An employee who works for a non-complying employer may still seek workers’ compensation benefits from the Surplus Fund. The fact that a non-complying employer fails to pay into the Workers’ Compensation Fund is not justification to deny benefits to an injured worker who is otherwise entilted to benefits.
An employer that fails to pay its premium into the Ohio Bureau of Workers’ Compensation fund loses the immunity that payment into the fund guarantees and is liable to its employees for damages suffered by reason of personal injuries caused by the wrongful act, neglect, or default of the employer. In addition, if the employee files a civil suit, the common law affirmative defenses of the fellow servant doctrine, assumption of the risk, and contributory negligence are not available to the non-complying employer.
If the claimant recovers damages in the negligence action, the claimant must reimburse the State Insurance Fund for any benefits he or she has already received. However, the claimant cannot concurrently prosecute an action for damages against an employer under R.C. § 4123.77 and apply to the commission for compensation under R.C. §4123.75.
The State may also pursue suit against the non-complying employer. Revised Code § 4123.75 orders payment to be made “promptly from the statutory surplus fund” in claims filed by an employee of a non-complying employer. The Administrator must thereafter institute proceedings to recover from the non-complying employer any monies paid from the surplus fund and to secure the employer’s payment of the award.