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We have no worker's comp insurance, and an employee was injured. Should we hire a lawyer? Settle out of court?

Orland Park, IL |

We own a small restaurant. One of our employees put his hand in our dough mixer, and his hand had bruising and major swelling, but no other real damage was done. There is a sign on the dough mixer that says "Do not put hands in mixer while it is operating", that he obviously ignored. He even admitted on Facebook that it was "completely his fault" and he "feels like an idiot". (We took a screenshot of this as proof.) We do not have workman's comp insurance, so that won't cover anything. What should we do? They are asking to settle for around $15,000. At that staggering amount, it could quite possibly put us out of business. Any help would be greatly appreciated!

Attorney Answers 5

Posted

I'd talk to a lawyer.
Even a brief consultation should reveal that this is a tough case for the employee to win if he didn't follow directions, but more importantly if he has no permanent damage. Likely, this would be deemed compensable by an arbitrator even with the these facts. That's just the way it is.

I would start by contacting firms that do respondent (defense) work for the major insurance companies, as I'm sure some of them take on uninsured clients now and then.

Work comp is based upon the permanency of the damage, the amount the employee earned, and body part injured and without any real permanent injury that figure sounds outrageous. Fault is not (usually) a factor under the law in this area as it is in negligence lawsuits but it can be used to show the employee was not doing the job the way he was supposed to be and therefore isn't covered. It's a stretch though, in my mind.

I hope this helps.

Stephen L. Hoffman
Law Office of Stephen L. Hoffman LLC
Chicago, IL
773-944-9737
Email: stephen@hofflawyer.com
Website: www.hofflawyer.com
Blog: www.hofflawyer.com/blog/

This answer posted on Avvo is for informational and educational purposes only. There is no attorney-client relationship created or formed and you should not rely on this as legal advice. The suggestion is made that if you wish to protect your rights, you consult with an attorney immediately.

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2 comments

Asker

Posted

Hi Stephen, Thank you for your input. His lawyer recently contacted us and said that our employee has 10% loss of use in his right (dominant) hand, and that this would cost us $3,600. The rest of the figure is apparently medical bills. This particular employee made $9/hour and worked 15-20 hours/week, and was able to come back to work within a few days of his injury. I asked my husband why we weren't carrying workman's comp insurance, and he said that when he first bought the restaurant, the insurance agent him said that we did not need it because we had no full-time employees. Can they be held liable for giving out this misinformation? If we knew that we were required by law to carry it, we would have carried it all along.

Stephen Laurence Hoffman

Stephen Laurence Hoffman

Posted

Highly unlikely you will prevail against the insurance agent, or that it would be cost-effective to do so, but contact a lawyer if you wish to look into it. At least talk to the agent about this and see if you can get some sort of credit for this and keep going up the line of the company until you get some response. This is probably something you should run by a WC lawyer before doing anything else. Ultimately, it will be one you will settle out of your own pocket but a good lawyer can find ways to reduce this and review the medical and bills to see what is proveable. Good luck. It's not a good situation but fortunately it's not that bad of an injury so you should be okay in the long run and in the future you'll have insurance.

Posted

Negligence of your worker does not come into play in his worker's compensation case. If he's on the job and is injured from what you've related, he's going to have a viable work comp case. Hard to say what his case is worth without seeing his medical records and knowing his pay rate, but IF only brusing and swelling of a hand, hard to picture a $15,000 case. IF is the operative word here.

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Posted

Worker's Compensation does not consider the fault of the injured worker. So long as the worker was performing work which benefited the employer at the time of his injury, it will be found to be compensable. You are best advised to hire experienced Worker's Compensation defense counsel to make your injured employee prove up his damages. I would be more than happy to make a recommendation in this regard without fee or obligation of any kind.

If this information has been helpful, please indicate by clicking the up icon. Legal Disclaimer: Mr. Candiano is licensed to practice law in Illinois and Indiana. The response herein is not legal advice and does not create an attorney/client relationship. The response is in the form of legal education and is intended to provide general information about the matter within the question. Links: ccandiano@themargolisfirm.com http://www.themargolisfirm.com

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Posted

If your business is required by law to be insured for workers' comp injuries, and it is not, you may have bigger legal problems than the injury. Here in NC our Commission is putting uninsured employers in jail for contempt when they don't promptly pay claims out of pocket.

You need to consult with a workers' comp defense lawyer about your rights and obligations. You may end up owing thousands of dollars in fines in addition to whatever you have to pay out of pocket to take care of this injured worker.

You need to be proactive on this to minimize the ultimate expense of the claim to you. And if you are required by law to be insured, then go buy a policy asap.

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Posted

I would definitely speak to either a work comp defense attorney or an attorney who represents small businesses. It is a Class 4 felony to not have workers compensation insurance. In addition the Illinois Workers' Compensation Commission has a fraud unit that investigates businesses that don't have insurance and fines them. Finally a provision of the work comp law allows civil lawsuits to be filed against employers that don't have insurance. If you do end up working out a settlement you will want it done in a way that protects you as much as possible.

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