What To Do When Your Workplace Injury Isn’t Covered by Workers’ Comp

Not every workplace carries traditional workers’ compensation coverage. However, this doesn’t mean you have no options. You still have rights. Depending on your jurisdiction and the situation, you may be able to file a personal injury lawsuit against your employer, a non-subscriber employer action, a third-party liability claim, or apply for state uninsured employer funds.

Contact an experienced workers’ compensation attorney for legal guidance to explore legal options.

What Happens When an On-the-Job Injury Isn’t Covered

When an injured worker cannot file a workers’ compensation claim, the impact is immediate. There are no automatic medical benefit payments, no guaranteed wage-replacement compensation, and the burden of proving fault or negligence if the worker chooses to file a lawsuit.

Filing a claim outside workers’ compensation under a negligence theory, for example, requires fault to be established. It is critically important to report the injury promptly and document everything early, including:

• Medical records and treatment history
• Proof of your average weekly wage (to help calculate lost income)
• Incident reports and witness information
• Medical reports
• Communications with the employer
• Photos or evidence from the scene

Alternative Legal Options

Several legal options may be available to pursue if workers’ compensation is not available to you.

Personal Injury Lawsuit

In some cases, it is possible to file a civil lawsuit directly against your employer if there is no workers’ compensation available for your case. In such cases, you would need to be able to prove fault. This means that you would need to come forward with evidence that the employer’s negligence caused or contributed to the injury.

These claims often require a detailed investigation and legal guidance. Such examples include:

• Unsafe working conditions
• Failure to train
• Ignored safety hazard

An advantage of filing a personal injury lawsuit against your employer is that workers’ compensation generally does not provide full wage replacement or compensation for non-economic harms, such as pain and suffering.

However, liability can become more complicated if the employer tries to defend against the claim by alleging, for example, that the injury involved horseplay or intoxication.

Non-Subscriber Employer Actions

A non-subscriber employer does not carry workers’ compensation insurance. Texas is the best-known example of a state that allows certain employers to opt out of the traditional workers’ compensation system, though the rules are highly state-specific.

Non-subscriber actions often allow the injured worker to pursue compensation directly from the employer. Depending on state law, workers may have advantages that are unavailable in ordinary workers’ compensation claims. It all depends on state law.

Third-Party Liability Claims

In some cases, a workplace injury may be caused by a third party rather than the employer. Common examples of third parties that could potentially be responsible include:

• Manufacturers of defective equipment or machinery
• Negligent contractors
• Property owners
• Drivers involved in work-related vehicle accidents

These claims can exist separately from any employer-based claim.

State Uninsured Employer Funds

If an employer fails to carry workers’ compensation insurance despite a legal requirement to do so, some states provide relief to help with a work-related injury.

Some states have funds or programs for workers who cannot receive workers’ compensation benefits because their employer failed to pay workers’ compensation insurance premiums properly. These programs typically cover medical bills and medical treatment, as well as some lost wages or income.

Disability Insurance Programs

In some states, temporary disability programs may help provide limited income support while other claims are pending. If your injury is a disability that completely prevents you from working, you may qualify for Social Security Disability benefits.

Key Differences in Compensation

Traditional workers’ compensation coverage differs from other forms of compensation in several ways. Traditional state-sponsored workers’ compensation generally offers medical care, partial wage replacement, disability benefits, and limited disputes over fault.

Alternative claims may allow recovery for:

• Full lost wages
• Future lost earning capacity
• Pain and suffering
• Emotional distress
• Loss of enjoyment of life
• Punitive damages

While alternatives to workers’ compensation may offer a broader set of damages, they are often harder to prove. They may take longer to resolve, since they can involve litigation.

Making a claim through the uninsured employer fund may offer more limited coverage, resembling workers’ compensation benefits rather than full personal injury damages. Workers’ compensation claims often follow a straightforward administrative process.

Speak With a Workers’ Comp Attorney

When you or a loved one is hurt in a workplace injury, the legal issues can become complicated quickly. In such cases, you can benefit from help from a workers’ compensation lawyer. They can identify all possible sources of compensation, investigate negligence and liability, handle deadlines and filings, and negotiate with employers, insurers, or third parties.

Certain circumstances make it especially helpful to get an attorney involved early:

• The employer says there is no workers’ compensation coverage.
• You are uncertain whether the employer is uninsured, a non-subscriber, or is misclassifying workers to avoid the workers’ compensation system.
• A third party may be involved.
• The injury is serious, long-term, or involves a permanent partial disability.
• The claim has been denied or delayed.

If you are experiencing any of these issues, contact an experienced attorney who can help. Visit the Super Lawyers directory to find a workers’ compensation lawyer in your area. They can help you develop your next steps forward in seeking compensation for your workplace injury.