Construction Site Injuries in Texas: Workers’ Comp, Non-Subscribers, and Third-Party Claims

Construction work is some of the most dangerous work in Texas. A fall from a ladder or scaffold, a trench collapse, or a crane failure can change a worker’s life in seconds. After a construction injury, the first questions are usually practical: Who pays for medical care? Can I sue? Will I lose my job? The answers depend on your employer’s insurance and on which companies were working on the site.

What are the most common construction site injuries?

Construction injuries often come from:

• Falls from heights, including ladders, roofs, and scaffolding
• Being struck by falling tools, materials, or moving equipment
• Being caught between machinery or in a trench collapse
• Electrocution from exposed wiring or contact with power lines
• Crane, forklift, and heavy equipment accidents

These incidents can cause fractures, back and spinal injuries, head injuries, burns, and amputations.

Does my employer have to carry workers’ compensation?

Not in most cases. Texas does not require most private employers to carry workers’ compensation insurance. Whether your employer is a “subscriber” or a “non-subscriber” makes a major difference.

If your employer has workers’ comp: You can receive workers’ compensation benefits, such as medical care and part of your lost income. In exchange, workers’ comp is generally your exclusive remedy against your employer, so you usually cannot sue your employer for negligence (Tex. Lab. Code § 408.001(a)). There is a narrow exception: the surviving spouse or children of a worker killed by the employer’s gross negligence or intentional act may seek exemplary damages (§ 408.001(b)).

If your employer is a non-subscriber: You may be able to sue your employer for negligence. Texas law takes away certain defenses from non-subscribing employers. The employer cannot argue that you were contributorily negligent, that you assumed the risk, or that a co-worker’s negligence caused the injury (Tex. Lab. Code § 406.033(a)). You still have to prove the employer was negligent (§ 406.033(d)), and the employer can still defend on the ground that you intended to cause the injury or were intoxicated (§ 406.033(c)).

Be careful with paperwork after an injury. Texas law limits when a worker can waive these rights. A waiver signed before the injury is void, and a waiver after the injury must meet strict requirements, including being signed no earlier than the 10th business day after the injury report and after a medical evaluation (§ 406.033(e)–(g)).

Can I make a claim against someone other than my employer?

Often, yes. Construction sites usually have several companies working at once. Even if your employer carries workers’ comp, another party may be responsible, for example:

• A general contractor or another subcontractor that created or ignored a hazard
• The property owner
• The manufacturer of a defective ladder, scaffold, tool, or machine
• A driver of a delivery truck or other vehicle on site

These are called third-party claims. Road crews and linemen hit by passing traffic face similar issues; see linemen and road crews hit near work trucks. They are separate from workers’ comp and may include damages workers’ comp does not pay, such as pain and suffering. Contracts between the companies on site can also affect who is responsible, so they are worth reviewing early. The same is true on oil field job sites.

What should I do after a construction injury?

• Get medical care right away and tell the provider the injury happened at work.
• Report the injury to your employer or a supervisor in writing. For workers’ comp, notice is generally due within 30 days (Tex. Lab. Code § 409.001).
• Write down what happened, who was there, and which companies were working in the area.
• Take photos of the scene, equipment, and your injuries if you can.
• Keep copies of anything you are asked to sign, and be careful before signing a waiver or release.

Frequently Asked Questions

How do I find out if my employer has workers’ comp?

Ask your employer in writing, and look for workplace notices about coverage. A lawyer can also help confirm coverage, because the answer changes which claims are available.

Can I be fired for reporting an injury?

Texas law prohibits an employer from firing or discriminating against an employee for filing a workers’ compensation claim in good faith or hiring a lawyer for the claim (Tex. Lab. Code § 451.001). If you believe you were fired or disciplined for reporting an injury, talk to a lawyer promptly.

How long do I have to file a lawsuit?

For a negligence lawsuit against a non-subscribing employer or a third party, the general deadline is two years from the date of the injury (Tex. Civ. Prac. & Rem. Code § 16.003). Workers’ comp claims have their own, shorter notice and filing deadlines.

Related reading

• Oil Field Injuries in South Texas: Who May Be Responsible?
• Linemen and Road Crews Hit Near Work Trucks in Texas

Learn more on our Construction Accident page.

Talk With Caquias Law Group, PLLC

If you were hurt on a construction site, Caquias Law Group, PLLC can review what happened in a free consultation and explain your options. We have offices in San Antonio and Harlingen and represent injured workers across Texas. Se habla español.

Call (210) 996-2237 in San Antonio or (956) 435-7789 in Harlingen.

Every case is different, and no particular result is guaranteed. This article is general information, not legal advice.