Be Prepared for the Slip-and-Fall Claims: It's that Time of Year

Although our first “blizzard” came and went without much fanfare, we’re certainly not finished with winter yet. Unfortunately, we still have February and March ahead of us. With that will come the inevitable slip- and-fall claims while folks are attempting to get into work. The questions will come, so you need to be prepared. Are the injuries sustained compensable and do we owe workers' compensation benefits?

The answer to the question is an application of the principle of the “Premises Rule.” You won’t find the “Premises Rule” in the statute. It has taken shape through a number of cases especially since the 1979 amendments. Here are the key concepts:

1. Did the fall take place on premises owned or controlled by the employer?
2. If the answer to question number one is “yes” then the injuries sustained are indeed compensable.
3. Whether the employer owns the premises is often an easy question. Whether the employer “controls” the premises, is not so easy to determine. If the premises consists of a multi-tenant parking lot and the employer does not direct where employees are allowed to park, the employer should be in the clear and benefits should be denied.
4. If the employer directs where the employees must park, then the prior decisions of the Court have determined that this is an exercise of “control” such that the walk from the parking lot to the office, even in a multi-tenant complex, is covered for workers' compensation purposes in the event of an accident or fall. If there is no greater risk of injury based upon where the employees are told to park, an employer should seek the advice of defense counsel in determining whether the claim should be denied. We were fairly successful in doing so in a prior case and were able to settle the matter for a lump sum at a very reasonable amount. The cases are very fact specific.
5. The 2014 Supreme Court decision in Hersh was extremely helpful to employers in this area. The Court denied a claim for benefits when the employee was injured while walking from a garage where the employer provided free parking two blocks from her work site. The Court concluded that simply providing free parking did not expand the employer’s premises to include the two block walk. Keep this in mind if the employees slip and fall this winter takes place under similar circumstances.

Often these types of claims involve a third-party suit against the entity responsible for clean-up of the ice and snow. This can result in subrogation lien reimbursement and ease the pain of the workers compensation exposure. If the employer happens to be the entity responsible for cleaning the ice and snow, then he or she should be immune from a third-party suit. The injured worker should have only one bite at the employer’s apple – either workers compensation or civil recovery. Keep that in mind when considering the decision to accept or deny the claim.

Stay safe this winter.

By: Jeffrey Newby