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SafetyMisconductDefensesPPT1.ppt

April 4, 2013 - IWCI April Luncheon

Presented by Barry s. Spurlock, Esq., CSP - Fisher & Phillips, LLP

Safety Misconduct Defenses for Workers’ Comp Claims

A look at statutory utility in Indiana.

Safety Misconduct Defined

  • Term Coined by Presenter
  • Creature of Statute
  • Violation of Employer Safety Rule
  • Failure to Use Safety Device or Appliance
  • Drug and / or Alcohol Influence

Workers Comp Adjudication

ALJ

Workers Comp Board

State Appeals Court

State Supreme Court

Worker’s Comp Appeals: Indiana

  • WC Board (Less than Full Board)
  • WC Board (Full Board)
  • Indiana Court of Appeals
  • Questions of Law
  • Questions of Fact
  • WC Board Affirmed = 5% to 10% Increase

What are the issues?

  • Employee Culpability
  • Rule Communication
  • Drug(s) / Alcohol’s Role in Incident
  • Affect of Safety-Related Misconduct
  • “No compensation is allowed for an injury or death due to the employee's knowingly self-inflicted injury, his intoxication, his commission of an offense, his knowing failure to use a safety appliance, his knowing failure to obey a reasonable written or printed rule of the employer which has been posted in a conspicuous position in the place of work, or his knowing failure to perform any statutory duty. The burden of proof is on the defendant.” [emphasis added]

Indiana’s Statute: IC 22-3-2-8

Safety Misconduct
State Comparisons

Issue Kentucky Indiana Tennessee
Employee Culpability > Recklessness (Black Mountain Coal v. Higgins, 226 Ky. 7 (1928) > Thoughtlessness, Inattention, Heedlessness, Nonconformity, Ordinary Negligence Willful AND Intentional
Rule Communication Known Reasonable, Written, Posted Conspicuously Actual Knowledge (subject to Nance Test)
Affect 15% Reduction for Safety; Complete Defense for Drugs Complete Defense Complete Defense
Drugs / Alcohol Primary Proximate Cause Direct / Proximate Cause (Employer Burden of Sufficient Proof) Cert. Drug Free Workplace = Rebuttable Presumption of Cause

Its Time to Play....
COMPENSABLE
OR
NOT COMPENSABLE?

Justin X. Sample works as the Ultra-complex Widget Machine operator. His company has developed a strict rule that prohibits cleaning while the machine is running. This rule is communicated to employees and posted in a notice by the machine. Justin, nonetheless, cleans the machine while it is running, and is injured. During the investigation and subsequent adjudication of the WC claim, Justin stipulates that he knew of the posted, written policy, and that his actions violated the safety rule.

Your company has a STRICT, written, rule that is posted in numerous, conspicuous places that says ONLY used / spent methyl ethyl ketone is to be used to clean the restroom walls. Barry O. Blivious is a janitor in the company and while attempting to attach a bonding wire between his metal MEK cleaning bucket and the metal 55 gallon drum of BRAND NEW MEK, he caused a fire and was severely burned. Employees had been fired in the past for violating this strictly enforced rule.

S. Petie Gonzalez was driving heavy duty pickup, regulated by the DOT, for his employer. While driving to his destination, Petie is involved in a motor vehicle accident and is injured. It turns out Petie was cited for exceeding the speed limit by 5 miles per hour?

Joe Dokes works at High Volume Bakery Inc. He was requested to work a double shift with a four hour break in between the shifts. After completing the first shift, he met some friends for “smoke” break and burned four joints. He returned to work the second shift and during this shift, while pointing to show a maintenance person where the conveyor was malfunctioning, his glove was pulled into the machine and his hand was amputated. His post-accident drug screen revealed fairly high levels of THC / marijuana. The company had a zero tolerance drug policy in effect at the time of injury and had a history of terminating employees who violated the policy.

Roscoe P. Coaltrain is a sheriff’s deputy in Osha County and also works as firefighter for the local, partially-paid-staff fire department (FD). After finishing his shift with the FD, he went home and knocked back about seven cans of Milkwaukee’s Best. A person in the community who knew that Roscoe was a deputy, called his house and reported a case of reckless driving. Despite the fact that he told her he was off duty and couldn’t respond, she insisted and threatened to call the sheriff and city council. Despite his better judgment, he hopped in his sheriff’s cruiser to investigate the matter. He located the car that was driving recklessly, and a high-speed chase ensued. Unfortunately, Roscoe crashed his cruiser during the pursuit and was injured.

Policy in Effect at Time of Injury

Strict, Continuous, Bona Fide Enforcement

Employee Has Actual Knowledge of: A) Rule, and B) Dangers of Failing to Use Device

Willful and Intentionally Failed to Use Device

The Tennessee Test
Nance v. State Industries,
33 S.W.3d 222 (Tenn. 2000)

Common Frustrations for Safety Misconduct Defenses

  • Consistent, Bona Fide Enforcement of Safety Rules
  • Employee Culpability
  • Higher Courts Are Reluctant to Disturb Lower Court Findings on Facts

Questions?