Friday, August 26, 2011

Work Comp Isn't Relevant, Until It's Needed

I've opined in the past as to whether workers' compensation was relevant any longer, and a case came down in Texas yesterday that clearly provided the relevancy of work comp to an employer who otherwise had apparently thought that they could obfuscate, deny, bully and attempt to keep an injured worker off its experience modification.

The 1st District Court of Appeals issued a new ruling in the case of Warnke v. Nabors Drilling USA on Thursday, after granting the employer's request for rehearing. At issue was whether the injured worker could sue the employer in civil courts after the employer told the employee that they did not have workers' compensation until a civil negligence action landed on their doorsteps, then all of a sudden remembered that they were in fact covered for work comp.

Warnke, a worker for Nabors Drilling, was injured in 2006 when a pipe broke free and crushed his hand. He filed for workers' compensation benefits, but Nabors Drilling denied that he was an employee for eight months.  

Citing the fact that Nabors denied he was an employee, Warnke sued Nabors for negligence, negligent misrepresentation, and fraudulent misrepresentation. He also filed a negligence claim against his co-worker, Bruce Wilkerson, who had attached the faulty pipe that had crushed his hand.

Eight months after the accident, and three months after filing the suit, Nabors' workers' compensation carrier began providing workers' compensation benefits. 

Nabors' months of denials created an economic injury that was distinctly different than Warnke's crushed hand injury, the 1st District Court of Appeals said, as it concluded that exclusive remedy did not bar Warnke's misrepresentation claims. 

After Thursday's decision in the Warnke case, the negligent and fraudulent misrepresentation claims are the sole causes of action that survived the 1st DCA's application of exclusive remedy on rehearing. The court determined that exclusive remedy barred Warnke's negligence claims against Wilkerson and Nabors, because Nabors had [finally] admitted that Warnke was an employee.

The lesson to be learned - if you're insured for work comp, then use it.

No comments:

Post a Comment