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What injuries are considered "on the job injuries"?


The employee must sustain his injuries “in the course and scope of his employment.” Therefore, if the employee was injured while playing a sport over the weekend or injured during his personal lunchtime, he cannot recover under § 406.033 against the nonsubscribing employer. Although it may be established that he was not injured in the course and scope of his employment—if the employee is injured on the work premises, he may have other avenues to pursue, such as a premise defect of premise liability claims.


What is the Intentional Act By Employee and Intoxication?


The Texas Labor Code provides two specific defenses available to Nonsubscribers against a claim made by an employee: (1) by an act of the employee intended to bring about the injury; or (2) the injury occurred while the employee was in a state of intoxication. Intoxication can be either from alcohol or by use of a controlled substance. It is noteworthy that under the intoxication defense, it appears that the plaintiff’s intoxication does not need to be related to his injury, only that he was intoxicated at the time of injury

What is the Statute of Limitations on non-subscriber claims?


It is generally accepted that the two-year statute of limitation for negligence claims is applicable to Nonsubscriber workplace claims. Texas Civil Practice and Remedies Code   § 16.003. There is no mention in the Labor Code for a statute of limitations for workplace negligence claims, either against a Nonsubscriber or subscriber, but the clear language in   § 16.003 makes it apparent that it applies to negligence claims.


What is the Punitive Damage Cap?


The 1995 Legislature enhanced Chapter 41 of the Texas Civil Practice and Remedy Code to place a cap or maximum amount on punitive damages as well as limit the amount of punitive damages in certain cases. An intermediate court of appeals has determined that Chapter 41 is applicable to Nonsubscribers. Beverly Enterprises of Texas, Inc v. Leath, 829 S.W.2d 382 (Tex. App—Waco 1992, no writ).


The new statutory punitive damage maximum is convoluted by the type of damages found by the jury. A plaintiff’s compensatory damages are now divided into two categories: non-economic and economic. A plaintiff can recover the greater of: (1) two times the amount of his economic damages, plus an amount equal to any non-economic damages found up to $750,000, or (2) $200,000.


Are there any Important Definition Changes?


Another advantage to Nonsubscriber defendants in the new ‘pro-tort reform’ statute is the requirement of “clear and convincing evidence” to support any award of punitive damages. This is higher than the well-known “preponderance of the evidence” standard used to decide liability issues. Even more telling is replacement of the phrase “gross negligence” with “malice” by the employer as a required basis for punitive damages.




This brief discussion of the current status of legal defenses and claim waivers for Texas Nonsubscriber employers is not meant to be exhaustive. It is also not intended as legal advice, but is offered to alert the reader to conditions in this marketplace. Do not use this memo as legal advice or to make legal decisions. Anyone attempting to implement any idea or provision in this memo should first seek advice from competent counsel!!! Each workplace injury claim is different. Do not attempt to solve individual problems on the basis of the information contained herin alone.



Harry Jones is Board Certified in labor and employment law. The Texas Board of Legal Specialization does not certify other attorneys

(512) 342-2242 Ferch Insurance Group, 4332 Teravista Club Drive #34, Round Rock, TX 78665
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