Employers frequently take the attitude that regardless of the facts surrounding a workers’ compensation claim, it is going to be paid. Fortunately, common sense sometimes (but not always) prevails with certain workers’ compensation claims being deniable. If you encounter any of the following circumstances in your workers’ compensation claims, consult immediately with your claims adjuster and/or defense counsel about whether or not the claim should be denied.
In the Course of Employment:
All states limit workers’ compensation coverage to work being performed for the benefit of the employer. The work comp statute will read something to the effect of “arising out of the employment” of “in the course of employment”. The intent is to require a connection between the injury and job. If there is no relationship to the job, the injury is not workers’ compensation. This is especially important when an employee asserts an occupational illness.
For the Benefit of the Employer:
The activity of the employee at the time of injury must be for the benefit of the employer. This does not restrict the location of the injury to the employer’s location. Traveling salespeople, delivery people, truck drivers and others who perform their work away from the employer’s location are covered by workers’ compensation if their injury occurs while they are performing an activity for the benefit of the employer.
Off the Clock:
Most jurisdictions do not cover work place accidents when the employee is not working. For example, it is not workers’ compensation when the employee has clocked out for lunch and went to the employee’s lunchroom to have lunch, trips, falls, and is injured. However, note that if the employer mandates the use of the lunch room facility, break room, or that work breaks must be taken at the work station, then the accident while the employee is still under the requirements of the employer will be covered.
Intoxication:
Employees who are injured while working under the influence of illegal drugs or alcohol are normally not covered for workers’ compensation if the intoxicant lowered their mental dexterity and was a factor in the accident causing their injury. This varies significantly among the states so the employer should know the rules in their own state. The best way to prove or disprove an employee under the influence of an intoxicant is to have a drug test administered at the time the employee goes in for medical treatment. If the employee wishes to delay medical treatment (frequently to avoid the drug test), the employer should still insist on the drug test be taken immediately even if the employee declines medical treatment.
Horseplay:
Most jurisdictions do not allow workers’ compensation coverage for an injury brought on by the employee’s improper behavior. Horseplay, roughhousing and practical jokes that backfire on the employee causing an injury are not considered workers’ compensation. Note that an employee who is not a willing participant and who is injured by the horseplay or roughhousing of another is covered for workers’ compensation.
Fights and Assaults:
When two or more employees get in a fight, and or one employee assaults another, there must be a correlation between the employment and the fight/assault for the injury to be covered by worker’s compensation. For example, if two men fight because they are both dating the same woman, the injuries even though they occur on the employee’s premise, are not workers’ compensation because the fight has no relationship to the work the employees are there to perform. On the other hand, if a woman hit’s her supervisor and breaks his nose because she got a poor performance evaluation, the supervisor has a workers’ compensation claim.
Travel To and From Work:
Employees who get injured traveling to work or from work (like in a car accident) are not covered by workers’ compensation unless the employer mandates the route the employee takes to work or mandates the mode of transportation to work. However, if the employer mixes work with the employee’s trip to or from work, then an injury would be covered. For example, if the boss asked the employee to stop at the office supply store and pick up some envelopes, and the employee gets hurt while in the office supply store, it would be considered workers’ compensation.
Non-sanctioned Activities:
After work activities involving groups of employees are tricky when it comes to determining whether or not an injury is covered by workers’ compensation. If the employees of the machine shop arrange a friendly volleyball game with the truck drivers, and an employee is injured blocking a volley, the question of workers’ compensation depends on who arranged the volleyball game. If the employer suggested this friendly competition as a morale booster, the injured employee would be covered for workers’ compensation. On the other hand, if the employees on their own without any involvement of the management arranged and scheduled the volleyball game, the injury would not be covered.
Psychological Injuries:
When an employee suffers an injury, and the injury creates psychological and/or emotional issues, the psychological treatment is covered by workers’ compensation in most states. However, psychological or emotional “injury” because the employee got demoted, was given a bad performance evaluation, has too much work to do, or just does not like the boss are not covered by workers’ compensation.
Fraud:
Fraud should never be tolerated. If the claim is fraudulent, the employer should take every possible measure to resist it. Also, by definition, if it is not a real injury, it is not workers’ compensation.
We encourage risk managers and workers’ compensation coordinators to discuss with their claims adjuster or defense counsel any situation where you are not sure if workers compensation applies or not. Discuss the above categories with your adjuster or attorney to see how your state applies the work comp statutes to each situation. Also ask if there are other categories of claims that are not covered by workers’ compensation in your state.
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: mstack@reduceyourworkerscomp.com.
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