Workers' Comp and The Mandalay

In the comments section at the link to the most recent Health Wonk Review, IB regular BernieFlatters wrote:

"A little off topic, but I read that some "first responders" during the Las Vegas shooting are being denied workers comp claims. What the article doesn't say from the headline is that these guys were at the concert as attendees, not as law enforcement. So they spring into action, get hurt, fly home, make claims because "never off duty" or something like that, and the rest makes a good example why we are a nation of emotions and not laws."

I found this to be particularly intriguing, so I reached out to FoIB (and Workers' Comp guru) Julie Ferguson for her thoughts, which she graciously agreed to share with us:

That’s pretty interesting, but there are no easy answers there.

Workers comp is for injuries that occur in the course & scope of the job. Every state has a slightly different law, but that is fairly common wording. In a case like this, there is a lot of gray.

They call that issue compensability. Was the injury compensable? With any claim, that is the first thing the insurer does is determine compensability. Did the injury happen at work? Probably 90% or more of the cases, that is clear cut, but there are cases like the ones you describe that end up in court.

The cops who were working, if injured, that is a clear case of workers comp.

The off-duty cops who spring into action? Not so clear.  Most laws are clear that it is “in the course and scope of work” and many edge cases wind up in court.   “Never off duty” is not a very precise phrase when it comes to legalities. It would be  nice to think that an employer would just say “gee, that guy did the right thing, let’s cover him” but you have to be consistent and precise about compensability legalities or you can find yourself in quicksand.  Your insurer, lawyer, taxpayers or board of directors  are not likely to accept sentiment as valid legal basis.

Some of these issues came up in a big way in 9/11.  For example, generally people are not covered by workers comp when they are “going to and fro” – traveling to or from work. You’re on your own health insurance plan if you get hit by a car or fall down. But if you are going to & fro and you fall in the employer’s parking lot, you would be covered. On 9/11, so many people were killed on their way to work or on their way fleeing from work that it got to be a big issue.  Were they on the property or weren’t they? Were they working on weren’t they? It was pretty hard to sort out.

Thanks so much, Julie!