Can Employees Agree to Waive Workers Compensation In Texas ?

The Texas Workers' Compensation Act provides that "an agreement by an employee to waive the employee's right to compensation is void." See TEX. LAB. CODE ANN. 406.035 (Vernon 1996). The legislature enacted specific definitions for several of the words relevant to this statute. The Act defines "agreement" as "the resolution by the parties to a dispute under [the Act] of one or more issues regarding an injury, death, coverage, compensability, or compensation." See TEX. LAB. CODE ANN. 401.011(3) (Vernon Supp. 2000). "Compensation" is defined as "payment of a benefit." See id. 401.011(11). Further, "benefit" means "a medical benefit, an income benefit, a death benefit, or a burial benefit based on a compensable injury." See id. 401.011(5). A "compensable injury" is one that "arises out of and in the course and scope of employment for which compensation is payable under [the Act]." See id. 401.011(10). At least two Texas courts of appeals have addressed the applicability of section 406.035 to nonsubscribers of the Act. See Reyes v. Storage & Processors, Inc., 995 S.W.2d 722 (Tex. App.-San Antonio 1999, pet. denied); Martinez v. IBP, Inc., 961 S.W.2d 678 (Tex. App.-Amarillo 1998, pet. denied). Both courts held the legislature did not intend this section to apply to the employees of nonsubscribers. See Reyes, 995 S.W.2d at 726 (citing Martinez, 961 S.W.2d at 682); see also Brito v. Intex Aviation Svcs., Inc., 879 F. Supp. 650, 653-54 (N.D. Tex. 1995).