GQ Corner
Q. I have a claimant who was working for her secondary job (our Insured) when she fractured her knee cap. She works as a counselor for a County Jail. She was given an off work status for our Insured due to limited mobility from the fractured knee cap.
She works a primary job as a teacher. She is still working this primary job. I have had her sign the application of additional payment confirming she is still working for the primary employer even though she has an off work status for our employer.
Do I owe benefits since she is still currently working?
A. She may have disability even though she is able to work her primary job. If, because she cannot work her secondary job, she has lost wages due to the compensable injury, she has sustained disability and you will owe TIBs.
Q. I have two employees who are floor hands. They began arguing over electrical plugs and got into a fight and the other employee hit my claimant in the back of the head with a wrench.
I think there is some exposure for the employee that was injured to have a compensable claim but the employer disagrees. The two were doing some work on a substructure on a rig site.
What are the rules regarding compensability in such cases?
A. You would likely need evidence that your claimant was the aggressor in the incident in order to invoke the affirmative defense that the injury arose out of the claimant’s wrongful attempt to injury another person.
It is very difficult to successfully provide that this type of incident (a work task disagreement that gets out of hand) was personal in nature in order to apply the 3rd party attack for personal reasons. Similarly, ALJs have not been inclined to find this type of incident was a diversion from Course and Scope. It is most likely a compensable claim.
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