Most workers in Indiana are supposed to be covered by worker’ compensation insurance, paid for by their employer to cover reasonable medical expenses and a portion of lost wages if they’re hurt at work. There are a few exceptions, but often when companies pay cash under-the-table, they are breaking the law (and probably don’t have workers’ compensation insurance for you). That means if you’re seriously injured at work, you should discuss your legal options with an Indiana personal injury attorney right away.
Some companies specifically avoid paying above-board wages because then they’d incur other costs, like insurance for unemployment and workers’ compensation, requirements to pay overtime, administrative payroll expenses and other costs. Others will wrongly classify “employees” (entitled to these benefits) as “independent contractors.” But even independent contractors usually have clear written terms and are asked to file a tax form. Many times, companies will pay cash specifically for illegal immigrant workers, but you should know that your immigration status has no bearing on the Indiana workers’ compensation or personal injury benefits to which you are entitled. If you are paid under-the-table and are hurt at work, your claim for benefits/ damages could be more complicated than a typical work injury case. An experienced Munster work accident lawyer can best help you navigate the system and obtain appropriate compensation.
Recently, the Indiana Court of Appeals dealt with one such case, wherein a worker was seriously injured and his small business employer, someone he’d worked for under-the-table for nine years in the logging industry, was killed in that accident.
According to court records, plaintiff had worked with the same company for years, which was tasked primarily with tree-trimming. He cut trees, roped limbs and used a pull saw. The owner gave him all the tools, including boots and a company logo shirt, for the job. The hours were random, but it was usually at least 30 hours weekly. He had no set pay rate, but it was usually about $10 hourly – always paid in cash, never overtime and no 1099 forms.
One afternoon in 2016, the plaintiff accidentally knocked down a utility pole while chopping a rotted tree on his own. He called his boss, apologized for “messing up.” Plaintiff went home, his boss picked him up and they returned to the site together. Assessing downed wires wasn’t part of his typical job, but the plaintiff nonetheless was there to help. While checking the site, both men were shocked by a powerful volt of electricity. The business owner died. Plaintiff suffered serious injuries.
Plaintiff sued decedent’s estate, seeking payment from the businesses’ commercial liability policy. Insurer helped defend the claim, conceding that while it did offer general personal injury and medical damages for which the business might be liable, this particular incident was expressly foregone in the “worker exclusion,” which included employees, contractors, temporary workers and anyone else paid by the company for work. There was also an exclusion for injury stemming from “logging and lumbering” by the sole proprietor of the company and/or on his behalf.
Usually, workers’ compensation is the exclusive remedy for injured worker, meaning they can’t sue their boss – but also that they don’t have to prove their employer negligent (only establish the injury/illness occurred in the course/scope of employment). Those who fail to purchase proper work injury coverage could be held personally liable (possibly payable through umbrella coverage or estate assets, but that assumes the worker could show he was in fact an employee, not a contractor, requiring an in-depth judicial analysis). Depending on the details, other third party defendants (manufacturers of defective tools, careless property owners, etc.) might also be liable for damages.
With regard to this particular case, though, the commercial general liability policy, the appellate court ruled, was not responsible. The exclusions in the policy were clear. If the injured worker is hoping for compensation, he’ll have to seek it elsewhere.
Indiana Injury Attorney Burton A. Padove handles personal injury claims throughout northern Indiana, including Highland, Gary and Hammond. Call Toll Free 877-446-5294.
Smith v. Progressive Southern Insurance Co. et al., Aug. 31, 2018, Indiana Court of Appeals Lawyer Blog
More Blog Entries:
Pre-Existing Condition Doesn’t Bar Indiana Employee From Receiving Workers’ Compensation, May 2, 2018, Munster Work Accident Attorney Blog
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