Enter workers comp laws which were essentially a no-fault workplace insurance programs for workers. If a worker got hurt on the job, it didn't matter if it was allegedly the worker's fault because he or she was being careless or not following the rules. Everyone got compensated. In return, workers were not allowed to sue their employers. Almost 100 years later, the system is weighed down with enormous problems: inadequate compensation for workers, employers' fees aren't really high enough to present a disincentive to allowing unsafe conditions to exist; and the issue of workplace illness doesn't fit well into the no-fault context because it's sometimes too easy for employer's to argue that an illness was not work related.
But generally, the no fault aspect of workers comp has remained secure -- until recently in the State of Wyoming.
Here was the situation: Eleanor Perry, a certified nurse assistant (CNA) was recently hired at the Mountain Towers Healthcare and Rehabilitation Center (Mountain Towers) in Cheyenne, Wyoming. She was working the graveyard shift, one evening. The graveyard shift was chronically understaffed -- there were only three employees available to provide care for the approximately 50 residents on the floor where Perry worked.
One patient asked Perry to help her go to the bathroom. The patient had been designated a "2-person lift" patient -- meaning Perry was supposed to get help. One of the other CNA's on staff that night was busy and the other staff person refused because lifting wasn't part of her job description. The patient was in distress and didn't want to use a bed pan, so Perry decided to do it herself. At one point, the wheelchair that the patient was in slipped, and Perry injured her back trying to keep the patient from falling.
The nursing home fought Perry's workers comp complaint for a variety of different reasons -- basically anything they could think of:
(1) That Perry had the burden of proof as to each essential element necessary to sustain her claim for benefits; (2) that Perry didn’t timely report the injury to the employer; (3) that Perry did not timely report the injury to the Division; (4) that failure to report indicates that no injury occurred; (5) that Perry only worked for the employer for 20 days and was absent three times during that time period; (6) and (7) that Perry engaged in doctor shopping; (8) the Division found it inexplicable that Perry could get to work on 17 days, but could not get to her employer to report her injury (this was cleared up because Perry could not ambulate during some of this time on account of her injury, and because there was also a blizzard at the time that prevented Perry from getting to town to file a report); (9) that Perry had a preexisting condition; and (10) that Perry violated an employer’s rule by single-handedly performing a two person lift.The only one that the Wyoming Supreme Court took seriously in its 3-2 ruling was the last: that Perry violated an employer’s rule by single-handedly performing a two person lift -- a point that was not raised by the employer when they first objected to Perry's claim. Perry had allegedly been trained when she started and was told that it was forbidden to try to lift a "2-person lift" patient without getting help. There was precedent in Wyoming law (Smith v. Husky Terminal Restaurant Inc. , 762 P.2d 1193 (Wyo. 1988)) stating that if someone violates a work rule, then they technically aren't working within their "scope of employment," and therefore workers comp doesn't apply.
In a dissent, Chief Justice Hill and Justice Burke argued that the Smith decision was outdated and that it was not clear that Perry had actually received adequate training.
Those are basically the facts of the case. But what are the lessons that we need to take from it:
- Workers comp systems seem to be going from bad to worse. If an employer can argue that a worker does not deserve compensation because a rule was broken, the entire system will break down. Check out employer's accident reports. More often than not, will list "worker error" as the cause of accident, even though a more thorough investigation into the root causes of most accidents are unsafe conditions and problems with the management safety system or "safety culture."
- Workers often don't follow rules, but it's generally not because they're screw-offs, it's because workplace conditions don't allow the official rules to be followed, and generally management tolerates it -- until someone gets hurt. In this case, according to Perry, the chronic understaffing meant that she was frequently forced to lift the "two person lift" patients herself.
- Why are they still lifting patients manually? A guide, Safe Lifting and Movement of Nursing Home Residents, recently published by the National Institute for Occupational Safety and Health states that
Research conducted by the National Institute for Occupational Safety and Health (NIOSH), the Veterans’ Health Administration (VHA), and the University of Wisconsin-Milwaukee has shown that safe resident lifting programs that incorporate mechanical lifting equipment can protect workers from injury, reduce workers’ compensation costs, and improve the quality of care delivered to residents.....[and that ]investment in lifting equipment and training can be recovered through reduced workers’ compensation expenses and costs associated with lost and restricted work days.In addition, more and more states are passing laws "safe patient handling" laws that encourage the purchase and use of mechanical patient handling equipment, and the elimination of manual lifting. Sounds like the time is ripe for such a law to be passed in Wyoming.
- Safe Lifting Laws Make Progress, May 7, 2005
- Ergonomics Comes to Washington State Health Care Workers, March 8, 2006
- Texas Passes Safe Lifting Law For Hospitals, Nursing Homes, June 27, 2005