Is that injury work related? A checklist covering exemptions and work-related aspects.
Your client brings you two new slip and fall cases. The first is a slip on the factory floor, and the second is a fall in the parking lot. It appears simple, doesn’t it? You have two covered employees who were injured on the job.
But not so fast. Not every incident that occurs at your client’s place of business is related to work. And the relevance of each claim is critical to its validity. If it is not work-related, the insurer is not required to pay the claim.
Let us delve into this complex subject.
What Constitutes a Work-Related Injury?
Workers’ compensation is a no-fault system that is based on the concept of work-relatedness. The basic premise is that if an employee is injured on the job, their employer’s workers compensation policy will cover their treatment, recovery, and missed pay checks (after a period passes).
Work-related injuries and illnesses occccur in the workplace, but work-relatedness is more complicated than simply being on-premises.
When determining whether a worker and their injury are covered by the policy, four factors are considered. These include whether the employee was:
- At the time of the incident, he was on the payroll.
- At the time of the incident, I was working.
- At the time of the incident, I was not working but was on employer time.
- On the premises of the incident’s time
Let’s go through them one by one.
On the Roster
Payroll is the first barrier to work-relatedness. Volunteers typically do not qualify for workers compensation claims, whereas salaried employees do.
There are fewer payroll employees than ever before in today’s world. In May 2017, independent contractors accounted for 6.9% of all employment. And the number of people on contracts grows year after year. So, how does the payroll rule affect them?
If the subcontractor does not have insurance and is under your client’s direct control, your client’s policy may cover them.
The subcontractor issue is surfacing across the economy, particularly among our construction partners who rely on subcontractors to complete projects. However, the subcontractor issue also arises in unexpected ways, which you and your clients should be prepared to address.
Here’s an excellent example. To attract a larger crowd on Friday and Saturday nights, a restaurant hires singers. Because they only need them one night a week and many singers and bands are self-employed, your client will typically hire them as an independent contractor on a 1099 basis — no muss, no fuss.
If, on the other hand, the restaurant pays an entertainer and has control over the entertainer’s movements, the restaurant may be required to provide coverage if the entertainer is injured.
Assume the restaurant requires the entertainer to leave the stage and walk around the restaurant while playing music, and the entertainer slips and falls. In that case, the entertainer may suffer a work-related injury and file a claim under your client’s workers’ compensation policy.
The Time Is Now
Once it is determined whether the injured party is eligible for coverage, they must consider when the accident occurred.
In most cases, the employee must be on the job at the time of the accident. Commuting from home to work is not considered. Driving from one work location to another during working hours, on the other hand, counts.
The bottom line is that if an employee is on the job, their injury is usually considered work-related.
Keep in mind that being off the clock does not always disqualify an employee from filing a claim. An incident may still be considered work-related if it occurs on-site or during employer time, which brings us to qualifier number three.
Within company’s time limits
Not every injury occurs during a shift. Work-relatedness also applies to employer events or employer direction in some states.
Most of the time, it applies to the sponsored activities where the employer expected the employee to participate. In those states, a company softball game or a team-building ropes course activity can count toward work-relatedness.
However, running errands, travelling to a meeting, and generally following an employer’s directions can also count even if he hasn’t punched their card yet.
So, your client has a payroll employee who was off the clock at the time of the incident. Is it still related to work?
Work-relatedness extends beyond the employee’s immediate work environment and whether they were at their workstation. Work-relatedness extends to other spaces under the control of employers, such as parking lots, stairwells, and, on occasion, break rooms or canteens.
In this manner, a work-related injury can occur even after hours if it occurs in the parking lot. For example, if an employee slips and falls on a large patch of ice outside the building’s front door on their way to work, they may be able to file a claim.
How to Recognize Non-Work-Related Injuries
Even if every accident is work-related, if the worker is a salaried employee who works on the shop floor around the clock. Work-relatedness is heavily focused on the ordinary course of work, assuming that everyone was doing what they were supposed to — or at least attempting to.
Some states will not cover injuries caused by rule violations or serious violations. As an example, suppose a worker is intoxicated at work and forgets about the LOTO policy. They are injured, but their injury may not be work-related due to the employee’s flagrant violation of workplace rules.
These exceptions, however, do not always apply to all employee misconduct.
If an employee is injured because of violating the safety program guidelines, they are still likely to have a work-related claim. It is the employer’s responsibility, not the employee’s, to provide a safe working environment. If they violated the safety policy with the intent of inflicting self-inflicted harm, their injury would not be work-related.
Similarly, an employee who drives to their workers’ compensation doctor and smashes their knee with a hammer in the parking lot will have their claim denied quickly.
Remember that non-work-related injuries may not be compensable, but clients may still pay disability or leave benefits under FMLA. As a result, it’s critical not to dismiss non-work-related injuries/illnesses entirely.
Incident Investigation Checklist for Determining Work-Relatedness
Investigation is used to determine work-relatedness. The insured, and ideally their safety or risk management team, conducts the initial investigation. You can assist them in completing the work by providing them with this checklist or going over it with them when you consult with them on their claim.
The checklist is a straightforward method of gathering all the information required to make a preliminary determination.
Be aware that the insurer will make its decision based on the information provided, as well as possibly additional evidence and investigation.
- Who took part?
- Who witnessed the incident?
- Who assigned the job to the individual in question?
- Was anyone else present?
- Who knows what happened before it happened?
- Who evaluated the risks?
- Who oversaw risk management?
- List the events that led up to the incident.
- List the events that led up to the injury.
- Where did the incident take place?
- Where did the damage happen?
- Where had the boss gone?
- When the incident occurred, where were the witnesses?
- When did the incident happen?
- When did the incident happen?
- What stage of the job did the incident occur?
- Was the employee working when the incident occurred?
- Make a list of the factors that contributed to the situation.
What types of injuries necessitate the most information?
The most common workplace injuries with the highest incident rates per 100,000 workers, according to OSHA, are as follows:
- Strains, sprains, and tears are all possibilities.
- Soreness or discomfort
- Cuts, lacerations, and punctures are all possible.
- Contusions and bruises
It is work-related if a factory worker is electrocuted in an accident while on the job site. It is work-related if a construction worker suffers a hand laceration because of a machine malfunction.
Someone frequently witnessed a sprain, cut, or fracture occur in real time, so the evidence is clear.
How to Take Pre-Existing Injury Data into Account
A pre-existing injury or condition does not preclude a new injury from being work-related. If a worker has a healed shoulder injury, an incident that aggravates or re-injures the shoulder injury can still be considered work-related. These injuries are highly contextual and are supported by a wealth of evidence.
During the claim filing process, employers should not be concerned about the possibility of pre-existing injuries or conditions. Their only concern is filing the claim and providing the work-relatedness data. In its investigation, the insurer will look for potential problems.
The Bottom Line: Regardless of the employee’s injury, a typical workplace injury or illness requires an initial investigation and, if warranted, a claim. Encourage clients to investigate all claims, even if they are convinced the injury is not related to their job.
Work-related illnesses and injuries can take months or even years to manifest symptoms and determining whether an injury is work-related is not always simple.
Do not stand in this queue – stand upfront and take steps towards a definite closure.
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