IS IT WORK-RELATED? By Kevin L. Connors, Esquire
So you are an Employer, by definition under most workers’ compensation statutes a “master”, with your employees, likewise being designated as “servants”, to fuel the pecuniary fiefdom that you propagate.
Yes, in business, for profit, with associated overhead for business expenses, to include payroll, benefits, yadda, yadda.
Of course, for your protection, or for that of whatever corporation you have designed and constructed, you have procured the necessary insurance coverages, to include coverage for general liability purposes, potentially meaning whatever, obviously subject to contractual interpretations, as well as, of course, workers’ compensation insurance coverage, in order that your company is not personally or corporately liable for injuries sustained by employees in the course and scope of their employment, in the course of which they are expected to be performing associated tasks commensurate with your business or your corporation.
You have to ask yourself is every allegedly employee-sustained injury covered by workers’ compensation statutes, and, by extension, workers’ compensation insurance coverage, requiring a threshold analysis as to whether the alleged injury has occurred within the four corners of what we consider the course and scope of employment.
And the answer is, sometimes yes, as well as sometimes no, beyond obviously working with your broker, your insurance carrier, and either in-house or extraneous counsel.
Let’s begin with some basics.
Workers’ compensation statutes have been in place since a horrific accident in New York in 1911, the Triangle Shirtwaist Fire, resulting in 146 workers dying when trapped in a burning factory, with Pennsylvania’s workers’ compensation statute being enacted in 1915, and then evolving over several structural and procedural reforms, the last of which were in the 1990s, reforming indemnity (wage loss) and medical compensation benefits.
Having survived reforms, both positive and negative for Employers and insurance carriers, the purpose of workers’ compensation statutes is obviously humanitarian, as well as to act both as a safety net for injured employees, and to serve as a “grand bargain”, for businesses, Employers, and by extension, insurance carriers, as the exchange is that employees surrender their right to sue for civil or personal injury damages, with Employers being given the certainty of scheduled losses for both wage loss and medical benefits.
So when does the analysis of “course and scope of employment” begin?
Well, typically, at the first report of injury, as the Employer, and its insurer gather information regarding the claim, with the following considerations being necessary to implicate the occurrence of a work-related injury, resulting in wage loss disabling injuries, to include:
- An employer/employee relationship;
- A work-related injury occurring within the course and scope of employment;
- That the work-related injury was not caused by non-work-related factors;
- That the work-related injury has resulted in the Claimant being disabled from being able to perform either pre-injury work, or available modified-duty work;
- That the Claimant is not impeachable on other grounds, to include fraud or dishonesty;
- That the Claimant has not refused or failed to return to work; and,
- That the Claimant is not fully recovered from the alleged work injury.
Sounds simple enough.
If it were that simple, no one would be reading this.
Case in point, being one recently defended by our firm, involving an employee showing up for work early, routinely doing so until one day when the employee claimed an injury, while not actually performing any work for the Employer, and not even being scheduled to work at that time.
From the Claimant perspective, the argument is, well, I was at work, so it must be work-related. If that were all that there was to it, with the self-insured or insured, somebody might be writing that employee a check, and paying medical bills.
It not only does not work like that, it is not supposed to work like that, and it should not work like that.
It should require an injury occurring while an employee is actually performing work or services for the Employer that causes or contributes to a physical, psychological, or occupational injury disabling the employee from being able to continue performing that work or service, at which point, logically, there should be mechanisms and procedures to protect both employee and Employer from the potential liability imposed.
Merely being present at a work location does not mean that you are actually working, and should not mean that you are, therefore, entitled to compensation for an accident resulting in injury.
The caveat to that storyline is that there might well be other liabilities that the Employer is sensitive to incurring, particularly potential liability for personal injury damages, not subject to a schedule, or to any dollar limitation, although obviously requiring evidence of negligence, fault, and cause.
So if the employee is injured when not scheduled to work, is not actually performing any work, is not scheduled to be paid when allegedly injured, does the employee have a right to workers’ compensation benefits, and/or is the Employer liable under comp law?
Well, it depends upon what the meaning of “work” is!
In our view, popular or not, although legally sound, is that, no, the employee is not working, and that the injury is, therefore, not compensable under workers’ compensation law, with there being zero guarantee that the allegedly injured employee will accept the logic of our analysis, particularly when counseled by representation vested in the contingent fee recovery that necessarily requires the employee to pursue and recover compensation benefits. Absent other considerations, we would recommend a vigorous defense calculated on denying and dismissing the injury claim.
Concern about liabilities not subject to a schedule or statute might actually result in Employers considering acceptance of an otherwise non-work related injury, in avoidance of potential personal injury liability.
We get it, that makes business sense, as hard as it is to swallow such a bitter pill.
Anyone actually following this?
The point being that the mere fact that someone is an employee, that you are an Employer, and that your employee is claiming injury, does not, in and of itself, mean that the alleged injury is either work-related, and/or has occurred within the course and scope of employment.
Seems logical, although logic is not always the predicate for making decisions regarding claim disposition and resolution.
And if looking for the easy answer, it is not within reach.
And so what do we do?
Well, we serve, we protect, we defend, and we seek out and expose claim-defying facts to insulate your company, your business, your commercial purpose from liability.
Trust us; we completely understand how important business continuity and risk management is to a successful company, corporation, place of employment, as well as the practical exercise in the power of work, and experience.
We do this with grace, dignity, respect, and the utmost professionalism.
And, no less importantly, we do it because it needs doing!
So if in need of defense counsel in Pennsylvania, you know who to call!
ConnorsO’Dell LLC
Trust us, we just get it! It is trust well spent!
We defend Employers, Self-Insureds, Insurance Carriers, and Third Party Administrators in Workers’ Compensation matters throughout Pennsylvania. We have over 100 years of cumulative experience defending our clients against compensation-related liabilities, with no attorney in our firm having less than ten (10) years of specialized experience, empowering our Workers’ Compensation practice group attorneys to be more than mere claim denials, enabling us to create the factual and legal leverage to expeditiously resolve claims, in the course of limiting/reducing/extinguishing our clients’ liabilities under the Pennsylvania Workers’ Compensation Act.
Every member of our Workers’ Compensation practice group is AV rated. Our partnership with the NWCDN magnifies the lens for which our professional expertise imperiously demands that we always be dynamic and exacting advocates for our clients, navigating the frustrating and form-intensive minefield pervasive throughout Pennsylvania Workers’ Compensation practice and procedure.
