• Workers Compensation: Finding fault
    March 24,2014

    Fault doesn’t always matter, but sometimes, it does.

    The workers’ compensation system is a no fault system. An employer’s fault doesn’t matter. The injured worker doesn’t have to prove it was the negligence of the employer that caused the injury.

    The employee’s fault doesn’t matter either, except when it does.

    The key instance when fault becomes an issue occurs when an on the job injury is caused by an employee’s failure to use a safety device provided for his or her use. To promote workplace safety and support, employers try to protect their employees by providing safety equipment, and the Commissioner will consider the fault of an employee who doesn’t use that equipment.

    Safety Inc. is a hypothetical workplace where young Sam is a mechanic. As part of his duties Sam is responsible for cleaning down the production floor once a week. Sam uses a pressure washer and a cleaning solution to get the chore done and he does it well. His co-worker is named Sally. Sally works on odd jobs around the plant and she enjoys it. She is the one person who understands the HVAC system and everyone looks to her when there is a problem with ventilation.

    At Safety Inc. a handbook was given to all employees and it outlines: when and where safety equipment is required to be used; that failure to use the safety equipment will result in disciplinary action; and that if the equipment is not in working condition or is unavailable then a supervisor should be notified immediately. Both Sally and Sam received the manual.

    Safety Inc. posted signage in conspicuous places reminding people which protection was needed when. The company supervisors were adamant about enforcement of the rules and disciplined workers who did not use the equipment when they were supposed to.

    Cleaning day arrived, as it does every week. Sam set up the machine to pressure wash the floor. He put on his gloves but not his protective eyewear. He didn’t like wearing the glasses because he didn’t like how it felt. Sam knew he was supposed to use the protection and in fact he had been written up twice by his supervisor. However, on this day the supervisor wasn’t around and Sam would get the work done with no one the wiser.

    Sally also had her hands full that day, as a vent piece was loose making an awful racket. She pulled her safety vest on and climbed the ladder. The vest was required when she was working on the catwalk. When she reached the top she hooked it to the safety line, or so she thought. She started to fix the pipe when she took a misstep. As she started to fall she saw the safety rope dangling loose in the air and she realized she hadn’t completely hooked the safety rope on to her vest. She fell to the ground and was injured.

    Sam, hearing the crash behind him, quickly spun around. The pressure washer in his hand shot the cleaning spray at a wall and it splashed into his eye causing him to get hurt.

    Sometimes fault does matter.

    To prevail by using the defense that the injury was caused by an employee’s failure to use a safety appliance provided for his or her use, the Department will require:

    The employee must have been given actual notice of the requirement and an explanation of the danger involved in its violation.

    There must be enforcement of the requirement to use the equipment.

    The equipment must be available, in working order and use of the equipment would have prevented the injury.

    The employee must have had no valid excuse for the violation.

    Here, notice was given in the handbook and through signage. Supervisor enforcement was clear, the equipment was available, in working order and use of the equipment would have prevented the injury. The Department will focus on whether Sam or Sally had a valid excuse for the violation. While Sam may not be eligible for benefits, the Department has held in a similar case that Sally would be entitled to workers’ compensation.

    Employers who provide safety equipment for their workers to use should consider: Giving actual written notice of the requirement; posting signage; enforcing non-use with disciplinary action; and documenting availability and working condition of the equipment. Those that take those steps will be in a better position if someone is injured while failing to use the equipment.

    John W. Valente, Esq. is an attorney with Ryan Smith & Carbine, Ltd., in Rutland, Vermont. He is the author of Understanding Workers’ Compensation: Managing Workplace Injuries and Lowering Costs. These materials are for general information only and are not intended as legal advice. Readers should not act upon this information without seeking professional counsel tailored to their specific facts and circumstances.

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