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employer did not have workmans comp ins when I was ijured on the job

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lindajane

Guest
I broke two bones in my foot at the facility where I work, my employer did not have workman's comp insurance at the time. They have since aquired workman's comp, but I did not go on workmans comp. My injury was six weeks ago, and I was terminated a few days ago. I am still injured, and I do not have insurance. I applied for disability, but I still have to pay for my insurance out of my own pocket. Do I have any recourse against my former employer for not putting me on workman's compensation insurance?
 


I AM ALWAYS LIABLE

Senior Member
<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote:</font><HR>Originally posted by lindajane:
I broke two bones in my foot at the facility where I work, my employer did not have workman's comp insurance at the time. They have since aquired workman's comp, but I did not go on workmans comp. My injury was six weeks ago, and I was terminated a few days ago. I am still injured, and I do not have insurance. I applied for disability, but I still have to pay for my insurance out of my own pocket. Do I have any recourse against my former employer for not putting me on workman's compensation insurance?<HR></BLOCKQUOTE>


My response:

You've got a great case. After you read this, make an appointment to see an attorney.

"Although the "conditions of compensation" apply (injury to "employee" within course and scope of employment), the claim may nonetheless be remediable in an action at law if it falls within one of the few recognized exceptions to the workers' comp "exclusive remedy" rule. Some of these are statutory exceptions explicitly preserving common law tort remedies; others involve claims that simply fall outside the workers' comp law:

(1) Employer uninsured: Employers may be sued for damages if they have failed to "secure the payment of compensation"--i.e., if the employer has neither workers' comp nor self-insurance coverage. [Ca Labor § 3706 (emphasis added); Strickland v. Foster (1985) 165 Cal.App.3d 114, 211 Cal.Rptr. 305; and see Campos Food Fair v. Super.Ct. (Rapoza) (1987) 193 Cal.App.3d 965, 238 Cal.Rptr. 685--employee suing under § 3706 has burden of proving employer's failure to carry workers' comp insurance]

(a) Burden shifts to employer: In a § 3706 action at law, the employee's injuries are presumed to result from the employer's negligence. Moreover, as in workers' comp proceedings, the employer is stripped of comparative negligence, assumption of the risk, and coemployee negligence defenses. [Ca Labor § 3708; Chakmakjian v. Lowe (1949) 33 Cal.2d 308, 201 P.2d 801; see Torres v. Reardon (1992) 3 Cal.App.4th 831, 837, 5 Cal.Rptr.2d 52, 55]

(b) Damages include attorney fees: Plaintiff is also entitled to collect reasonable attorney fees fixed by the court. [Ca Labor § 3709; see Cortez v. Bootsma (1994) 27 Cal.App.4th 935, 936-938, 33 Cal.Rptr.2d 20, 21-22--local rule restricting attorney fee award to amount agreed by plaintiff and attorney could not limit fees awardable under § 3709]

An employer's failure to secure workers' comp insurance is also punishable as a misdemeanor. [See Ca Labor § 3700.5]"

Good luck to you.

IAAL




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