H. Workers' Compensation

Protecting your company from worker injuries, claims and lawsuits is a demanding job. Each state has enacted its own peculiar rules with respect to workers' compensation, which provides aid for employees who suffer job-related injuries. In most cases, the issue becomes one of determining whether the injuries suffered were job related. What was originally designed largely for the protection of industrial workers has now come to affect white collar employees as more courts and administrative agencies liberalize traditional interpretations of job- related injuries. The workers' compensation bill for the nation comes to around $50 billion annually. This section will briefly summarize important concerns in this area.

Injuries Suffered During Work-Related Travel. Is an employee who is injured while traveling to or from work entitled to benefits? Generally, the answer is no. However, when the employer agrees to provide the worker with the means of transportation, pay the employee's cost of commuting, or if travel is required while perform- ing his/her duties, the scope of employment may include the employee's transportation. For example, if the employee regularly dictates office memos into a dictating machine within the vehicle, the car may be deemed part of his/her workplace.

Workers' compensation benefits are sometimes provided when the employee is injured while returning from company-sponsored educa- tion classes. An employee may also be entitled to benefits if he or she is on a special mission for the employer; if the employer derives a special benefit from the employee's activity at the time of the injury; if the travel comprised a dual purpose, such as combining employ- ment-related business needs with the personal activity of the employee; if the employment subjected the employee to excessive exposure to traffic risks; or if the travel took place as a result of a split-shift working schedule.

If a worker leaves the employer's premises to do a personal errand, no compensation should ensue. However, if an injury is sustained when an employee goes to the restroom, visits the cafeteria, has a coffee break, or steps out of a non-smoking office to smoke a cigarette, workers' comp boards and courts typically recognize that employers benefit from these "non-business" employee conveniences and often award compensation.

Horseplay. Not every on-the-job injury is covered under workers' compensation. State courts seem to be divided on whether an injured employee can recover for horseplay: a company may be liable where it failed to select qualified supervisors, failed to supervise work areas, failed to enforce safety regulations and contributed to the injury by requiring an employee to work among employees with a propensity for horseplay.

Compensable Injuries. The following list summarizes the kinds of injuries that are typically compensable:

• Pre-existing conditions that the workplace accelerates or aggra- vates, such as a bad back, even if pain from the injury is delayed until a later time;
• Injuries caused during breaks, lunch hours and work-sponsored recreational activities such as a company-paid New Year's Eve party, and on-the-job injuries caused by company facilities, such as a shower located on premises;
• Ordinary diseases such as lung cancer, if contracted by asbestos exposure at work as a result of the usual conditions to which the worker was exposed by his/her employment;
• Injuries resulting from mental and physical strain brought on by increased work duties or the stress caused by a requirement that the employee make decisions on other employee dismissals. In some states, this includes.findlaw employees who develop a disabling psychosis because they cannot keep up with the demands of the job and a supervisor's constant harassment.

Intoxication. Intoxication injuries sustained by a traveling sales- person on company business who goes on a drinking spree and gets involved in an auto accident or is injured in a barroom brawl are not usually legally compensable. However, intoxication may not be a per se bar to compensation benefits. For compensation to be denied, the evidence must show that the employee was so intoxicated that a court can say as a matter of law that the injury arose out of his/her drunken condition and not out of his/her employment. Intoxication which does not incapacitate the employee from doing his job may be insufficient to defeat the recovery of workers' compensation, even though on-the- job intoxication may have been a contributing cause of the injury.

Obligations Of Employers. Company exposure to lawsuits in this area often arise when employers do not carry adequate workers' compensation insurance despite their promises, fail to post signs or required notices under state laws indicating that employees are covered by workers' compensation, or furnish negligent or improper medical care to injured workers. In addition, most states prohibit companies from firing, demoting or otherwise punishing an employee for filing or pursuing a workers' compensation claim. However, a false representation on an employment application could enable your company to terminate an individual, provided the employee knowingly and willingly made a false representation after the hire as to his/her physical condition, the employer relied on the false representation and there was a causal connection between the false representation and the injury.

TIP: Note, however, that under the ADA, a company may not inquire whether an applicant has filed for workers' compensation in a former job.

Counsel Comment #102: To reduce high workers' comp- ensation bills and increasing legal exposure, engage the services of a competent physician to review the medical care an injured worker is receiving. Such a person may be able to determine, for example, whether less expensive home care is more appropriate than hospital care. A medical consultant can also evaluate claims from the employee's doctor to see if they are self-serving.

Under compensation laws in most states, each employer must promptly provide medical, surgical, optometric or other treatment for injured employees as well as provide hospital care, crutches, eyeglasses, false teeth, and other appliances (and repairs of such items) necessary to replace, relieve or support a part of the body. Your company's medical team may eliminate unnecessary treatment but an injured employee may select his/her own physician for authorized treatment, provided that physician is authorized by the state's workers' compen- sation board.

Counsel Comment #103: The bottom line on minimizing workers' compensation charges is to keep the workplace safe and train employees in safety on an ongoing basis. All com- panies should take the following preventive approaches to avoid worker injuries and to ensure a clean and healthful working environment:

1. Take steps to reduce worker stress, exposure to hazardous substances, vision impairment, repetitive motion injuries and exposure to computer terminal-caused injuries from video display terminals.
2. Work closely with employees and request regular employee suggestions to reduce potential safety violations. You may also hire safety consultants who will visit the work site and make suggestions. Many insurance companies provide this service at no cost.
3. Since safety training is mandated by federal regulation, regular training sessions for management and supervisors should be conducted to ensure that employees know of company policies and abide by the law. Follow-up field inspections may also be helpful to monitor compliance.
4. All companies should publicize specific, strict rules regarding employee safety and related matters in company handbooks. A statement on safety should include a list of prohibited forms of conduct (such as horseplay, assault, unprovoked attack, or threats of bodily harm against any- one, drinking on the job, carrying firearms, etc.) and the consequences of committing such acts (i.e., suspension or immediate discharge). There should also be a stated policy reminding workers how to report accidents, seek medical attention, and so forth.
5. Many companies conspicuously post weekly or monthly safety concerns and tips on a bulletin board which addresses problems of current interest. Brief weekly safety meetings may also be scheduled to bring employees up to date on safety concerns.
6. Finally, since the outcome of each workers' compensation case varies depending on the particular facts and unique state law, always seek the legal advice of a competent workers' compensation specialist. Issues such as how long an employee may delay in filing a claim, whether coverage is available for stress-related injuries, and what kinds of injuries are covered, can become complicated and typically require a lawyer's advice.