legal 1/14/2020 30.) Fatal Workplace Accidents, Wrongful Death, Workplace Accidents/Workers' Comp - gtg

legal 1/14/2020 30.) Fatal Workplace Accidents, Wrongful Death, Workplace Accidents/Workers’ Comp – gtg

Posted on January 14, 2020, 10:20 pm By David Strebler

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The Sole Proximate Cause Defense in a Non-Subscriber Work Fatality Case

Proving non-subscriber employer negligence requires the strongest possible case by way of an intensive physical and forensic investigation of the accident scene, witness corroboration, and the testimony of expert witnesses. As soon as the accident occurred, the insurance company’s lawyers begin building their defense against you, trying to prove your loved one was liable for the fatal accident. However, in a nonsubscriber case, the family of the decedent is not required to prove gross negligence. Establishing standard negligence is sufficient to have a successful claim.

The first liability defense afforded non-subscribers after a fatal workplace accident to one of their employees is to turn the tables of the sole proximate cause back on the deceased worker. They claim that the victim was the only one to blame for his or her own injuries. In order to invoke the sole proximate cause defense, non-subscribing employers will try to defame your deceased loved one’s reputation by proving he or she was a careless or irresponsible employee and caused the fatal accident. They’ll often introduce other employees as witnesses to back them up. Sometimes they dive into your loved one’s private life to try and prove their “irresponsibility in life equals the same behavior on the job.” And since insurance companies are very astute, and their attorneys very shrewd, when it comes to fighting your claim or civil case, your own cunning on the job wrongful death lawyer comes in handy when it’s time to turn the tables of liability back on the negligent employer. And when you think about it, not is only the burden of proof on the plaintiff, but also the burden to “disprove” whatever the defense throws against the wall, hoping it will stick.

The Second Popular Defendant Tactic: Questioning the Employer-Employee Relationship

Once the sole proximate cause option has been exhausted by non-subscribers to avoid liability after a fatal workplace accident, many clever employers will change the argument and say that your loved one was technically not an employee but rather, a contractor. They will then claim the issue of compensation does not apply because of this.

Employers are not responsible for injuries that befall their contractors. So, many of them hire their employees and say they’re contractors, going so far as to try and create a paper trail to back this up when that is not always so. But the employer believes he can deny that an employer-employee relationship existed between your deceased family member and his or her company, and deny your claim on that technicality. The simple logic is a matter of why they should be responsible for an injury to a person who was never an employee to begin with?

While many companies claim they hire their employees as contractors or as temp workers through a third-party, many times the employer knows full-well that an actual employer-employee relationship exists and the survivors of a fatally injured worker can still obtain compensation. So don’t be misled by this tactic: we certainly won’t. Even though the employer claims your family member was a contractor, he or she was likely still classified as an employee, which entitles you to recover compensation for your loved one’s fatal workplace injury.

A skillful and well-seasoned Texas fatal work accident attorney knows how to disprove this employer deception and verify the employer-employee relationship by meeting at least one of the following standards:

Social security or taxes have been withheld from your loved one’s paycheck by the employer.
The essential equipment for the job was supplied to your loved one by the employer.
Your loved one’s work was regularly managed, overseen or inspected by the employer.
A specific work schedule was set by the employer. Your loved one was not free to come-and-go as they pleased.
The employer required your loved one to sign a document that limited his or her rights while working for the employer. The most common examples are taking a drug test or signing a document that states compliance with an employee handbook.
Your loved one was employed for an undetermined period of time and not just for a single job.
Your loved one was paid a salary or an hourly wage, not on a “by-the-job” basis.
In cases where a worker is borrowed from another company, or a third-party agency, the rules for determining the working relationship are related, but there can be some crucial differences. Some of these conditions may include:

If the borrowing employer has the power to hire or fire a borrowed worker at any time, the worker is clearly an employee.
Most of the time, if the borrowing employer is allowed to pick a particular worker, then the worker is an employee. If the agency that provides the worker is allowed to send any worker they choose, the worker is a contractor.
If the worker must provide tools and equipment necessary to do the job, that person is a contractor. If the employer provides them, the worker is likely an employee.
If a third party or agency can substitute the borrowed worker for another at-will, the worker is a contractor. If the lending agency cannot, then the worker is an employee.
If the worker is borrowed indefinitely, then the worker is an employee. If the worker is borrowed for a specific project with a specific date of completion, the worker is a contractor.
If a worker is being borrowed or “leased” because of a skill that is unique or hard-to-find, then the worker is a contractor. But on the other hand, if an employer borrows a worker to fill a position that just about anyone can fill, then the worker is an employee.
If the borrowing employer agrees to pay the worker’s social security and withholding income tax, then the worker is an employee. If the borrowing employer does not accept this responsibility, then the worker is a contractor.
Our lawyers conduct a meticulous investigation to clearly demonstrate the existence of one, and usually, more of these standards to prove an employer-employee relationship existed for your loved one. We depose co-workers, review contracts and examine pay stubs to establish that your family member was in fact, an employee when the fatal work injury was suffered.

Also, if your loved one was hired by an employment agency to work at an “employer’s” company and suffered a workplace-related accidental death, your attorney must determine if the employment agency has workers’ comp. If so, then you would file a workers’ comp wrongful death claim against the employment agency, which would most likely make the company where your loved one actually performed the work a third-party contributor to the accident. Also, if your loved one’s employer loaned him or her to another company where the fatal accident occurred, the issue of workers’ comp subscription with your loved one’s employer comes into play and the company where your loved was fatally injured will likely be treated as a third-party defendant in any civil claim or suit.

This brings another important point to mind. Workers’ comp claims are less-than-adequate when major injuries are involved, including wrongful death. So the traditional way for a deceased worker’s family to receive fair damage compensation is to file a workers’ comp claim and supplement it with the appropriate number of third party claims or lawsuits, beginning with the company where your loved one was working at the time.

We Help You Recover From the Shocking Loss of Your Beloved Family Member
The fatal work accident attorneys at our Texas Law Firm help you win the compensation you deserve.

We have been litigating and resolving workplace wrongful death cases all over Texas for decades. We have successfully negotiated countless settlements and argued many cases against every major insurance provider in the nation. We have a history of success and won numerous fair settlements for our clients on behalf of their deceased loved ones. Insurance companies know our track record and don’t want to see us in court. As a result, they often offer our clients attractive settlements without the stress and uncertainty of a jury trial.

The fatal workplace accident attorneys with our Law Firm do whatever is necessary to help you obtain justice and fair restitution for the loved one that has been taken from you. To find out how we can help, call 1(800) 862-1260 (toll-free) for a free consultation that will be the first step to finding peace of mind in memory of your dearly departed family member.

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The Dangerous Risks of Wrongful Death Self-Representation

Let us give you a couple of facts as you deliberate whether or not to hire a lawyer to represent your grieving family.

You are not an attorney and just don’t have the depth of knowledge or experience to thoroughly investigate a workplace accident, or effectively negotiate a fair settlement with insurance companies, or successfully argue so complicated a case in court. And you certainly don’t have the time to do this by the “legal numbers” because there’s too much involved. And the odds of success by lawyers who have little or no experience in these matters aren’t much better than yours.

Just having basic legal knowledge in such matters comprises little more than a third of what is fully needed to win fatal workplace injury cases against any employer or liable third party. Successful negotiation and, when necessary, litigation requires a keen knowledge of civil procedure and the ability to develop the right strategy to battle the defendants, their insurance companies and lawyers. Having your opponents respect is also a critical element. Do you think they’ll respect you or your neophyte lawyer? This is why highly regarded fatal workplace accident attorneys who have spent years taking on and defeating, the insurance companies and their lawyers are the most powerful weapon in your fight for compensation. Doesn’t the memory of your loved one deserve this?

You only have one chance at fair compensation for your loved one’s accidental death in the workplace. Make it your best shot.

We Help You Recover From the Shocking Loss of Your Beloved Family Member
The fatal work accident attorneys at our Texas Law Firm help you win the compensation you deserve.

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Wrongful Death Lawsuits When Others are Negligent Help Families Heal from Fatal Accidents that Befall their Loved Ones

If you have recently lost a loved one in an accident you certainly have many questions that need answers quickly: how did it happen? Who is to blame? Do you have grounds for a lawsuit? Do you need the assistance of an experienced attorney in Texas specializing in wrongful death? at our Texas Law Firm, our lawyers and staff dedicate their lives to helping grieving families recover from the sudden, tragic loss of a loved one.

We know how overwhelmed you and your family are right now. And we can help you find the answers that will give your family peace of mind. After they lose a loved one in a tragic accident, most families want to know what legal remedies they have, but they just don’t know. This is the reason for this primer. We want to let you know about the legal issues involved with a wrongful death case, the different options you have for seeking compensation and the many obstacles you will face. The law states that you have a right to seek compensation for such a tragic loss; both tangible and intangible. But it doesn’t automatically award such remedy. You must ask for it and be prepared to back your claims up in court, if necessary.

What is the Goal of a Texas Wrongful Death Lawsuit?

There are three main objectives to a Texas wrongful death lawsuit:
To hold any and all negligent parties who caused someone else’s death to be legally accountable for their actions.
To use a monetary incentive to force all negligent parties to change his or her ways so that he or she will not continue to recklessly kill more innocent people in the same manner.
To relieve the heavy financial burden placed on the family of the victim by the untimely and traumatic death of their loved one.
At our Texas Law Firm, we empathize with your feelings that no amount of money can compensate your family for the loss of a beloved member, or even come close to filling the hole your loved one’s death has created in your lives. We know you’re in a great deal of emotional pain. But in your grief, you shouldn’t have to suffer economically as well. Like you, we too want justice against the negligent defendants who caused your loved one’s death. But just as important is the fact that we also want to make sure you and the rest of your stricken family can begin to emotionally recover from this horrible tragedy by helping you recover financially. And given the high price of funeral expenses and medical bills alone, legal damages you are able to rightfully receive, help your family get back on your financial feet, as well as supply the means to move on with your lives without fearing the unknown.

Contact our Texas wrongful death lawyers, toll-free at 1(800) 862-1260 for a complimentary, confidential legal consultation. We can answer all your questions surrounding the possible pursuit of a wrongful death civil suit anywhere in Texas. Our goal is to help you and your family emerge from this difficult time: fully compensated for your loss from every liable defendant for their negligent behavior

Your family deserves what you are rightfully owed from this preventable tragedy. And with that peace of mind, all of you can move forward with your lives, and your loved one can finally rest in peace.

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What Constitutes a Valid Wrongful Death Claim in Texas?

Without a clear understanding of the law, many people in your situation aren’t aware of whether or not they may be able to seek legal action against a negligent party through a wrongful death lawsuit. So to begin at the beginning, here is a list of basic conditions that had to have existed, or may have existed, in order for a wrongful death lawsuit to be pursued:

The victim must have died as a result of the negligent behavior of another person or entity. This negligent behavior could have been the direct cause or in legal terms, the proximate cause of the fatal accident. Proximate cause means that the liable party played a contributing role leading up to the accident. The negligence may be willful, or the result of oversight or inattentiveness: simply a mistake in the defendant’s judgment
The victim must have a surviving family member or beneficiary that can pursue legal action.
The victim or the victim’s family must have incurred some form of financial loss, known as damages, as a result of the fatal accident.
If these basic aspects existed in regard to the accident that claimed the life of your loved one, you may be able to seek legal action against the liable parties through a wrongful death lawsuit in civil court. If you are unsure whether or not these circumstances may have existed in regards to your possible case, contact one of our local Texas wrongful death attorneys toll-free at 1(800) 862-1260 to discuss the merits of your wrongful death case.

It should also be known that a civil lawsuit can be pursued regardless of whether or not a liable party is also facing criminal charges since the purposes of each type of case are different. And if criminal charges were considered against any negligent parties, but weren’t filed, that has no bearing on your right to file a wrongful death lawsuit in civil court. But if they are brought, even if the defendant was not held criminally liable, that doesn’t mean that they aren’t civilly liable for the death of your loved one.

For example, a distracted driver may strike a pedestrian, resulting in that pedestrian’s death. In most instances, criminal charges will not be brought against the negligent driver. If the same driver had been drunk at the time of the fatal pedestrian accident, then criminal charges likely would be brought against the driver. In either instance, the driver can still be held civilly liable for their actions behind the wheel through a wrongful death lawsuit in Texas, regardless of the status of the criminal charges that may or may not have been brought.

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Damages That are Usually Awarded after a Wrongful Death Lawsuit

Wrongful death damages are financial compensation amounts that have been established to reimburse the family members for any emotional or financial pain they have incurred as a result of the death of their loved one. Spouses, children, parents, and siblings all have the right to participate in wrongful death damage suits but there is a clear line of just who has the standing to ask the court for civil relief since only one family member can file a wrongful death suit. Spouses are usually first in line. After the spouse (who can opt to “stand mute before the court” in order for another relative to assume legal standing) come children (oldest to youngest), then parents of adult wrongful death victims, and then siblings.

Wrongful death damages may include compensation for:

Medical expenses incurred by your family member prior to death along with medical bills the deceased victim-relative may have been required to pay had he or she not died.
All funeral expenses the family was suddenly required to pay.
Absence of the financial support the deceased victim provided to the family prior to the untimely death.
The mental and emotional pain and suffering forced upon your family that was caused by this beloved family member’s death.
Loss of the unique familial love and companionship your family must live with after this tragic and unforeseen death.
Property that was damaged in the accident that killed your loved one, if any.
Lost salary due to the time your beloved victim would have spent in the hospital recovering had he or she merely been injured instead of killed.
Diminished future earning capacity due to long-term disability.
Physical pain and suffering to your relative caused by the accident.
The mental and emotional turmoil your unfortunate family member might have experienced due to both the accident itself and the expected recovery process.
Compensation for possible disfigurement the accident might have caused.
Seeking wrongful death damages and survival damages requires different strategies. Your Texas wrongful death attorney must take into account all of the individual losses of every family member before working with the family member who is actually filing the claim. And considering that some of these damages are intangible, and open to interpretation (and exception by the defense), computing them is an extremely complex process.

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The Four Elements to Proving Wrongful Death Liability in Court

Anyone can file a lawsuit for any purpose in Texas. What really matters is being able to file a successful personal injury lawsuit that you can clearly win. In order for your case to be successful, you must have evidence to meet your burden of proof in each of the four elements that make up a successful personal injury claim. They are Duty, Breach, Causation, and Damages. A brief overview of all four is below. But be certain to ask your wrongful death attorney for a better explanation of how and why these elements fit into a sequentially-presented wrongful death lawsuit:

Duty: The first element of a successful lawsuit is the ability to clearly show that the defendant owed your family member a duty of care to act in a way that wouldn’t harm your loved one. People owe each other the duty to behave as reasonable as possible in order to avoid hurting others. This means not only avoiding unreasonably careless activities, but it also means the defendant must take affirmative (clear) precautions to protect others from getting hurt in the same way a reasonable person would do. A reasonable person duty of care is applied to personal injury and wrongful death law, although that level of duty of care can vary depending on who the defendant is, the environment in which the accident occurred and other circumstances surrounding the fatal accident. There is no universal way to establish a level of duty that applies to every case. But duty is always present in everything we do. And the level of duty the defendant owed your loved one must be clearly proved.

Breach: After showing that the defendant owed your loved one a duty of care, you must now prove that the defendant breached that duty. Proving a defendant breached the duty of care that was owed you usually requires bringing clearly unambiguous evidence to court to show exactly what the defendant did – or failed to do – that constituted the breach. If your case goes to trial, the jury will consider your evidence of alleged breach, along with all of the circumstances involved in the accident, and determine whether the defendant did or did not breach the duty of care to your loved one in that fatal accident.

Proving negligence is the most common way of showing how a defendant violates his duty of care. Negligence refers to what you believe as simple carelessness. If a defendant is careless, even during the critical moment when your accident occurred, he may be held responsible for the injuries that result. But sometimes negligence can be viewed as willful, or on-purpose. In this case, you must prove that the defendant didn’t care that his or her actions violated the duty that was owed to your family member, or breached that duty out of spite.

Causation: The ability to prove causation is a critical part of any personal injury lawsuit. It’s just not enough to show that a defendant breached the duty of care he owed your loved one. You must also demonstrate that his actions were the direct cause to the fatal injuries. This is not always easy, especially since your deceased family member is around to make these charges. Furthermore, the defendant you in your wrongful death lawsuit will probably try to prove that the injuries were caused by someone else. This is where witnesses and other forensic evidence helps fill in the missing pieces of the puzzle. If there were criminal charges, all the evidence presented in that trial can be used in your wrongful death case against the defendant. But simply put, if you can’t make this crucial link between the defendant’s actions and your family member’s fatal injuries, your case will quickly unravel and you’ll lose.

Damages: Let’s talk a little bit more about damages. If you are successful in proving the defendant’s liability, the final step finds the defendant paying damages. But they must be carefully calculated and fairly presented. Now is not the time to try and gouge the defendant for every last dollar unless you can clearly justify every dollar. One of the biggest mistakes that personal injury victims make who don’t hire lawyers is failing to account for all of their damages. Once you collect money from a defendant, you can’t go back and ask for more compensation later. So it’s important to get it right the first time and sue the defendant for all you’re entitled to compensate for both your tangible and intangible losses.

In a sense, building a solid wrongful death personal injury lawsuit is a lot like building a house. Establishing the defendant’s legal duty can be likened to laying the house’s foundation. Showing how the defendant breached that duty is a lot like constructing the frame and the walls. Clearly identifying what caused the defendant to breach that duty to your deceased family member can be exemplified by the roof. And damages is where the person who built your house hands you the bill.

Having an effective and aggressive Texas Texas wrongful death attorney to steer you through these hazardous civil action waters is indeed a powerful weapon in realizing your lawsuit’s success.

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Medical Malpractice and Wrongful Death Lawsuits

Medical malpractice is another sub-category of wrongful death lawsuits. But they can be especially thorny because tort reform in Texas has made it significantly more difficult, but not impossible, for wrongful death survivors to seek legal restitution through a medical malpractice lawsuit.

While tort reform was intended to prevent frivolous lawsuits from tying up our state’s court system, it also made it very complicated for legitimate medical malpractice lawsuits to proceed against negligent medical professionals. Another issue surrounds legal duty on the part of healthcare professionals which is very high, and thereby harder to conclusively prove.

And as if those weren’t enough, damage caps now exist on the amount of money that a jury can award (or that your attorney can effectively negotiate on your family’s behalf) in one single medical malpractice lawsuit. Though there might be an exception or two that might apply to up that figure somewhat, that cap amount is $250,000. This means that a bereaved family may not be able to win fair compensation for their loss that is commensurate to the actual damages they have incurred if their lawsuit is limited to one offending healthcare provider.

But even though damage caps and other complications surrounding medical malpractice make it more difficult to win fair judgments, there is still a way for families of those who have suffered wrongful death to recover fair monetary value. When we investigate a medical malpractice claim that has resulted in a wrongful death we work to identify all liable parties. And if more defendants are identified, it creates a “piggyback” formula. If, for example, a surgeon, nurse, and medical technician become defendants in your loved one’s wrongful death, the total cap amount could approach $750,000.

We also must share with you the fact that many attorneys hesitate at the prospect of representing clients in medical malpractice cases because of their challenging nature in the wake of recent tort reform, in addition to the many complicated technical aspects often involved in such wrongful death lawsuits. But our Texas wrongful death lawyers are familiar with all of the obstacles posed by medical malpractice cases, and are prepared to help you win full and fair compensation from one healthcare professional (or several, if our investigation reveals them) for your family’s loss due to the negligence of a medical professional that caused the death of your loved one.

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Some of the Challenges You Will Face to Your Texas Wrongful Death Lawsuit

Most wrongful death defendants are likely covered by some sort of liability insurance policy. Since wrongful death often usually produces large damage amounts that are requested by the decedent’s family, the settlement or jury award to pay these damages from a wrongful death lawsuit may be a very large amount of money: often a much larger amount that would have been awarded had the victim lived.

So, an insurer that holds such a large policy will likely do whatever it can in order to avoid paying out such a sizable sum. This callous behavior, even if the evidence clearly proves the insured defendant was negligent in causing the wrongful death rarely changes; regardless of the bereaved family’s obvious need for just compensation. This is another reason why your wrongful death case requires aggressive legal action in order to succeed against a liable defendant’s insurer.

These insurers and the lawyers who defend the insurance companies typically attempt to pass blame for a fatal accident onto any party that may have been involved in the accident. They will even resort to calling your loved one’s actions, or lifestyle, into question in the hopes of having the thwart your family’s wrongful death. They might also try and pass the liability down to any third party who might also be third party defendants in your civil action. It’s sort of like throwing a bunch of rattlesnakes into a burlap bag. They turn on each other. And their charges against each other only serve to cloud the issue and increase the chances that all will get off scot-free.

Unless you and your Texas wrongful death attorney have meticulously built a strong case with clear, relevant evidence that can speak on your loved one’s behalf, an insurer may be able to argue them, and their negligent clients and themselves out of liability for a fatal accident, and off the hook of paying any compensation whatsoever to your family. And this means defendants escape justice for the wrongful death of your loved one. With over two decades of experience in taking-on these types of insurers, our Law Firm is well-acquainted with their methods and tactics, and how to counter every one of them. This means that we can make sure that you’re treated fairly by the insurance companies that have no interest at all in anything other than keeping their money and denying you yours.

Time itself can also be a challenge to wrongful death lawsuits. For instance, the statute of limitations for a Texas wrongful death lawsuit is two years from the date of death. While this timeline can be extended in certain situations surrounding gross negligence, or if criminal charges have been filed against the liable party, or if defendants have conspired to keep the facts of the accident a secret, a victim’s family usually has only two years to seek legal action against that defendant. While this may sound like a long time, it really isn’t. A thorough investigation must be conducted. And some investigations can take a year; even more in some cases; especially if there are a large number of liable parties who may have been involved. Because when you’re ready to file, all your ducks must be lined-up perfectly.

In addition, all defendants need to have their assets researched in order to assure that they can pay the damages they will owe you and your family once they have been judged to be guilty. Because if the defendants cannot afford to pay you, filing a lawsuit against them is merely a waste of time.

And the more time that passes between the fatal accident and your legal action, the more harm you may do to your case. Evidence can disappear, or can even be removed by those who wish to avoid being held accountable for their actions. Witnesses become harder to track down. Or they may forget critical details surrounding your loved one’s fatal accident. Or they may have been “encouraged” by defendants to forget. This is why it is critical for investigators to be on the scene of a fatal accident as soon as possible after it has occurred. And this is why it is so very important that you not hesitate in calling a Texas wrongful death attorney if you want to build a strong legal case that delivers fair compensation for your loved one’s wrongful death.

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Our Wrongful Death Attorneys Speak for Your Loved One and your Bereaved Family

We truly feel your pain and suffering over the loss of your loved one. All of us have been there. And we empathize when a wrongful family member’s surprising death produces one of the most devastating experiences that a family must endure. The pain and suffering by the family, the loss of income, the flood of bills that just don’t stop and the fact that life still must go on always makes a tragic wrongful accidental death to a family member overwhelming for the survivors. We know that you’re going through a difficult time right now. This is why we are committed to helping you make sure that the negligent behavior, whether it’s by one, or several liable defendants, does not create even more emotional and financial stress for your family: today or in the future. And we know you also don’t want another family to have to endure the same sad fate in the future because these same negligent parties were not called to legally account for their actions.

So please bear this advice in mind. Before you speak with an insurance company, or accept even a single dollar of payment or compensation from anyone, or sign anything, or attempt to file a lawsuit on your own, you must contact a competent lawyer. If you don’t do this immediately, your family will continue to suffer financially as well as emotionally.

With a successful track record in wrongful death cases throughout the U. S., the wrongful death attorneys at our Texas Law Firm can help you win fair and just compensation and seek justice for your loved one’s untimely death. Both insurance companies and their defense attorneys know and respect us because we’ve likely already beaten them in the past. This means that, once we’ve taken your case, investigated it thoroughly and created strong evidence that can be used in court to justify your full, fair compensation claim, the insurance companies see discretion as being the better part of valor, and choose to negotiate with us in good faith and pay a fair out-of-court settlement for all of the damages that you and your bereaved family are rightfully owed. That means your wrongful death suit won’t have to go through an agonizing, grueling trial; and your family can begin to put its life back together, with more-assured financial security. And yet, if a trial is necessary to fully defend your and your deceased loved one’s compensation rights, we are always prepared to fight for you in court as well. The insurance companies know, and fear, that too.

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Clarifying Your Employers Workers’ Compensation Status Comes First

Our state lawmakers (and the insurance lobby) can be thanked for today’s difficulty in understanding workers’ compensation laws. No company, regardless of size, is required by the state of Texas to purchase workers’ comp insurance. Right now, maybe one employer in two subscribes to the program. So, workers’ comp injury cases are generally divided into two distinct types that require wholly different methods and strategies to resolve. Employers who carry worker’s comp are referred to as “subscribers.” Those who don’t are “non-subscribers.” In order to know how to proceed with your injury compensation strategy, you must first determine whether or not your employer is one or the other.

Workers’ comp benefits originate from a “pool” of funds. It is stocked by private insurance carriers that participate in the program. This pool protects subscriber-employers from lawsuits and generally disregards the legal rights of employees to be fairly compensated when the employer is truly negligent because it limits, or “caps,” the monetary compensation an injured employee can receive. If your employer subscribes to workers’ comp, it provides some reimbursement to injured employees who are injured on the job site: primarily expenses directly linked to medical bills. It’s basically “no-fault” insurance because those covered by workers’ comp are reimbursed, no matter how the accident occurred or whose fault it was. But many times the amount of money you receive doesn’t cover the actual expenses of an on the job injury, especially if it is severe. And we’ll go over that in greater detail later.

But on the other hand, in order to receive restitution from a non-subscriber to workers’ comp, an injury victim must file a lawsuit in civil court. Fortunately, for the injured party, the prerequisites that encourage companies to subscribe to “no-fault” workers’ comp insurance are not as stringent. And these same lower standards of proving subscriber negligence also apply against a non-subscriber in a civil case. So it’s not as difficult to assess true liability against a non-subscribing employer for on-the-job accidents.

Since workers’ comp is cheaper than traditional employer liability insurance, one would think all companies would be smart and purchase workers’ comp. But there’s no accounting for those who run the risk of not subscribing to workers’ comp because it is comparatively cheaper. So many employers still choose to roll the dice, save their money and take the risk of being a non-subscriber. Then, when the odds catch up with them, they try to avoid a lawsuit and fake having workers’ comp once one of their workers is injured. These employers may try to quickly pay you benefits you would receive from workers’ comp: or ask you to sign what they may represent as a “standard release” when offering a reimbursement check in order to further their deception and get off the hook. But it’s a trick so don’t fall for it

This is one of many examples of how you benefit from an experienced Texas workplace accident attorney to get to the bottom of your company’s workers’ comp status, so you know what legal recourse is available to you. Once we identify the nature of your employer’s workers’ comp standing, we can then move forward together to secure your fair injury and damage compensation.

An experienced Texas workplace accident lawyer with our Law Firm helps you deal with your challenging (and contentious) work-injury case. We have spent decades accumulating the necessary expertise to help injured workers just like you, receive the compensation they deserve for their medical bills, lost wages, pain, suffering, and disability.

You can put our experience to work for you. If you want to know what your rights are, how to proceed with your claim and how much compensation you can reasonably expect to secure, then we can answer your questions. Call our Law Firm now at 1(800) 862-1260 (toll-free) for a free consultation and find out how we can help you.

You’ve been hurt once. Don’t let those who negligently caused your work accident injury to victimize you and your family even further.

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Workers Comp Subscribers are Well-Insulated from Civil Lawsuits Most of the Time

When they subscribe to workers’ comp insurance, employers get far more than just pool coverage that produces lower benefit payments. They are also virtually immune to civil lawsuits. Unless the employer has committed gross negligence resulting in wrongful death, they cannot be sued in civil court if one of their employees is injured or accidentally killed at work. And the facts of the case must be clearly overwhelming in order to prove gross negligence. So whichever contributing insurance company is responsible for negotiating a settlement; again, with benefit caps, the odds are highly unlikely that the victim, or the victim’s survivors if a death has occurred, will receive the equitable compensation to which they are entitled.

In a perfect world, insurance providers would be concerned with tending to the legitimate needs of injured people. All legitimate victims would receive fair compensation for all medical bills, lost salary, pain, and suffering. But this is not a fair world, in spite of what some of these insurance companies try to say in the altruistic tone of their advertising and public relations campaigns. Insurance companies are in business to generate profits. Helping people is secondary at best. And those who underwrite the workers’ comp pool are no exception. All Insurance companies try to avoid fairly compensating injured employees every year throughout the Lone Star State. Those who participate in the state’s insurance pool are just doing it with the permission of the legislature and the State Insurance Board.

But there are two possible avenues to receiving injury compensation outside the purview of workers’ comp. However, one of these exceptions involves a worker’s fatality. The other allows the injured employee to file a suit against someone other than the subscribing employer, which is commonly known as a third-party lawsuit:

If your loved one’s death occurred at work and the accident was a direct result of the gross negligence by his or her employer, then you as a surviving family member may file a wrongful death lawsuit. In one case, our attorneys were hired by the loved ones of a construction worker who died after a fall from a crane. The workers’ comp subscribing employer had ordered the worker atop the rig without an OSHA-mandated safety harness. When the man plummeted to his death, the employer rushed to a construction supply store, purchased a safety harness, attached it to the dead man and then called 911. Our investigators uncovered this willful deception by interviewing the co-workers and hit him with a very expensive (and successful) gross negligence wrongful death lawsuit. Sometimes there’s truth to the saying that it’s not the act itself that gets you in trouble, it’s the cover-up.
In many cases, someone besides the employer may have done something negligent to cause a workplace injury. If a faulty piece of machinery caused the injury, then the manufacturer may be held accountable through a defective product lawsuit. If the owner of the property did not provide safe working conditions, then he or she could be held accountable. If another employee or a visiting contractor or one of the contractor’s employees negligently caused the injury, they could be held accountable. Under such circumstances, you can sue the responsible party or parties, but not your subscribing employer. Experience and the ability to properly investigate the accident scene and the roles these third parties played in the mishap is vital in order to properly identify all of the responsible defendants and make them pay for the injuries they cause. A skillful Texas work accident attorney with our Law Firm can devise a successful plan of attack for workplace injury cases that offer the best opportunity to secure fair compensation in a complex Texas work accident claim.

You’ve been hurt once. Don’t let those who negligently caused your work accident injury to victimize you and your family even further.

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Winning Compensation from Non-Subscriber Defendants is More Clear-Cut: but Still Not Easy

We’ve already mentioned that many employers choose not to purchase workers’ comp. But some don’t secure any form of insurance. If you are to receive the compensation you deserve from non-subscribing employers, you certainly need the assistance of a skilled Texas work accident attorney to file a lawsuit and see it through in order to receive the fair compensation you deserve as a result of their negligence: either through their insurance or some other way.

In order to punish non-subscribing employers for creating more legislation, Texas workers’ compensation laws enable the victim to secure much greater damages than if the employer had purchased workers comp insurance. And as we have already said, the workplace accident victim must merely prove standard negligence, which means the employer only committed a sole error or momentary lapse in safety. As you can guess, the laws governing these principles are extremely intricate. So in order to succeed you a crafty accident lawyer to assist you through every intricacy of this challenging legal process is a powerful weapon.

It begins when the victim, also (the plaintiff) files a claim with the employer, notifying him or her of the injury and the fair restitution amount that the victim expects. The employer can agree, which seldom happens. Most of the time the employer has some sort of insurance of surety bond to cover such disputes. If they have insurance, they just had it over to their carrier in which case you and your attorney try to negotiate a settlement with the insurance company: which will probably dispute your allegations outright.

But if negotiations progress in-good-faith, usually because your attorney builds a very strong case through his investigations, then the matter is settled, you are fairly compensated and that’s the end of it. But often, work-related injury cases are contested and you must file a lawsuit to win the compensation you are entitled to. As the injured party, you, the plaintiff, holds the burden of proving that the employer’s negligence caused the injury: resulting in those high medical bills, lost salary, pain and suffering. Fortunately, if you can prove simple negligence, that task is much easier than trying to prove gross negligence.

You’ve been hurt once. Don’t let those who negligently caused your work accident injury to victimize you and your family even further.

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Defendants Try to Claim that you are the Sole Proximate Cause of the Workplace Accident

If your employer is a workers’ comp insurance non-subscriber, then he or she isn’t likely to suddenly become altruistic and agree to pay you for the harm you’ve suffered due to that negligence. Our experience in these matters has revealed that most non-subscribers try to use a couple of general defenses to avoid paying injured employees the restitution they deserve.

The only actual defense afforded non-subscribers after an employee suffers an injury is to claim the worker caused his or her own injuries or, in legal terms is the sole proximate cause of the harm. In order to invoke the sole proximate cause defense, non-subscribing employers will literally add insult to your injuries and soil your reputation by proving you were a negligent employee and caused your own injuries. They try to hold you alone responsible for them.

While your employer may have been too cheap to buy workers’ comp coverage, you can be sure that he or she will think nothing of paying thousands of dollars to an experienced and shrewd lawyer who knows how to make victims appear responsible for their own injuries. You need your own cunning work accident attorney to place fault back where it belongs, the negligent employer.

The Other Non-Subscriber Defense: Questioning the Employer-Employee Relationship

The sole proximate cause defense is not the only option for non-subscribers to deflect liability after an injury has been suffered by an employee. But many clever employers begin avoiding liability even before accidents occur by trying to distance themselves from you as an employee, and their responsibility to fairly compensate you. Some even begin constructing that paper trail to prove their argument from the first day you show up for work.

Texas Employers are not responsible for what happens to contractors if they are injured at work. So, many companies will claim to hire their employees as contractors. By calling you a contractor, your employer believes it’s possible to deny that an employer-employee relationship existed between you and the company, and then they will tell you that you don’t have a legal claim to compensation for your injury-related damages. Their logic is simple: why should they be responsible for an injury to a person who was technically never their employee to begin with?

While many employers try to claim they hire their employees as contractors or as temp workers through a third-party, the employer knows an actual employer-employee relationship exists in many of these cases, and an injured worker has a right to fair compensation. So don’t be fooled by this ploy. Even though your employer claims you are a contractor, you are likely still considered an employee in the eyes of the law and are entitled to recover compensation for injuries suffered on the job.

A skillful and well-seasoned Texas workplace accident attorney knows how to prove the employer-employee relationship by meeting at least one of the following standards:

Social security or taxes have been withheld from your paycheck by your employer.
The essential equipment for the job was supplied to you by your employer.
Your work has been regularly managed, overseen or inspected by your employer.
A specific work schedule has been set for the job by your employer. You are not free to come-and-go as you please.
Your employer requires you to complete a task or sign a document that limits your rights while working for the employer. The most common examples are taking a drug test or signing a document that states you comply with an employee handbook.
You have been employed for an undetermined period of time and not just for a single job.
You are paid by a salary or an hourly wage and not on a job-by-job basis.
In cases where a worker is borrowed from another company or a third-party agency, the rules for determining the working relationship are generally similar. But there can be some crucial differences. Some of these conditions may include:

If the borrowing employer has the power to hire or fire a borrowed worker at any time, the worker is clearly an employee. Otherwise, the worker is a contractor
Most of the time, if the borrowing employer is allowed to pick a particular worker, then the worker is an employee. If the agency that provides the worker is allowed to send any worker they choose, the worker is a contractor.
If the worker must provide them, that person is a contractor. If the employer provides them, the worker is an employee.
If the employment agency can substitute the borrowed worker for another at-will, the worker is a contractor. If the lending agency cannot, then the worker is an employee.
If the worker is borrowed indefinitely, then the worker is an employee. If the worker is borrowed for a specific project with a specific date of completion, the worker is a contractor.
If a worker is being borrowed or “leased” because of a skill that is unique or hard-to-find, then the worker is a contractor. But on the other hand, if an employer borrows a worker to fill a position that just about anyone can fill, then the worker is an employee.
If the borrowing employer agrees to pay the worker’s social security and income tax, then the worker is an employee. If the borrowing employer does not accept this responsibility, then the worker is a contractor.
Our lawyers conduct a thorough investigation to demonstrate the existence of one of these standards and prove an employer-employee relationship exists. We depose co-workers, review contracts and examine pay stubs to establish that you were in fact an employee when you suffered your workplace injury.

A couple of other important “wrinkles:” If you were hired by an employment agency to work at an “employer’s” company and suffered a workplace-related injury (or a relative was accidentally killed) your attorney must determine if the employment agency has workers’ comp. If so, then you would file a workers’ comp claim against the agency, which would then make the company where you actually performed the work a third-party contributor to the accident. Also, if your employer loaned you out to another company where the accident occurred, the issue of workers’ comp subscription with your employer must first be clarified, then the company where you suffered your injury will likely be treated as a third-party defendant in any civil claim or lawsuit.

This again brings another important point to mind. Workers’ comp claims are less-than-adequate when major injuries are involved, including wrongful death. So the traditional way for an employee to recover fair damage compensation is to file a workers’ comp claim against the employer of record (assuming that employer subscribes) and then supplement the claim with the appropriate number of third party claims or lawsuits.

You’ve been hurt once. Don’t let those who negligently caused your work accident injury to victimize you and your family even further.

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OSHA Is of Little Use in Your Injury Liability Claim or Legal Case

You are probably familiar with the Federal Occupational Safety & Health Administration (OSHA). This government agency maintains minimum standards of safety for all American employers and their workplaces. You might think OSHA will help you with compensation. Nothing could be further from the truth. OSHA is not a direct advocate for injured workers. All it does is oversee the work environment in the U.S. And for the past 30 years, OSHA regulations, and the fines levied for employer non-compliance with their regulations have lost many of their teeth.

While OSHA sets workplace safety standards and fines violators, those fines were set long ago and no longer carry the proper financial motivation to assure compliance with these legal standards. Many of these fines were established 25-30 years ago. And though they might have encouraged compliance back then, inflation and other economic factors make many OSHA fines a mere slap on the wrist. Plus, over the years OSHA has become more restricted in the actions and investigations it can take due to more restrictive staff and budget limitations. Today, OSHA has been all but emasculated when it comes to preventing workplace injuries before they happen.

Furthermore, OSHA cannot make any direct effort to help injured workers secure compensation for the damages they have incurred. Only after an accident will OSHA investigate negligence, and their reports are designed to stop further problems. And even though that data might serve as general evidence at a trial, for your purposes OSHA is basically closing the barn long after the cow escapes. Even if OSHA does investigate your employer after your accident, they will provide no specific evidence that will benefit your case. Only a competent, experienced Texas workplace accident attorney can help you secure the fair compensation you are entitled to.

You’ve been hurt once. Don’t let those who negligently caused your work accident injury to victimize you and your family even further.

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You Must Take Action to Protect Your Case Right Now: Here’s Why

The first thing you need to understand is this. Before you speak with an insurance company, or accept even a single dollar of payment or compensation from your employer, or sign anything, or attempt to file a lawsuit on your own, you must contact a competent lawyer.

Your employer or its insurance provider wants you to accept an inadequate settlement, so they can save their money. Don’t be taken advantage of. As a matter of fact, it’s never a good idea to even discuss any details of your intentions, or anything else surrounding the injury with your employer, or his or insurer, or anyone outside of your family, without a lawyer protecting your interests.

Then, you must realize the critical importance of acting swiftly. In work accident cases, the evidence begins to fade (or is altered) immediately following the accident. The physical details of the accident scene can change quickly. Witnesses change their stories or forget what they saw because the mind is a mysterious thing. Sometimes, they’ve even been paid to forget, or to “take a nice long vacation.” If you wait too long to hire an attorney and put your counsel to work investigating the trail of evidence, then you are doing irreparable damage to your ability to secure the rightful compensation you deserve.

You’ve been hurt once. Don’t let those who negligently caused your work accident injury to victimize you and your family even further.

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