Whether Workers' Compensation Bars a Suit After a Head Injury

Attorney Answer

If your employer carries workers' compensation, those benefits are generally your only remedy against the employer — but that bar does not reach everyone who may be responsible, and whether your employer carries coverage is the first fact to pin down.

The exclusive-remedy rule is Tex. Lab. Code § 408.001(a): recovery of workers' compensation benefits is the exclusive remedy of an employee covered by workers' compensation insurance coverage, or of a legal beneficiary, against the employer or an agent or employee of the employer for the death of or a work-related injury sustained by the employee. In exchange, you do not have to prove anyone was careless — the benefits are paid without a fault fight. Section 408.001(b) preserves exemplary damages in a narrow situation involving a worker's death, which is not your case.

Two things that provision does not do are worth stating plainly.

First, it does not apply if your employer has no coverage. Texas permits employers to be non-subscribers. If yours is one, you can bring an ordinary negligence suit, and Tex. Lab. Code § 406.033(a) takes away the employer's three traditional defenses: that the employee was contributorily negligent, that the employee assumed the risk of injury, and that the injury was caused by the negligence of a fellow employee. Under § 406.033(d), you must still prove the negligence of the employer or of an agent or servant acting within the general scope of employment. Under § 406.033(e), any agreement you signed before the injury waiving that claim is void and unenforceable — so paperwork from your hiring does not close this door.

Second, § 408.001(a) is written about the employer and the employer's agents and employees. It is not written about anyone else. If something a different company made, maintained, delivered or controlled contributed to your head injury, a claim against that company is not a workers' compensation claim and is not barred by that provision. In practice, this third-party route is where a seriously injured worker's real recovery often comes from, and it is the first thing to ask a lawyer about.

Whichever route applies, the workers' compensation deadlines are short. Tex. Lab. Code § 409.001(a) requires notice to the employer not later than the 30th day after the injury occurs. Tex. Lab. Code § 409.003 requires the claim to be filed with the Division of Workers' Compensation not later than one year after the injury. Sections 409.002 and 409.004 save a late notice or claim where the employer or carrier had actual knowledge of the injury, where the division finds good cause, or where the claim is not contested. Tex. Lab. Code § 401.012(a) defines who counts as an employee for all of this.

What you can do

1. Get the head injury evaluated and keep every record. Tell the doctor how it happened.

2. Give your employer written notice of the injury if you have not already, dated, and keep a copy.

3. Ask your employer in writing whether it carries workers' compensation coverage, and for the carrier's name.

4. Contact the Texas Division of Workers' Compensation to confirm whether a claim exists in your name, and file one if it does not.

5. Write down who else was present or involved, and what equipment or vehicle was part of it. That is how a third-party claim gets identified.

6. Ask a Texas work injury lawyer whether anyone besides your employer may be responsible. That question is the one worth the phone call.

Most lawyers offer a brief initial call at no cost, and a few minutes on your specific facts is worth more than any general guidance, including this page.

⏱ Time limits apply. Tex. Lab. Code § 409.001(a) sets 30 days to notify the employer and § 409.003 sets one year to file with the division. Tex. Civ. Prac. & Rem. Code § 16.003(a) generally requires a personal injury suit to be brought not later than two years after the day the cause of action accrues, which is the clock for a claim against a non-subscribing employer or a third party. Which deadline governs you depends on your facts — have a Texas attorney review your dates rather than calculating them yourself.