Austin Non-Subscriber Work Injury Attorneys

Texas Is the Only State Where Coverage Is Optional

Every other state requires most private employers to carry workers’ compensation. Texas does not. Under the Texas Labor Code, private employers may elect not to carry it, and thousands do — including many large, well-known companies.

Employers who opt out must notify the state’s Division of Workers’ Compensation and must notify their employees, including by posting notice in the workplace and providing written notice at hire and after an injury.

Public employers are treated differently, and certain contractors on public projects face their own requirements. If you work for a government entity, the analysis on this page may not apply to you.

How to Find Out If Your Employer Has Coverage

This is the first question in every workplace injury case, and it changes everything that follows.

• Look for the posted notice. Non-subscribers are required to post notice of their status where employees can see it, often in a break room or near a time clock.
• Check your hiring paperwork. Notice is also required at hire.
• Look at what you were handed after the injury. A packet describing an “occupational injury benefit plan,” an “employee injury plan,” or similar language is a strong signal the employer is a non-subscriber, because subscribers do not need one.
• Contact the Texas Division of Workers’ Compensation. The Texas Department of Insurance maintains resources for injured employees and can confirm an employer’s coverage status.
• Ask us. We check coverage status as the first step of every work injury review, at no cost and with no obligation.

Do not rely on what a supervisor tells you. People inside a company frequently do not know the difference, and the words “we have coverage for that” often describe a private benefit plan rather than workers’ compensation.

Why the Answer Changes Everything

If your employer is a subscriber, the workers’ compensation system is generally your exclusive remedy against them. You get medical benefits and a portion of lost wages on a set schedule, without proving anyone did anything wrong — but you generally cannot sue your employer, and comp pays nothing for pain, mental anguish, physical impairment, or disfigurement.

If your employer is a non-subscriber, that shield does not exist. You can bring an ordinary negligence lawsuit for the full range of damages the civil system allows.

What You Can Recover That Workers’ Comp Never Pays

This is the practical difference, and it is large.

• Full past and future medical expenses, not limited to a fee schedule or a network.
• Full lost wages, rather than a percentage of your average weekly wage subject to a statutory maximum.
• Loss of future earning capacity, which matters enormously for someone who cannot return to physical work.
• Physical pain and mental anguish, past and future. Workers’ compensation pays nothing for these.
• Physical impairment — the loss of the ability to do the things you used to do.
• Disfigurement and scarring.
• Loss of consortium for a spouse, and household services.
• Exemplary damages where gross negligence is established by the standard the law requires, under Chapter 41 of the Texas Civil Practice and Remedies Code.

In a serious injury case, the categories comp does not pay are frequently worth more than the ones it does.

The Statute That Strips the Employer’s Defenses

This is the core of non-subscriber law, and it is the reason these cases are winnable even where the worker made a mistake.

The Three Defenses Texas Takes Away

Under Texas Labor Code Section 406.033, in a suit by an employee against a non-subscribing employer, it is not a defense that:

• The employee was guilty of contributory negligence. The employer cannot argue that your own carelessness bars or reduces your recovery.
• The employee assumed the risk. The employer cannot argue that you knew the job was dangerous and accepted it.
• The injury was caused by the negligence of a fellow employee. The employer cannot blame your coworker to escape responsibility.

Understand how unusual that is. In an ordinary Texas injury case, being found 51 percent responsible means recovering nothing, and even 20 percent fault reduces recovery by a fifth. Against a non-subscriber, the employer cannot make that argument about you at all.

A worker who was rushing, who took a shortcut, who did not follow a procedure, or who was hurt because a coworker made a mistake still has a claim. Those facts do not defeat it.

The Only Two Defenses Left

The statute leaves a non-subscribing employer two narrow defenses. It may argue that the injury was caused:

• By an act of the employee intended to bring about the injury — that you hurt yourself on purpose.
• While the employee was in a state of intoxication.

That is the list. Expect any employer with a serious claim against it to explore both, which is one reason post-injury drug testing is so routine in non-subscriber workplaces.

What You Still Have to Prove

Here is the honest part, and it is the part promotional pages tend to skip.

Non-subscriber liability is not automatic. This is not workers’ compensation without the paperwork, and it is not strict liability. You still have to prove that the employer was negligent in some way and that the negligence caused your injury.

If a worker is injured by a genuine accident with no employer failure behind it — no equipment defect, no training gap, no unsafe condition, no supervision problem — there may be no claim at all, and that worker also has no comp benefits to fall back on. That is the hard edge of the non-subscriber system, and it is why the negligence investigation matters so much.

What Changed in April 2025

A recent Texas Supreme Court decision shifted how these cases are defended, and most law firm pages on this topic have not caught up.

In re East Texas Medical Center Athens

Decided April 25, 2025, the case addressed whether a non-subscribing employer may use the proportionate responsibility statute to designate responsible third parties — people or companies not named in the lawsuit who may have contributed to the injury.

The Court held that it may. Claims against non-subscribers are ordinary common-law negligence claims rather than claims for workers’ compensation benefits, so the standard proportionate responsibility rules apply.

What It Means Practically

The two rules now sit side by side, and the distinction matters:

• The employer still cannot blame you. Section 406.033 is untouched. Your contributory negligence, your assumption of risk, and your coworker’s negligence remain unavailable as defenses.
• The employer can now point at other parties. A staffing agency, a general contractor, an equipment manufacturer, a maintenance vendor, a property owner, or another company’s employee can be designated, and a jury can allocate fault to them — reducing the employer’s share.

Why This Means Naming Third Parties Early Matters More Than It Used To

Consider the risk. If the employer designates a third party you have not sued, a jury can assign a percentage of fault to that party. If the limitations period against that party has already expired, that percentage may simply come off your recovery with no one left to collect it from.

The defensive answer is to identify every potentially responsible party at the beginning and bring them into the case yourself, rather than waiting to see whom the employer names. That is an investigative task with a deadline attached, and it is the single biggest practical change this decision produced for injured workers.

The Benefit Plan Paperwork

Almost every sizable non-subscriber runs a private injury benefit plan, and the paperwork that comes with it is where cases are most often lost — usually within days of the injury, before anyone has spoken to a lawyer.

What an Occupational Injury Benefit Plan Is

It is a private, employer-designed plan that pays some medical costs and a portion of wages after a workplace injury. It is not workers’ compensation, it is not state-regulated the same way, and the employer writes the rules.

Benefits are typically narrower than comp benefits and far narrower than what a negligence claim can recover. The plan exists partly to help injured workers and partly to reduce the employer’s exposure.

The Arbitration Agreement

Many plans require employees to arbitrate any injury claim rather than go to court. Texas courts have generally enforced these agreements where they were properly formed and communicated.

Arbitration is not the same as having no claim — cases are still won there — but it is a different forum with different procedures, no jury, and limited appeal rights. Whether a particular agreement applies to you and whether it was validly formed are questions worth having examined rather than assumed.

The Post-Injury Waiver and the Ten-Day Rule

This is the most important paragraph on this page for anyone who has recently been handed paperwork.

Texas law voids an employee’s waiver of a non-subscriber negligence claim made before an injury. And a waiver signed after an injury is valid only if specific conditions are met, including that:

• The employee entered into it voluntarily and with knowledge of its effect;
• It was entered into no earlier than the 10th business day after the date the injury was initially reported;
• The employee received a medical evaluation from a non-emergency care doctor before signing; and
• The waiver is in writing and conspicuous — appearing in larger type than the rest of the agreement, or in contrasting colors.

Read that second condition again. A release signed in the first days after an injury — in a hospital bed, in an HR office the next morning, in exchange for a benefit check — does not satisfy the timing requirement.

Injured workers are routinely presented with release paperwork well inside that window, sometimes bundled with benefit enrollment forms so it does not look like a release at all.

Designated Company Doctors

Many plans require treatment with a provider the employer selects, and condition benefits on using that provider. Those relationships can influence how injuries are documented, how quickly workers are returned to duty, and whether referrals to specialists happen.

You generally have the right to seek your own medical care. Whether doing so affects plan benefits depends on the plan document, which is worth reading before you make that decision rather than after.

The Reporting Deadline

Plans commonly require injury reporting within a very short window — sometimes 24 hours, sometimes by the end of the shift — and treat late reporting as grounds to deny benefits.

Two things worth knowing. First, report the injury as promptly as you can, in writing, and keep a copy. Second, missing a plan’s internal reporting deadline is not the same as losing your legal claim. The plan’s rules govern plan benefits. Your negligence claim is governed by law, and the deadline for that is measured in years, not hours.

If You Already Signed Something

Do not assume it is over. Bring the documents to a lawyer and have them read.

The statutory requirements above are specific and technical, and paperwork that does not meet them may not do what the employer believes it does. That is an evaluation worth having before you conclude you have no options.

How Employer Negligence Is Proven

Because negligence is the element you must establish, the investigation focuses on what the employer did or failed to do.

Unsafe or Poorly Maintained Equipment

Machines with removed or disabled guards, equipment run past service intervals, known defects left unrepaired, and tools kept in service after repeated failures. Maintenance records and work orders are central.

Inadequate Training

Workers put on equipment they were never trained to operate, safety orientations that never happened, and training records that exist on paper but not in practice. This is one of the most common findings in serious non-subscriber cases.

Understaffing and Unsafe Pace

A two-person lift assigned to one person. Production quotas that make safe procedure impossible. Shifts long enough that fatigue becomes predictable. Scheduling and productivity records document this.

Failure to Provide or Enforce Safety Equipment

Missing fall protection, respirators, machine guarding, lockout-tagout procedures, or personal protective equipment — or providing it and tolerating a culture where nobody uses it.

Unsafe Premises and Housekeeping

Poor lighting, blocked walkways, unmarked hazards, damaged flooring, and inadequate ventilation.

Negligent Hiring, Supervision, and Retention

Note the distinction from the fellow-servant rule. The employer cannot escape liability by blaming a coworker’s negligence — and separately, the employer may be directly liable for putting an untrained, unqualified, or known-dangerous person in that role.

Ignoring Prior Complaints and Near Misses

Often the strongest evidence available. Prior incident reports, safety committee minutes, employee complaints, and near-miss logs establish that the employer knew about the hazard before it hurt you.

Safety Regulation Violations

Federal workplace safety standards and any citation history are relevant evidence of what a reasonable employer should have done. Workers can report unsafe conditions and file a complaint with OSHA, and an inspection may generate documentation that later supports a civil claim. OSHA enforcement is separate from your injury case and does not compensate you, but the record it creates can matter.

Who Else May Be Liable

Especially after the 2025 decision, identifying every responsible party early is essential.

• Equipment and machinery manufacturers, where a defect or inadequate guarding caused the injury. This becomes a product liability claim with separate insurance.
• General contractors and other trades on a jobsite, whose work created the hazard.
• Property owners who controlled the premises where you were working.
• Staffing agencies, discussed below.
• Maintenance and service vendors responsible for equipment you were using.
• Drivers and their employers, where a vehicle was involved.
• Chemical manufacturers and suppliers, in exposure cases.

Staffing Agencies and Temporary Workers

A large share of Austin’s construction, warehouse, manufacturing, and hospitality workforce is placed through staffing agencies, and the coverage picture gets complicated fast.

A temporary worker can have two employers at once for legal purposes — the staffing agency that hired and pays them, and the client company directing their work. One may carry workers’ compensation while the other does not.

That produces real consequences. You might have comp benefits available through the agency while retaining a negligence claim against the client company, or the reverse. Both possibilities need to be checked, because the answer determines whether you are limited to benefits or free to sue, and against whom.

If you were placed by an agency, bring your placement paperwork and your pay records to the consultation. They frequently answer the question faster than anything else.

If You Were Classified as an Independent Contractor

Being labeled a contractor does not settle the question. Courts look at the actual working relationship — who controlled the details of the work, who set hours, who supplied tools and materials, how pay was structured, and whether the work was integral to the business.

Workers issued a 1099 are sometimes employees in substance. And separately, a genuine independent contractor injured by a company’s negligence may still have an ordinary negligence claim against that company. Either way, the classification on your paperwork is a starting point rather than an answer.

Every Injured Worker Has the Right to Ask

Injured workers sometimes hesitate to seek help because of concerns about immigration status. We want to address that plainly and briefly.

We do not ask about immigration status as part of evaluating a work injury claim, and it is not something we need in order to tell you whether your employer carried coverage or whether the facts suggest negligence.

If status is a concern in your situation, that is a question deserving specific legal advice about your circumstances rather than a general answer on a webpage. Ask us directly and confidentially, and we will give you a straight answer about what we can and cannot do.

Where Non-Subscription Is Common in Austin

Non-subscription concentrates in particular industries, and Austin has a lot of all of them.

• Construction and the trades, where injury rates are highest and the practice area overlaps with our construction accident work, including falls from heights, trench collapses, crane accidents, and electrical injuries.
• Manufacturing and food processing, covered on our manufacturing accident pages, including machinery injuries, explosions and fires, and toxic exposure.
• Restaurants, bars, and hospitality, an enormous Austin employment sector with high turnover and frequent burns, cuts, and falls.
• Retail, grocery, and warehousing, where lifting injuries and equipment incidents are routine.
• Delivery and transportation, covered on our delivery driver and truck driver accident pages.
• Landscaping, tree service, and property maintenance.
• Staffing and temporary labor, which supplies workers into all of the above.
• Healthcare and residential care, where lifting and patient-handling injuries are common and where large employers frequently opt out.

Evidence That Disappears

Workplace evidence goes away faster than in almost any other injury case, because the employer controls the scene and has every reason to normalize it.

• The scene. Cleaned, repaired, and back in production within hours. Photograph it immediately if you are physically able, or ask a coworker to.
• The equipment. Repaired, replaced, guarded, or removed from service. A machine that suddenly has a guard installed after your injury is itself meaningful.
• Surveillance video. Common in warehouses, plants, and retail, and typically on a short overwrite cycle.
• The incident report you or a supervisor completed. Ask for a copy at the time and keep it.
• Safety records — training documentation, inspection logs, maintenance records, prior incident reports, safety meeting minutes, and injury logs.
• Witnesses. Coworkers are the best witnesses and the most fragile. People leave jobs, and people still employed are understandably cautious about volunteering statements. Get names and personal phone numbers early, not work contacts.
• The benefit plan document itself, including the arbitration agreement and any waiver you were given.

A written preservation letter to the employer should go out promptly, identifying the equipment, the video, and the records to be retained. Without it, nothing obligates a company to keep any of it.

Retaliation and Your Job

This is the fear that keeps most injured workers from calling anyone, so it deserves a direct answer rather than reassurance.

Texas is an at-will employment state, which means the protections here are narrower than many people assume. There are legal protections against certain kinds of retaliation, and there are limits to them.

What we can tell you honestly: your employment situation is a real consideration and should be discussed openly at the consultation rather than treated as a side issue. We would rather talk through it with you than have you decide alone that speaking to a lawyer is too risky. Consultations are confidential.

If a Worker Died

Where a workplace injury is fatal, the family’s position differs sharply depending on coverage.

Against a subscriber, families are generally limited to statutory death benefits, with a narrow exception permitting exemplary damages for gross negligence.

Against a non-subscriber, the family may bring a full wrongful death claim, and the estate may bring a survival claim, with the same removal of common-law defenses that applies to injury cases. Exemplary damages may be available where gross negligence is established by the required standard of proof.

The evidence problem is more acute in fatal cases, not less. The scene is cleared, the equipment is repaired, and a safety investigation is underway within hours, while the family is dealing with a funeral. A preservation letter can go out immediately and commits you to nothing.

Injuries and Compensation

Non-subscriber cases run the full range: crush and amputation injuries from unguarded machinery, falls from height, traumatic brain injury, spinal cord injury, severe burns, electrocution, chemical and respiratory exposure, and the lifting, back, and repetitive motion injuries that end physical careers without ever making the news.

Serious outcomes are handled as catastrophic injury claims, built with life care planners, economists, and vocational experts who can establish what a lifetime of lost earning capacity actually costs.

For a worker whose body was their livelihood, loss of future earning capacity is frequently the largest single element of the case — and it is precisely the element workers’ compensation handles worst.

What the Employer Will Argue

• No negligence. That the injury was a genuine accident with no employer failure behind it. The central defense, since the usual ones are unavailable.
• Intoxication, one of the two surviving statutory defenses, which is why post-injury testing is routine.
• Intentional self-injury, the other surviving defense, raised rarely but raised.
• A third party is responsible, now considerably more available after the 2025 decision.
• You waived your claim by signing plan paperwork.
• The claim belongs in arbitration.
• Pre-existing conditions explain your symptoms, especially in back and joint cases.
• The injury did not happen at work, or was not reported promptly enough to be believed.
• Gaps in treatment show you recovered.

Paying for Treatment While Your Case Is Pending

A practical problem in non-subscriber cases, because there is no comp system paying medical bills as they arrive.

• The employer’s benefit plan may pay some medical costs and partial wages. Understand what accepting benefits requires you to sign before you accept them.
• Your health insurance. Use it. Some plans exclude work-related injuries, which is worth checking, but where it applies it is usually the best option. Expect a lien or subrogation interest against any recovery, and expect those amounts to be negotiable.
• Letters of protection. Some providers treat now and are paid from the recovery. Useful where nothing else is available, but the balances are sometimes higher than insured rates and defense counsel will argue the treatment was litigation-driven.
• Hospital liens, which attach automatically in certain circumstances and need to be addressed before settlement.

Get treatment. Delaying care to protect a claim is the mistake that actually damages both your health and the case.

Deadlines That Apply

• Hours to days — the employer’s internal reporting deadline. This governs plan benefits, not your legal claim, but report promptly and in writing regardless.
• Days to weeks — physical evidence. Equipment, video, and the scene itself.
• Two years — the statute of limitations for personal injury and wrongful death claims in most cases.
• Sooner, practically — third-party claims. Because an employer can now designate responsible third parties, any party you might need to sue should be identified well before limitations runs against them.
• As short as 45 days to six months if a governmental entity is involved.
• Plan appeal deadlines, if benefits are denied, which are set by the plan document.

Deadlines depend on your specific facts and must be confirmed by an attorney reviewing your case.

What to Do After a Work Injury at a Non-Subscriber

• Report the injury immediately and in writing, and keep a copy of what you submitted.
• Get medical care, and say clearly that the injury happened at work.
• Photograph everything you can — the equipment, the scene, the condition that caused it, and your injuries as they develop.
• Get coworker names and personal phone numbers, not just work extensions.
• Ask for a copy of the incident report and note who prepared it.
• Ask for a copy of the benefit plan document and any agreement you were asked to sign.
• Do not sign a release or waiver without having it reviewed. The timing rules alone may make it invalid.
• Do not give a recorded statement to a plan administrator or the employer’s insurer before getting advice.
• Keep every document, including benefit letters, denials, work restrictions, and pay records.
• Follow your medical restrictions, and put it in writing if you are asked to work outside them.
• Call a lawyer within days so preservation letters go out before the equipment is repaired and the video is overwritten.

How a Non-Subscriber Case Proceeds

Step One — Coverage Determination

Before anything else, we confirm whether the employer subscribes, whether a staffing agency is involved, and which entity actually employed you. That answer determines whether there is a case at all.

Step Two — Preservation

Written demands for the equipment, video, incident report, training and maintenance records, prior incident history, and the benefit plan documents.

Step Three — Negligence Investigation

Scene inspection where possible, coworker interviews, safety record review, and where appropriate a safety engineer or human factors expert to establish what a reasonable employer would have done.

Step Four — Third-Party Analysis

Identifying manufacturers, contractors, vendors, and property owners early, so fault cannot later be allocated to a party nobody sued.

Step Five — Straight Assessment

If the evidence does not show employer negligence, we tell you. Non-subscriber cases are winnable but not automatic, and you deserve to know that in month one.

Step Six — Resolution, Litigation, or Arbitration

Most cases resolve through negotiation or mediation. Where an enforceable arbitration agreement applies, we handle it there. We prepare every file as though it will be tried.

Questions Worth Asking Any Lawyer You Consider

• How will you confirm whether my employer is a subscriber? This should be step one, not an afterthought.
• What do you make of the paperwork I signed? A lawyer should want to read it at the first meeting.
• How does In re East Texas Medical Center Athens affect my case? Anyone handling non-subscriber work should know the April 2025 decision and what it changed.
• Who else might be responsible, and when will you bring them in?
• When does a preservation letter go out?
• What are the weaknesses in my case? Anyone describing only strengths is selling.
• How do I get medical treatment in the meantime?

Why Injured Workers Choose Kelley Wolff Injury Attorneys

• We check coverage status first, because everything else depends on it.
• We read the paperwork. Waivers, arbitration agreements, and plan documents get examined against the statutory requirements rather than accepted at face value.
• We know what changed in 2025 and build the third-party analysis in from the start.
• We move on evidence quickly, before equipment is repaired and video is overwritten.
• Honest screening. If we cannot establish employer negligence, you will hear it early.
• We take employment concerns seriously and discuss them openly rather than brushing past them.
• Local practice across Travis, Williamson, Hays, Bastrop, and Bell counties.
• Contingency representation. No attorney’s fee unless we recover, and we advance case costs.
• Direct attorney access. You will be able to reach Travis S. Kelley and Colin Wolff about your case.

Talk to an Austin Non-Subscriber Work Injury Attorney

If your employer told you they do not carry workers’ compensation, they may have handed you the strongest position an injured worker can have in Texas — and then handed you paperwork designed to take it back.

Before you sign anything else, let someone read it. Before the equipment is repaired and the video is overwritten, let someone preserve it.

Consultations are free and confidential. If we cannot establish that your employer’s negligence caused your injury, we will tell you plainly rather than take your time. If we take your case, you pay no attorney’s fee unless we recover for you.