Along with mounds of snow and freezing cold temperatures, winter also brings a rise in workers’ compensation claims.
Winter-related slip and fall claims doubled in 2013-2014 over the previous year, according to Accident Fund Insurance Co. of America and United Heartland, workers’ compensation carriers that compared data from Midwest states. According to the data, slip and fall claims represented 29 percent of all workers' comp claims during the past year.
In comparison to other Midwest states, Michigan fared in the middle in terms of workers’ comp winter slip and fall claims, which accounted for 32 percent of all claims made in the state.
Illinois’ slip and fall claims also were at 32 percent, while Indiana experienced the greatest percentage with 37 percent, followed by Wisconsin with 33 percent. Minnesota’s workers did the best at staying on their feet; slips and falls only accounted for 29 percent of their workers’ comp claims.
“Winter-related slips and falls have a significant negative impact on American businesses each year, resulting in time off work, temporary employee costs, overtime for existing employees and increased insurance costs,” said Mike Britt, president of Accident Fund Insurance Company of America.
“To avoid these costs this winter, employers need to be extra vigilant and employees should exercise extreme caution in the months ahead,” Britt said.
Rhoades McKee attorney Mary Ann Cartwright agreed winter weather can lead to increased workers’ compensation claims, both from slips and falls and from injuries sustained in automobile accidents while on the job.
“Workers’ compensation covers injuries arising out of and in the course of business,” Cartwright said. “‘And’ is a key word. Injuries may arise out of employment but may not be in the course of work.”
Cartwright said an employee who is injured while driving to or from work likely would not be covered, but someone who is asked to make a lunch run for the company and gets in an accident would be covered because he or she was injured “out of and in the course of” a required job function.
She said the same is true if the person slips and falls in a parking lot while making a sales call or conducting other business.
“Let’s say I’m a salesperson and I’m on the way to the Business Journal, and I get out and slip in your parking lot on the way to sell something to you. That is an injury that arose out of and in the course of my employment for which my employer ultimately could be liable,” she explained. “That doesn’t mean your company wouldn’t have liability, too, if they owned the parking lot, but it’s a different kind of liability.”
Cartwright said the key factors used to determine when an employer would be held liable for a workers’ compensation claim relating to an employee coming or going from the office are: Did the employer pay for or furnish the transportation? Did the injury occur during or between working hours? Did the employer derive a special benefit from the employee’s activity at time of injury? Did employment subject the employee to increased traffic risk?
She said the exception is if an employee makes a detour for his or her own purposes, in which case he or she may not be covered if an accident occurs.
“For example, I have a client right now that has a young female employee over in Detroit working on a special project. From the time that young lady gets in her automobile and while she is on her way to that location, she is covered by workers’ comp,” Cartwright explained. “If she had an injury on the way there because of an auto accident or got out of her car at the business location and slipped in their parking lot, she would be covered.
“This young lady is staying overnight in a hotel; from the time she leaves that business to go to the hotel, she is probably still protected, but now let’s say she goes into the hotel and decides she is going to go back out to go to dinner. On her way out to dinner, she slips in the parking lot. That is probably not covered because that is now a detour, something for which the employer no longer derives a benefit.”
She said the same is true for voluntary activities that may benefit the employer but aren’t a required part of the job, such as attending a holiday party.
“Employees are usually not covered for voluntary social activities,” she said. “There are cases where employees have stayed after work, socialized, and then walked to the parking lot and fell, and the courts have not covered those.”
When it comes to slips and falls at an employee’s own company, Cartwright said the liability factors have to do with whether or not the parking lot is maintained, owned or controlled by the employer.
“Typically, if the employer maintains that parking lot, owns that parking lot, then any injury that occurs when the worker gets out of their vehicle to go into the building is more likely than not covered under workers’ comp,” she said.
Cartwright said if an employee is injured crossing the street from a company-maintained parking lot, that injury is also covered under workers’ comp.
“There was a very famous General Motors case that happened as a result of GM on 36th Street,” she said. “An employee was killed while walking across the street from the parking lot into the plant, and the courts decided those types of injuries were covered.”
Cartwright said it’s common during the winter months for restaurants and retailers to ask their employees not to park in the employer-owned lot so that guests can park there. If an employer is requiring an employee to park offsite, it may be liable for a slip and fall occurring between where the employee parked and the door to the building.
“Employees have fallen on the icy sidewalks and, because the employer required them to not park in their parking lot, those injuries on the icy sidewalk have been covered,” she said. “That situation would be different if the employee just decided to park on the street and the employer had provided parking in its parking lot.”
Employers looking to refute a workers’ comp claim will have the best luck if they can show there was intentional or willful misconduct, drug or alcohol use, horseplay, fighting, or the result of an idiopathic fall.
“The workers’ compensation magistrates and appellate commission is getting more and more conservative — more beneficial to the employer and less beneficial to the employee,” Cartwright noted.
Cartwright recommends businesses do what they can to mitigate winter-weather-related accidents: Keep walkways clear, salt icy areas, keep entryways dry, and ask employees to exercise caution when traversing parking lots and driving in bad weather.
“All the precautions you normally take in the course of operating your business will be really important for this kind of situation,” she said.