Posts Tagged ‘state laws’

Compensable Fun

Monday, August 3rd, 2009

There is an ongoing debate concerning the compensability of injuries that occur during company sponsored recreation. As Dr. Suess might say, “These things are fun and fun is good,” except when your employer makes you do it. There is a fine line between employees participating because they want to, as opposed to feeling that they have to.
Clark Kauffman has a nice summary of the compensability issues in the Des Moines Register. He sites the case of Robert Powell, an employee of the Cedar Rapids Gazette, who injured his back bowling at a “Family Fun Fest” sponsored by his employer. His injury was compensable – to the tune of $100,000 – because the employer urged participation: “Don’t make us cancel this event from lack of interest/attendance.”
Iowa has some interesting case law regarding compensability:
Hunting: way back in 1933 Claire Fintzel was trying to close a deal while pheasant hunting with a business associate. He was shot in the leg. He received $15 a week for 100 weeks (a paltry sum, to be sure, but this was back in the depression).
Boating: In 1941 Roy Linderman, a salesman for Cowie Furs, won a company-sponsored contest for highest sales. His prize? A fishing trip, during which, alas, he drowned. His death was deemed compensable.
Basketball: In 1982 Professor Charles Campolo of Briar Cliff College was partcipating in a faculty-student basketball game. At age 40, Campolo had a known heart condition. He died in the game’s final seconds. Because the school derived a benefit from his participation, the death was compensable.
State by State
Kauffman takes a brief look of the compensability issue from state to state. It usually boils down to this: is the event truly voluntary? Does the employer derive a direct business benefit from the activity? To some degree the burden of proof is on the employer to demonstrate that there is no pressure on employees to participate – that participation is not the only true measure of “team spirit.”
The state of Tennessee recently revised their comp statute, to provide clarification on the compensability issue. The statute is brief but comprehensive:

Public Chapter 407 (SB1909/HB1500) excludes from workers’ compensation injuries that occur during recreational activities that are not required by the employer, and do not directly benefit the employer. Workers’ compensation injuries that are covered under workers’ compensation include those that occur where participation:
1) was expressly or impliedly (sic) required by the employer; or
2) produced a direct benefit to the employer beyond improvement in employee
health and morale; or
3) was during work hours and was part of the employee’s work duties; or
4) occurred due to unsafe conditions the employer had knowledge of and failed to
curtail or cure the unsafe condition.

This statutory language summarizes the issues without tying the hands of judges unnecessarily. It’s a good model for legislators contemplating changes. Beyond that, it’s good policy guidance for employers who want to encourage team building and fun, without creating inadvertant comp exposures.
NOTE: Our collegue Julie Ferguson has related blogs here and here.

Washington passes “Safe Patient Handling” legislation

Thursday, March 23rd, 2006

Few think of health care as one of the nation’s most hazardous professions, but there you have it: nurses, nursing home attendants, and other health care workers are among the nation’s most frequently injured work population, suffering from a high incidence of musculoskeletal injuries. Patient care calls for frequent lifting and moving, and this wreaks havoc with the back and shoulders. It’s estimated that as many as 12 to 18% of all nurses stop practicing due to chronic back pain. The nursing shortage means that many health care workers have to do more with less, increasing the likelihood of injury; ironically, these injuries may be a primary culprit in exacerbating the nursing shortage.
Not to mention the hazards to the patient. When you are at your most vulnerable, do you really want a single nurse to be heaving you about? Bill Cosby used to have a stand-up routine about how you never wanted to hear a doctor say “oops.” Similarly, When you are taking your first steps after major surgery, you don’t really want the nurse who is helping you to say “ouch” – a helper who is writhing in pain may not be in your best interests.
Legislators in Washington – prompted by the Washington State Nurses Association, United Food and Commercial Workers Local 141 and Service Employees International Union 1199NW – just passed a Safe Patient Handling law that requires hospitals to provide mechanical lift equipment for the safe lifting and movement of patients. According to Occupational Hazards:

“On a timeline between Feb. 1, 2007, and Jan. 30, 2010, Washington hospitals must take measures including implementation of a safe patient handling policy and acquisition of their choice of either one readily available lift per acute-care unit on the same floor, one lift for every 10 acute-care inpatient beds or lift equipment for use by specially trained lift teams.”

In August, we reported on Texas legislation that required nursing homes and hospitals to implement safe patient handling and movement programs. Most importantly, both laws have provisions that protect health care workers from reprisals should they refuse to perform patient handling that they deem potentially harmful to themselves or their patients.