Texas Workers' Compensation Laws: Benefits, Deadlines, and the Non-Subscriber Risk

Texas is the only state in the country where workers' compensation is optional for private employers. If your employer has chosen to carry coverage, you receive no-fault medical care and partial wage benefits in exchange for giving up the right to sue. If your employer opted out, they lose critical legal protections and you may be able to take them to civil court.

Is workers' comp required in Texas?

Texas stands alone among all 50 states: the Texas Workers' Compensation Act makes coverage voluntary for private-sector employers. A private employer that chooses to carry coverage is called a "subscriber." One that does not carry coverage is a "non-subscriber." Public employers, including state agencies and most local governments, are required to cover their workers.

The Texas Department of Insurance, Division of Workers' Compensation (TDI-DWC) administers the system for subscribing employers. There is no minimum employee threshold for subscribing employers. If a private company decides to participate, its employees are covered from day one unless an employee affirmatively opts out. Under Tex. Lab. Code 406.034(b), an employee who wants to keep the common-law right to sue must tell the employer in writing, no later than the fifth day after starting work (or after being notified that the employer obtained coverage), that he waives coverage. That written election is the rare exception, and an employer may not require it as a condition of employment. The practical consequence of the opt-out system is significant: whether you have automatic no-fault protection at all depends entirely on a choice your employer made, and a meaningful share of Texas private-sector workers are employed by non-subscribers.

The non-subscriber rule: why opting out is a legal double-edged sword

For employers, skipping workers' comp coverage is not cost-free. Non-subscriber employers surrender the legal protection that makes the workers' compensation bargain work for them. Under Tex. Lab. Code 406.033, a non-subscribing employer cannot assert three classic common-law tort defenses in a personal injury lawsuit brought by an injured worker:

1. Contributory negligence (the worker was partly at fault)
2. Assumption of risk (the worker knew the job was dangerous)
3. Fellow-servant rule (the injury was caused by a co-worker)

Because those defenses are eliminated by statute, an injured worker suing a non-subscriber faces a substantially lower legal burden. The employer is exposed to full tort liability, including damages for pain and suffering, mental anguish, and other categories that workers' comp does not cover. Some non-subscribers carry occupational accident insurance as a private substitute, but that insurance does not confer the same protections as the statutory system, and any payout is governed by contract, not Texas workers' comp law.

If your employer is a non-subscriber and you were seriously hurt, consulting a personal injury attorney is particularly important. The absence of the statutory defenses can make a civil case significantly more viable than it would be in most other states.

Benefits you can receive under Texas workers' comp

Texas workers' compensation provides four categories of income benefits, each addressing a different stage of recovery:

Temporary Income Benefits (TIBs) replace wages while you are partially or totally unable to work. The rate is 70% of the difference between your pre-injury average weekly wage (AWW) and your post-injury earnings. Under Tex. Lab. Code 408.103(a)(2), the rate is 75% instead for the first 26 weeks if you earned less than $10 an hour. That $10 threshold is set by the statute itself, not by TDI-DWC, and once the 26 weeks run out the 70% rate applies.

Benefits begin to accrue on the 8th day after the injury (there is a 7-day waiting period), but the waiting week is not automatically lost. Under Tex. Lab. Code 408.082(c), if the disability continues for two weeks or longer after it begins, compensation is computed from the date the disability began, so that first week is paid retroactively. The maximum weekly amount is set annually by TDI-DWC; do not rely on any specific dollar figure you read online because it changes each year.

TIBs run until you reach maximum medical improvement (MMI) rather than for a fixed term (Tex. Lab. Code 408.102(a)). MMI is the earlier of the date no further material recovery can reasonably be anticipated or the expiration of 104 weeks measured from the date income benefits begin to accrue (Tex. Lab. Code 401.011(30)). Because accrual starts on the eighth day, that outer clock does not run from your first day off work. It can be extended by the commissioner if you have spinal surgery near the end of the period (Tex. Lab. Code 408.104).

Impairment Income Benefits (IIBs) begin once you reach maximum medical improvement (MMI) and are rated with a permanent impairment. You receive three weeks of benefits for every 1% of impairment, paid at 70% of your AWW (subject to the annual cap).

Supplemental Income Benefits (SIBs) are available after IIBs end if you have a 15%+ impairment rating and remain partially unable to work. They are paid at 80% of the difference between 80% of your pre-injury AWW and your post-injury earnings.

Lifetime Income Benefits (LIBs) cover the most severe permanent injuries, such as total loss of sight or severe brain injury, and are paid for life at 75% of AWW (increasing 3% annually for inflation).

Medical benefits cover all reasonable and necessary treatment with no copay. Death and burial benefits are also available to eligible dependents.

Texas restricts settlements far more tightly than most states. Under Tex. Lab. Code 408.005, a settlement may not pay benefits in a lump sum except as allowed by Section 408.128, and it may not limit or terminate your right to medical benefits. There is no Texas version of the compromise-and-release deal that closes a claim out for good elsewhere. When a dispute is actually resolved, TDI-DWC documents it on a Benefit Dispute Agreement (DWC024) or a Benefit Dispute Settlement (DWC025), and a settlement must be signed by the commissioner as well as by every party. A claim that is never disputed needs no agreement or settlement document at all; the carrier simply pays it.

Deadlines: reporting your injury and filing a claim

Texas imposes two separate and strict deadlines that injured workers must track independently.

Report to your employer within 30 days. You must notify your employer of the injury in writing no later than 30 days from the date of injury. Waiting too long can jeopardize your entire claim. If you are unsure whether your employer is a subscriber, look for the coverage notice in your workplace: Tex. Lab. Code 406.005(c) requires every Texas employer, subscriber or not, to post a conspicuous notice of whether it carries workers' compensation coverage, and Section 406.005(b) requires the same disclosure to each new hire. Do not go looking for a "DWC-5" poster. Form DWC005 is the Non-subscriber Notice to the Division of Workers' Compensation, which a non-subscribing employer files with TDI-DWC under Tex. Lab. Code 406.004; it is not posted on a wall, and its existence means the opposite of coverage.

File your claim with TDI-DWC within 1 year. The statute of limitations for filing a formal claim with the Division of Workers' Compensation is one year from the date of the injury. This is a short window compared to many other states, and missing it generally bars your claim entirely. Start the process early. You can file online through TDI-DWC's online system or on paper using Form DWC-41.

For occupational diseases, the one-year clock typically runs from the date you knew or should have known the disease was work-related. If there is any ambiguity about when your clock started, get legal advice promptly.

Choosing your doctor in Texas

Doctor choice in Texas depends on whether your employer uses a certified workers' compensation health-care network.

If your employer has enrolled in a certified network, you must use a doctor within that network for all treatment (with narrow exceptions for emergencies). The network will have a list of approved providers. You generally choose your primary treating doctor from within the network, and that doctor manages referrals to specialists. Leaving the network for non-emergency care can result in the insurer denying payment for the treatment.

If your employer does not use a certified network, you have more flexibility to select any authorized treating doctor. However, the treating physician must still be authorized under TDI-DWC rules, and the insurer retains the right to require an independent medical examination (IME) to evaluate the extent of your injury.

In both scenarios, TDI-DWC has a dispute resolution process if the insurer denies authorization for a recommended treatment. A Benefit Review Conference or Medical Dispute Resolution hearing can be requested through the Division.

Can you sue your employer? The exclusive-remedy rule

For workers covered by a subscribing employer, workers' compensation is the exclusive remedy. You cannot sue your employer in civil court for a workplace injury, no matter how severe, as long as the employer maintained valid coverage. This is the foundational trade-off of every workers' compensation system.

The standard exceptions apply in Texas as they do in most states:

• Employer intentional harm. If your employer intentionally caused your injury, you may have a civil claim, though Texas courts apply a high standard for intent.
• Third-party claims. Workers' comp does not block you from suing a third party whose negligence contributed to your injury. If defective equipment, a negligent subcontractor, or a reckless driver caused the accident, you can pursue that party in tort while still receiving workers' comp benefits (with a subrogation right for the insurer).
• Uninsured employers. If an employer's coverage has lapsed, it is a non-subscriber as to any injury during the gap. Carrier liability under Tex. Lab. Code 406.031 presumes there is a carrier, and Texas has no uninsured-employers fund, so the remedy is a civil suit under Tex. Lab. Code 406.033 rather than a claim inside the comp system.

For non-subscriber employers, as explained above, the exclusive-remedy shield simply does not exist. The injured worker retains full tort rights, and the employer cannot use contributory negligence, assumption of risk, or fellow-servant as defenses under Tex. Lab. Code 406.033.

If you were hurt at work in Texas

Taking the right steps immediately protects your claim and ensures you receive every benefit you are entitled to.

Report in writing right away. Verbal notice is not enough. Put your injury report in writing and keep a copy. You have 30 days, but reporting the same day or the next is strongly advised, since delays can raise disputes about whether the injury occurred at work.

Seek authorized medical care. If your employer uses a certified network, find a network provider. In an emergency, go to the nearest emergency room. Keep all records, bills, and reports from every visit.

File your DWC-41 claim early. Do not wait until the one-year deadline approaches. File your claim with TDI-DWC as soon as possible to preserve your rights. The form is available at tdi.texas.gov/wc/.

Keep a detailed record. Document your wages before the injury, any missed work, all medical appointments, and all communications with your employer or the insurance carrier. This documentation is essential if a dispute arises over your benefits.

Consult a Texas workers' compensation attorney if your claim is denied, your benefits are cut off, you are assigned a low impairment rating, or you are considering a settlement. Attorney fees in Texas workers' comp cases are capped by law, so representation is accessible. If your employer is a non-subscriber, consult a personal injury attorney about your civil tort options.

For a broader overview of how each state's system compares, see the Workers' Compensation Laws by State hub.

This article is general legal information, not legal advice. Workers' compensation rules vary by state and change, and benefit amounts and deadlines depend on the specific facts. For advice about a specific claim, consult a licensed workers' compensation attorney in Texas.

Related pages:

• Workers' Compensation Laws by State
• Texas Statute of Limitations

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