H. The commission may assess a civil penalty of one thousand dollars on an uninsured employer if the commission makes an award for a noncompensable claim against the employer and finds that:

1. 1. At the time of the accident for which the claim was made the employer was subject to this chapter.
2. 2. The employer was not insured pursuant to this chapter.

J. If the commission has assessed a civil penalty under this section against an employer within the previous five years for failure to secure workers' compensation as required under this chapter, the commission may assess an additional civil penalty against the employer that:

1. 1. Does not exceed five thousand dollars for the second failure to secure the payment of compensation.
2. 2. Does not exceed ten thousand dollars for a third or subsequent failure to secure the payment of compensation. As an aggravating factor only, the commission may consider the economic benefit that the employer received by failing to comply with this chapter.

K. In determining the amount of the final penalty under subsection H, I or J of this section, the commission may consider any relevant factor to waive or reduce the penalty, including:

1. 1. The history of the employer's noncompliance with section 23-961 or 23-962.
2. 2. The history of no insurance claims filed against the employer.
3. 3. Whether the failure to secure workers' compensation coverage was inadvertent. For the purposes of this paragraph, "inadvertent" includes a lapse in coverage of not more than thirty days if there is a change of insurance carrier, a change of ownership or a change in the form of the business.
4. 4. Whether the failure to secure workers' compensation coverage was because the employer was a victim of fraud, misrepresentation or gross negligence by an insurance agent or broker or by a person whom a reasonable person would believe is an insurance agent or broker.