Injured at Work and There is No Worker’s Compensation Insurance?
Massachusetts law requires that all employers have workers’ compensation insurance. The worker’s compensation program works differently from liability law in that there is a state agency that administers the program and the remedy is proscribed: essentially, you get 60% of your lost earning plus monies based on a formula for other losses. There are no large verdicts, no monies for pain and suffering, and no monies for lost opportunity or consortium.
Worker’s Comp Trust Fund
What if your employer did not have insurance? Unfortunately, some companies, usually small companies, violate the law and neglect to purchase worker’s compensation insurance. If you are injured and you learn that your company is one of those companies, you can still file a claim with the Department of Industrial Accidents and proceed with your claim against the Workers Compensation Trust Fund. The law works the same; however, the opposing attorney works for the state controlled Trust Fund, and not an insurance company. The mechanics are complicated and we recommend you retain an experienced worker’s compensation attorney.
Worker’s Compensation Against General Contractor
Many times when a subcontractor does not have worker’s compensation insurance, you may proceed with a worker’s compensation claim against the general contractor. While that company is not your “employer” there is usually an agreement by the general contractor with the owner of the property that the general will cover worker’s compensation in that event. Again, the mechanics of filing such a claim are complicated, because usually the general will deny coverage and you must also bring in the Trust Fund.
Why is it important to get an experienced attorney? For many reasons, including that in the event you “lump sum” a settlement, you want the future earnings, section 28 to be capped so that the lien against any third party settlement is reduced.
Civil Action against Employer Who Carried No Worker’s Compensation Insurance
In the event your employer did not have worker’s compensation insurance, you have a civil case against him or her in court. You will need to prove the employee employer relationship (which is often hard if there were cash payments or if there is an argument regarding your being an independent contractor and not an employee), that you were injured (remember, defense attorneys find old injuries and their own doctors), and that your injury arose out of the employment.
The good news is that with a regular civil court case, you can seek monies for pain and suffering. Further, the employer loses many defenses because of his or her failure to have insurance. The bad news is, as a practical matter, employers with no insurance often have no assets. Thus, if you win, you will have a big judgment with no assets to go after.
Third Party Liability for Work Injuries
Our office represents folks who have been injured at work as a result of third parties negligence. In the construction site setting, this is generally the general contractor who has failed to provide adequate safety measures. In motor vehicle cases, this is generally a client who is injured while driving for work as a result of another driver’s negligence. There are, of course, many ways employees can get injured.
In the event you are injured at work, you should immediately seek the help of an experienced personal injury attorney. There will be several insurance companies all ready to block your interests. An experienced attorney will investigate and put your case in the best position to get you fully compensated.