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Safety first if you opt out of workers’ comp

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Employers that opt out the Texas workers’ compensation system may be liable for negligence and face potentially lengthy and complex litigation when an employee is hurt on the job.

The best defense may be to follow all OSHA and state workplace safety rules.

Recent case: Bobby worked as a construction superintendent and was injured when he fell down a stairway outside a trailer.

He suffered a herniated disc and a spinal cord injury, which he alleged necessitated epidural steroid injections, physical therapy and multiple operations.

Until he fell, Bobby had gone up and down the stairs twice a day. Usually, he carefully closed the trailer door at the top platform, giving himself plenty of room to turn and start the climb down the stairs.

But on the day of the accident, he left the door open and tried to step around the edge. He testified that his foot went “into air” and he fell.

OSHA cited the company for not providing at least 20 inches of clearance. With the door open, there were only 14 inches. Bobby sued, alleging negligence.

First, the employer argued that Bobby should have been aware of the hazard since he had been using the steps for more than two years.

The court disagreed since Bobby explained he almost always closed the door, giving himself enough space to step safely.

Second, the employer argued it had no reason to know the steps were a hazard. Again, the court disagreed, citing OSHA and state safety regulations calling for greater clearance.

It ordered a trial, allowing Bobby an opportunity to argue for damages for his injured back. (Duncan v. First Texas Homes, et al., No. 02-12-00464, Court of Appeals of Texas, 2015)

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