FREQUENTLY ASKED QUESTIONS

A non-complying employer is any employer who is required by law to carry workers' compensation coverage for its employees, but fails to do so.

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Almost certainly, yes. Most employers in the state of Oregon are required to carry workers' compensation coverage for their employees. In fact, Oregon law begins with the assumption that every employee is entitled to workers' compensation coverage. Employers are only exempt from providing their employees with workers' compensation insurance coverage if they fall within a list of exceptions listed in ORS 656.027. The most commonly scene exceptions are for domestic servants/gardeners or employers whose payrolls never exceed $500 in any 30-day period.

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It makes little difference to your workers if you do or do not purchase workers' compensation coverage. The reason for this is that Oregon law has determined it will not punish workers if their employers fail to buy the proper workers' compensation coverage. The worker's claim will be turned over to a third-party administrator who will process the claim as if coverage existed.

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Yes, this is a huge deal to your business. If your business is without workers' compensation coverage, the Workers' Compensation Division ("WCD") will conduct an investigation. If the WCD concludes your business should have had insurance, but did not, it will assess your business with a huge penalty. The penalty will be assessed even if your business has experienced no work injuries. We have seen small businesses hit with fines over $100,000 without a valid claim being brought against it. Further, you cannot count on the WCD discounting your penalty because: (1) your business is small: (2) you have no prior claims against you; (3) the fine will financially ruin you or your business; or (4) you were only without coverage for one week. The WCD can be ruthless. It has no mandate to work with you or act reasonably. With that said, we have helped clients work the WCD to reduce penalties and figure out satisfactory payment structures.

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No. Not even close. Non-complying employers who have an injured worker must also pay: (1) all of the injured workers' medical bills for life that are related to the work injury or occupational disease; (2) two-thirds of the injured worker's lost wages; (3) the injured worker's permanent impairment award; (4) the cost to retrain the worker if he or she cannot return to the job-at-injury; (5) the insurance company's costs to process the claim; and (6) the insurance company's legal bills if they choose to hire an attorney. These costs can be as little as a couple thousand dollars, but we have seen cases where workers have died on the job and the non-complying employer faces liability over $1 million.

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It can be. For example, if the insurance company's attorney is fighting the claim (i.e., attempting to prove the claim is not compensable), your interests are the same. You both want the claim to be denied and stay denied. This alignment of interests, however, can change quickly. Allies one day can become adversaries the next. For example, the insurer's attorney may want to settle a claim you believe to be frivolous for $100,000 and you would much prefer to fight the case at hearing. Or the attorney can choose to fight the claim, but in a manner you believe will be ineffective. The insurer's attorney has no obligation to perform his or her job in the manner you prefer.

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Probably yes. The Wellstone Law Group is happy to provide a free initial consultation with you to see if representation makes sense in your particular set of circumstances. The higher the potential exposure, the more sense it makes to retain your own counsel. There are at least four benefits to hiring your own attorney early in the process: (1) It protects your right to fight the worker's claim in case the insurer processing the claim does not wish to fight it; (2) It guarantees you will be kept in the know as to what is happening in the case; (3) It ensures no settlement (which you will ultimately have to pay for) can be entered into between the worker and the insurance company without your approval; and (4) You have no guarantee as to the quality or accessibility of the insurance company's attorney. All of these reasons become heightened if you are looking at a death or serious injury. Spending a few thousand dollars to save tens or hundreds of thousands of dollars can make a great deal of sense.

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Yes. If you have a worker who has filed a claim against your business, you have just 60 days to respond. If you do not respond within 60 days or your response fails to meet the procedural requirements, you may have given up a lot of your rights. If a hearing is coming up, you want to make sure you bring your attorney on soon enough that he or she has adequate time to work-up your case, conduct a thorough investigation, and prepare for hearing.

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Yes, attorney Dylan Hydes currently specializes in assisting injured workers, but his practice has included representation of non-complying employers. Further, prior to opening the Wellstone Law Group, Dylan spent four years representing businesses and employers. You will be hard-pressed to find an attorney in private practice who has practiced as much workers' compensation law for both workers and employers as Dylan.

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Give us a call at (503) 446-2508. Consultations are free.