In Texas, employers who don’t provide workers’ compensation insurance are subject to suit in District Courts, with severely limited defenses. Most employers, however, don’t “go bare” with no sort of employee injury insurance at all. Employers have developed their own employee-injury system of insurance under ERISA. This system offers workers’ comp-like benefits for injured employees, with disputes about whether benefit are due under the plan, adjudicated under ERISA in federal courts, or in arbitration.
ERISA and arbitration – the employers bet – are significant enough barriers to put off most employees and their counsel. A big mistake in a non-subscriber suit is to dispute the extent of benefits in an ERISA suit in federal court. ERISA has a shorter statute of limitations, and offers limited recovery to what could have been had under the terms of the plan.
We frequently work with attorneys who sign up a client not realizing that the case is a non-subscriber case, and co-venture the claim with the original attorney. We are willing to take over the case with primary responsibility for the litigation, or to work with the original attorney with both of us on the pleadings.
Employees typically don’t have any idea that their employer doesn’t have workers comp until a dispute arises: when they are denied coverage for an injury, they are denied light duty, or they are fired for using the plan. Many times, these injured workers have hired an attorney who specializes in workers compensation – because the employee assumes he has workers comp, and hires an attorney who specializes in workers comp.
In a non-subscriber suit in Texas state court, or in arbitration under Texas non-subscriber law, an employee who can establish that his injury was caused by his employer’s negligence, and due to work, can recover his medical bills in the past and future, lost wages, pain and suffering, mental anguish, and exemplary damages. The employer gets a dollar-for-dollar offset for medical bills already paid and wages paid, but that’s it. In a workers’ compensation case, an employee cannot recover for pain and suffering, mental anguish or exemplary (punitive) damages In a non-subscriber case, the employer does not have the defenses of comparative negligence, co-worker negligence, or assumption of the risk, among others.
This doesn’t make non-subscriber cases easy, though. There are strategic issues of where to file suit, when the suit is filed, coverage for the injury, fending off ERISA-based defenses from insurance counsel, and how to seek coverage for wrongful firing for use of the plan. Each of these areas can be a pitfall for the uninitiated.
The single biggest challenge for unexperienced counsel, however, is utilizing the arbitration systems and working inside an arbitration. We have years of experience both in personal injury litigation, and years of experience in complex commercial litigation – which frequently has arbitration as its venue. These two systems, personal injury, and arbitration, come together in non-subscriber cases. We also have experience litigating the ERISA issues – in arbitrations – and in navigating the strategy and tactics on what claims to bring, where to bring them, and how to push the cases to maximize recovery for our clients. This combined experience is fairly unique and is extremely helpful.
We frequently work with attorneys who sign up a client not realizing that the case is a non-subscriber case, and co-venture the claim with the original attorney. We are willing to take over the case with primary responsibility for the litigation, or to work with the original attorney with both of us on the pleadings.
Arrange a Consultation
If you – an injured party, or an attorney – would like more information on non-subscriber employee injury cases, please call us at (282) 949-8904 or contact us via email for a case evaluation. We are also happy to provide a White Paper with in-depth treatment of these issues.
