Workers’ compensation law is founded on a compromise where employees give up the right to sue their employers for negligence in order to receive relatively certain benefits. What plaintiff’s lawyers like me don’t often say is that workers can generally collect benefits if they share some – or even all of the blame – for a work injury.
But the idea of fault has not been entirely erased from workers’ compensation law. Our colleagues at The Jernigan Law Firm in North Carolina recently discussed in a blog post how employer violations of safety rules could lead to increases in benefits, while employee violation of safety laws could lead to decreases in benefits.
If an employer is going to claim a worker was willfully negligent because of a safety violation, a court will consider five factors as to whether an employee was willfully negligent. These factors are
whether the employer had a reasonable rule designed to protect the safety and health of the employee
whether the employee was on notice of the rule
whether the employee understood the danger involved by violating the rule
whether the rule was kept alive by bona fide enforcement and
whether the employee had an excuse for the rule violation.
Whether an employee willfully violated a safety rule is a question of fact that depends on the circumstances and the credibility of the parties testifying in a case.
Nebraska law holds that ordinary negligence by a worker is not a bar to benefits. But an employer can delay benefits under the argument that but for the employee’s negligence, the employee’s injury could have been accommodated. That is an open question under Nebraska law. But if there is no question that an employee cannot work, and the worker is fired for negligence in connection with a work injury, the employer should still have to pay benefits.
Intoxication is often grouped with willful negligence under Nebraska law. It is very difficult for an employer to deny benefits based on intoxication causing the work accident. Another issue related to intoxication is when an employee tests positive for drugs after a work accident even if there is no evidence of intoxication at the time of the injury. A positive drug test will not bar an employee from receiving workers’ compensation benefits in Nebraska, but it could delay lost time or temporary disability benefits if an employer argues that temporary restrictions could be accommodated but for the employee’s termination for cause.
Today’s post comes from guest author Jon Gelman from Jon Gelman, LLC – Attorney at Law in New Jersey. In light of Louisville basketball player Kevin Ware’s recent injury during the NCAA tournament, many commentators are calling for workers’ compensation protection for athletes. I wrote about this issue on our blog in late 2011 in this post: Nebraska – A Rare Example Of How To Treat Student Athletes Better. As I wrote, Nebraska law, since 1984, has provided some protection for college athletes, which is similar to the protection offered by workers’ compensation, but not in the workers’ comp system, of course. I am pleased that the Nebraska Legislature and University of Nebraska continue to be progressive when it comes to working with college athletes. Perhaps the Nebraska approach could be a model for other states, as Mr. Ware’s tragic injury will most likely cause him complications later in life. I wish him, and all injured college athletes, the best as they heal and then adjust to their new realities.
Student Athletes Should be Covered by Workers’ Compensation Policies
They call them “student players” and the schools, televisions companies and advertisers make the money. The “students” get injurede and no benefits are available for medical (except when over $90,000 on medical has been expended then an NCAA policy kicks in), no temporary disability or permanent disability are afforded. The student suffer lifetime and carrer altering injuries as they play their hearts out for the schools and they do so without adequate compensation.
There is major inequality going on in College sports which indeed is a BIG business.
The coaches hammer at the student players and entice them to play too many games in a growing TV broadcast season where one conference add up upon another expanding to greater proportions and placing serious physical demands upon the player resulting in accidents and injuries.
Additionally bullying by coaches as revealed by Rutgers Basketball Coach Rice physically assaults the students and berates them with indecent name calling.
Where is the accountability? The students are actually employed by the schools to earn profits for the educational institutions and corporate sponsors. The student players are being exploited. Student athletes should be covered by workers’ compensation policies.