Michael Riedhammer, partner with Haliczer Pettis & Schwamm in Fort Lauderdale, FL.

The phone call starts off like this:

UE: Hey, can you help me out? Some guy is claiming he was injured while working for me. And now he wants me to pay for his medical treatment and lost wages!

A: No problem. All you need to do is contact your workers' compensation insurance company. They should take care of it.

UE: But I don't have workers' compensation insurance.

A: Why not?

UE: I never needed it before.

A: You'd better send me the papers you received. It would seem that any employer in business long enough will eventually have an employee file a workers' compensation claim. The claims can sometimes come out of nowhere, even months after an employee leaves the job. They may come from many different descriptions of accidents and can result in a wide range of injuries.

One may expect that only the very physical job sectors need to worry about work accidents—employees such as lawn care workers, truck mechanics, and, of course, construction workers may come to mind. But the claims can actually come from any area of employment, even those jobs that seemingly have little physical risk—these may include office workers, cashiers and sometimes attorneys. Virtually any employee in any job can have a workers' compensation accident. Slip and falls, lifting injuries, and even exposures to mold in the workplace occur every day.

Regardless of how or when an employer becomes aware of an accident; there can be questions about how to respond. The injured employee can be equally confused as to what to do next. Typically, once it is notified, this is where the insurance company steps in to make sure that the needed benefits are put into the hands of the injured employee in the most expeditious manner. But what happens when there is no insurance adjuster to call to make sure this happens?

Some employers are quite out of touch with the notion they would even need workers' compensation coverage and they are very surprised when they realize what they should have been doing. Similarly, many employees do not know that they are entitled to medical care and lost wages when they are injured on the job—especially if their employment was terminated.

UE: But I don't have any employees! All the people working in my shop are independent contractors!

A: Hmmm. Do you pay these people as individuals and do they use your equipment?

UE: Of course!

A: And do they follow your directions and work the schedule you set for them?

UE: They better, or else I'd fire them!

A: Yeah, it sounds like you might have some employees there.

All employers in Florida who employ more than three employees are required to carry workers' compensation coverage. Most employers with three or fewer employees do not need to carry workers' compensation insurance coverage. But, if they choose not to, they must "post clear written notice in a conspicuous location at each worksite directed to all employees and other persons performing services at the worksite of their lack of entitlement to benefits under this chapter." A notable exception to this option to not carry coverage is that all employers engaged in the construction industry must have workers' compensation insurance.

When an employer has workers' compensation coverage in effect the injured employee is typically limited to those benefits afforded by Chapter 440. In short, the injured worker is entitled to medical benefits and compensation for time missed from work. Importantly for the employer, the injured employee is generally going to be barred from suing for typical tort damages. Probably the biggest impact this has on the injured employee is that he will not be able to seek noneconomic or "pain and suffering" damages. However, when an employer fails to secure coverage when it is otherwise required to do so, an injured employee has options. He or she can pursue the benefits due under the workers' compensation law or, alternatively, they can file suit in state court. An employer being sued in this manner cannot raise defenses that the injury was caused by the negligence of a fellow employee, that the employee assumed the risk of the employment, or that the injury was due to the comparative negligence of the injured employee. A general liability insurance policy is unlikely to provide a defense in a situation like this. Obviously, this can become quite costly for an uninsured employer.

UE: So I guess I need to have insurance.

A: Looks like it.

UE: What do we do about this claim?

A: Can you pay all at once or do you want to talk about a payment plan?

The provision of workers' compensation benefits to injured employees is supposed to be a self executing system. When an insurance company is involved, it very often is. But an uninsured employer who finds itself trying to provide benefits to an injured worker may find it very difficult to comply with the law. And an injured worker who does not feel like he is getting what he is entitled to may be quick to retain legal representation seeking to hold their employer responsible.

This can greatly increase costs to the employer who not only may need to retain an attorney of its own but may also become responsible for paying the legal fees of the injured worker.

Michael M. Riedhammer is a partner with Haliczer Pettis & Schwamm in Fort Lauderdale. He focuses his practice on workers' compensation, personal injury and insurance litigation.