Injured at Work and Employer Has No Workers’ Compensation Insurance? Rights and Penalties

Getting fair compensation is still possible if you suffer a work injury and your employer doesn’t have workers’ comp insurance. Learn your rights and your employer’s obligations.

Most American states require employers to provide their employees with workers’ compensation coverage.

Workers’ compensation insurance helps compensate employees when they get injured on the job. This includes money for medical expenses and lost wages.

However, some employers fail to invest in workers’ comp insurance, either because they were uninformed about the law or willfully tried to evade it. Non-compliant employers can be fined for labor code violations or receive criminal punishment for failing to maintain an appropriate workers’ compensation insurance policy.

If you suffered an injury while working for an employer who doesn’t carry worker’s comp, you could still pursue compensation for your injuries. You can often do so by filing a personal injury claim with your employer’s insurer or by filing a lawsuit against your employer.

If successful, you can receive payment for your medical expenses, lost wages, pain and suffering, and more. Depending on your state’s laws, you might also receive benefits under an Uninsured Employers’ Fund.

Don’t let an employer’s carelessness take away from the compensation you deserve. Learn your rights and protect your interests.

What to Do After a Work Injury Without Worker’s Comp

If you’ve suffered a workplace injury, report the incident to your employer and get prompt medical treatment.

Even if you believe you weren’t seriously hurt, you should consult with your primary care physician or a doctor at an urgent care center. People can develop serious medical issues even with few or no immediate symptoms.

It’s important to get medical care and treatment following a work accident for two reasons. The first is that it helps protect your health and wellness.

The second reason is that receiving medical care will generate medical records. These records will establish the date of injury and link your injury to the workplace. Medical records are important evidence that you were injured on the job or in the performance of your work duties.

It’s important to link your injury to the workplace because this will help protect any future claim against your employer. As we discuss below, you may prove successful in filing an injury claim or lawsuit against your employer when they fail to have workers’ compensation coverage.

Paying For Your Medical Care Outside of Workers’ Compensation

When an employee is injured on the job and their employer has workers’ comp insurance, then the injured employee can expect worker’s comp to pay for their medical expenses. Coverage for injury-related medical expenses is one important benefit of a workers’ compensation claim.

If an employer fails to provide workers’ comp, workers will have to look to other sources to help pay for medical bills and expenses.

Using Your Personal Health Insurance

Even if your employer doesn’t carry worker’s comp, you may have private healthcare insurance through your employer. Alternately, a worker may have an insurance plan through a private health insurance company, the Healthcare.gov marketplace, or other sources like Medicare or Medicaid.

If you have health insurance, you can use it to cover expenses for your job injury, just as you would for any non-work related injury or illness.

Uninsured Employers’ Funds for Work Injuries

Many states have Uninsured Employer’s Funds set aside specifically for people who get hurt on the job while working for an illegally uninsured employer. The funds provide financial assistance to the injured worker for medical expenses and lost wages.

You can contact your state’s workers’ compensation office to learn more about whether your state offers an Uninsured Employers’ Fund and how to file a claim.

A few states also offer temporary disability benefits programs. These programs can provide uninsured workers with short-term benefits while they are out of work because of their injuries. Again, you can contact your state’s workers’ comp office to determine if your state offers this program.

Pursuing Compensation From an Uninsured Employer

If your employer doesn’t carry workers’ comp insurance, you can still seek compensation from them for a work injury. The reason why an employer doesn’t have worker’s comp in place will often determine the best approach for pursuing payment for your work accident.

Employer Not Required to Carry Workers’ Comp Coverage

There are certain types of employers or businesses that are not required by law to provide workers’ compensation insurance. An example is a sole proprietorship. In some states, employers with less than five employees are also not obligated to provide workers’ comp coverage.

Further, most state laws say that certain employees are ineligible to receive workers’ comp benefits.

Employees ineligible for workers’ comp include:

If a business employs one of these workers, it’s not required to carry workers’ comp coverage.

Usually, employers who aren’t required to carry worker’s comp will still have business liability insurance. This covers situations where people are injured on their property or injured when using their property.

A worker can file an injury claim with the employer’s liability insurance company. A premises liability claim will be handled just as though the worker is a non-employee injured on the property.

Alternately, if the business is not protected by liability insurance, you can sue your employer personally. Your workers’ compensation lawyer can discover if your employer has personal assets worth pursuing.

Employer Illegally Fails to Carry Insurance

Almost every state requires employers to carry workers’ compensation insurance.

If they fail to do so, they violate the law, and injured workers can file a civil lawsuit against them. This is true no matter if the employer willfully chooses not to carry workers’ compensation insurance or fails to carry it because they’re unaware of the law.

Most workers’ comp laws include provisions that say injured workers can’t sue their employers for job-related injuries. However, without a worker’s compensation insurance policy in place, this particular provision doesn’t apply.

Proving Negligence and Work-Relatedness

While you don’t have to prove fault for a worker’s comp claim, when filing a personal injury claim or lawsuit you’ll need to prove your injuries were caused by the employer’s negligence.

Negligence means that an employer or business didn’t act reasonably under the situation. Negligence can also mean that an employer was aware of some dangerous risk to its employees, but failed to correct it.

Helpful evidence to establish negligence includes:

  • Pictures of your injury and the accident scene
  • Statements from people that saw your injury
  • Medical records
  • Surveillance video
  • Your written narrative of the accident

In the case of a company failing to properly carry workers’ comp coverage, courts typically presume that the employer is negligent.

In addition to negligence, you’d have to provide evidence that you suffered a work-related accident.

According to the Occupational Safety and Health Administration (OSHA), an injury or illness is work-related if an event or exposure at work caused or contributed to the injury or illness, or significantly aggravated a pre-existing injury or illness.

Injury Claims and Lawsuits vs. Workers’ Comp Claims

There are a few pros and cons associated with an injured employee suing an uninsured employer (filing a liability claim) versus filing a workers’ comp claim.

The major advantage of a personal injury claim or lawsuit is that you can be compensated for damages that aren’t covered by worker’s compensation insurance.

Workers’ compensation will pay a worker for:

  • Medical expenses
  • Wage replacement (usually two-thirds of a worker’s average wages)
  • Permanent disability
  • Vocational training

In a personal injury claim or lawsuit, you can seek compensation for:

  • Medical bills and expenses
  • Lost wages (full amount)
  • Future lost earning capacity
  • Any property that was damaged in your accident
  • Out-of-pocket expenses
  • Pain and suffering

The downside of filing an injury claim is that it takes more time to receive compensation compared to filing a workers’ comp claim. Sometimes it can take months or even years for parties to resolve a case in court or with an insurance company. With a workers’ comp claim, claimants usually receive their benefits in a matter of weeks.

Further, unlike an official lawsuit, an employee doesn’t have to show negligence in filing a workers’ comp claim. Workers’ compensation benefits are considered “no-fault” benefits. An employee doesn’t have to prove anyone was to blame for an accident to receive compensation.

Employee Rights and Employer Penalties

Every state’s workers’ compensation laws are a bit different. Specific rights afforded to employees will differ from state to state.

Most employees enjoy the following rights:

  • The right to visit a doctor and seek medical care following an injury
  • The right to file a workers’ compensation claim with their employer free from discrimination or retaliation
  • The right to return to their job after their injury (if the employer holds open the job)
  • The right to receive some type of disability compensation if they can’t immediately return to work

Workers have the right to say “no” to their employers if they try to dissuade them from filing a workers’ comp claim or persuade them to file a claim under their personal health insurance policy.

Penalties for Uninsured Employers

Employers will face certain penalties if they fail to carry workers’ compensation insurance when legally required to do so.

While penalties can range from fines to jail time, the specific penalties will depend on state workers’ comp laws and whether or not an employer willfully failed to carry insurance.

For example, California law makes it a misdemeanor offense for an employer to fail to carry workers’ compensation insurance. An employer violating the law could face a maximum fine of $10,000, custody in jail for up to one year, or both.

Under Illinois’ Workers’ Compensation Act, it is also a misdemeanor offense if an employer doesn’t carry workers’ comp insurance. The employer could face a fine of $500 for every day of non-compliance with a minimum fine of $10,000. If the employer willfully failed to carry appropriate coverage, they could face felony charges with more severe fines and penalties.

In addition to the above penalties, an employer would still have to compensate an injured employee for a work injury if the employee successfully filed a personal injury lawsuit against it.

State workers’ compensation laws are usually enforced by business regulatory agencies, government departments, and local authorities.

Third-Party Injury Claims for Workers

Sometimes a worker is injured on the job by another person that is not associated with their employment.

Consider, for example, an employee driving for a work-related errand who gets hit and injured by another motorist. The other motorist is considered a third party to the injury.

Similarly, an at-fault third party could be the manufacturer of defective workplace machinery that caused an employee’s injuries.

If the third party caused or contributed to the accident, the worker could file a personal injury lawsuit against the third party.

As with any civil lawsuit or injury claim, to receive compensation you’d have to show that the third party was negligent in causing your injuries. If you succeed, you could receive compensation for all your damages.

Workers’ Compensation Attorneys Can Help

A workers’ compensation case can become complex when it turns out the employer failed to provide workers’ comp insurance, or a third party caused your work injury.

You won’t need a workers’ compensation lawyer if you’re willing to let your health insurance cover your medical bills for a minor injury and call it a day. However, if you want to get full and fair compensation for significant workplace injuries, you’ll need expert legal advice and support.

Most attorneys provide free consultations. There’s no obligation and no cost to explore your legal options.

Dustin Reichard, Esq. is an experienced attorney with 20 years of work in the legal field. He’s admitted to the Illinois State Bar and the Washington State Bar. Dustin has worked in the areas of medical malpractice, wrongful death, product liability, slip and falls, and general liability. Dustin began his legal career as a JAG... Read More >>