Sunday, February 10, 2019
"Taking One For the Team": Unfortunate Result in a Workers' Compensation Claim via Employer's Safety Incentive Plan
The issue of safety incentive programs in the workplace has been current for a number of years now. A common concern is that safety programs which promise a periodic bonus to all, if no injuries occur, may create anxiety among workers that they should avoid reporting their injuries. A thoughtful new discussion is Patrick Hagge, Safety Incentive Programs: Best Practices and Common Pitfalls, https://news.leavitt.com/business/safety-incentive-programs/.
This anxiety came to life in a March 2018 unreported workers’ compensation opinion here in Pennsylvania. Burch v. WCAB (Graham Packaging), 2018 WL 1102078 (Pa. Commw. 2018). See https://www.courtlistener.com/pdf/2018/03/01/t._burch_v._wcab_graham_packaging.pdf.
In that case, the injured worker struck her head violently on a low-hanging vent. She knew of the rule that injuries were immediately to be reported. She did not do so, however, because a full accident-free year at the plant entitled each employee to a $150.00 bonus, and she “did not want to cause her co-workers to lose the bonus ….” Indeed, she commented furtively to a co-worker that she was “taking one for the team.”
She told her employer, instead, that she hit her head on a branch while gardening or chasing her dog at home. That was the story she also provided to her physician, who submitted the bills to her group health plan. The worker also became entitled to wage-loss benefits under the employer’s STD plan. Soon, however, the private carrier started making inquiries for subrogation purposes and claimant, fearful of insurance fraud accusations – and obliged to have neck surgery – finally reported her injury. Unfortunately, she did so one week after the 120-day notice-of-injury period expired, and the agency adjudicators, and now the appellate court, all denied her claim as time-barred.
The worker had, notably, sought to establish actual knowledge by employer by presenting evidence from a co-worker that her supervisor was making inquires and surely must have known or suspected that the injury occurred at work -- but these speculations had been rejected by the judge who acted as final fact-finder.
The employer, meanwhile, presented its HR manager, who voiced the better thinking about such programs – which had obviously run amuck for the unfortunate worker: “Scarborough testified that the Employer has an incentive program that pays each employee $150 for each year the plant goes without a reportable injury. She stated that the program is meant to encourage workers to report unsafe conditions in order to prevent injuries. It is not intended to discourage employees from reporting injuries. They are required to report injuries.”