[scostakis]

My question involves workers compensation law for the state of: Indiana
One of my workers was on a break and still on the clock. Because we are not allowed to smoke on the property, she walked across the street to smoke a cigarette and fell while doing so. She hurt her knee in the process and had to take the next day off. Is this workman's comp?

[gigirle]

Does your company have a policy that allows you to leave the property while on break?

[scostakis]

I don't have access to the information at this time, but let's assume that there's no policy stating whether or not employees are allowed to take a break off the property for argument's sake.

[BOR]

I don't have access to the information at this time, but let's assume that there's no policy stating whether or not employees are allowed to take a break off the property for argument's sake.

WC laws are state specific in nature, the case law will control here. "Across the street" is certainly OUTSIDE what is known as the "Zone of Employment".

If they pay into the state fund, it is more feasible than if they are "self insured", that is, if your state permits some employers to be.

"Zone of employment" can also include OFF site injuries. Say our employer requests you drive a bag of invoices to X location and you are hurt while en route or on the other non company site.

Let's assume there is NO controlling case law, one can argue in the advent of non smoking laws and off premises smoking laws/policies, any minimal venture off property to smoke would be covered??

Then again "across the street" is outside the ZOE? This may take a detailed examination by a WC specialist in your state.

Q: Did she report the injury? Did she file a WC claim with them? You say in your first post, it was just one day of work missed.

[scostakis]

Yes she reported the incident and she only missed 1 day of work thus far. She will have medical expenses as a result of the injury. Also the facility is self-insured if that makes a difference. I have now looked in our employee handbook and there is nothing in there regarding break time.

[cbg]

The smart thing to do is to report it to the workers comp carrier and let them decide if it's covered.

This is a win-win situation for the employer. If it is workers comp, you're covered because it's in process. If it's not, then you are not the evil employer who refused to submit the claim, but the helpful employer who is only reporting what the evil workers comp carrier decided. You can then help the employee report the incident to her standard health insurance carrier. They won't pay lost wages (if she loses enough time AND you have a short term disability carrier they might) but they'll pay the medical bills as long as she has a denial letter from the workers comp carrier.

[scostakis]

We are self-insured and I was told the following today:
As a general rule, the Indiana Worker's Compensation Board takes the stance that employees are covered when they eat lunch or take a break on the employer's property. Again, we still have to look at the circumstances surrounding the injury and coverage is not guaranteed. However, we do not cover employees who leave our property for lunch or breaks, regardless of their reason for leaving and we have denied similar claims in the past. We are not singling out smokers. An employee who got injured on their smoke break would not be treated any differently then an employee who got injured while walking to Starbucks to get a cup of coffee on their break. The Board takes the stance that being on or off the clock is not always a determining factor in deciding the compensability of a claim.

What bothers me about this is that smokers are forced to leave the property to smoke or face possible termination. I do realize that smoking is a personal decision, but it doesn't make sense to me that if you have no choice but to leave the property if you do choose to smoke, that it's not covered the same as if you made the choice to stay on the property to go to the break room or wherever. I'm not that naive to think that all laws are supposed to make sense to everyone, but this just baffles me.