Employers Defense Strategies in Workers Compensation Claims: Legal Update and Key Cases

Transcription

1 Employers Defense Strategies in Workers Compensation Claims: Legal Update and Key Cases Charles L. Kuper Larson Kuper, P.C., L.L.O. 256 N. 115 th Street, Suite 3 Omaha, NE [email protected]

2 Defenses Willful Negligence Violation of safety rule Intoxication Horseplay Prior physical restrictions Voidable employment contract Avoid liability for PPD Statute of Limitations Notice

3 Willful Negligence Employer has the burden to prove employee engaged in a deliberate act knowingly done, or such conduct as evidences a reckless indifference for safety Ordinary negligence by an employee is insufficient

4 Willful Negligence Proving a deliberate act, knowingly done, is not easy to prove Suicide is not always considered willful negligence Not willful if due to laps of normal judgment or disturbance of the mind (i.e. depression) But, depression must be work related

5 Willful Negligence Reckless indifference for safety, defined. More than want of ordinary care, implying a rash and careless spirit, not necessarily amounting to wantonness, but approximating it in degree, a willingness to take a chance. Krajeski v. Beem, 157 Neb. 586, 60 N.W.2d 651 (1953).

6 Willful Negligence: Safety Rule If the employee fails to use a safety device or follow a safety rule, courts will examine 5 factors: 1. Whether the employer has a reasonable rule or provides a safety device designed to protect the safety and health of an employee; 2. Whether the employee had actual notice of the rule or device 3. Whether the employee had an understanding of the danger involved in violating the rule

7 Willful Negligence: Safety Rule 4. Whether the rule is kept alive by bona fide enforcement; and 5. Whether the employee has a bona fide excuse for the violation - i.e. production demand, equipment did not work, others do the same thing, I forgot, etc.

8 Intoxication Employer has the burden to prove: Employee was intoxicated at the time of the accident and injury Includes intoxication by alcohol or drugs (unless prescribed by a physician; what about medical marijuana?) Intoxication was the proximate cause of the accident Medical testimony supporting intoxication and proximate cause

9 Intoxication Securing an intoxication defense Require post-accident testing as a matter of policy Investigate the accident Interview all witnesses, including those who had contact with the employee prior to the accident Document Obtain medical opinion in support of the defense

10 Horseplay Arising out of: Refers to the origin or cause of the accident and injury Acts of God Positional Risk Employment Personal (idiopathic) Neutral Third-party Assault Horseplay

11 Horseplay In the course of: Refers to the work connection as to time, place and activity Premises Rule Coming and Going Special Errand Exception Furnished Transportation Employer Created Condition Fixed versus Non-fixed Worksite Recreational and Employer Sponsored Events

12 Horseplay Definition: rough or boisterous play or pranks Analytical factors: Was the deviation substantial? How long was the deviation? Did the deviation materially detract from the work Did the horseplay carry a significant risk of serious injury? Was the horseplay over a trifle matter? Did the employer acquiesce to the horseplay?

13 Horseplay IT ALL DEPENDS ON THE FACTS Putting up your best defense involves being proactive and reactive: Enact policies discouraging horseplay English and Spanish Enforce policies relating to horseplay and deviations from work Define job duties specifically Define work area DO NOT LET HORSEPLAY BECOME A PART OF THE JOB

14 Prior Permanent Restrictions May retroactively void the employment contract if: 1. Employee knowingly and willingly made a false representation as to physical condition; 2. False misrepresentation relied upon by employer and substantial factor in the hiring; and 3. Causal connection between the injury and the false misrepresentation

15 Prior Permanent Restrictions Avoidance of permanent disability Requires: Evidence of prior restrictions Medical evidence establishing that no new restrictions are needed as a result of the injury Akin to a temporary aggravation theory Does not avoid all liability, but reduces liability Violation may constitute willful negligence (e.g. violation of safety rule)

16 Statute of Limitations DOES NOT START TO RUN UNTIL FIRST REPORT OF INJURY IS FILED 2 years from last indemnity and/or medical payment Not applicable if Award is in place Begins to run when payment is received, not sent Obermiller v. Peak Interest, 277 Neb. 656 (2009) Payment made after it has run, does not restart the 2 year limitation period May not be tolled by a mistaken payment May be avoided if claimant can show increase in disability caused solely by the work injury

17 Notice What constitutes sufficient notice? Knowledge sufficient to lead a reasonable person to conclude that an employee s injury is potentially compensable and therefore the employer should investigate the matter further. Written or verbal

18 Notice What constitutes sufficient notice? (cont.) Notice to foreman, supervisor, or superintendent in a representative capacity. Insurer = employer Notice from a third party (i.e. spouse, doctor)

19 Notice How late is too late? Employee required to give notice as soon as practicable after the injury No bright line rule Courts have said 5 months is the outer limit Discovery rule Acute versus repetitive injury

20 Notice Dealing with notice issues: Asserting lack of notice as a defense Credibility issues Investigation Documentation Policies for reporting injuries

21 Employer s Responsibilities 1. Understand the workers comp system generally 2. Understand the specific benefits provided and how to calculate them 3. Incorporate a safety culture in the workplace 4. Enhance employment policies and procedures to better handle workers compensation

22 Employer s Responsibilities 5. Enhance policies and procedures (cont): - Falsification Statement in Application - Accident Reporting Policy (24 hours) - Pre-employment Screening, Testing & Exam - Post Accident Testing - Drug & Alcohol Testing - Job Descriptions (including Light Duty) - Defined Period for Light Duty position - Safety Training and Rules (including PPE) - Anti-Harassment and Retaliation Policy - Additional Reporting Policies for Employees

23 Employer s Responsibilities 6. Utilize pre-employment testing for record of physical capabilities/limitations 7. Provide light or alternative duty for return to work 8. Utilize Form Immediately investigate all accidents, collect witness statements and gather critical documents 10. Good record-keeping practices

24 Employer s Responsibilities 11. Communicate with the injured employee 12. Understand the insurance process and open lines of communication with claims adjuster (and attorney). Notify carrier of new injury or incident (FROI); Provide follow up from investigation including any witness statements; Discuss inconsistencies and rumors Provide important employment documentation Notify carrier and attorney of any accommodation issues/termination issues

25 QUESTIONS? Charles L. Kuper Larson Kuper, P.C., L.L.O. 256 N. 115 th Street, Suite 3 Omaha, NE (402) [email protected]