$1.4 Million Arbitration Award: How a Texas Non-Subscriber Work Injury Case Was Won

Most injured Texas workers assume that getting hurt on the job means filing a workers' compensation claim, collecting a limited check, and moving on. That assumption is wrong for roughly one in six Texas employees — and it costs them enormous amounts of money.

Texas is the only state in the country that lets private employers opt out of workers' compensation entirely. Employers that opt out are called non-subscribers. When a non-subscriber's negligence injures a worker, that worker is not limited to a benefit schedule. They can sue the employer directly for the full value of the harm. This case shows what that looks like in practice.

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What Happened: A Two-Person Lift With No Second Person

Our client was doing her job the way her employer trained and expected her to. Two shoppers needed help lifting a heavy, boxed lawnmower — the kind of load the company's own managers acknowledged required two people.

She did exactly what she was supposed to do. She looked for a coworker. She searched for more than 15 minutes. She asked her department. She asked the neighboring department. She asked the front desk. She asked outside staff. No help came.

Left with no support and a customer waiting, she made the call her employer's own managers later admitted was routine and expected: she helped lift the lawnmower herself. The customer lost his grip. The full weight of the box came down on her spine.

She reported the injury that same day. She was later diagnosed with a serious lumbar spine injury that, after years of conservative treatment, required surgery.

Pro tip: The same-day written incident report is one of the most valuable documents in a work injury case. It is created before anyone has a reason to shape the narrative, which is exactly why employers who later change their story have such difficulty getting around it.

What "Non-Subscriber" Means in Texas — and Why It Changes Everything

A non-subscriber is a Texas employer that has chosen not to carry workers' compensation insurance. Texas is the only state that permits this. An employer that opts out must file a notice of no coverage with the Texas Department of Insurance, Division of Workers' Compensation using Form DWC-005, report annually, and notify employees in writing that no coverage exists.

This is not a rare arrangement. According to the Division's 2022 employer participation survey, about 25 percent of Texas employers were non-subscribers, and roughly 17 percent of Texas employees worked for one. Large retailers, restaurant chains, staffing firms, and warehouse operators are heavily represented in that group.

Opting out saves the employer premium dollars. It also removes the shield that workers' compensation normally provides. A subscribing employer generally cannot be sued by an injured employee at all — workers' compensation is the exclusive remedy. A non-subscriber can be sued directly, for everything.

The Three Defenses Your Employer Loses

This is the heart of Texas non-subscriber law and the reason this case was winnable. Texas Labor Code § 406.033(a) states that in a lawsuit against an employer without workers' compensation coverage, it is not a defense that:

1. The employee was guilty of contributory negligence. The employer cannot argue you should have been more careful.
2. The employee assumed the risk of injury or death. The employer cannot argue you knew the job was dangerous and took it anyway.
3. The injury was caused by the negligence of a fellow employee. The employer cannot point at a coworker to escape responsibility.

Strip those three arguments away and most workplace injury defenses collapse. In this case, the employer could not say "she should have waited for help" or "she knew lifting a lawnmower alone was risky." Texas law took those sentences out of its mouth.

Your Own Mistake Cannot Reduce Your Award

In an ordinary Texas negligence case, a jury assigns each party a percentage of fault and the injured person's award is reduced by their share. That does not happen against a non-subscriber.

The Texas Supreme Court settled this in Kroger Co. v. Keng, 23 S.W.3d 347 (Tex. 2000), holding that a non-subscribing employer is not entitled to a jury question on its employee's comparative responsibility. The reasoning is direct: comparative responsibility requires a finding of contributory negligence first, and § 406.033 forbids that finding. The defense has no foundation to stand on.

The practical effect is enormous. If a non-subscriber's negligence caused your injury, the fact that you also made a mistake does not shave 30 percent, or any percent, off your recovery. Very few injured workers know this, and it is one of the strongest reasons to have counsel who handles these cases specifically.

What You Still Have to Prove

Non-subscriber cases are not automatic wins. Under § 406.033(d), the injured employee must prove the employer — or an agent or employee acting within the scope of employment — was negligent. An injury that simply happened at work is not enough.

That means building an affirmative case: what the employer knew, what safety measures a reasonable employer would have had in place, and what this employer actually did. In this case, that meant proving the company knew the lift required two people and had no system to make sure a second person existed.

The employer's one remaining defense is sole proximate cause — the argument that the worker's own conduct was the only cause of the injury, with no negligence by the employer contributing at all. It is a high bar, and it is where non-subscriber defense lawyers concentrate their effort.

How the Employer Fought Back — and Why It Failed

Rather than accept responsibility, the employer litigated for nearly two years and then, six days before the arbitration hearing, changed its position completely.

The Story Change Six Days Before the Hearing

The new theory was that the injury never happened at all. The employer leaned on incomplete video footage and last-minute sales data — data that did not even match the company's own paperwork.

Late-breaking defenses like this can be effective against unprepared claimants. Against a documented record, they backfire. The case was built on four things that did not move:

• Consistent, credible testimony from the client, unchanged from day one.
• A same-day incident report created before any dispute existed.
• Independent witness corroboration from people with no stake in the outcome.
• Expert testimony demonstrating precisely how the employer's after-the-fact defense contradicted its own evidence.

When a defendant waits two years to claim an incident never occurred, the timing itself becomes evidence. An arbitrator notices.

The Safety Expert Who Had Already Argued the Other Side

The most damaging moment for the employer came from its own witness. The company's safety expert had, in a prior case against a different retailer, criticized the exact same failure — asking an employee to perform a known two-person task without ensuring help was available.

The company wanted a standard applied to its competitor that it refused to apply to itself. Once that was on the record, the defense had no coherent position left.

What the Arbitrator Found

The arbitrator agreed with our position on every key point:

• The employer failed to provide adequate help for a task it knew required two people.
• The employer had no policy, no training, and no warnings for a lifting task it openly admitted was "encouraged," "expected," and routine for its workers.
• The employer's own safety expert had previously condemned that same failure in a case against a different retailer, yet the company refused to hold itself to that standard.
• The employer could not meet its burden of proving our client's actions were the sole cause of her own injury — the only defense available to a Texas non-subscriber.

That last finding is the whole ballgame in a non-subscriber case. Once sole proximate cause fails, the employer has nothing left to reduce the award with.

The Result: $1,406,520.57

The arbitrator awarded $1,406,520.57, plus fees, costs, and interest. That figure represented a full accounting of our client's medical bills, future care, pain and suffering, and permanent scarring.

Under workers' compensation, none of the pain and suffering or scarring components would have been payable at all. That is the difference a non-subscriber claim makes.

Workers' Comp vs. Non-Subscriber Recovery

The trade-off is real: workers' compensation pays without proof of fault, while a non-subscriber claim requires you to prove negligence. But when the negligence is provable — as it was here — the recovery is not comparable.

If you are weighing what a claim might be worth, our guide to economic vs. non-economic damages in Texas personal injury cases explains how each category is valued and documented.

Arbitration Does Not Mean You Cannot Win

Many Texas non-subscribers require employees to sign a binding arbitration agreement as a condition of employment, usually bundled into an "injury benefit plan" handed over on the first day. Texas courts generally enforce these agreements.

Injured workers often read that as a dead end. It is not. Arbitration changes the forum, not the law. The § 406.033 defense bar still applies. The Keng rule against reducing awards still applies. The evidence that matters in a courtroom — the same-day report, the witnesses, the employer's own documents — matters just as much in front of an arbitrator.

This case was decided in binding arbitration against a major retail employer, and it produced a seven-figure award. What arbitration does change is pace and procedure: hearings come faster, discovery is often tighter, and there is very limited appellate review. That compressed timeline rewards early, thorough case preparation and punishes anyone who waits.

Pro tip: Ask your employer for a copy of every document you signed at hire, including the injury benefit plan and any arbitration agreement. Those documents contain deadlines that can be far shorter than the two-year legal deadline — and they tell your attorney immediately what forum your case will be heard in.

Is My Employer a Non-Subscriber?

Signs that point toward non-subscriber status:

• You were given an "occupational injury benefit plan" or "employee injury plan" rather than a workers' compensation notice.
• You signed an arbitration agreement covering workplace injuries.
• Injury paperwork routes through an in-house department or a third-party administrator instead of the Division of Workers' Compensation.
• You were told to use a company-designated clinic and were never given a DWC claim number.
• Your employer posted written notice that it does not carry workers' compensation insurance — a required disclosure for non-subscribers.

You do not have to guess. Ask your employer directly, and independently check the Texas Department of Insurance coverage verification tool. Getting this answer right determines which body of law applies to your entire case.

For a fuller breakdown of how these claims work, see our Dallas non-subscriber work accident lawyer page and our library article on Texas non-subscriber work injury claims.

What to Do in the First 72 Hours

The evidence that won this case existed because of decisions made in the first day. Here is the sequence that protects a claim:

1. Report the injury in writing the same day and keep your own copy.
2. Get medical care immediately and tell the provider precisely how the injury happened at work.
3. Write down who you asked for help and when — every coworker, department, and manager, with times.
4. Photograph the scene, the equipment, the load, and the staffing on shift.
5. Determine whether your employer is a non-subscriber and request every document you signed at hire.
6. Talk to an attorney before giving a recorded statement or signing any release.

Under Texas Civil Practice & Remedies Code § 16.003, you generally have two years from the date of injury to file. Internal plan and arbitration deadlines can be dramatically shorter — some injury benefit plans require reporting within 24 hours. Treat the short deadline as the real one.

If a third party such as an equipment manufacturer or another contractor contributed to your injury, you may have additional claims. Our overview of third-party liability in Texas workplace accidents covers when those apply.

Frequently Asked Questions

Can I sue my employer for a work injury in Texas?

You can if your employer is a non-subscriber, meaning it opted out of the Texas workers' compensation system. Texas is the only state that lets private employers decline coverage. If your employer carries workers' compensation, that system is generally your exclusive remedy against the employer. If it does not, you may file a negligence lawsuit or arbitration claim directly against the employer and seek full damages, including pain and suffering, which the workers' compensation benefit schedule does not pay.

What is a non-subscriber employer in Texas?

A non-subscriber is a Texas employer that has chosen not to carry workers' compensation insurance. It must file a notice of no coverage with the Division of Workers' Compensation using Form DWC-005, report annually, and tell employees in writing that no coverage exists. Per the Division's 2022 employer survey, roughly 25 percent of Texas employers were non-subscribers and about 17 percent of Texas employees worked for one.

What defenses can a non-subscriber employer use in Texas?

Very few. Labor Code § 406.033(a) bars a non-subscriber from arguing that the employee was contributorily negligent, assumed the risk of injury, or was hurt by a coworker's negligence. Under Kroger Co. v. Keng, it also cannot use comparative responsibility to reduce a damages award. In practice the employer is left arguing sole proximate cause — that the worker's own conduct was the only cause — or that it was not negligent at all.

Does my own mistake reduce what I can recover from a non-subscriber employer?

No. This is the most misunderstood point in Texas work injury law. In ordinary negligence cases a jury assigns percentages of fault and reduces the award accordingly. Against a non-subscriber it does not happen: because § 406.033 bars contributory negligence, the Texas Supreme Court held in Keng that the employer is not entitled to a jury question on the employee's comparative responsibility. If the employer's negligence caused your injury, a partial mistake on your part does not shrink your award.

Can I still win if my work injury claim goes to arbitration?

Yes. Many Texas non-subscribers require binding arbitration agreements as a condition of employment, and Texas courts generally enforce them. Arbitration changes the forum, not the law — the same § 406.033 protections apply and an arbitrator can award full damages. The case described here was decided in binding arbitration and produced an award of $1,406,520.57 plus fees, costs, and interest.

How much is a non-subscriber work injury case worth in Texas?

There is no formula and no typical figure. Value depends on injury severity, treatment required, future care, lost earning capacity, and the strength of the negligence evidence. Unlike workers' compensation, a non-subscriber claim can recover past and future medical expenses, lost wages and earning capacity, pain and suffering, disfigurement, and physical impairment. Exemplary damages are available for gross negligence but are limited by statute.

How long do I have to file a non-subscriber work injury claim in Texas?

Generally two years from the date of injury under Civil Practice & Remedies Code § 16.003. That is not the only deadline that matters. Many non-subscribers operate injury benefit plans with their own reporting deadlines — sometimes as short as 24 hours — and arbitration agreements can impose separate notice requirements. Missing an internal deadline can cost you benefits while the two-year legal deadline is still open.

What should I do right after a workplace injury in Texas?

Report the injury in writing the same day and keep a copy. Get medical care immediately and tell the provider exactly how it happened at work. Write down every coworker or manager you spoke with, including anyone you asked for help before the injury. Photograph the area, the equipment, and the load. Ask whether your employer carries workers' compensation and request copies of any injury benefit plan or arbitration agreement you signed. Then talk to a work injury attorney before giving a recorded statement.

Hurt by a Non-Subscriber Employer? Talk to Armstrong Law

Employers who opt out of workers' compensation are betting that injured workers will not have the resources to fight back. This case is proof of what happens when that bet is wrong.

If you or someone you love has been hurt on the job by a non-subscriber employer, Texas law may give you far more leverage than you think — but only with counsel who knows how to use it. Armstrong Law, PLLC has spent nearly two decades representing injured workers across the Dallas–Fort Worth metroplex.

Schedule a Free Consultation

Call (214) 932-1288 for a free consultation about your workplace injury. Armstrong Law, PLLC serves injured workers in Dallas, Fort Worth, Plano, Irving, Garland, Arlington, and throughout North Texas. You pay nothing unless we win your case.