In some situations an injury that happens while going to work may be covered by workers’ compensation. Normally, if an employee drives to work and has an accident on the way there, the injury is not covered by an employer’s workers compensation insurance. But, there may be other coverage like no-fault car insurance. There are exceptions to the so-called “going and coming” rule. If an employer owns or controls the parking lot where an employee trips and falls, there is an operating premises rule that allows workers compensation coverage. However, a recent Supreme Court case held that where an employee of a store in a shopping center was walking into work from he parking lot when she fell and was injured, her employer’s workers’ compensation insurance did not cover the injury because her employer did not own or control the parking lot. If the employee is traveling on an errand for the employer, or is traveling from one job task to another, without a substantial deviation, the injury should be covered under workers compensation. In situations where an employee takes an employer vehicle home, accidents traveling to an from the employee’s home are covered if the arrangement is for the employer’s benefit, such as a work truck being taken home so that the employee can drive to a distant job site. A recent Supreme Court case held that an employee who traveled to Saratoga on behalf of his employer to act as a groom during horse sales was covered by the employer’s workers’ compensation when he was injured while traveling back to Kentucky, even though he had not come back to Kentucky with his employer. Another exception, the traveling employee doctrine, holds that when a person’s work requires traveling for work such as a salesman or a truck driver, he is covered during his entire trip unless there was a substantial deviation from the trip’s purpose. Even if a trip has both a personal and a work-related purpose, an injury occurring while on the trip may still be covered if the main purpose of the trip is for work. The trip is personal under the test if it would have been made without regard to the business purpose and would have been dropped in the event of the failure of the private purpose. The trip is work-related if it would have been made regardless of the private purpose, because the service to be performed for the employer would have caused the journey to be made by someone even if it had not coincided with the employee’s personal journey. Facts and circumstances in every situation can determine whether the trip is covered by workers’ compensation or not, and you should consult a lawyer to determine if workers’ compensation is an option you can pursue if you have had an injury while traveling to or from work.
A recent Workers’ Compensation Board decision shows how you should not expect the insurance companies to protect your rights. A man injured on the job was being treated for his back injury, and the treatment was being paid for by KEMI (Kentucky Employers Mutual Insurance) the workers’ compensation insurance carrier for his employer. He requested that KEMI pay for his lost wages, and he was compensated until January 2011, but not after. He then called the insurance adjuster at KEMI and asked her to pay for additional lost wages, and she told him that she would take care of it. His employer eventually paid salary for that period of time. In the meantime, KEMI continued to pay for medical treatment, including back surgery, and he was being considered for a spinal cord stimulator, while he was doing light duty at work. Then, KEMI stopped paying for any treatment and told him his claim was closed in September 2013. The Judge in his case, and the Workers’ Compensation Board on appeal, held that the insurance company had no more responsibility for lost wages, medical expenses, or permanent disability. Davis Hammond vs. KD Buckles Co. WCB# 2010-90780 (rendered September 2, 2014).
The statute of limitations, or deadline for filing a claim, is two years from the date of the injury, or two years from the date temporary total disability payments are last made. Salary continuation by an employer, doing light duty work, or the workers compensation insurance carrier paying for medical treatment, do not extend the statute of limitations. But this man did not know these rules, and he thought the workers’ compensation insurance company would look out for his interests. KEMI did not, and he lost his claim. Now, workers compensation will not pay for his medical treatment, lost wages, or permanent disability.
If you are not sure about your rights under workers’ compensation laws, consult an experienced attorney. The workers’ compensation insurance carrier does not have any duty to look out for your interests. They will do only what they are obligated to do under the law, but you are expected to look out for your own rights. Insurance companies hire many lawyers to tell them what is in the insurance company’s best interest. You should hire your own lawyer to tell you what is in your best interest.
Many people who work for cash without getting an actual paycheck – with taxes withheld and deductions for insurance and retirement – may not be covered by workers’ compensation if they are hurt on the job.
If you work for yourself, hiring yourself out by the job, and supplying your own tools, you are probably an independent contractor. Plumbers and home improvement contractors who bid their work to homeowners are examples of this, and an independent contractor is responsible for providing his own workers compensation insurance or going without it if he works for himself. However, if a person works in the same business as his employer, his employer supplies tools and materials, and instructs him where to be, at what time, and how to do a job, he is probably an employee, regardless of whether he gets a regular paycheck or is paid in cash.
Employees are covered by workers’ compensation law, even though their employer may not have workers’ compensation insurance. For serious injuries that may costs thousands of dollars for medical treatment, and months or even years off from work, a workers’ compensation claim can be brought against the employer for permanent disability, lost wages, and the costs of medical treatment. Insurance coverage can sometimes be found through an “up-the-ladder” general contractor on a job, or by bringing a workers’ compensation claim against the Uninsured Employers’ Fund, a branch of state government, for payment of the employer’s liability. You should discuss your case with an experienced workers’ compensation lawyer if you have been disabled by a workplace injury, even if you have been told that there is no insurance coverage.
Forklifts are commonly used in factories, in warehouses, and in the trucking industry. They can be very useful, allowing a single person to move tons of material by himself. But they can also be very dangerous, to the user, and also to other workers around him. Forklifts should be used only in proper areas, and only after the operator has been fully trained. The federal OSHA regulations on “powered industrial trucks”, and section 1910(l)(3) govern training content. An employer is required to provide training which contains:
Training shall consist of a combination of formal instruction (e.g., lecture, discussion, interactive computer learning, video tape, written material), practical training (demonstrations performed by the trainer and practical exercises performed by the trainee), and evaluation of the operator’s performance in the workplace.Trainees should only be allowed to operate a forklift under the direct supervision of a competent trainer, and in a place where the operation would not endanger the operator or other workers.
The federal regulations also contain detailed rules on how a forklift is to be used, in what areas, and how high material can be loaded. These Federal Regulations were adopted by the Kentucky OSHA Administration as well.
Under Kentucky Workers’ Compensation law, workers’ compensation benefits can be increased by 30% if an intentional safety violation by the employer is proven. Forklifts that are designed improperly, or negligently repaired, may be the subject of a products liability action, so long as the negligent party is not the employer. The employer’s liability is limited to workers’ compensation benefits and to fines assessed by the state Occupational Safety and Health agency.