This is just a quick test, to see if you have been paying attention. I am going to quickly review three separate workers' comp claims. Your job is to tell which received benefits, and which ones, if any, were denied:
- A woman in Australia, traveling on business, meets up with a male friend and takes him back to her motel room to have sex. During the festivities, a light fixture is knocked from the wall and hits her in the face, injuring her.
- A Tennessee lineman repairing an electrical line on a pole removes his safety gloves in order to more easily hammer a metal staple. The wire he is holding brushes a power line several feet below and he recieves a 7200 volt electrical shock, causing severe burns to his hands and side.
- A roofer in Virginia falls off a roof he is working on. The injury leaves him wheelchair bound with severe brain injuries.
Which one was awarded benefits? If you said, number 1, the Australian woman having sex in her motel room, you would be correct. The other two were denied.
And we thought the Australian was the only one getting screwed.
Seriously though, there is something severely wrong with this picture.
Tennessee – Not America at its Best
The Tennessee lineman case, which was reported here yesterday, involved a decision of that states Supreme Court that determined that the worker, by removing his gloves, engaged in a “willful” act of disregard for established safety policies. They reversed an earlier court's decision and ordered that he be denied benefits.
Silly me. And here I thought that workers' comp was a no fault system.
While this decision might be a short term victory for employers and perhaps a strong reinforcement of safety protocol, I am concerned that it fundamentally undermines the notion of workers’ comp at its core, and ultimately threatens the benefits offered those same employers; namely the concept of exclusive remedy. Employers cannot have their cake and eat it too.
The employee made a mistake. That is quite often how these accidents happen. While there are exceptions for horseplay, drug use and extreme negligence in some jurisdictions, largely comp pays these claims, because quite frankly, that was the deal. This company has other avenues with which to deal with this if it so chooses. It can document, demote, even terminate the employee for failing to follow required procedures. But by refusing to pay his claim, and successfully getting the courts to agree, the door is open for any accident, any “willful” mistake to be used in the denial of all claims. That might be logical on the surface, but it is entirely contradictory to the no fault precept that workers’ comp is based on. It threatens the future of comp as it was envisioned and followed. Once the “blame game” begins, employers may not have to wait long to find that it is a two edged sword.
Yes Virginia, There Is a Memory Clause
The Virginia decision is even more ludicrous. Despite a recent reform intended to remedy a loophole that required claimants to be able to testify to their accident, inadvertently shafting brain injury victims who have no such memory, the state Commission recently denied benefits to our unfortunate roofer. This was based on the fact that at his hearing, he could testify to his name and age, but not to the accident itself. The reform simply states that there should be a presumption that the accident was work related if a worker is “physically or mentally unable to testify” because of his injuries. The moronic decision was based on a Virginia Commissioners determination that, in the absence of case law telling him what to think, the legislative intent was only for those in a coma or dead, and since this man could speak his name, he clearly was not either. So, despite a coworker who was present when he fell (but had his back turned, so did not “see” him fall), and incontrovertible injuries from the fall, the ruling in Virginia is that this was not a compensable accident.
Behind the complete lack of common sense in the decision itself, lies the uncomfortable fact that a carrier pursued a denial to this point in the first place. This was not a dubious case. These were not “soft tissue” injuries. Exploiting an unintended loophole to simply avoid paying out a claim gives a black eye to us all, and again places the industry on a slippery slope towards ambiguous policy and risk.
So, the lesson for today is simple. Follow the rules to a “T”, don’t hit your head and make sure your every move is witnessed, or you could be SOL on benefits. However, if traveling in Australia and are worried about coverage during sexual intercourse, don’t. Knock yourself out. Literally. You’re good.