Workers compensation coverage and the causal connection
By David Thamann
Under the workers’ compensation and employers liability insurance policy, the insurer agrees to pay promptly when due the benefits required of the insured employer by the workers’ compensation law. The workers’ compensation law will vary, depending on the state listed in the policy. However, regardless of which state's law governs the payment of workers’ compensation benefits, the parties to the workers’ compensation insurance contract can rely on, at least, two basic principles: the employee must suffer an injury and this injury must arise out of and in the course of employment.
But, what does it mean to say that an injury must arise out of and in the course of employment? There can be several points to consider in answering this question, but the main one is "the causal connection."
"The test of the right to participate in the workers’ compensation fund is… whether a causal connection existed between an employee's injury and his employment either through the activities, the conditions, or the environment of the employment.''
This quote from Bralley v. Daugherty, 401 N.E. 2d 448 (1980), makes the point that for workers’ compensation payments to start, an employee has to be injured as a result of his or her employment. It is not enough that an employee is merely present at work for him or her to suffer a compensable injury; the employment has to cause the injury.
Note that a minority opinion in this country supports what is known as the positional risk doctrine, under which the test of recovery for workers’ compensation is not a causal relation between the nature of employment of the injured person and the accident. Rather, the positional risk doctrine provides that mere presence at the workplace is enough if the injury would not have occurred but for the fact the employment placed the employee at that location at that particular time. However, an overwhelming majority of states still require the causal connection.
If a causal connection between the injury and the employment is disputed, such disputes are decided on a case-by-case basis, with the court taking several factors into consideration. For example, in Barber v. Buckeye Masonry & Construction Company, 765 N.E.2d 951 (2001), an Ohio court of appeals stated that "the following factors, which are not exhaustive, are enumerated under the totality of the circumstances test to determine whether a sufficient causal connection exists between the injury and the employment: the proximity of the scene of the accident to the place of employment; the degree of control the employer had over the scene of the accident; and the benefit the employer received from the injured employee's presence at the scene of the accident."
Another factor not mentioned in this case is also very important: the claimant's medical evidence. If an injured worker is making a workers’ compensation claim, he or she must show either that the connection between the injury and the employment is based on reasonable medical probability, or that it is more probable than not that the work contributed in a material fashion to the precipitation, aggravation or acceleration of the injury. In other words, the employee must have his or her doctor report the opinion that the injury did (or most probably did) occur as a result of the employment.
Now, if the employee is injured while at work at the employer's place of business, that would normally be considered the causal connection necessary for workers’ compensation payments to be made. However, there are some activities engaged in by employees that bring into question whether such activities are so related to employment that injuries suffered then are causally connected to the course of employment. Some examples are recreational activities, horseplay and fights, and alcohol or drug consumption.
Many employers sponsor picnics or sporting events and some employees can get hurt while participating in these events. If such activities are paid for and supervised by the employer for the purpose of generating or improving the employer-employee relationship, an injury sustained by an employee will often be deemed to have occurred in the course of employment.
For example, in Grather v. Gables Inn, Ltd., 751 A.2d 762 (Vt., 2000), the court held that recreational or social activities are within the course of employment, for workers’ compensation purposes, when: they occur on the premises during lunch or a recreation period as a regular incident of employment; employer, by expressly or impliedly requiring participation, or by making the activity part of the services of employee, brings the activity within the orbit of employment; or the employer derives a substantial direct benefit from the activity beyond the intangible value of improvement in employee health and morale that is common to all kinds of recreation and social life. Note that this type of thinking could also encompass company wellness programs and the setting up of exercise rooms for the use of employees.
Whether an injury sustained by an employee during horseplay or fighting is considered in the course of employment depends on the factual circumstances. If an employee is on the job and he or she gets hurt due to the horseplay or fighting of another person, that injury is typically compensable. For example, in State v. Espinoza, 924 P.2d 979 (Wash., 1996), an employee was injured when horseplay with a coworker escalated and the coworker punched the employee. The court determined that the employee was entitled to workers’ compensation because she was filling a customer order when the injury occurred and the encounter with the coworker was not a frolic of her own but a condition of her employment.
On the other hand, if the employee perpetrating the horseplay gets hurt, typically that will not be considered work-related by most courts. For instance, in Carrick v. Riser Foods, Inc., 685 N.E.2d 1261 (Ohio App. 8 Dist., 1996), the Ohio Court of Appeals ruled that employees are not entitled to compensation where their injuries are sustained during horseplay, quarrels or fights that are instigated by the injured employee. However, the fact that the workers’ compensation claimant is the initial aggressor in the assaultive behavior does not always, in itself, render the injury non-compensable. Courts in some jurisdictions find the more crucial issue to be whether the employee departed from the scope of his employment by engaging in the horseplay.
When it comes to fighting, the instigator of the fight is not typically entitled to workers’ compensation, but the injured victim can be so entitled based on the circumstances. If the fight is personal, for example a political disagreement, the injury cannot be said to occur in the course of employment and no compensation should be paid to either party. If the fight is business-related, for example an argument over possession of a tool, the victim’s injury is considered to be in the course of employment and should be covered under the workers’ compensation system.
Finally, standing alone alcohol or drug consumption is not typically sufficient to defeat recovery of workers’ compensation benefits if the user is injured at work. It is often the case that an employee injured while intoxicated at work is still able to collect workers’ compensation benefits. And note, that in some jurisdictions, if an employer permits the use of alcohol at a company event, that employer may even be stopped from raising intoxication as a defense.
Standards for when intoxication precludes the receipt of benefits vary state-to-state. Nearly all of the 50 states and the District of Columbia have enacted legislation specifically addressing the effect of substance abuse on the right to receive workers’ compensation benefits. The majority of those laws provide that workers’ compensation benefits are not payable if the employee's injury is a result of substance abuse or intoxication. A handful of states require that the intoxication must be the sole cause of the injury before benefits may be denied, while some other jurisdictions have enacted legislation that makes reference to injuries "occasioned by" intoxication or those in which intoxication is the "proximate cause" or "primary cause" of the injury or death. However, because intoxication is an affirmative defense, the burden of proof of intoxication and the required degree of causation rests with the employer, and the employer's burden is difficult in most cases.
In conclusion, it can be said that, in the workers’ compensation system, there is no guarantee that an injured employee will receive benefits just because that person is an employee and gets hurt. However, modern courts are typically reluctant to forfeit an employee's right to receive workers’ compensation benefits, and they will construe state statutes in favor of the employee. There are usually many factors that must be considered before a workers’ compensation claim will be denied.