Overview of Texas Work Injury Arbitration and Binding Arbitration Agreements Used by Non-Subscribing Employers

In this article we'll look at what the process of arbitration is and how the process takes place in a Texas non-subscribers work injury case.

Questions Answered on This Page:

• What is arbitration?
• Does my Texas work injury case have to go through arbitration?
• Does Texas permit pre-employment binding arbitration agreements?
• What are common obstacles faced in Texas non-subscriber work injury arbitration?

What is Binding Arbitration?

Arbitration is part of the legal system that resolves disputes outside of the courtroom; think of it as a privatized pseudo-trial as opposed to conventional court. Arbitration hearings are usually held at the arbitrator's office.

Unlike a trial, arbitration does not have a judge or jury, instead it consists of attorneys that represent your employer, you, and an arbitrator, who is another attorney or a former judge that is paid by your employer. The arbitrator functions as the so-called judge and jury, in this instance, that will hear the issues of your case and render a final judgment.

"Binding arbitration" refers to a process where the decision rendered by the arbitrator is binding on both parties and final. Many companies won't hire you unless you agree to sign such an agreement. By signing this arbitration agreement, you, as the employee, voluntarily waived your rights to a jury trial and are now forced into arbitration if you are injured in a work-related accident. This is known as a pre-employment binding arbitration agreement.

The problem with pre-employment binding arbitration is that it undermines how the Texas Workers' Compensation Act was designed to function. The act was meant to give employers the choice of opting into the system and receiving immunity from negligence lawsuits, or opting out an facing the possibility of lawsuits. With pre-employment binding arbitration, employers avoid the cost of paying for workers' comp insurance, while avoiding the possibility of having a lawsuit decided in a courtroom.

The main thing that you must take into consideration is that binding arbitration affords a lot of protection for employers. By waiving their right to a jury trial and participating in arbitration, an injured workers has essentially agreed to resolve their case in a setting where their employer pays the entity hosting and presiding over the matter; the arbitrator.

Obstacles to Arbitration in a Texas Non-Subscribers Work Injury Case

The main protection a worker has in the arbitration system is that their are a list of arbitrators, usually provided by an arbitration company for the two parties to choose from. Both parties have to agree on the arbitrator. These seems more fair than it actually is. Since it is the employer who hires the arbitration company, they also have the power to fire the arbitration company if things do not go their way. While it may not affect a particular case and the arbitrator is free to rule as they please (within the laws governing the dispute), too many rulings against the employer could result in the arbitration company being fired, or at the very least, the arbitrator who rules in favor of the employee being fired by the arbitration company.

Since companies are in business to get more business, and arbitrators do their jobs in order to arbitrate more cases, they are more likely to be sympathetic a large company, which will almost certainly need arbitration services in the future, compared to an injured worker who will likely never hire an arbitrator again.

Additionally, even though the normal rules of evidence and of civil procedure are supposed to be incorporated into arbitration, all issues that are discretionary or open to interpretation will likely be decided in favor of the defendant. In other words, in a normal trial not every situation is black and white and sometimes a judge must make a judgment call, sometimes favoring you and sometimes favoring your employer. In arbitration, it is very likely that most gray-area decisions will be decided in favor of your employer. For instance, in a trial case if it can be shown that your employer tampered with evidence the judge may be inclined to punish the employer and award you a default win, an arbitrator would likely let their infraction go unpunished or temper any sanctions imposed.

Of equal importance is that their is really no mechanism to ensure that arbitrators actually apply the law fairly. In the civil court system, if a judge applies the law incorrectly, the incorrect decision can be overturned on appeal. Given the deference that courts show to arbitration decisions, while they can technically be appealed to a real court, the likelihood that a court will overrule and arbitrator is statistically, slightly more than zero.

One other issue with arbitration is that, generally speaking, non-economic damages are not compensated to the same degree that they would have been by a jury. Pain and suffering, disfigurement, loss of consortium, are all non-economic damages. In civil cases, juries usually spend a significant amount of time trying to assign a dollar value to these hard to quantify damages. In arbitration cases, arbitrators generally spend less time considering these damages and end up awarding less money for them.

Overcoming the Obstacles to Binding Arbitration

While arbitration is not an ideal setting for an employee to pursue their Texas non-subscriber work injury case, it does not mean that an injured worker should despair and give up hope of recovering. The key to getting the most compensation possible in arbitration is to have an experienced, effective work injury attorney on your side.

An experienced attorney knows the rules of evidence and procedure that an arbitrator is supposed to follow and can hold their feet to the fire if they attempt to take short-cuts. Perhaps most crucial for an injured worker, an experienced attorney will have far more knowledge about the panel of potential arbitrators than someone who is not in the legal community. This knowledge is crucial to ensuring that an arbitration hearing is heard before an arbitrator who will treat both sides fairly. Sadly, without representation many workers end up letting their employer choose the arbitrator. That would be like letting the employer pick the judge and jury in a civil case.

One question that every injured worker should ask an attorney before hiring them is, "How many times have you argued a case before an arbitrator?" Experience with the arbitration process is invaluable to an injured workers' case. As we have noted, arbitration is not a courtroom and has many pitfalls that a work injury attorney has to be aware of. Inexperienced attorneys can often find arbitration to be a frustrating experience and this frustration can harm an injured worker's case.

The good news is that arbitrators are dependent upon plaintiff's lawyers thinking that they are at least reasonably fair. What this means is that even though your employer, the defendant that you are suing, is paying the arbitrator and even though the arbitrator is certainly biased to some extent, your attorney has the right to choose an arbitrator that is perceived as being the most fair from the available selection of arbitrators. This means that arbitrators who wish to stay in business have to act fairly.

The most important decision made in your work injury arbitration is choosing the right arbitrator, and only an experienced law firm who has arbitrated numerous work injury cases will be able to help you with that decision.

Give Grossman Law Offices a Call:

Unlike jury trials that have multiple opportunities to appeal a bad decision, you only have one opportunity in arbitration. At Grossman Law Offices, our attorneys will work diligently to help you prove that you have a valid claim. Our experienced non-subscriber work injury attorneys go above and beyond to convince the arbitrator that your employer was responsible for your injuries and that they have a history of negligent behavior. Most importantly, our contacts among some of the best expert witnesses in Texas means that all damages, including non-economic damages will be rooted in a strong, independent foundation, generally leading to a better chance of receiving compensation.

Call Grossman Law Offices today at (855) 326-0000 to receive a free consultation. We pick up the phone 24/7.

Other articles about non-subscriber work injuries that may be helpful:

• Insurance Is Not the Same as Workers' Compensation
• Texas Non-Subscriber Laws and Court Decisions
• Employers Often Lie About the Kind of Work Injury Coverage They Have