§ 95.004.Evidence Admissible

An offset provision, and the procedure it prescribes is as notable as the deduction.

In the trial of a case against a contractor, subcontractor, or property owner for injury to a contractor, subcontractor, or their employee arising from the condition or use of an improvement being worked on, the trial judge, outside the presence of the jury, shall receive evidence of workers' compensation benefits paid and shall deduct the amount of the benefits from the damages awarded.

The jury never hears it. Evidence that the claimant has already been paid would invite a reduced award, and the deduction would then happen twice. Keeping it from the jury and applying it afterwards produces the right figure once.

The deduction is mandatory — the judge shall receive the evidence and shall deduct.

The condition is the important qualification: the deduction does not apply unless the workers' compensation carrier's subrogation rights have been waived.

That is what prevents the offset becoming a windfall. A compensation carrier that paid benefits ordinarily has a subrogation right to recover them from the third-party recovery. If it still holds that right, the claimant will repay the benefits out of the judgment — and deducting them as well would take the same money twice.

The deduction applies only where the carrier has given up the right to be repaid, so the claimant keeps the benefits and the defendant does not pay for them again.