Once you file a claim for workers’ compensation benefits, your employer and its insurance company will perform an investigation. One of the things investigated is what caused the accident.
Employers and insurers customarily look for a basis to deny your claim. Many employers will allege that an accident occurred because the employee violated a safety rule. OSHA recently unveiled its list of the top 10 OSHA violations for 2022.
The most frequently cited OSHA standard violations for 2022:
- Fall Protection (5,260 violations)
- Hazard Communication (2,424 violations)
- Respiratory Protection (2,185 violations)
- Ladders (2,143 violations)
- Scaffolding (2,058 violations)
- Lockout/Tagout (2,058 violations)
- Powered Industrial Trucks (1,749 violations)
- Fall Protection Training (1,556 violations)
- Eye and Face Protection (1,401 violations)
- Machinery and Machine Guarding (1,370 violations)
If you violate a safety rule and that violation contributed to your accident, you may be barred from workers’ compensation benefits. Section 65.2-306 of the Code of Virginia states:
No compensation shall be awarded to the employee or his dependent for an injury or death caused by the employee’s willful breach of any reasonable rule or regulation adopted by the employer and brought, prior to the accident, to the knowledge of the employee.
If an employer asserts a safety rule violation defense to a workers’ compensation claim, the employer bears the burden of proving each element of the defense. This means the employer will have to prove several things:
- That the employee willfully violated a safety rule.
- That the safety rule was made known to the employee prior to the accident.
- That the safety rule violation caused or contributed to the accident.
- That the safety rule was reasonable.
The Virginia Workers’ Compensation Commissioner and the courts have held employers to a high burden of proof regarding the willful violation of a safety rule. Mere negligence is not sufficient. Rather, the employer will need to show that the employee acted with deliberate intent in violating the safety rule.
The employer will also have to show that said worker knew about the safety rule prior to the accident. Employers will typically try to rely on safety rules contained in an employee handbook to show knowledge. The employer may also point to safety training or safety meetings to prove knowledge of the safety rule.
The alleged safety rule violation also must have caused or contributed to your accident. For example, an employer requires the use of fall protection while working at heights. If you fail to wear fall protection and fall off of a roof, then the failure to wear the required safety equipment contributed to your fall. Even if your employer raises a safety rule defense to your case, there are several ways to overcome that defense.
Ways to overcome your company’s defense against workers’ compensation benefits:
- Showing that the employer never enforced the safety rule.
- Showing the employer did not put its safety rules in writing or provide the rules to you.
- Showing that the safety rules were not provided to you in your native language.
- Showing that the alleged safety rule violation did not cause or contribute to your accident.
- Showing that the employer failed to provide you with the proper safety equipment.
If you are injured in a work accident and your employer alleges a safety rule violation, it is important to retain counsel to help you as soon as possible. Please reach out to one of the workers’ compensation attorneys at Allen and Allen – we are here to help! For a free consultation, call today at 866-308-1307.