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

Asked about 2 years ago - 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)

  1. Steven Charles Giacoletto

    Pro

    Contributor Level 11

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    Lawyers agree

    Answered . 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.

  2. Gregory E. Tuite

    Pro

    Contributor Level 4

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    Answered . 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.

  3. Stephen Laurence Hoffman

    Pro

    Contributor Level 20

    3

    Lawyers agree

    Answered . 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/

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  4. Charles Joseph Michael Candiano

    Pro

    Contributor Level 20

    3

    Lawyers agree

    Answered . 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.

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  5. Bobby L. Bollinger Jr.

    Pro

    Contributor Level 16

    2

    Lawyers agree

    Answered . 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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