Workers’ Compensation Exceptions

Fatal Injury in the Workplace

Workers’ compensation is essentially a fund that an employer pays into in order to limit the amount of money they can be liable for in the event that one of its employees suffers an injury on the job. Employees who work for an employer that participates in the worker’s comp scheme are given access to immediate medical compensation and compensation regardless of the cause of the injury, but their recovery is limited up to a certain amount.

There are two exceptions to this limitation. The first exception involves a fatal injury that resulted from gross negligence. The second exception involves intentional injuries. If an employee is injured and their injury does not qualify for one of these two exceptions, their recovery of damages may be severely limited.

Who is responsible for my on-the-job injury?

If one of these exceptions applies, the claimant can pursue damages beyond the limits of worker’s comp for the injuries he or she sustained. The benefit of workers’ compensation for employees is seen in the case where the injury occurs in the course and scope of the employment but was caused by the injured worker. In general negligence cases, there would be no recovery but worker’s compensation compensates employees who are injured at work regardless of the cause.

Berkel & Company Contractors Inc. v. Tyler Lee and Leigh Ann Lee

The Fourteenth Court of Appeals recently ruled on an issue having to do with Worker’s Comp. On July 13, 2017, the court decided a case involving a claimant on a commercial construction site. The claimant in question worked for the general contractor and brought suit against a subcontractor for negligence, gross negligence, and intentional injury.

So, when applying the diagram to the facts of this case, an employee of the general contractor was suing a subcontractor for an injury that the general contractor’s employee sustained.

The injury was related to the subcontractor’s negligence in causing its crane to tip over. When the crane tipped over, it resulted in the employee’s legs being crushed. The employee’s legs ultimately had to be amputated as a result of his injury. Immediately after sustaining his injury, the employee received workers’ compensation benefits through the general contractor’s plan but sought further recovery from the subcontractor.

The employee argued that his receipt of workers’ comp funds from his employer should not preclude his ability to recover damages from the subcontractor which caused his injury.

In May 2015, the lower court awarded the employee $43.5 million. The subcontractor then appealed to the Fourteenth Circuit Court of Appeals in

Houston, argued that because the supervisor did not qualify for either of the two exceptions detailed above, he is precluded from recovering beyond what he recovered via his employer’s workers’ comp plan.

The Court agreed, stating, “…intentional injury requires an intent to injure a particular person or a small class of people, not just general knowledge that an activity is dangerous”. In other words, the court held that even though the subcontractor demonstrated negligence, their knowledge about the risk of injury does not qualify for the “intentional tort” exception. The supervisor’s $43.5 million award was vacated.

Why is this case so important?

This case gave clarity regarding the second exception to workers’ comp preclusion of liability. Because one of the exceptions requires an injury to be fatal, plaintiffs often bring claims under the exception having to do with the injury being a result of an intentional tort.

This ruling will be used in the future by construction companies to establish what is considered an intentional tort, for purpose of avoiding workers’ comp preclusion from recovery. Fleming Law has experience dealing with workers’ comp disputes, both on the plaintiff’s side as well as on the defense’s side. Every scenario is different, contact us today for free advice on how you should proceed.

To read the court’s opinion, click here (


Workers who are injured while working for companies that do not carry worker’s compensation insurance are free to bring claims against the employer. These types of claims are known as “non-subscriber” cases because the employer does not subscribe to the worker’s compensation program.

nicholas fleming

Nicholas P. Fleming focuses his practice in the area of civil litigation. As a skilled personal injury attorney, he handles a broad range of cases including motor vehicle accidents, premises liability, workplace accidents, and wrongful death. He is licensed to practice by the State Bar of Texas and is a graduate of the South Texas College of Law, earning his J.D. in 2017. Nicholas prides himself on providing personalized service to his clients, who are often facing extremely stressful situations.