Be Careful What You Ask For, As This Snake May Bite Twice
I read an interesting story this morning about a workers' compensation claim in Virginia. A woman, on her break but still inside the employer premises, was bitten on a toe by a baby Copperhead snake. She was hospitalized and received two doses of anti-venom as a result. She is also receiving therapy following her release from the hospital. While there are all too typical elements to this tale (the claim was denied and she has hired an attorney), there were a few things about the story that I found odd. More on that in a moment.
First however, it appears the insurer in this case is relying heavily on Virginia's relatively strict position on AOE/COE standards, and it's embrace of the “Actual Risk Test” for determining compensability. That test essentially was expressed in the case of Lear Corporation Winchester and Employers Insurance of Wausau V. Anna M. McFarland, which stated: "An injury 'arises out of' the employment if a causal connection exists between the claimant's injury and the conditions under which the employer requires the work to be performed, or some significant work related exertion caused the injury. Under this test, if the injury can be seen to have followed as a natural incident of the work and to have been contemplated by a reasonable person familiar with the whole situation as a result of the exposure occasioned by the nature of the employment, then it arises 'out of' the employment. But it excludes an injury which cannot fairly be traced to the employment as a contributing proximate cause and which comes from a hazard to which the workmen would have been equally exposed apart from the employment. The causative danger must be peculiar to the work and not common to the neighborhood. It must be incidental to the character of the business and not independent of the relation of master and servant. It need not have been foreseen or expected, but after the event it must appear to have had its origin in a risk connected with the employment, and to have flowed from that source as a rational consequence." Under this assertion, a snake bite on the premises likely could not have been foreseen as “a result of the exposure occasioned by the nature of the employment”. So on the surface the denial may seem in accordance with Virginia standards, but that is not the end of the story.
What I found completely out of place was the method with which the denial was communicated. In most situations, as many of us know, a claim is filed with the insurer, and from that point out most of the specific communications regarding that claim are between the carrier or their representative and the injured worker. Denial letters normally come from one of those parties. In this case, however, the denial came directly from the employer, who said they had “consulted with” both their workers' compensation insurer and attorneys regarding the matter. In a statement to a local television station investigating the story, the company said:
Thank you for reaching out to us regarding the workers compensation claim arising from one of our team members being bitten by a snake. We reported the incident to our Workers Compensation insurer promptly and have a preliminary response that the injury did not arise out of the course and scope of the Injured Worker's employment. Our insurer advised that their position is based on their preliminary interpretation of the facts of the injury as they relate to the State of Virginia Workers Compensation Statute. We have reached out to the Insurance Adjusters and their Legal Counsel for further clarification on their reasoning behind that decision and anticipate hearing back from them in the next couple of days.
We will be glad to share any and all information we can in the future that is allowable under the privacy laws relating to the injured workers personal health information.
The injured woman, for her part, says she doesn't feel like she should have to bear the cost of the hospital and follow up therapy, as she wasn't the “one to blame” in this situation. She said “I feel like workers' compensation should definitely try and work with me. I shouldn't have bear this pain or this bill on my own. I feel like this wasn't negligence on my part. It wasn't something that I caused.” She obviously has not been schooled on the no-fault nature of workers' comp. Of course, many in our industry seem to be losing that particular lesson as well.
Not to be outdone, a “Legal Expert” for the station also makes a faux pas when he helps to further define the situation, by saying, “What's important to understand is that workman's comp does not insure against every accident or injury that occurs during someone's work.”
Perhaps they should get a new legal expert who understands the name of our industry changed 40 years ago.
Also, the landlord of the injured workers' employer has weighed in, stating that they are concerned for the safety of their tenants, and wish to help in any way possible.
With that contribution we find the rub; the fact that without workers' comp both the employer and landlord are potentially on the hook for medical expenses, lost time and that holy grail of tort law, pain and suffering. These entities are now potential tortfeasors, having lost the protections that an accepted workers' comp claim likely would have afforded. After all, having a poisonous snake in the facility is generally not something one would consider normal or responsible. I'm not saying the snake's presence was intentional or even known, but the fact that it was there at all means someone has some splainin' to do in the purest legal sense.
Employers don't really appreciate workers' comp anymore. They generally do not understand the protections it affords them, and they simply view the insurance as a required expense line on their operating budget. Given their druthers, I suspect most small to mid-size employers would drop the insurance if they could, simply because they lack the awareness of what could happen outside of the coverage they currently have. This case is a great example of what can happen when comp is denied or not provided for a workplace injury.
Be careful what you ask for, because the worker isn't the only one who might end up bitten by that snake.
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Robert Wilson is President & CEO of WorkersCompensation.com, and "From Bob's Cluttered Desk" comes his (often incoherent) thoughts, ramblings, observations and rants - often on workers' comp or employment issues, but occasionally not.
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