Injured Workers Can Be Compensated Even If Employer Is Not Insured
What do you do if you have been hurt at work and your employer tells you that they do not have workers’ compensation insurance? The employer might be telling you that you can’t have a claim because they don’t have the insurance. Your employer might be telling you that you never were an employee and they considered you to be an independent contractor. The truth is, your employer may not be accurately representing the law or providing you with a clear set of options that may be available to you. Sometimes this is because of ignorance on the part of the employer. Often it is the employer’s attempt to avoid workers’ compensation related claims. So, what does happen if your employer takes that position?
You can still have a claim. If your employer does not carry workers’ compensation
insurance they may be considered a “non-complying” employer and you may have
access to funds to help you with your injury. “Non-complying” means that the employer is not following the legal requirement set out for every employer in Oregon to provide their employees workers’ compensation coverage. Every employer must
purchase workers’ compensation insurance in Oregon, the law is simple and clear
on this requirement. If you want some more information about that please click here. or the following link: http://www.oregonlaws.org/ors/656.023.
However, not every worker is considered a “subject worker”. This means that not every job, employment or position requires the employer to purchase workers’ compensation insurance under Oregon laws. Newspaper carriers, landscape maintenance workers and house cleaners are examples of workers who may not be considered subject workers (All of these may still be covered if they are employed with a company rather than working each job under separate contract). Where the employment is casual or of a very limited duration the employee might not be considered a “subject worker”. Determining the status of the employee in this environment is not always obvious and often will require analysis of circumstances. You will only know for sure if you are a subject employee by consulting with an attorney familiar with Oregon Workers’ Compensation laws.
When you file your claim it will set in motion a series of events. The primary act will be an investigation by the Workers’ Compensation Division. The Division will ultimately decide if your employer is a non-complying employer and whether you are a subject worker. It is important to note the Division’s decision is not final, it can be appealed to the Workers’ Compensation Board for a ruling from a judge.
If after its investigation is concluded, the worker’s comp Division decides that your claim must be covered then you will be compensated. The claim will be paid out of the Workers’ Benefit Fund and administered on behalf of the State by a company called Sedgwick. Keep in mind that you and I and most Oregonians have personally paid into the Workers’ Benefit Fund with each paycheck we have earned in Oregon!
The Workers’ Compensation Division wields powerful tools to protect the Workers’ Benefit Fund. If your claim is paid out of the fund they will attempt to recover all of the money from the employer. This is not a freebie for the Employer. The non-complying employer doesn’t gain immunity from personal injury lawsuits for their negligent actions. This fact is critical as it is one of the greatest benefits the workers’ compensation benefits enjoyed by all compliant employers. Additionally, the non-complying employer loses traditional defenses to a lawsuit for negligence such as the defense that the injured workers’ negligence contributed to the accident. Oregon law establishes serious consequences for employers who do not protect their employees by purchasing Workers’ Comp insurance.
If you need help with a non-complying employer workers’ compensation case contact me for a free consultation.
