Builders and Contractors Exchange
Weekly Bulletin: 10 AUG 2007
Complete Bars To Workers' Compensation Benefits
By: Brian L. Sykes
Generally, an employee is entitled to workers' compensation benefits if his or her injury occurs in the course of the employment; and his or her injury arises out of the employment. However, the following defenses serve as bars to compensation even if the employee's injury (or death) occurs in the course of the employment and arises out of the employment:
1) The employee's willful misconduct or intentional self-inflicted injury:
In order to prevail upon this defense, the employer must establish that the employee had the intention to perform an act that the employee knows or ought to know is wrongful and/or forbidden by law. An employee's mere negligence is not enough to establish this defense.
If the employer relies upon the employee's willful misconduct due to a violation of a written or verbal safety rule, the employer must establish that a) the safety rule was reasonable; b) the rule was known to the employee; c) the rule was for the employee's benefit; and d) the employee intentionally engaged in the forbidden act.
In the case of a driving infraction such as speeding or driving without a seatbelt, the Commission will determine whether the employee willfully violated the applicable statute.
2) The employee's attempt to injure another:
In order to prevail upon this defense, the employer must establish that the claimant was the aggressor. If the employee is injured in a fight in which he is not the aggressor, even if he intends to injure another employee, this will not serve as a bar to compensation. In addition, if the Workers' Compensation Commission determines that the employee was engaged in "horseplay" rather than a fight at the time of the injury, benefits are not barred.
3) The employee's intoxication due to use of alcohol or a non-prescribed controlled substance:
The employer has the burden of establishing that the employee's intoxication led to the injury. However, if the employer can establish that the employee had an illegal amount of alcohol or non-prescribed drugs in his system at the time of the injury, there is a rebuttable presumption that the claimant's intoxication is the cause of the injury.
4) The employee's failure, willful failure or refusal to use a safety appliance or perform a duty required by statute:
In order to prevail upon this defense, the employer must establish that a) the employer properly instructed the employee in the requirement to use the safety appliance; b) the failure to use the safety appliance caused the injury; and c) the employee intentionally failed or refused to use the safety appliance.
5) The employee's willful breach or any reasonable rule or regulation adopted by the employer and brought, prior to the accident, to the knowledge of the employee:
Again, mere negligence on the employee's part is not sufficient to establish this defense.
Questions?
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This article is meant to bring awareness to this topic and is not intended to be used as legal advice.