Does The Employer Exert Any Control Over This Exercise Program?
When a worker is injured during a physical fitness activity, the court is going to look at the facts. Did the injury happen during work hours? Did the injury occur on the employer’s premises? Was the employee walking around the campus (such as the bird incident described above)? Did the employer initiate the exercise program or was there an employer originated competition? Did the employer exert control over the exercise program? An employer may want workers to have friendly camaraderie, form teams, and try to get in better shape, but one must look at whether there is an additional element of control by the employer or benefit to the employer in each particular situation.
For injuries that involve horseplay, horseplay is not covered. That’s considered a deviation from employment. For example, there was a security guard that was required to walk the employer’s campus premises, and part of that campus involved a parking deck. The security guard, while out on his rounds, jumped from one level of the parking deck to a roof one level down, and then jumped off the roof.
While the guard was doing his best impression of an acrobat by jumping from one place to another, he injured his knee. He tried to claim his injury as a compensable injury, but the court said no. He was required to patrol, and he wasn’t jumping around because he was in an emergency situation where somebody else needed help or he had to get to someplace quickly. He was basically goofing around and entertaining himself. His actions were considered horseplay and not in the “course and scope” of employment.
Are There Any Dual Claims In Premises Liability And Workers’ Comp Claims?
There can be a dual claim if there is a third-party that contributed to the accident even if the accident was on the employer property. If a snow plow company does a terrible job plowing which results in an employee slip and fall, that is compensable. That person has a work comp claim, and they also have a third-party liability claim against the plow company because the plow company was negligent in taking care of the snow. In Colorado, that’s called a premises liability case. “Slip and fall “on the snow and ice cases can be difficult in the state of Colorado, but it is an easy example of when an employee has a work comp claim as well as a third-party claim. The fact that somebody slipped and fell on the snow or ice does not necessarily translate into a third-party claim, but it would give rise to a work comp claim because it happened at work.
Another example of a third-party claim is if an employee is walking to her car and the third-party tree trimming company doesn’t secure a limb, which falls on her. When the employee gets hurt by the falling tree limb, she has a work comp claim and also a third-party claim against the tree company.
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