?There are many misconceptions about workers’ compensation, particularly about grounds for claim denials. This article highlights common misunderstandings and explains various requirements for workers’ compensation eligibility.
Different States, Different Requirements
Many employers believe that the workers’ compensation system is the same in each state, said Bob Robenalt, an attorney with Fisher Phillips in Columbus, Ohio. Not true.
“For multistate employers, each state provides some significant distinctions in coverage issues,” he said. There also are many states that permit self-insurance, which can often provide a significant cost savings for large employers, he added.
Grand Bargain
Employers new to the workers’ compensation system often don’t understand the no-fault nature of workers’ compensation coverage. Many believe that an employee should not have a claim if the employee’s negligence or misstep resulted in the injury, or when the employer did not do anything wrong. “In fact, the workers’ compensation system is designed to provide for coverage regardless of fault,” Robenalt stated.
There are exceptions to the no-fault system, but “when the workers’ compensation system was created over 100 years ago, the grand bargain was trading a potentially lucrative tort system, with a lower probability of receiving compensation, for a system that provided more predictable, albeit potentially ultimately lower, payouts,” said Matt Zender, senior vice president of worker’s comp strategy with AmTrust Financial Services Inc. in Las Vegas.
Other Misunderstandings
There are additional misunderstandings about workers’ compensation eligibility, according to Elizabeth Weeden, an attorney with Perez Morris in Columbus, Ohio.
First, some employers incorrectly think that a positive post-accident drug test is always going to lead to a claim denial. Not necessarily, Weeden cautioned. In Ohio, a positive post-accident drug test raises only a “rebuttable presumption” that an injured worker’s use of drugs or alcohol caused the industrial injury if the employer reasonably suspected the employee was under the influence or the testing was done at the request of a police officer or licensed physician not employed by the employer. This presumption is rebuttable, which means that the burden can shift back to the employee to prove the impairment did not cause the accident. The detected levels of alcohol or controlled substance must have been above the applicable thresholds under the statute. If the injured worker refuses to submit to a test, the presumption will be triggered. The employer also must post written notice that a positive test will disqualify an employee from workers’ compensation benefits.
Also, in some jurisdictions, including Georgia, the fact that an employee has a personal or pre-existing condition involving the same body part injured on the job does not automatically bar the employee’s entitlement to workers’ compensation benefits, said Blake Staten, an attorney with Swift Currie in Atlanta. “Georgia is an aggravation state, such that if the accident in question aggravated or exacerbated a pre-existing condition, the employer can be held responsible for treating the aggravation until the employee has returned to his or her pre-accident or baseline status,” he said.
Weeden said Ohio also provides that a pre-existing condition can be compensable only if the injured worker can prove the pre-existing condition was substantially aggravated by the industrial injury. Ohio provides that the substantial aggravation must be documented by objective diagnostic findings, objective clinical findings or objective test results. Subjective complaints, such as complaints of pain, can be considered as evidence but only if there is also objective evidence to support the subjective complaints, she noted. But if the claim is amended for a substantial aggravation, an employer can submit medical evidence that the pre-existing condition has returned to the baseline, which can potentially terminate medical or disability benefits related to the substantial aggravation.
Another misconception is that if two employees fight at work, neither can be successful in pursuing a workers’ compensation claim. The issue instead is whether the injury came in the course of and arising out of the injured worker’s employment. Ohio courts, for example, have consistently focused on two factors: 1) that the origin of the altercation was work-related, and 2) the person injured was not the instigator. The claim is compensable in Ohio only if both findings are made, Weeden said.
In addition, some employers falsely think that if the claimant was trained to do a job in a certain way and is injured when the employee deviates from that procedure, the injured worker will not be entitled to workers’ compensation benefits as a result. But as stated before, workers’ compensation is a no-fault system, which means that the only issue as to whether the injury is compensable is if the injury occurred in the course of and arising out of employment, Weeden explained. If the injured worker did not follow proper procedures or was even negligent causing an injury, such action has no bearing on the compensability of the claim. However, if the injured worker violated a handbook policy or rule in not following procedure, the employee can be disciplined and potentially even terminated if the circumstances warrant, she added. But the employee may still be entitled to compensation for the injuries despite the discipline, according to Ohio law.
Another misconception is the belief that if a worker gets hurt while in the workplace but not doing any work, the employee cannot file a workers’ compensation claim. In fact, a compensable injury does not necessarily have to be sustained in the actual performance of work. Rather, an injury is compensable if it is sustained while engaging in activities that are consistent with employment and logically related to the employer’s business, Weeden said. Activities such as traveling, engaging in personal comfort activities such as eating, or participating in recreational activities can be considered work-related if it can be demonstrated that the activity is for the benefit of the employer, she noted.