In Pennsylvania, you cannot sue an employer for work-related injuries and instead have to file a claim against them through Workers’ Compensation. In some states, you can sue if they don’t have Workers’ Comp insurance, but how does this work in Pennsylvania?
Workers’ Comp does allow lawsuits against employers if they are uninsured, but only if they were at fault. A Workers’ Comp claim can still hold them liable for out-of-pocket coverage of your benefits, regardless of fault. However, there are public funds available if your employer cannot actually afford your benefits. In any case, lawsuits against third parties might also be available.
For a free case review, call our Certified Pennsylvania Workers’ Compensation Lawyers at Cardamone Law at (267) 651-7945.
Options for Filing a Claim if Your Employer Doesn’t Have Workers’ Comp Insurance
In Pennsylvania, employers are required to carry Workers’ Comp insurance so they can cover your injuries and benefits. If they fail to do so, these are your options:
Sue Them in Court
You usually cannot sue your employer if you suffer a work-related injury and instead have to file through Workers’ Comp. If an employer does not carry Workers’ Comp insurance, § 305(d) of the Workers’ Comp Act allows lawsuits to be filed against them directly.
This would not be available if the employer did not actually cause your injuries. Even if they did, they might not be able to afford damages without insurance.
File a Workers’ Comp Claim Anyway
Section 305(d) still allows you to proceed in a Workers’ Comp claim against your employer if they are uninsured; it just means they would pay the money out of pocket instead of having their insurance carrier cover your benefits.
This may be the best route to recovery if the accident was a pure accident or was your fault, since fault is not an element in Workers’ Comp. Again though, they might not be able to afford your damages, which is where the UEGF comes in.
Get Supplemental Coverage from the UEGF
If you file a claim against an uninsured employer, the Uninsured Employers Guaranty Fund (UEGF) provides supplemental payment to cover parts of the claim that your uninsured employer cannot cover.
Your Pennsylvania Workers’ Comp lawyers would file your Claim Petition against both your employer and the UEGF, and those parties would separately defend against the claim. There are special procedures for these claims.
File a Third-Party Lawsuit
Even though you cannot typically sue your employer, you can still sue third parties who might be responsible for your injuries. You can even do this after receiving Workers’ Comp benefits from your employer.
These third-party lawsuits can often pay higher damages than a Workers’ Comp claim against your employer, and if your employer cannot pay your Work Comp claim anyway, filing a third-party lawsuit on its own might be your best option.
Process of Filing a Claim with the UEGF
When you file a claim with the UEGF for a Workers’ Comp case involving an uninsured employer, there are a few procedural rules to take note of:
Notice Requirement
After you are informed that your employer doesn’t have Workers’ Comp insurance, you need to notify the UEGF of your claim within 45 days.
You also need to inform your employer about your injury within 21 days of the injury (120 at the latest), and they will typically tell you they are uninsured within 21 days of your initial notice.
Filing a Claim Petition
When you file a Claim Petition against your employer, you usually do so after they reject your claim and within 3 years of your injury. With the UEGF, you need to file after 21 days but before 180 days from your initial notice to the UEGF.
Approved Providers
When you get Workers’ Comp, your employer usually provides at least six options for care providers, and you must use providers from this list in the first 90 days of care. The UEGF similarly lists at least six providers you have to use in the first 90 days.
You can go away from this list if you need an unlisted specialist or want a second opinion on surgery, though you still have to use the approved surgeon from the list.
Penalties for Employers Who Fail to Carry Workers’ Comp Insurance
Pennsylvania law requires all employers who have even one employee who could be injured in Pennsylvania to carry Workers’ Comp insurance to cover injuries and required benefits. If they don’t, they face multiple potential penalties:
Criminal Penalties
Failing to carry Workers’ Comp insurance is a criminal offense for the employer.
- Misdemeanor: For each day they fail to have insurance, they can be convicted of a third-degree misdemeanor and face fines of $2,500 and up to a year in jail.
- Felony: If the failure is intentional, they can be convicted of a third-degree felony. Each day can result in $15,000 fines and up to 7 years in jail.
The judge can also order restitution.
Workers’ Comp Penalties
The Workers’ Comp Judge can also issue penalties for noncompliance during a case before them.
Stop Work Orders and Fines
Uninsured employers can be ordered to stop all work and to pay a $200 per day fine until they get insurance.
UEGF Reimbursement
If the UEGF makes payments to an injured worker through their claim, they can later go after the uninsured employee for reimbursement for all costs, penalties, interest, and expenses related to the claim.
FAQs for Workers’ Comp Against an Uninsured Employer
Can I Sue an Uninsured Employer?
If your employer doesn’t have Workers’ Comp, you can sue them instead of being required to go through Workers’ Comp. This can increase the damages they pay you, but only if you can prove they were at fault for the injuries.
Can My Employer Pay if They Are Uninsured?
If they are uninsured, they might not be able to afford your payments for Workers’ Comp. They will also face high fines and other penalties, which might hurt their ability to pay. We may be able to attach assets and property to the lawsuit, but even then, getting money from your employer might be difficult.
Can I Sue Third Parties?
Whether your employer is insured or not, you are also allowed to sue a third party who caused your work-related injuries. This is a separate claim from Workers’ Comp.
Does the Government Pay Instead?
The Uninsured Employers Guaranty Fund is operated by the government to pay for Workers’ Comp claims where the employer doesn’t have insurance. This fund is limited and provided by state funding, so it might be more challenging to get paid this way.
Call Our Workers’ Compensation Lawyers in Pennsylvania Today
For your free case evaluation, call Cardamone Law’s Philadelphia Workers’ Comp attorneys at (267) 651-7945.
