Lynne Curry: Is business liable for employee's sidewalk fall?

ManagementBy LYNNE CURRYJune 9, 2013 

Q. Our employees park their cars in a nearby parking garage. One slipped and fell on the sidewalk leading from the garage and filed a safety incident report. This employee is adamant that because she was walking to work and wouldn't have been on the sidewalk otherwise, it's our obligation to pay her chiropractic expenses.

She just handed us the chiropractor's form to sign; if we do, we authorize these charges. We don't furnish medical insurance to our employees and don't have the money for this. Is she right?

A. According to lawyer-turned-HR-consultant Rick Birdsall, your employee's case rests on whether your employee's accident directly related to her employment. "If your employee was returning from obtaining office supplies or making a delivery for your business, she may be covered under worker's compensation (Alaska Statute 23.30.010)."

"If, however, her injury occurred on her commute to your office and before she reported for duty, workers' compensation probably doesn't cover her," he said. "Employers aren't liable for an employee's injury sustained outside the scope of the employee's employment. Employees have personal responsibility for what happens to them on their commute unless the employer requires the employee to perform a task during the commute."

Birdsall notes that complicating factors might include whether you require your employee to park in the garage or simply pay their garage fees and give them freedom to park closer and on the street if they choose.

In a recent similar case, a receptionist in a veterinary clinic's emergency department fell while walking on a path to a parking lot. She applied for comp benefits, was denied them and appealed to the Workers Compensation Commission and then to Virginia's state court. According to the court, because the employer didn't control the parking lot, it wasn't the clinic's issue. In your case, you don't control the sidewalk.

According to Birdsall these "directly related to her employment" questions get complicated, and they also offer employers a way out when employees take foolish risks. In Penn State University v. WCAB (Smith), the court ruled that an employee who jumped down a flight of stairs on his lunch hour and broke both his ankles wasn't covered under worker's compensation even though he was on his employer's premises."

In your case, your employee wasn't foolish; she's in a hard place and looking for help as you don't provide medical insurance and her accident created expenses she doesn't know how to meet. She's turned to you.

She makes, however, an unreasonable request. By her argument, she wouldn't have been in her driveway if she wasn't headed to work, yet you can't take responsibility for that any more than her sidewalk fall.

Perhaps more importantly than the worker's compensation issues, how do you convince an employee who believes it's your problem she fell -- when it's not -- without damaging her morale? Your best shot might be to ask your insurance carrier to step in and provide you a written decision based on the facts. Then, let your employee read your insurance carrier's decision so she'll realize it's not you turning her down, it's the facts of the situation.

Finally, if there's a way you can partially help your employee, do so. Employers sometimes go beyond their obligations -- because it's the right thing to do.

Dr. Lynne Curry is a management/employee trainer and owner of the consulting firm The Growth Company Inc. Send questions to Lynne at lynne@thegrowthcompany.com or follow her on Twitter @lynnecurry10.

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