Posted by Fran McCracken on Apr 18, 2018 in Blog, Firm Newsletters, Recent News
We have all heard the grim news; a school in Parkland, a concert in Las Vegas, a nightclub in Orlando, a church in Charleston, a movie theater in Aurora. The scenes have become far too common. While we may think of the scenes of these places as serving a specific function, such as education, the location of each of these atrocities was also a workplace, making these acts a form of workplace violence.
While large-scale violent attacks grab the headlines, a Bureau of Justice Statistics Study found that 80 percent of workplace violence is non-life-threatening, verbal or physical assault. http://www.bjs.gov/content/pub/press/wv09pr.cfm. The U.S. Department of Labor Occupational Safety and Health Administration (OSHA) defines “workplace violence” broadly, as “violence or the threat of violence against workers”. It can occur at, or outside, the workplace and can range from verbal threats and abuse to physical assault and homicide. However it manifests, workplace violence is a growing concern for employers and employees alike. OSHA estimates some 2 million American workers are victims of workplace violence each year. https://www.osha.gov/OSHDoc/data_General_Facts-workplace-violence.pdf. Co-worker altercations, domestic situations brought to the workplace, and customer retaliation are all situations falling under OSHA’s broad definition of workplace violence. All could lead to compensable workers’ compensation claims, significant injuries, including death, and the associated financial loss. But not all incidents of workplace violence causing injury result in a compensable claim.
Under Colorado’s Workers’ Compensation Act, an injury must arise out of, and in the course and scope of, employment to be compensable. An injury occurs “in the course of” employment when it takes place within the time and place limits of the employment relationship and during an activity connected to the employee’s job-related functions. An injury “arises out of employment” when it has its origin in an employee’s work-related functions and is sufficiently related to those functions to be part of the employee’s employment contract.
The Colorado Supreme Court has determined injuries which result from workplace violence are divided into three categories of causation, some of which are compensable, some not. The first category is assaults that have an inherent connection to the employment because of “enforced contacts” which result from the duties of the job. This includes assaults originating in arguments over work performance, work equipment, delivery of a paycheck or termination from work.
The second category is assaults which result from a “neutral force”. A “neutral force” is one that is neither particular to the claimant nor the employment. This type of assault has been analyzed under the “positional risk” or “but for” test and is applied to injuries which result from stray bullets, roving lunatics, drunks, assaults by mistake and completely unexplained attacks.
The third category is assaults which are the result of a private dispute which the parties import to the work place. (E.g., Claimants shot by a co-worker who believed that the claimants had made obscene calls to the co-worker’s spouse). This category has been expanded to include assaults where the victim was specifically chosen or targeted.
Injuries from workplace violence resulting from “enforced contacts”, specifically resulting from the claimant’s job duties are compensable. However, the issue of whether the assault resulted from the “duties of the job” requires a factual determination you may want to present to an Administrative Law Judge. Assault injuries from a “neutral force”, such as a completely unexplained shooting, are also compensable. In such situations, the Courts consider whether, “but for” the conditions and obligations of employment, the claimant would have been injured.
In contrast, injuries caused by a work place assault which results from a private or personal dispute imported to the workplace are not compensable. Thus, where the assault has no inherent connection to employment activities, compensability of the claimant’s injuries depends on whether the claimant was specifically targeted for the assault.
When evaluating the compensability of workplace violence claims, the employer should also be mindful of the exclusivity provisions of the Workers’ Compensation Act. An employer that has complied with the Act is granted immunity from common-law actions for damages, such as pain and suffering, mental distress, loss of enjoyment of life, lost earning capacity, etc., and its employees are limited to the remedies specified in the Act. If an employee’s injuries result from an assault that is inherently connected to the employment or is attributable to neutral sources that are not personal to the victim or perpetrator, those injuries arise out of the employment for the purposes of workers’ compensation and the employee is barred from bringing a tort claim against his or her employer. However, employee claims are not barred by the Workers’ Compensation exclusivity provisions if the assault originates in matters personal to one or both parties.
Have questions? Please contact us!