Being injured at work may be the second-worst thing that happens to you. The worst thing is finding out that your employer does not have workers’ compensation insurance, and you may not have medical coverage. What options do you have if your employer does not have or is not required to carry workers’ compensation? What can you do to protect yourself?
Requirements for Workers’ Compensation Insurance
Not every state requires employers to carry workers’ compensation insurance. While Louisiana, for example. requires every employer, even those with only one employee, to have workers’ compensation, other states may only require workers’ compensation for employers with a certain number of employees, such as 50 or 100 workers.
One state, Texas, allows employers to opt out of the state workers’ compensation system altogether and provide their own workplace insurance coverage. The employer must offer comparable injury coverage and wage benefits to those offered by the state.
Whether the state or the employer provides the coverage, workers’ compensation insurance affords the worker full payment of medical care in cases of on-the-job injury or illness. It also provides at least partial wage replacement, coverage for disabilities, and death benefits to survivors.
Workers’ compensation is considered no-fault insurance. That is, there is no determination of who was at fault in the cause of the accident that led to the injury or illness. The worker waives all right to sue the employer for any responsibility it may have for causing or failing to prevent the hazard.
When the Employer Has No Coverage
Small businesses with few employees may be unable to afford workers’ compensation insurance, even if the state requires it. Some states, such as California, provide a state trust fund to help injured employees pay for their medical costs.
Whether you have this option or not, you will need to sue your employer to obtain medical coverage if your employer does not have workers’ compensation insurance. For instance, in Texas, an employer may opt out of the state workers’ compensation plan but fail to provide an alternative workplace insurance plan. In that case, an injured worker would have to sue the employer for their costs.
Who Must Prove the Case
If you need to take your employer to court, you should contact a legal professional immediately. Each state has its own requirements for filing workers’ compensation lawsuits against employers, and they are particular about who must prove fault and liability. For instance, California presumes the employer is at fault in a civil suit where they have no insurance; Louisiana courts will ask you to prove the employer was negligent. Other states may have different presumptions for their courts.
Every state has a department that handles workers’ compensation. It may be the state’s Department of Labor or the workforce commission office. When you have an attorney, their office will be able to contact the correct agency to start the legal process for you.
Proving Your Case
Making a case against your employer for a workplace injury without workers’ compensation is essentially the same as any negligence case in most states. You will need to prove the elements of negligence, and you will also have to show that your employer failed to provide insurance as required by law.
Elements of Employer Negligence
To prove your employer was responsible for your injury and should have to pay for your medical bills, you and your attorney will need to establish that:
- Your injuries are due to an intentional act or failure to act on the part of the employer. These are the elements of duty and breach in a civil negligence case. Your employer has a duty to provide a safe workplace and either deliberately failed to do so or did not do things that would have kept it safe.
- Part of the duty and breach portion of the lawsuit must show that your employer was required to have workers’ compensation insurance and did not have it at the time of your injury.
- The conditions at your workplace must have been the actual cause of your injury or illness. For instance, if you were injured by a delivery truck that ran over you in the company driveway, workers’ compensation would not have covered your injuries, so your employer would not be liable.
- You must have suffered an injury. You cannot sue your employer for failure to carry workers’ compensation insurance before you suffer an injury.
- Finally, you must have incurred costs due to your injury. This means you cannot have had your own private insurance cover the costs or suffered an injury that did not cost anything or keep you away from work.
You should also keep in mind that the purpose of workers’ compensation is to avoid questions of fault or blame. If you are partially at fault for the accident, this will not matter in a workers’ compensation case, but it might be in a personal injury case. Be sure to discuss all facts in the case with your attorney before deciding whether to file a civil suit.
If You’re Not Sure You Have a Case
If you’re unsure if you have a case or want to discuss the facts before hiring an attorney, you should contact the agency that manages workers’ compensation in your state. Most states have a workers’ compensation office, either through its Department of Labor or Division of Workers’ Compensation, that can assist you in reviewing your case and refer you to legal aid.
Most personal injury and workers’ compensation attorneys offer free initial consultations to review your situation and will let you know if you should pursue a civil claim against your employer. If you have a third-party or product liability claim, these attorneys will advise you of your best course of action.
Wherever you live and work, your employer should advise you of your right to workers’ compensation insurance. Take the time to learn your workers’ compensation rights, and if they are not readily available, ask your manager or HR department for a copy. You will be glad you did should you need them.
