I got hurt at work, but my employer says that he did not carry any Workers Compensation Insurance at the time of my injury. Am I out of luck?

Answer: All employers in Virginia with three or more employees are required to carry Workers Compensation Insurance. What we oftentimes see, especially in these difficult economic times, are employers having to let their workers compensation insurance lapse due to lack of funds, or simply trying to fly “under the radar” by not carrying comp insurance. Most often, we see this with small construction subcontractors. The good news is this:

If you worked for a subcontractor who had 3 more more employees, who was on a job which had a general contractor, or he was hired by another subcontractor, you may be able to go “up the chain” and gain access to the workers compensation coverage provided by the general contractor, or subcontractor who hired your employer. It all depends on whether or not those general contractors took the necessary steps to verify whether your employer did, in fact, carry workers compensation insurance at the time your employer was hired for the job.

And further, as mentioned above, in Virginia, there is something known as the Uninsured Employer’s Fund (UEF), which was set up to cover workers who were injured while employed by companies that should have had workers comp insurance, but failed to carry it. In such a case, the Virginia Attorney General’s Office will take over the case. Typically, the Attorney General’s office is required to take the matter to hearing, but if you clearly prove your case, they generally will not Appeal. There are certain cases where we have gotten them to settle prior to hearing, but that is rare. In addition, the AG’s office will bring a separate, contempt action against the employer who must account for why he or she did not carry workers compensation insurance.

If you think you were hurt while working for an employer who should have had workers comp insurance, it is essential that you first be able prove that the employer had three or more people regularly employed in the business by the employer. What helps is to figure out how many folks it takes to run the particular business. Typically, temporary employees brought in for a week or two for extra busy times will not count as being “regularly employed.” Also, outside subcontractors who were hired for a particular task such as painting or plumbing and paid via invoice are not considered employees of your employer.