What Are Common Law Defenses Texas Non-Subscribers Use to Deny Payment?

When filing a claim for damage compensation against an employer who is a non-subscriber to worker’s compensation benefits, remember you are levelling a claim against the company itself. Companies are typically prepared with a response to these claims, and for many employees, this is an uphill battle. Many non-subscriber companies are reluctant to compensate for damages. Payment to injured workers is an entirely out of pocket cost for them and is therefore open to great losses when injury occurs.

Fortunately, there are a few common law defenses non-subscribers use in an attempt to deny payment to their injured workers. Following are a few of the most widely used defenses and how to use the information at your disposal to counter them during your claim.

Contributory Negligence

Contributory negligence is a way in which employers can argue that they were not liable for damages sustained by the employee by stating that the employee himself was negligent and the injury that he sustained was because of his own actions. If negligence on the part of the injured party is established, it is likely that he or she will be ineligible to receive monetary compensation.

How to Guard Against It

One of the best ways to protect your case from this defense is documentation. Take photos of your injury as soon as it happens. Get pictures of the area in which you were injured, paying special attention to the environmental factors which contributed to your injury. Be prepared with a list of similar jobs you completed without incident in areas which were not hazardous to your safety. Uprooting this defense can take a bit of work, but if you are diligent in documenting the injury from the time you sustained it, you are more likely to have the claim settled in your favor.

Assumption of Risk

This defense argues that the employee who sustained an injury on the job willingly entered into the situation with full knowledge of the risks involved. If this is proven, it can be argued that the employee consciously decided to put him or herself into the situation, and is therefore responsible for the consequences that resulted from the labor.

How to Guard Against It

This is a highly situational argument, and may hold up in some cases; however, if the harm that befell you on the job was far removed from the scope of your daily duties and expectations, it can still be invalidated in court. Work with an attorney to put together information on general job risks, obtain employment documents and any health or safety waivers you may have signed, and look for examples within your industry which show your particular accident to be beyond the scope of expectation.

The Fellow-Servant Rule

This defense claims it was a co-worker, and not the employer, whose negligence led to the injury of the hurt party. If this is proven to be the case, the company will be released from liability, and though a claim may be made against the employee found liable, it is unlikely that the scope of coverage will be comparable to what the company could have provided.

How to Guard Against It

Thoroughly examine the situation in which you came to be injured. If you have personally determined that no negligence exists on the part of your colleague, use this employee’s prior good behavior and his or her account of the day’s experience to your advantage. Moreover, focus on the areas in which the company could have provided more adequate shelter from injury. An injury caused primarily from an existing environmental hazard is unlikely to be dismissed due to a co-worker’s alleged negligence.

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