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NONSUBSCRIPTION UNDER THE TEXAS WORKERS’ COMPENSATION ACT. James McCoy The McCoy Law Firm 12400 Coit Rd., Ste. 560 Dallas, Texas 75251 (214) 292-2603 jim@mccoylawpc.com. © The McCoy Law Firm 2012. Introduction. What is a nonsubscriber? Participation under the TWCA is voluntary
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NONSUBSCRIPTION UNDER THE TEXAS WORKERS’ COMPENSATION ACT James McCoy The McCoy Law Firm 12400 Coit Rd., Ste. 560 Dallas, Texas 75251 (214) 292-2603 jim@mccoylawpc.com © The McCoy Law Firm 2012
Introduction • What is a nonsubscriber? • Participation under the TWCA is voluntary • By opting out of the Act: • Employer is no longer a part of the no-fault administrative scheme of workers’ comp • Instead, employer is subject to a common law negligence lawsuit • Who is prohibited from nonsubscribing? © The McCoy Law Firm 2012
Pros and Cons of Becoming a Nonsubscriber • Advantages • Employee must prove negligence • Employer manages medical costs and can encourage a quicker return to work • Employer has greater flexibility and control • Disadvantages • Subject to negligence liability • Litigation costs • Customer and/or contract may require the Employer to carry workers’ comp insurance © The McCoy Law Firm 2012
Liability Issues Facing the Nonsubscriber © The McCoy Law Firm 2012
Is the Injured Person an Employee? • General test • Right to control the details of claimant’s work • Hours worked • Hiring/firing • Paying wages • Withholding social security and income tax • Furnishing the tools to perform the job • Borrowed Servant Doctrine © The McCoy Law Firm 2012
Course and Scope of Employment • No Employer liability if not within course and scope of employment • Injured worker must prove: • (1) injury occurred while he was engaged in or acting in furtherance of Employer's business • (2) injury was of a kind and character associated with and originating in Employer’s work, trade, business, or profession © The McCoy Law Firm 2012
Was the Employer Negligent? • What is negligence? • What are the Employer’s duties? • Provide a reasonably safe place to work • Ensure enough workers are available to perform a task safely • Select careful and competent co-workers • Furnish safe and suitable appliances or tools • Establish and enforce rules and regulations for the safety of its employees © The McCoy Law Firm 2012
Proximate Cause • Employer’s negligence must be the proximate cause of the employee’s injury • What is proximate cause? • Cause-in-fact • Substantial factor test • Foreseeability © The McCoy Law Firm 2012
Available Defenses • Intoxication • Employee’s willful intent • Sole proximate cause (Defense of contributory negligence is not available to a nonsubscriber) • There was a safer alternative • Open and Obvious © The McCoy Law Firm 2012
Invalid Nonsubscriber Defenses • No duty owed • Employer is required to provide: (1) proper equipment; (2) access to proper assistance; and (3) appropriate training • Contributory negligence • Comparative negligence • Assumed the risk • Negligence of a fellow employee © The McCoy Law Firm 2012
Damages Employer may be liable for: • Past and future medical expenses • Past and future lost wages • Pain and suffering • Mental anguish • Loss of consortium for the spouse and children • Punitive damages Payment and Offset • portion of medical and lost time payments already made to the Plaintiff may be offset against final damages award © The McCoy Law Firm 2012
Liability for Wrongful Discharge • 1998 Texas Supreme Court ruling • Provision of the Texas Labor Code prohibiting the firing of an employee who brings a claim against the employer does not apply to nonsubscribers • Thus, no liability for wrongful discharge © The McCoy Law Firm 2012
Occupational Injury Benefit Plans • ERISA applies • Must comply with ERISA provisions regarding: • Reporting and disclosure • Fiduciary responsibility • Administration and enforcement • Preemption • Benefit to Employers • Punitive damages not recoverable; No right to a jury trial • Does ERISA preempt employee’s claim for negligence? © The McCoy Law Firm 2012
Waivers and Arbitration • Waivers • Pre-injury waiver invalid • Post-injury waivers have been held enforceable in some circumstances • Arbitration Agreements are valid © The McCoy Law Firm 2012