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Colvin, Saenz, Rodriguez & Kennamer, L.L.P.
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Viability of a Post-Injury Waiver as a Defense to a Tort Claim


One of your employees claims they were injured while at the workplace. Immediately, your mind is likely inundated with thoughts of liability, insurance, and litigation. But what if the employee signs a waiver of liability, post-injury? Is this considered a valid, enforceable waiver under Texas law? The answer is – quite possibly. 

The Case of the Injured Nurse

In Gunn v. Baptist/St. Anthony’s Health Network, No. 07–11–00245–CV (Tex. App.-Amarillo 2013), a nurse who worked at the hospital claimed to have suffered neck and shoulder injuries while on duty. For two years, she was reimbursed for her medical expenses and wage benefits by her employer. However, after two years had elapsed, the employer informed the nurse that she could not remain on the company payroll due to her alleged physical deterioration.

The nurse filed a tort claim against her employer alleging they were negligent. The employer filed a motion for summary judgment claiming the nurse waived her right to file such a lawsuit. The District Court agreed, as did the Texas Court of Appeals. 

Standard for an Enforceable Post-Injury Waiver

The Court of Appeals determined that if an employer is found to be complaint the Texas Labor Code’s provisions concerning post-injury waiver, it can be enforced in court. The Labor Code states that a post-injury waiver is valid when:

  1. The waiver is agreed to voluntarily by the employee with full knowledge of the implications and ramifications of the waiver;
  2. More than ten days have passed since the employee reported the injury;
  3. Medical treatment was provided to the employee by a doctor prior to the employee signing the waiver; and
  4. The waiver was deemed obvious and clearly explained.

The nurse in Gunn argued that she did not sign the document voluntarily knowing the ramifications of agreeing to the waiver and that the waiver was not clearly explained.

The Court did not find her arguments to be persuasive and found in favor of the employer. The Court reasoned that the paragraph explaining the waiver was written in all capital letters in a type that is larger than other provisions in the agreement. The employer also provided a copy of the waiver signed by the nurse and offered evidence to substantiate that her signature was voluntarily provided. 

How This Affects You  

The Gunn decision highlights the importance of maintaining a record of all interactions and communications with an employee claiming bodily injury. When an employee signs a waiver document, make sure they are dated and signed appropriately. Also, take the time to clearly explain what the waiver is and what it means. Finally, make sure the waiver is unambiguous, easy to locate within an agreement, and in large font. 

Schedule a Meeting with a Civil Defense Lawyer in Brownsville Today

If you have questions about the enforceability of a post-injury waiver, take the time to schedule a meeting with the Brownsville civil defense lawyers of Colvin, Saenz, Rodriguez & Kennamer, L.L.P. Contact our office today.

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