The Legal Landscape - June 2018

by Philip E. Goss, Jr., ESQ.

The next time I celebrate a New Year’s Eve toast, I will be less than two weeks from my 60th birthday. I’ve been happily married for more than half of these years and a parent for just a few years less. A lesson I have learned over the years of being a parent is that just sharing my experiences and expecting my children to accept my recommendations, without explanation or context, is a fool’s errand.

Such belief that my children should follow the old “Because-I-said-so” mantra is wrong. And thus, when I do that to you, my valued readers, it is wrong as well.

Several columns ago, I opined how you should handle worker’s compensation (WC) issues. I told you what to do, but forgot the why. In this column, I’ll remedy my shortcoming.

In the previous column, I stated the following (in truncated form):

“The concept of worker’s compensation benefits is a trade-off under the law; in exchange for a fair, quick and relatively efficient system to protect workers in the event of a work-related injury, worker’s compensation is an employee’s sole avenue of relief. Worker’s compensation systems allow for interim payments and treatment for injuries that are not typically available under traditional tort law.

“However, to be protected, you must demand, without exception, that employees who are injured on the job seek immediate care and that such incident is reported without delay. Failure to strictly comply with these requirements could have immeasurable negative consequences to you in the future.”

A fair reading of my words, other than injuries must be reported immediately, did not tell you why the immediate reporting of all injuries is vital.

First, some history. In the WC system, employers are rated by risk. For example, a librarian is far less likely to suffer an injury than would be a martial arts instructor. So, employers pay a certain premium based upon that risk assessment and number of employees, to cover any claims that may occur. Fair compensation for an injury is typically determined in a quasi-judicial setting.

What if an injury is not reported? Many employees, for whatever reason, don’t want to report injuries. They may feel that it will be held against them, even though such fear is incorrect since very strong laws protect injured workers, or that the injury is not serious enough to justify the process. In any case, you must insist that all workplace injuries be assessed by a member of your management team, for reporting and referral to appropriate medical care.

What if they don’t report an injury, or you are complicit in the decision to defer reporting an injury?

First, you could and most likely will be held personally responsible if the seemingly minor injury ripens into something serious. Second, if you know of the unreported injury, you may have an employee who can’t be fired. Do you want an employee that you could never fire because he/she know you violated the law? Or, who could state in an unemployment hearing that you asked or instructed him/her not to report an injury for fear of a rise in insurance premiums?

The relative minor costs of your insurance premiums increasing is dwarfed by the potential legal liability of the failure to comply with your jurisdiction’s WC laws. Nothing I have ever written in this column over the last 17 years is more truthful!

I suggest that if your school seems to suffer an extraordinary number of WC claims, a comprehensive review of your operations is in order. Attempting to manipulate or turning a blind eye to your lawful duties and obligations is not the answer.

Hopefully, now you understand why I’m passionate that all workplace injuries be reported, no matter the consequences. You now have the what’s and why’s.