What If My Employer Doesn't Have Workers' Comp Insurance?

Let’s say that you work for a small company and get hurt on the job. You report the injury to your supervisor, manager, or whoever — let’s not get caught up in the precise vocabulary — and then the situation becomes strange. No one asks you to fill out an accident report, and when you ask about an insurance claim the people in charge seem to procrastinate. Or they tell you not to worry about it. Maybe the owner of the company approaches you and says he or she will pay your medical bills out of pocket. You start to miss shifts at work, and the owner pays you cash for lost wages and continues to decline to file an insurance claim.

At this point you may (reasonably) suspect that your employer is trying to avoid a future increase in its workers’ comp insurance bills, and you really need medical care and can’t afford to keep missing work. So you reach out to the Workers’ Compensation Board, a local attorney, or someone else who knows this area of law. This person does some research and makes some phone calls and calls you with bad news: your employer had no workers’ compensation policy to cover you.

I talk to injured workers in this predicament from time to time, and they’re understandably angry with the boss who had led them to believe the business’s affairs were being handled professionally. Insurance is a cost of doing business, and a business that can’t afford workers’ comp insurance can’t afford to have employees. All of the injured workers who are in this predicament that I’ve advised about their rights have suffered serious injuries, and some were gruesome (to be blunt). 

There are different avenues to a few kinds of compensation when an employer has dropped the ball like this. The injured worker can sue the employer for pain and suffering damages because the business no longer benefits from the exclusive remedy and immunity provisions that prevent tort (personal injury) suits against employers that have workers’ comp coverage. And the worker can bring a workers’ compensation proceeding, too, which involves departures from some of the normal procedural mechanisms and substantive law that govern a typical workers’ comp case. These cases can get complicated quickly, though, and I wouldn’t recommend that anyone pursue either remedy without a lawyer who knows the relevant area of law.