Slip and Fall at Work: Two Possible Claims
A fall at work opens a workers compensation route, a third-party route, or both, and the two are valued on completely different bases. People commonly pursue only the smaller one because it arrives first.
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Which scheme applies depends on your employer
Texas does not require most private employers to carry workers compensation. Whether yours subscribes changes everything.
Where the employer subscribes, comp pays medical treatment and a portion of lost wages regardless of fault, and is generally the exclusive remedy against that employer. Where the employer is a non-subscriber, it can be sued directly in negligence and loses the common law defenses of contributory negligence, assumption of risk and the fellow servant rule.
What comp does not pay for
This is the difference that matters most. Workers compensation does not compensate physical pain, mental anguish, physical impairment or disfigurement, and it pays only a portion of lost wages rather than full earning capacity.
In a serious fall those categories are frequently the majority of the loss. Someone who pursues only comp because it began paying quickly can leave most of the recovery unclaimed.
The third-party claim, which is where the value usually is
If you fell on premises your employer does not control, a client's building, a delivery location, a shared lobby, a public sidewalk, the occupier of that property is a third party and an ordinary premises claim lies against them.
The same applies where a cleaning contractor, a maintenance company or another business created the hazard. That claim carries the full range of damages alongside any comp benefits.
Falls on your employer's own premises
Where a subscribing employer controls the premises, comp is generally the exclusive remedy and there is no separate negligence claim against them.
But a third party may still be responsible: the building owner, a management company, a cleaning contractor, or the manufacturer of equipment or flooring that failed. Establishing who controlled the specific area matters.
Subrogation, and the order of things
Where comp has paid benefits and you then recover from a third party, the comp carrier generally has a right to be reimbursed out of that recovery.
The arithmetic is not intuitive and the carrier's interest must be resolved before funds are released. Settling a third-party claim without addressing it can leave a claimant owing money from a settlement already received.
Reporting deadlines that are much shorter than the claim
Where the employer subscribes, the injury generally has to be reported to the employer within thirty days, and the comp claim filed within one year.
The two year limitations period for a negligence claim runs separately. Pursuing comp does not preserve the third-party claim, and the two deadlines are frequently confused.
Summary
| Situation | Workers compensation | Premises claim |
|---|---|---|
| Subscribing employer, own premises | Yes | Not against the employer |
| Subscribing employer, third party's premises | Yes | Yes, against the occupier |
| Non-subscribing employer | No | Yes, directly against the employer |
| Contractor created the hazard | Depends on employer | Yes, against the contractor |
| Independent contractor | Usually no | Yes, against the occupier |
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Frequently asked questions
Generally not your own employer if they subscribe to workers compensation, because comp is usually the exclusive remedy. You may still have a claim against a third party such as the building owner, a cleaning contractor or another business that created the hazard.
Texas does not require most private employers to carry it. A non-subscribing employer can be sued directly in negligence and loses common law defenses, which usually makes that claim considerably larger than comp benefits.
No. Comp covers medical treatment and a portion of lost wages. Physical pain, mental anguish, impairment and disfigurement are recoverable only in a negligence claim.
Generally the comp carrier has a right to be reimbursed out of a third-party recovery. That interest must be resolved before funds are released, so settling without addressing it can leave you owing money.
Talk it through with a lawyer
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