Understanding Increased Risk in Work Comp

There are many confusing issues claim handlers need to sort out when it comes to primary liability determinations. One of these issues is whether the injury occurred “in the course of” employment. This has been complicated by the use of many courts in applying an “increased risk” test. The claim handler must understand the issues, investigate a claim, and make the best determination.

A Common Scenario: Stairs, Inclines, and Other Obstacles

The ABC Company owns a five-story building, and employees work on all levels. It is common for employees to use the elevator and not walk up and down the stairwells. One day an employee decided to take the stairs down to get more exercise. The employee slipped and fell while walking down the stairs. The employee sustained injuries to her low back and right knee.

Is the claim compensable? The injury took place during regular work hours. The issue that needs to be determined is whether it occurred “in the course of” employment. The clock is ticking, and the claim handler needs to decide the issue of primary liability.

Understanding “Increased Risk” in Work Comp

Courts have struggled with questions of what it means to be “in the course of” employment since the inception of the first workers’ compensation statute in the early 1900s. When addressing this issue, the courts have explored the concept of “risk” and its connection to the employee’s work activities. Cases requiring this type of analysis generally fall within three categories:

Cases involving risks that are related to the employee’s employment. In these instances, courts have generally determined such injuries as being compensable;
Cases where the resulting injury is purely personal to the employee. These cases are generally found to be not compensable; and
Cases that involve and unexplained injuries such as idiopathic injuries or instances where no reason is given. Courts are mixed in their findings when addressing these cases.

When examining these types of injuries, courts have examined several factors. These include the foreseeability of injury, whether the workplace heightened the risk, whether the workplace created a peculiar hazard, and if the injury was a natural or direct consequence of the employee’s work. Members of the claim management team need to know the law in their jurisdiction. Central to making the correct decisions are facts that require an intense claim investigation.

Investigating Cases that Involved Increased Risk

Members of the claim management team need to be proactive when investigating claims of this nature. These facts can be used to apply and coordinate efforts with a defense attorney to make the right decision.

Interview the injured employee regarding the work injury and take a recorded statement. It is crucial to get precise information about what they were doing and the work injury circumstances. Getting information on the mechanism of injury is essential and can sway a determination in one direction.
Discover information regarding the nature of the surface(s) where the injury occurred. It is essential to understand the nature of lighting in the area where the injury occurred, the type of surface, and whether there was a fixture such as a floor mat or object particular to the work environment involved in causing the injury. This should include obtaining information about any imperfections such as dust, liquid, or ice. Information on items in the workplace such as tables, chairs, and other fixtures in the workplace is crucial.
The type of footwear worn by the employee and if they would typically wear that type of shoe to work.

It is also essential to do a complete job with the injury investigation. Members of the claim management team should determine if there is CCTV video of the work injury. Claim handlers can also direct and instruct their clients on preserving evidence by taking photographs and other ways to document the accident scene.

As for the above hypothetical, it is essential to understand why the employee was taking the stairway, the purpose of their trip down the stairwell, and if they were carrying any object at the time of injury. Information about the frequency of their use and if the employee was directed by their employer to use the stairwell is vital information.

Conclusions

Claim handlers face many challenges when involving claims. One of these challenges includes determining primary liability when it revolves around the “in the course of” factor. When confronted with these issues, it is vital to conduct a complete investigation that gets down to specific details concerning a work injury. It also requires understanding the law and working with defense counsel. When done correctly, primary liability can make better determinations that drive a claim toward the best result.

Author Michael Stack, CEO Amaxx LLC. He is an expert in workers’ compensation cost containment systems and helps employers reduce their workers’ comp costs by 20% to 50%. He works as a consultant to large and mid-market clients, is a co-author of Your Ultimate Guide To Mastering Workers Comp Costs, a comprehensive step-by-step manual of cost containment strategies based on hands-on field experience, and is the founder & lead trainer of Amaxx Workers’ Comp Training Center, which offers the Certified Master of Workers’ Compensation national designation.

Contact: [email protected].

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Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker, attorney, or qualified professional.