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When releases do not work: Employees and Workers Compensation

State Law prohibits releases for employees if they are covered by Worker’s Compensation.

Prior to the creation of Worker’s Compensation, if an employee was injured at work he had to sue his employer and prove the employer was negligent to recover for his injuries. This created problems for both parties. Injured employees went bankrupt attempting to win a suit and employers injured employees rather than keeping workplaces safe. It was cheaper to fight a lawsuit then make a workplace safe.

With the creation of worker’s compensation the employers and employees both gave up and received benefits. Basically, in return for not suing the employer the employee receives medical care and some of their lost wages.

An employee gives up the right to sue the employer if they accept worker’s compensation benefits. The employer is required to carry worker’s compensation on employees or they can suffer fines or damages levied by the state or if sued by the employee additional damages over what are owed.

Colorado Statutes state that if you accept worker’s compensation you give up other rights to sue.

C.R.S. §§ 8-41-104. Acceptance as surrender of other remedies

An election under the provisions of section 8-40-302 (5) and in compliance with the provisions of articles 40 to 47 of this title, including the provisions for insurance, shall be construed to be a surrender by the employer, such employer’s insurance carrier, and the employee of their rights to any method, form, or amount of compensation or determination thereof or to any cause of action, action at law, suit in equity, or statutory or common-law right, remedy, or proceeding for or on account of such personal injuries or death of such employee other than as provided in said articles, and shall be an acceptance of all the provisions of said articles, and shall bind the employee personally, and, for compensation for such employee’s death, the employee’s personal representatives, surviving spouse, and next of kin, as well as the employer, such employer’s insurance carrier, and those conducting their business during bankruptcy or insolvency.

Georgia Statutes state:

O.C.G.A. § 34-9-11 (2013)

§ 34-9-11.  Exclusivity of rights and remedies granted to employee under chapter; immunity granted to construction design professionals

(a) The rights and the remedies granted to an employee by this chapter shall exclude all other rights and remedies of such employee, his personal representative, parents, dependents, or next of kin, at common law or otherwise, on account of such injury, loss of service, or death; provided, however, that no employee shall be deprived of any right to bring an action against any third-party tortfeasor, other than an employee of the same employer or any person who, pursuant to a contract or agreement with an employer, provides workers’ compensation benefits to an injured employee, notwithstanding the fact that no common-law master-servant relationship or contract of employment exists between the injured employee and the person providing the benefits, and other than a construction design professional who is retained to perform professional services on or in conjunction with a construction project on which the employee was working when injured, or any employee of a construction design professional who is assisting in the performance of professional services on the construction site on which the employee was working when injured, unless the construction design professional specifically assumes by written contract the safety practices for the project. The immunity provided by this subsection to a construction design professional shall not apply to the negligent preparation of design plans and specifications, nor shall it apply to the tortious activities of the construction design professional or the employees of the construction design professional while on the construction site where the employee was injured and where those activities are the proximate cause of the injury to the employee or to any professional surveys specifically set forth in the contract or any intentional misconduct committed by the construction design professional or his employees.

(b) As used in subsection (a) of this Code section, the term “construction design professional” means any person who is an architect, professional engineer, landscape architect, geologist, or land surveyor who has been issued a license pursuant to Chapter 4, 15, 19, or 23 of Title 43 or any corporation organized to render professional services in Georgia through the practice of one or more such technical professions as architecture, professional engineering, landscape architecture, geology, or land surveying.

(c) The immunity provided by this subsection shall apply and extend to the businesses using the services of a temporary help contracting firm, as such term is defined in Code Section 34-8-46, or an employee leasing company, as such term is defined in Code Section 34-8-32, when the benefits required by this chapter are provided by either the temporary help contracting firm or the employee leasing company or the business using the services of either such firm or company. A temporary help contracting firm or an employee leasing company shall be deemed to be a statutory employer for the purposes of this chapter.

Illinois law states:

§ 820 ILCS 310/5. (Text of Section WITH the changes made by P.A. 89-7, which has been held unconstitutional) [Exclusive remedy against employer; third party liability]

Sec. 5. (a) There is no common law or statutory right to recover compensation or damages from the employer, his insurer, his broker, any service organization retained by the employer, his insurer or his broker to provide safety service, advice or recommendations for the employer or the agents or employees of any of them for or on account of any injury to health, disease, or death therefrom, other than for the compensation herein provided or for damages as provided in Section 3 of this Act [820 ILCS 310/3]. This Section shall not affect any right to compensation under the “Workers’ Compensation Act” [820 ILCS 305/1 et seq.].

No compensation is payable under this Act for any condition of physical or mental ill-being, disability, disablement, or death for which compensation is recoverable on account of accidental injury under the “Workers’ Compensation Act“.

Consequently the battle in worker’s compensation cases is whether or not someone was an employee. Several people are automatically excluded; first independent contractors are not employees. Interns are probably a revolving area of the law, and are probably moving close to being called employees. Several recent federal regulatory changes have required more education for interns and several lawsuits have resulted in interns receiving pay. If interns are paid, then they are employees covered under worker’s compensation.

Interns that have been injured and not covered by worker’s compensation are prevented from recovering because of state law, not because of unequal bargaining power.

The prohibition against lawsuits does not extend to malfunctioning equipment or any third party that might have caused the injury. An example would be an employee working on a road that is hit and injured by a car. The employee’s worker’s compensation would cover his lost wages and medical bills. The injured employee would still sue the driver of the car. However the worker’s compensation insurance company would have the right to recover any damages first before the injured employee based on its subrogation rights.

Simply put, an injury on the job provides guarantees not lawsuits. Those guarantees vary by state, but generally it means 100% of the injured employee’s medical bills are paid and a percentage of their income is replaced. If necessary additional retraining and/or long term disability if the injury is severe enough or permanent.

Employers don’t have to worry about being sued and employees do not have to worry about any defenses to their claims. Statues state that Assumption of the Risk is not a defense to a worker’s comp claim. (C.R.S. 8-41-101 (2013))

8-41-102. Liability of employer complying

An employer who has complied with the provisions of articles 40 to 47 of this title, including the provisions relating to insurance, shall not be subject to the provisions of section 8-41-101; nor shall such employer or the insurance carrier, if any, insuring the employer’s liability under said articles be subject to any other liability for the death of or personal injury to any employee, except as provided in said articles; and all causes of action, actions at law, suits in equity, proceedings, and statutory and common law rights and remedies for and on account of such death of or personal injury to any such employee and accruing to any person are abolished except as provided in said articles.

There is no litigation between employers and employees any more. Now that type of litigation resolves around whether or not someone was an employee. If you are an employer, make sure every person understands that situation and you can prove it, either in writing or some other way. You also must be able to prove that someone is not an employee according to the law. Just saying someone is not an employee is not enough.

Incorrect Articles

Waivers, Employer/Employees, and Bargaining Position

Employer/Employee Waiver Enforced Despite Unequal Bargaining Power

Waiver Protects Chimp Sanctuary from Suit by College Intern

What do you think? Leave a comment.

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Worker’s comp ruling requires employers to walk a fine line when they require their employee to be in shape.

CO off-duty police officer recovers WC benefits for bicycle accident because she was required to pass physical test.

City of Northglenn v. Eltrich, 1995 Colo. App. LEXIS 126; 19 BTR 663
This was the perfect set of facts at the right time to allow an off duty police officer to collect for injuries due to a bicycle accident. However, for anyone in the recreation community, this could easily occur.

The police officer, here the respondent, had just failed a physical test. Her supervisor had given her the impression that she needed to get into shape and pass the test, and she knew that she could be fired for not passing the test. She was out riding her bicycle, attempting to exercise when she had an accident.

Her employer, the police department did not provide exercise facilities and did not provide paid time to exercise. However physical fitness, in this case cardio fitness was part of the job.
The court looked at the appeal on whether the activity was required or part of her employment.

An activity “arises out of and in the course of” employment when it is sufficiently interrelated to the conditions and circumstances under which the employee usually performs his or her job functions that the activity may reasonably be characterized as an incident of employment, even though the activity itself is not a strict obligation of employment and does not confer a special benefit on the employer.

The court looked at the following factors to determine the bicycle accident was covered by worker’s compensation.

…whether the activity occurred during working hours; whether it occurred on or off the employer’s premises; whether participation was required; whether the employer took the initiative in sponsoring or organizing the team; whether the employer made contributions to the team; and whether the employer derived a benefit from the team.

Specifically, the court agreed with the Worker’s Compensation panel that “participation in the off-duty exercise program was required. The program was initiated by employer, and employer stood to benefit by the off-duty exercise program.”

The decision was a 2 to one decision. The dissenting judge filed a dissent stating because she was not at work during work hours or at her place of employment the accident should not be covered. The employer also had no supervision or control over the employee or her activities.

The dissent quoted a Supreme Court decision which created a six prong test which had to be met if a recreational activity was to be covered under worker’s comp. The six points of the test were:

1) whether the recreational activity occurred during working hours;
2) whether it was held on or off the employer’s premises;
3) whether employee participation was required or encouraged;
4) whether the activity was financially sponsored by the employer;
5) whether the activity was initiated by the employer; and

6) whether the employer received tangible benefits from the activity.

The dissent stated that since there was no sponsorship (support) for the activity, and not during business hours or at the employer’s premises the claim should be denied.

The court listed several other jurisdictions that had looked at the case and decided differently. Oregon had a similar claim and held the injury “was not compensable because it did not arise out of, and in the course, of employment.” Georgia, New Hampshire, Oklahoma, New York all were listed as having the same decision as Oregon.

However, the dissent did find that California ruled the same was as Colorado had.

So?

I believe the facts of this case where perfect for the court to find this way. I also think that other than California and a few other states this would be a difficult holding to support in other states.

However, I suggest if you are paying worker’s compensation insurance you work with a worker’s compensation attorney and your WC insurance company to understand your state laws. Worker’s compensation is strictly statutory and controlled by state laws. As such each state has a few particular differences, like this decision which you should know about.

So Now What?

If you have an outdoor program and require your guides to have a certain level of fitness, based on what your attorney says, figure out a way for your employees to exercise on their time without benefits or pay them to work out on your time and pay for their injuries.

What do you think? Leave a comment.

Copyright 2010 Recreation Law (720) Edit Law, Recreation.Law@Gmail.com

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Robinette v. Aspen Skiing Company, L.L.C., 363 Fed. Appx. 547; 2010 U.S. App. LEXIS 1543

To see an analysis of this case see: Aspen Skiing Company Release stops claim by injured guest hit by an employee on snowmobile.

Robinette v. Aspen Skiing Company, L.L.C., 363 Fed. Appx. 547; 2010 U.S. App. LEXIS 1543

CHRIS ROBINETTE, Plaintiff – Appellant, v. ASPEN SKIING COMPANY, L.L.C., a Colorado limited liability company. Defendant – Appellee.

No. 09-1223

UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

363 Fed. Appx. 547; 2010 U.S. App. LEXIS 1543

January 25, 2010, Filed

NOTICE: PLEASE REFER TO FEDERAL RULES OF APPELLATE PROCEDURE RULE 32.1 GOVERNING THE CITATION TO UNPUBLISHED OPINIONS.

PRIOR HISTORY: [**1]

(D. Ct. No. 1:08-CV-00052-MSK-MJW). (D. Colo).

Robinette v. Aspen Skiing Co., L.L.C., 2009 U.S. Dist. LEXIS 34873 (D. Colo., Apr. 23, 2009)

COUNSEL: For CHRIS ROBINETTE, Plaintiff – Appellant: Heather R. Hanneman, Esq., Recht & Kornfeld, P.C., Denver, CO; Scott R. Larson, Esq., Scott R. Larson, P.C., Denver, CO.

For ASPEN SKIING COMPANY, L.L.C., a Colorado limited liability company, Defendant – Appellee: Michael S. Beaver, Rachel A. Yates, Holland & Hart LLP, Greenwood Village, CO.

JUDGES: Before TACHA, ALARCON, ** and TYMKOVICH, Circuit Judges.

** The Honorable Arthur L. Alarcon, Senior Circuit Judge, United States Court of Appeals for the Ninth Circuit, sitting by designation.

OPINION BY: Deanell Reece Tacha

OPINION

[*548] ORDER AND JUDGMENT *

* This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

Plaintiff-appellant Chris Robinette brought this action against Aspen Skiing Company, L.L.C. (“Aspen“) seeking damages for injuries he sustained in a snowboarding accident involving a snowmobile that was operated by an Aspen employee. The district court granted Aspen’s motion for summary judgment because Mr. Robinette had entered into an exculpatory [**2] agreement with Aspen and had assumed “all risks of skiing/riding.” Mr. Robinette now appeals the district court’s grant of summary judgment, contending that the exculpatory agreement is unenforceable because: (1) it purports to cover reckless conduct; (2) it violates public policy; and (3) its terms are unclear and ambiguous.

Mr. Robinette did not raise a claim of recklessness in the district court; therefore, he cannot do so on appeal absent extraordinary circumstances not present here. McDonald v. Kinder-Morgan, Inc., 287 F.3d 992, 999 (10th Cir. 2002). Furthermore, our review of the record, the parties’ appellate materials, and the relevant legal authority compels us to agree with the decision reached by the district court on Mr. Robinette’s remaining claims. Accordingly, for the reasons articulated by the district court in its order dated April 23, 2009, we AFFIRM.

ENTERED FOR THE COURT,

Deanell Reece Tacha

Circuit Judge


Canadian government suing Blackcomb Mountain for the health care costs of an injured snowboarder

Never forget the subrogation clause in any insurance policy. It will allow the insurance company to sue whoever caused your injury to recoup their payouts.

The injured snowboarder caught an edge and fell over Crystal Road run, down a steep embankment and over a climb. She suffered a:

….dislocation of the vertebrae with associated spinal-cord injury and several fractures of the vertebrae. She also suffered a mild traumatic brain injury, dislocated her ribs and had a left femur and femoral fracture.

The lawsuit claims the accident was caused by the “negligence and breach of duty of the defendant,” The complaint further sates the defendant created a “hazardous condition and failed to erect adequate warning signs. The suit also alleges the company failed to erect a barrier.”

The defendant is Blackcomb Skiing Enterprises Limited Partnership, which is the owners and operators of Blackcomb Mountain and Whistler Mountain. The defendants have not filed an answer at the time of the article.

Subrogation is the name of a clause in an insurance policy that allows the insurance company to collect any money that may be owed you for your injuries. If you injured due to the negligence of someone else, your health insurance company can sue that third party to recover the money they paid out on your behalf for your medical bills.

This must be the first time it has occurred in Canada. When I worked as a risk manager at a ski resort I received a subrogation claim letter every week. I received one every time a member or the military or a federal employee was injured.

The ski area does not have to pay out if they ski area was not negligent or if the ski area as a defense to the claim. So any defense the ski area may have against a suit by the injured skier or boarder is effective against the subrogation claims. In my case, the Colorado Ski Safety Act, Assumption of the Risk and in many cases a release stopped the subrogation claim.

See B.C. sues ski resort for care costs of injured boarder

What do you think? Leave a comment.

Copyright 2010 Recreation Law (720) Edit Law, Recreaton.Law@Gmail.com

© 2010 James H. Moss

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Changes from OSHA that will affect the Outdoor Recreation Industry.

Working with OSHA is always difficult in our industry because we know the best ways to keep people safe in our situations. However, OSHA regulations sometimes force us to ignore those.

OSHA’s new concern is employers either intentionally or unintentionally encourage employees not to report injuries. In some cases, the medical bills are paid by the employer and not reported. In others the employer through a system of rewards or other ways has created an environment encouraging employees not to report their injuries.

The obvious example is the minor injury and the employer pays for the medical costs out of the company. The programs that will be difficult are those where an incentive program is set up to encourage employees not to get injured at work. The employees take care of their own injuries or just plain do not report their injuries not to lose those incentives, with or without the employer’s knowledge or support.

Either way is a $70,000 fine per occurrence.

See A Conversation With Assistant Secretary for OSHA Dr. David Michaels – What to Do About Safety Incentives?
For more information about OSHA record keeping see Recordkeeping Policies and Procedures Manual or OSHA Recordkeeping Handbook.

The next issue is OSHA is increasing its fine structure. Violating OSHA regulations is going to be more expensive. Violating OSHA regulations two or more times in Five years could be 300% more expensive.

See New campaign launched for harsher OSHA fines, OSHA increases fines for serious violations or OSHA Announces an Increase in Civil Penalties and a Severe Violators Enforcement Program.

What do you think? Leave a comment.

Copyright 2010 Recreation Law (720) Edit Law, Recreaton.Law@Gmail.com

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outdoor law, recreation law, outdoor recreation law, adventure travel law, OSHA, Occupational Health and Safety Administration, Workplace injuries, worker’s compensation,
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Wow, this could mess up a lot of studies and ideas

It also contradicts to some extent the management theory that all employees want to take advantage of a work injury and sit at home!

Risk and Insurance is reporting that the GAO (Government Accountability Office) found that many employers are failing to report workplace injuries and illnesses. They do so out of fear of increasing worker’s compensation insurance costs.

The study also found that 53% of “health practitioners” had experienced pressure to downplay or not report workplace injuries.

Another issue was employees did not want to report injuries because they felt they would be considered wimps. This issue was appropriately titled the “wimp factor.” I have seen this at numerous outdoor recreation businesses were young and tough is a better “cred” than injured and sitting at home not working.

The article is titled America’s Soft on Safety. The study can be found at Workplace Safety and Health: Enhancing OSHA’s Records Audit Process Could Improve the Accuracy of Worker Injury and Illness Data


Ski Resort Employee convicted of theft for staging a worker’s compensation accident.

An employee of a ski resort has been convicted of grand theft. The employee tried to stage an accident to collect from the resorts worker’s compensation insurance. The employee talking with another employee realized a 4′ to 5′ deep hole had been dug to test drainage on the resort. After work, Nicholas Jason Beaver jumped repeatedly on the snow bridge covering the hole until he fell through and into the hole. Beaver was angry because he had been told he was not going to be hired back the next ski season. Two friends witnessed the incident.

While falling into the hole Mr. Beaver actually hurt his knee which required extensive medical care and arthroscopic surgery.

The fraud was uncovered after Beaver and his attorney turned down a $110,000 offer to settle the claim. A friend who knew of the fraud felt Beaver was cheating the resort and turned him in.

See Staged accident at ski resort leads to theft conviction and Resort employee convicted of grand theft for faking fall.

Sentencing is scheduled for August 22, 2008. The resort claims the medical care and legal fees are in excess of $65,000 and are asking for that in restitution from Beaver.