Employee Injury Compensability Factors In Workers Compensation

Consider the following employee injury scenario:

An injured worker has low back injury. The employer has injured worker reassigned to light duty work program operating a powered pallet jack to move palleted stock around for outgoing shipment.

A supervisor noticed the employee dangling his foot off the side of the jack, in an effort to get more comfortable. Supervisor verbally told employee not to hang his foot off the side and to keep his foot in the jack cab where it is supposed to be. Injured worker disregards this posture correction and states that he has to do this in order to make his injured back comfortable operating the pallet jack. Supervisor later in the day again catches employee hanging his foot off the side of the jack and again advises him not to do that.

Later in the day the supervisor is called out to the job floor for an injury and you guessed it: The injured worker caught his foot between the pallet jack and the storage racks, resulting in tendon damage to the low ankle and Achilles heel.

Given the verbal warnings that were handed out prior in the day, is this claim compensable or did the employee violate safety protocol and as a result remove himself from being able to collect workers compensation on this second injury?

If only workers compensation were so easy!!! Clearly it is easy to say that this employee was disregarding warnings given to him to prevent the injury, but does this mean the employer is on the hook for another injury? It would depend on the comp laws that are applicable within the jurisdiction, but are some things to keep in mind:

Were safety protocols ignored?
In this situation I would say yes, but was this employee properly trained on the use of this equipment? Did he complete a formal training program and did he log enough hours operating this equipment to know how to properly use it?

Was a disciplinary consequence given as a result of the disregard for safety protocol?
If this answer is no, then here is where it can be messy. If the worker was not given a consequence, then it’s apparent that the supervisor’s statements were not taken seriously. Plus it is probably true that no matter what the situation, if there are no formal consequences that are dished out then how do you enforce a safety violation such as this?

Did the employee acknowledge the correction, and then disregard it again?
Here in this situation the answer is yes. He stated he could not operate the machine correctly due to his subjective pain complaints. So does this qualify as willful misconduct or subordination despite the verbal correction that was given? It would depend on the jurisdiction, but I think an argument could be made here. Whether or not it has legal grounds for a denial of comp depends on applicable case law.

Have other employees been disciplined for this action in the past and if so what was the consequence that was given and how was it documented?
This is where having a formal discipline program is going to help you out. If other employees have been disciplined for this in the past, and all workers that operate said machinery know the consequences of operating in an unsafe manner, then you have some ground to stand on. Documented cases of discipline will help bolster your argument that this employee knew better than to operate the way he was operating, and he chose to do so anyway despite the verbal warnings to correct his behavior. The more concrete evidence you have of enforcing safety protocol the better chances the employer has of prevailing on a willful misconduct defense.

Was the injured worker in the course and scope of employment?
Again the answer here is yes, since he was performing the light duty tasks assigned to him. That is, unless you have proof of him horsing around on the equipment. And even if you do have proof in some jurisdictions the only burden of proof the employee needs is that he was injured in the course and scope of employment. Even if this were the case, personally I would still make an argument anyway rather than just accepting the case on the merit of being injured in course/scope of employment.

So as you can see, this is not as clear of a decision as you would think it would be. The biggest hurdle to overcome will be to determine what applicable case law you have that will help you defend a case like this. In a situation like this that you are better off letting a Judge or Mediator decide your fate instead of voluntarily paying on the case.

Even if this worker had prior safety violations on file, it is going to come down to how you as the employer enforce safety violations to begin with. The more formal of a program you have in place the better chance you have of defending compensability. You can almost guarantee that the failure to have a disciplinary program in place will lead to greater compensability exposure should this ever occur on your premises.

So do not let this happen to you. If you have a safety team in place, review the disciplinary process, and make sure that records are being kept on file should disciplinary action need to take place. It is a good idea to get the assistance of your HR department to make sure that the program you have is proper and applicable, with the goal being that you never need to actually use it at all.

Author Michael B. Stack, CPA, Director of Operations, Amaxx Risk Solutions, Inc. is an expert in employer communication systems and part of the Amaxx team helping companies reduce their workers compensation costs by 20% to 50%. He is a writer, speaker, and website publisher. www.reduceyourworkerscomp.com. Contact: [email protected].