Departments — November/December 2005

Work Versus Play —
Employees Don't Horse Around When Filing Workers' Comp Claims

Jobsite supervisors are the best defense against costly claims and lawsuits

By Michelle Daum Haskins

Michelle Daum Haskins ATTORNEY AT LAW Michelle Daum Haskins is a member of the Kansas City, Mo., office of Evans & Dixon LLC. The St. Louis-based firm practices workers' compensation and civil litigation defense in Missouri, Illinois and Kansas. Haskins has extensive experience in workers' compensation cases and is admitted to practice before all Missouri and Kansas state courts; the U.S. Court of Appeals, Eighth Circuit; and the U.S. District Court, District of Kansas. Web site: www.evans-dixon.com

At first glance, the news looks good. The U.S. Dept. of Labor and private insurance associations report declines in the number of non-fatal work accidents and injuries and the amount of lost work time due to job injuries and illnesses over the past several years.

But a closer look shows what isn't receding-the cost of workers' compensation insurance. Premiums continue to climb because of double-digit increases in medical care and prescription drug costs.

While the construction industry has done a commendable job of improving worker and job site safety, some contractors are overlooking costly causes of workers' compensation claims that have little to do with work and everything to do with horseplay, recreation and socialization. Working with your legal counsel may be your best protection against the runaway costs of workers' comp claims.

Insurance Laws under Reform

Workers' compensation insurance laws vary, but generally they hold that an employee who is injured in an accident arising out of and in the course of work, and whose employer is covered by workers' compensation insurance, is entitled to medical care, pay for lost time from work and a financial settlement if permanent injury occurs. Pain and suffering is not compensated and liability is capped.

Despite these simple concepts, "work-related" compensation has mushroomed into legal claims for injuries resulting from spider bites, a worker's leg falling asleep or traffic accidents on the way to work in company vehicles. California, Florida, Tennessee and Missouri are among the first wave of states enacting new legislation to tighten definitions of work-related accidents.

In a report released this year, the National Council on Compensation Insurance analyzed five states reporting comparable injuries during the same time period. The medical costs for treating injuries covered by workers' compensation were 22 to 107% higher than those covered by group health insurance. Clearly, workers' compensation legal claims come with a heavy price.

Safety education in the workplace has greatly contributed to a noticeable drop in work injuries and illnesses. In fact, according to NCCI, workers' compensation lost-time claims have dropped, cumulatively, 42% between 1990 and 2003.

But if the opposite of work is play, then what is happening at your company? Knowing the legal parameters of workers' compensation insurance could save a firm tens of thousands of dollars per work site.

Playing for the Company Team

If an employer does not coerce, require or urge participation on a company-sponsored team and an injury takes place during a game away from work, an employee may have to seek medical care coverage under his or her group health policy. But as some states have ruled, if a worker is urged to participate in terms of adverse employment consequences, your injured star right fielder may have grounds to file a workers' compensation claim. And if an employee earns wages while playing for the company team and is injured, a supervisor can probably expect a workers' compensation claim to be filed.

Wining and Dining

Typically, managers are more likely to be affected by the gray areas of "mandatory entertainment" policies. If you require your project executive to participate in a charity golf tournament and he or she is injured, they may have grounds to file a workers' compensation claim. Likewise, if your vice president's duties include wining and dining a major client, and he or she is involved in a car accident after dinner, a workers' compensation claim may be in the offing.

But every state looks differently at accident details. Was the vice president driving a company car? Was a client in the car at the time of the accident? How long after the dinner did the accident occur? And, of course, did any memos, emails or personal employment contracts spell out required participation in such activities?

Teamwork Versus Horseplay

Back on the construction site, a supervisor is lucky when the crew is committed to its work and enjoys camaraderie during the effort. Sometimes, though, a lighthearted attitude may turn into horseplay and result in a workers' compensation claim.

For example, if a supervisor or manager does nothing to stop or discourage construction workers from chasing each other around the site with a pneumatic staple gun and someone gets injured, most states' laws would likely find the employer responsible. Jobsite supervisors must be trained to enforce safety policies and insist upon safe and professional work habits. Foremen need to be trained to intervene immediately when horseplay begins.

Zero Tolerance for Substance Abuse

Likewise, employers need to be clear about a zero tolerance for drugs and alcohol on the job. The law can demand a reduction in workers' compensation benefits or their complete forfeiture if drugs or alcohol contribute to a workplace accident. But several states require firms to post notices of zero-tolerance policies, and just as important, the consequences of violating these rules.

Employees need to know a company's rules about substance use and abuse, especially when someone gets behind the wheel of a company vehicle-even the ones they are allowed to use for personal transportation away from the job.

Lessons Learned

Among the lessons to take away from these workers' compensation scenarios are the need to train supervisors to oversee jobsites "by the book," adopt responsible policies for client entertainment and stop to consider before agreeing to put the company logo on athletic jerseys. Accident-free employees are the goal, and keeping a lid on workers' compensation insurance costs are the pay-off.