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Thinking about skipping workers’ comp? Get ready to risk unlimited liability

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in Compensation and Benefits,Human Resources

Here’s something to consider before you choose not to be a part of the Texas workers’ compensation system. Employers that forego coverage—as they are permitted to do—leave open the possibility of unlimited liability and have few defenses available.

Recent case: Shaun worked for a drugstore when he fell in a storage room in the back of the store in an area that was only accessible via a staircase.

The staircase was littered with a clipboard at the bottom, and some trash and papers. The storage room at the top of the stairs was rarely visited by most of the store’s em­­­­ployees, and the area was not assigned to any particular department. The lighting on the stairs was dim. The area was a “no man’s land,” where employees often sat on the stairs to eat, fill out paperwork or take breaks. During his employment, Shaun only witnessed the area being cleaned once.

He fell down the stairs after his foot hit a slick spot and broke his hand. Shaun had four surgeries to correct the damage.

After he was fired for unrelated reasons, he sued, alleging the em­­ployer had been negligent by not having someone clean the stairwell.

Because the employer opted out of workers’ compensation coverage, Shaun was allowed to sue for unlimited damages. All he has to prove is simple negligence. (Garcia v. Randall’s Food and Drugs, No. 3:13-cv-1248, ND TX, 2014)

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