Litigation for Non-Subscribers: Prohibited Affirmative Defenses

Although the benefits to becoming a nonsubscriber under the Texas workers' compensation system are manifold, employers who choose to become nonsubscribers do need to be aware of hurdles that the Texas Legislature put into place for those who choose to "opt-out" of the system.  The most significant of those hurdles is the statutory limitation on affirmative defenses that may be utilized by a nonsubscriber when defending a lawsuit brought against the employer.

Section 406.033 of the Texas Labor Code sets forth three specific defenses that may not be asserted by employers who elect to become nonsubscribers in lawsuits brought by employees injured in the course and scope of their employment.  First, nonsubscribers cannot argue that the injured employee was guilty of contributory negligence.  Whereas defendants in other personal injury lawsuits are permitted to argue that a plaintiff's claimed injuries were caused at least in part by the plaintiff's own negligence, nonsubscriber defendants are prohibited from submitting a question to the jury regarding the plaintiff's own proportionate responsibility for the injuries alleged.  Second, nonsubscribing employers cannot assert that an injured employee assumed the risk of the injury that the employee alleges to have sustained.  Finally, nonsubscribers are not permitted to argue that the injuries sustained by an employee were caused by the negligence of a fellow employee.

While the limitations set forth in Section 406.033 at first appear to significantly hamper the defenses available to a nonsubscribing employer at trial, multiple defenses that are not specifically addressed by the statute remain fully available to nonsubscribers defending themselves in court.