The cost of workers compensation insurance and the total number of work injuries has been in a long-term decline as industrial jobs decrease and service jobs increase.
But even as overall claims and costs decline, the workers’ compensation insurance industry is focusing on higher value “mega” claims involving serious or fatal injuries. These claims often involve auto accidents which are made more prevalent by the 1) increase in delivery jobs through online commerce and 2) the expansion of mobile technologies that turn vehicle into mobile offices. (I drafted the first two paragraphs of this post on my IPhone in my car at a car wash)
The increased focus on so-called mega claims will likely bring increased attention to litigation over 1) when an injury arises out of and in the course and scope of employment 2) employee fault and so-called safety violations and 3) fights over how much an insurer/employer should be paid back when they paid workers’ compensation benefits for an injury that was the fault of a third-party. In legalese, this is called a subrogation interest.
Arising out and in the course and scope of employment
For an injury to be covered by workers’ compensation, it has to take place within the time and spatial boundaries of work and the injury has to be caused by a risk related to employment. At least under Nebraska law, the issue depends on the facts of the case. The Nebraska Court of Appeals recently heard oral arguments in a workers’ compensation case involving the survivor of a sheriff’s deputy who was killed in a car accident on his way home from work.
Normally such work would not be covered under workers compensation under the so-called going and coming rule. But in this case the sheriff’s deputy was talking to another deputy who was covering the next shift about a work-related event when accident occurred. The family of the employee argued that since the employee was talking on their cell phone about work with a coworker when the accident happened, that the accident should be covered by workers compensation. In that case the trial court disagreed.
I agree with the family. Mobile technology is changing the scope of what constitutes the workplace. It also changes expectations for when an employee is expected to be working. Covering employees injured offsite and/or off the clock while using mobile technology by workers compensation adapts workers compensation to a modern workplace.
Using mobile devices in moving vehicles poses safety risks. Employers have the discretion to make reasonable safety rules. In some cases, violation of a safety rule gives employers to paying workers compensation in Nebraska. Many other states have similar rules. In a recent Virginia case, serious injuries to a bus driver injured in a motor vehicle accident were found not to be covered by workers’ compensation because the driver was violating an employer rule requiring that he wear a seat belt. A death or serious caused by a worker who was texting or emailing while driving in violation of company rules on would be vulnerable to being dismissed in Nebraska.
Third Party cases
Many cases involving auto accidents on the job involve the negligence of a third party that is neither the fault of the employee or employer. In such a case, the employer has a right to be paid back for workers’ compensation benefits out of any recovery from that third party minus some attorney fee. This is called a subrogation interest. Nebraska law allows a court to equitably determine the amount of the subrogation interest.
But Nebraska courts have taken a view of equitable subrogation in third party cases that is favorable to employers. The fact that an employer deceased the value of the personal injury case by aggressive defense of the workers’ compensation claim does not given courts the authority to reduce an employer’s subrogation interest. Nebraska courts have also held that giving employers robust repayment rights in third party cases effects the purpose of the workers compensation act because it encourages the prompt payment of benefits.