1. Injury During Intoxication
2. Failure to Use a Safety Appliance
3. Worker’s Willful Intent to Injure
Workers' Compensation is considered a “No-Fault” benefit system. It provides statutory benefits to injured workers regardless of employer or employee negligence or fault. Despite the no-fault emphasis of the law, there are a few exceptions to blanket coverage. The relevant statute reads:
21 V.S.A. §649. Injuries not covered; burden of proof
Compensation shall not be allowed for an injury caused by an employee's willful intention to injure himself or another or by or during his intoxication or by an employee's failure to use a safety appliance provided for his use. The burden of proof shall be upon the employer if he claims the benefit of the provisions of this section.
This article will address specifically when and how a workers’ compensation claim may be denied in each of these scenarios.
Reporting and Denial:
Work injuries must be reported within 72 hours of notice or knowledge of the injury. If an employer suspects that the injury is the product of an intent to injure, intoxication, or failure to use a safety device, it should immediately notify its insurance carrier, and provide what ever evidence it may have to support its position. The type of evidence the employer could present includes: a description of the workers’ behavior; identification of witnesses; identification of safety rules; listing of safety equipment, etc. Upon receiving notice of the injury, the employer’s insurance carrier is obligated to investigate the claim and to accept or deny it. If the evidence supports a valid basis for denial, the carrier may issue such denial along with their supporting evidence.
The Burden of Proof for Denial is on the Insurance Carrier/Employer:
The insurance carrier must have evidence to support its denial in each of these three scenarios. It is not appropriate to deny a claim due to the mere possibility of the offending action. The burden is on the employer or its carrier to prove that one of these provisions applies. The standard of review differs in each scenario.
Injury By or During Intoxication:
The statute does not specifically define what constitutes “intoxication”. Through Vermont workers’ compensation case law, however, DUI law has been applied, finding that a BAC of 0.08% or above is considered intoxicated. Evidence of intoxication must be presented to support the denial. For supporting case law see Estate of Veach v. SG Realty d/b/a Gateway Motel, 47-98 WC.
Workers’ compensation case law supports that a BAC of 0.08 is one method of establishing intoxication. This does not rule out the possibility that intoxication may be established in other ways. In Garber, intoxication was evidenced by submission of a police report containing a State Trooper’s opinion. An employer may alternatively submit evidence of a worker engaging in significant alcohol consumption or behavior that suggests intoxication (e.g. slurred speech, loss of motor coordination, etc.) Persuasive evidence of intoxication will allow the carrier/employer to prevail in their denial. Intoxication is also not necessarily limited to alcohol. Proof of illegal drug use and limited mental or physical control also could establish intoxication
It is noteworthy that the denial for intoxication requires no evidence that the intoxication was the actual cause of the accident or injury. In Garber v. Hill-Martin Corp., 11-88 WC, a traveling salesman was injured in a work-related motor vehicle collision. He was processed for DUI. No evidence was presented indicating a causal connection between the intoxication and the collision. The language in the law imposes no causal connection requirement. Injury by or during intoxication is considered an absolute bar to a claim.
Failure to Use a Safety Appliance Provided by the Employer:
It is well recognized that safety equipment and training can significantly limit or reduce work injuries. An employer may be tempted to claim the benefit of this denial without truly implementing safety procedures. The Department has applied a three-prong test in granting denials for failure to use a safety device. The employer/carrier must meet all three prongs:
1. Actual notice of the safety rule and explanation of danger of violation.
2. Enforcement of the safety rule, appliance or protocol.
3. No valid excuse for violating the safety rule may be presented by the employee.
Case law on this subject is instructive on what action the employer must take to establish sound safety protocol. See O'Connor v. LePage Bakeries, 36-99 WC. Employee O’Connor was provided boots, goggles and gloves for his work with chemicals. Evidence indicated that he failed to use all of the safety equipment appropriately and suffered chemical burns. A denial was issued due to failure to use safety equipment. The evidence at the formal hearing established that the employer: did not train or instruct the employee in the use of all equipment; did not provide all necessary equipment; permitted employee to work without following safety procedures, and, in summary, failed to diligently enforce safety procedures. The denial was not supported by the actual evidence and Mr. O’Connor was awarded workers' compensation benefits.
Employee’s Willful Intention to Injure Himself or Another:
A denial alleging willful intent to injure must also be supported with evidence. One past example concerns a worker who suffered a back injury resulting in lifting restrictions. At a later date, while working for a new employer, the worker lifted a bale of hay and re-injured his back. The new employer claimed the affirmative defense of willful intent to injure, thus barring the claim. The evidence presented indicated that the claimant was lifting within his restrictions. Further, no evidence was presented of intentional self-injury, thus the denial was not valid. See Kilburn v. Munson Earth Moving, 16-96 WC.
Workers’ Compensation Law – A Balancing of Interests:
Workers’ compensation benefits are provided, regardless of fault, in most instances. The statute makes exception, however, for the situations, as listed above, where the worker ignores safety procedures, is intoxicated, or engages in intentional injury.
Employers are encouraged to make full use of the remedies available in the system. Time spent developing and enforcing safety procedures can pay off in reduced injuries and claims. Money spent on safety equipment and training can result in savings on the insurance side. Workers’ are encouraged to diligently follow safety protocol and be aware of the potential for claim denial if overlooked.