What Do You Think: Could Worker who Lost Part of Finger Sue for Negligence?

24 Jun, 2024 Chris Parker


Houston, TX (WorkersCompensation.com) – In Texas, an employee assigned by a staffing agency to work for the staffing agency’s client may be subject to the exclusive remedy provision of the workers’ compensation statute. If provision applies, the employee will be out of luck if he tries to pursue a negligence lawsuit against the client of the staffing agency for injuries sustained while working there.

A case involving a vessel fitter lays out the factors Texas courts may consider. In that case, a  temporary employment service assigned the fitter to work for BWFS, a welding and fabricating company. BWFS’s contract with the staffing agency stated that the agency was agreeing to provide vessel fitters and helpers to BWFS on a temporary and temp-to-hire basis.

While working at BWFS, a colleague allegedly pushed a metal grating onto the vessel fitter’s hand, partially amputating one of his fingers.

The temp service paid out workers’ compensation benefits. The fitter then sued BWFS for negligence. The claim was dismissed based on the exclusive remedy provision.

In Texas, recovery of workers' compensation benefits is the exclusive remedy for a work-related injury of an employee covered by workers' compensation insurance. 

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Further, if a temporary employment service maintains workers' compensation insurance, the exclusive remedy provision applies to both the client of the service and the temporary employment service itself.

To prevail in defending itself, the court explained, BWFS needed to prove that, at the time of injury:

1) It was a client of the staffing company; 

2) The staffing company carried workers' compensation insurance; and 

3) The claimant was an employee covered by that policy.

Was vessel fitter limited to workers’ compensation benefits?

A. Yes. The temporary employment service carried workers’ compensation insurance.

B. No. There was no indication that the employment service controlled the work the fitter performed at BWFS.

If you selected A, you agreed with the court in Waeli v. BWFS Industries, LLC, No. 14-23-00620-CV (Tex. Ct. App. Div. 06/06/24), which held that the fitter could not sue BWFS for negligence.

Because the fitter was an employee of the employment service, was injured while working for the service’s client, and because the service had workers' compensation coverage, the exclusive-remedy provision applied to both the staffing service and the client.

The fitter essentially admitted to those elements, the court noted. “He stated that [the temporary employment service] hired him to do the job at BWFS; that he was injured while working at BWFS; and that workers' compensation benefits were tendered by [the service’s] insurance carrier,” the court wrote.

BWFS needed only to establish the above factors. The court rejected the fitter’s argument to prevail, BWFS had to show that it controlled and directed the employee’s work.

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