Can I Sue My Employer After a Welding Accident?

Welding accidents are quite common here in Texas because of the nature of some of the state’s most popular jobs. If you’ve been injured in such an accident, you do have some options, and it’s a smart idea to talk to a Houston, TX welding accident lawyer to find out more about what those options might be and whether you can be allowed to sue. The answer to whether you can sue your employer comes down to “it depends.”

Whether you can sue an employer depends on whether they have workers’ compensation, the precise nature of the accident itself, and a couple of other factors, including whether anyone was negligent and who that was. Here’s some of what you need to consider and what you will talk through with your lawyer:

Workers’ compensation is a type of insurance policy. It allows employees to get medical and some wage benefits if they’re injured, regardless of who may be at fault for the injury. Even if an employee causes the accident themselves, under most circumstances they won’t be denied benefits, which is very much unlike typical personal injury. However, in exchange, an employee loses the right to sue an employer directly for damages. As long as they either receive workers’ comp or are eligible to receive it, they are barred from bringing a lawsuit.

What makes Texas different from many states is that not every employer is required to have workers’ compensation. While there are a few companies that will be required to have it, for the most part, a business can choose whether it wishes to participate in the program. If your employer is not a subscriber, then they are open to a lawsuit for simple negligence. If they are a subscriber, then you would only be able to bring a lawsuit if there was gross negligence involved.

If you are able to bring a case for simple negligence against an employer who is not subscribed to the workers’ compensation system, it’s important to be aware of the comparative negligence laws here in Texas. Comparative negligence bars anyone who is 51% or more responsible for an accident from claiming compensation. Therefore, if the accident was mostly your fault, even if your employer’s actions contributed somewhat, you would not be able to bring a lawsuit. If you are less than 51% responsible, your final compensation will be reduced by the same percentage as your fault.

If your employer doesn’t have workers’ comp, they are technically known as a non-subscriber. Around a third of employers in Texas are non-subscribers. Many of them have their own accident insurance for employees or subscribe to an alternate workers’ compensation plan that is not approved by the state because it does not meet the standards required.

These employers become liable for their actions and can be sued for medical bills, lost wages, and damages. They can also be sued for pain and suffering, mental anguish, and disfigurement. These last are known as non-economic damages and are not something that you can recover from an employer who has workers’ comp.

If your employer has workers’ comp, then the insurance is a no-fault system. That means you do not need to show the employer was negligent, and you do not need to prove that the accident was not your fault. No matter the circumstances, you are entitled to income benefits, medical benefits, and vocational rehab should you require it. You are barred from bringing a lawsuit, however, and there is no avenue to get any non-economic benefits for pain and suffering.

As stated above, workers’ comp only protects an employer from simple negligence. If they have acted deliberately, or with gross negligence, they are not protected. Additionally, if a third party not your employer actually caused the accident, you are permitted to sue them even if you are collecting workers’ comp. For example, if an independent contractor was on the site when your welding accident took place, and their actions caused the accident, or if the accident was due to a manufacturing defect, you might be able to bring a lawsuit against someone other than your employer.

Gross negligence on the part of your employer is difficult to prove, but it’s not impossible. You would need to show that your employer either intentionally harmed you or knowingly ignored important safety or training regulations with a reckless disregard to what the consequences would be. For example, if your employer did away with important safety procedures to save money or to get a job done more quickly, this would likely qualify as gross negligence. You will want to talk to a lawyer immediately if you think this is a possibility so that your lawyer can get started investigating. In these sorts of cases, it’s usually important to establish a pattern of behavior on the part of the employer in order to show that they knew what the consequences would be and simply didn’t care.

The first step in the process is to speak with a lawyer and get an investigation started. You will want to bring whatever evidence you have, including all your correspondence with your employer, the names and contact information of any coworkers who witnessed the accident, and all your medical bills and information. If you are aware of serious negligence on the part of your employer, such as if they repeatedly failed OSHA inspections and refused to change anything, let your lawyer know.

Your lawyer will help you to file a lawsuit and gather evidence. At the same time, it’s likely that you and your lawyer will enter negotiations with your employer or their insurance company to try to come to an agreement about a settlement that covers your losses and damages. Many of these cases are settled out of court, but if yours can’t be, your lawyer will be happy to take things into the courtroom and fight for your rights.

If you’ve been injured on the job here in Houston, contact us today at Abraham, Watkins, Nichols, Agosto, Aziz & Stogner for a free consultation.