you have a non-subscriber lawsuit or not is a complex, technical matter, particularly when employers attempt to obscure whether they have workers’ compensation insurance or other elements of your case. It is important that you seek help from an experienced San Antonio workers’ compensation attorney quickly, and do not sign anything or accept any payments from your employer before you do.

The experienced San Antonio workers’ compensation and work injury attorneys of Grossman Law Offices can help you seek the compensation you are owed. Whenever we take a work injury case, we conduct a thorough investigation of the accident and of your relationship with your employer. We have been investigating and litigating work injury cases for twenty years, and we have seen employers use every trick in the book to try to avoid liability. We know how to determine whether your employer really has workers’ compensation insurance, and what type of relationship you have with your employer. If you have a non-subscriber case, we can help you build a strong lawsuit and go after the compensation you deserve. Our firm is dedicated to helping you get back on your feet after you have been hurt on the job. So if you or someone in your family has been injured in a workplace accident, contact San Antonio workers’ compensation attorney Michael Grossman from Grossman Law Offices today, and let us help you secure the compensation you need and the justice you deserve.