QUESTION: IT WAS MY OWN FAULT I GOT HURT AT WORK. AM I STILL COVERED BY WORKERS’ COMP?
ANSWER: IN ALMOST ALL CASES WORKERS’ COMP COVERAGE IS NOT BASED ON WHOSE FAULT IT IS.
Joe was working as a lifeguard out on Long Beach. The day was perfect, the waves were calm, and there were no sharks in sight. Some pretty girls walked by Joe’s lifeguard stand, giggling and throwing flirtatious glances up at Joe. Trying to act nonchalant, yet impress them with his important job, Joe started twirling his whistle. Only he twirled it a little bit too hard. The whistle smacked him right in the face and Joe broke his own nose. Badly.
On top of the ER visit, the stitches, the ice pack, the great painkillers and the utter humiliation of looking like a chump in front of a bunch of girls, Joe was really worried that because it was his own fault his nose was broken he wouldn’t be covered by Workers’ Comp. What should he do?!
File, Joe, file!
Workers’ Compensation is a no fault system. A worker cannot be denied benefits even if the injury was his or her fault unless that worker was 1) intoxicated and the injury was solely due to being under the influence, or 2) that worker deliberately tried to injure him or herself on purpose.
Joe was sober, and all he was trying to do was impress some girls in his capacity as a lifeguard. That entitles Joe to coverage under the Workers’ Compensation Law and he can make a successful claim for the medical benefits associated with fixing his nose. In addition, Workers’ Comp allows that if the injury resulted in a scar or disfigurement, a claim for benefits unto $20,000 can be made as well. Since he was twirling that whistle rather vigorously, Joe deviated his septum and got a pretty big scar. So he was also able to successfully put in a claim for additional coverage.
The most important thing to remember is that, with the two exceptions noted above, all that is needed is a connection between the accident and the employment, regardless of fault.
DISCLAIMER: This article is designed to provide general information. Although this article has been prepared by professionals, it should not be used as a substitute for professional services. If legal or other professional advice is required, the services of a professional should be sought.
Matthew Funk, a partner at Brecher Fishman Pasternack Walsh Tilker & Ziegler, has been practicing Workers’ Compensation Law for over a decade. He is a member of the Workers’ Compensation Bar Association, Injured Workers’ Bar Association and the New York Coalition for Occupational Safety and Health (NYCOSH). He has written for the New York State Trial Lawyers’ Workers’ Compensation Decisions program and has lectured on numerous occasions focusing on Workers’ Compensation Law. Send your Workers’ Compensation questions to: MattF@brecherfishman.com or call at (347) 952-4228.
John Merlino, a partner with Brecher Fishman Pasternack Walsh Tilker & Ziegler, has extensive experience in Surrogate’s Court handling Wills, Trusts, and Estates. His current area of practice is in Commercial and Workers’ Compensation. He is politically active assisting politicians in both City and Statewide Community affairs and has participated and assisted in organizing numerous Union Rallys against NON-UNION Contractors and Builders. He also teaches various unions’ Shopstewards and Apprentices on work safety, workers’ compensation and current events. For Workers’ Compensation questions, call (212) 341-7984.