In what situations might you succeed in defending your business against a Workers Compensation claim?
Although the answer depends on the state(s) in which you do business, some common threads in many states’ Workers Compensation laws permit employers to offer a number of “affirmative defenses” against suspicious claims:
Intoxication (from alcohol and/or drugs). You have the burden of establishing that intoxication was the prime or a contributing factor in the injury. This defense doesn’t apply if you permitted, encouraged, or knew about the alcohol or drug use.
Self-Inflicted Injury. You must prove that the injury was intentional.
Suicide. You might be required to prove the circumstances of the death.
Injury to an initial physical aggressor. As a rule, if the injured party started the fight, he or she can’t collect Comp benefits. To determine the facts, start an immediate investigation.
Horseplay or skylarking. In these cases, there’s no animosity between the employees involved, even though the activity causes bodily harm. Although you might be able to use horseplay as a defense, if you condoned this type of activity or didn’t punish it, you’d probably lose your case — and might also wind up paying for injuries to non-participating employees hurt as a result of horseplay.
Voluntary off-duty recreational or athletic activities. Your defense must meet the “reasonable expectations” test: how a reasonable person would interpret the situation.
A risk of assault inherent in the employment. If the employee suffers an injury on the job from a customer, visitor, or robber, the motive of the attacker is irrelevant.
Before you decide whether to defend yourself against a questionable Workers Comp claim, be sure to consult with your attorney.
