In Texas, employers have the option of enrolling in the workers’ compensation system or opting out of it entirely. If an employer does have workers’ comp and an employee is hurt, the employee cannot sue his or her employer. This is because in Texas we have what is known as an exclusive remedy system.
What the employee can do, on the other hand, is file what is known as a third-party claim against a negligent party. Think of construction workers, for example. Suppose a construction worker is struck by a falling hammer and suffers a traumatic brain injury. Because the construction company has workers’ comp, the injured worker cannot sue the construction company. He can, however, file suit against the negligent worker that dropped the hammer. Another common example involves people who drive for employment. If a driver is involved in an accident, he or she cannot sue their employer, but could bring a third-party negligence claim against another driver that causes an accident.
If the worker does seek a lawsuit against a negligent third-party and succeeds, any benefits that the worker has received from workers’ comp must be returned. This is because the law does not allow double compensation for the same benefits.
If an employer is a workers’ comp nonsubscriber, then the injured employee is not entitled to benefits through workers’ comp, but can file a personal injury lawsuit against the employer to recover damages for pain and suffering, lost wages, medical bills and more.