I got hurt at work but my employer has no workers' comp. Do I have a case?

No workers' comp can mean a stronger claim, not a weaker one

Texas is the only state that does not require most private employers to carry workers' compensation. Employers who opt out are called non-subscribers. People often assume that leaves them with nothing. Frequently the opposite is true.

When an employer carries comp, that system is generally the exclusive remedy: benefits are capped and there is no recovery for pain and suffering, regardless of how badly the employer behaved. When an employer opts out, it gives up that protection. You can sue it directly, and full tort damages are on the table.

What the employer gives up

Under Texas Labor Code section 406.033(a), a non-subscribing employer sued by an injured employee may not assert that:

• the employee was contributorily negligent;
• the employee assumed the risk of injury; or
• the injury was caused by the negligence of a fellow employee.

Those three defenses are the backbone of most workplace-injury defenses, and the non-subscriber loses all of them. "He knew the job was dangerous," "he was careless," and "a coworker did it" are simply unavailable.

What you still have to prove

This is where honest advice differs from marketing. Section 406.033(d) requires the injured employee to prove that negligence of the employer, or of an agent or servant acting within the scope of employment, caused the injury. Non-subscriber status is not strict liability. You do not automatically win because you were hurt at work.

So the case is built around what the employer did or failed to do: unsafe equipment or a removed guard, inadequate training, no safety procedure or one nobody enforced, understaffing a job that needed two people, ignoring a hazard that had already been reported, or pressure to work in an unsafe way to keep a schedule.

Damages are broader than comp benefits

Medical expenses and lost wages, yes — but also future medical care, lost earning capacity, physical impairment, disfigurement, and pain and mental anguish. Where the employer's conduct rises to gross negligence, exemplary damages may be available.

The "injury benefit plan" problem

Many non-subscribers offer a private plan instead. These are written by the company, and the enrollment or claim paperwork often contains an arbitration agreement, a waiver of your right to sue, or a requirement to report and sign within a short window.

Do not sign anything from such a plan before a lawyer reads it. What looks like a benefits form can be the document that gives away the claim described on this page.

Move early

Incident reports, maintenance and inspection logs, training records, prior complaints about the same hazard, and safety-meeting minutes are the proof. They are in the employer's possession, and the employer knows they matter.

Authority: Tex. Labor Code § 406.033