I believe that people are responsible for their actions in life, particularly decisions they make that affect their own personal health. Although I represent injured people, I may personally disagree with a sensational jury verdict against a deep-pocket corporation where it doesn’t appear that the plaintiff (person suing) was looking out for their own health either. For example, despite the highly addictive properties of nicotine, I admit I don’t feel a lot of sympathy for smokers who sue tobacco companies for emphysema or heart disease when they continued to smoke after warnings were placed about risks on cigarette packages. However, I haven’t read the evidence or testimony in those cases. I mention this example because it shows that we all have our opinions and prejudices when it comes to judging others’ behavior, even when we have limited information.
In the workers’ compensation arena, employees have an expectation that their employer will be looking out for their safety, and it comes as an unpleasant surprise when a severely injured employee cannot sue an employer for a clear-cut safety hazard that causes injury. Neither the fault of the employer, nor the fault of the employee in causing a work accident is supposed to increase or decrease benefits unless the law specifically allows it. For example, Nevada has a specific law that specifically denies benefits to employees who are injured because they are intoxicated. However, employees who are injured through their own lack of due care (contributory negligence), are entitled to benefits the same as other injured workers.
I am seeing a trend though where employers and insurers are trying to bring fault into play to reduce benefits to employees who haven’t maintained healthy lifestyles. Pre-existing conditions that may prolong treatment or disablement from work are mentioned more and more by adjusters when making claims decisions, particularly with regard to obesity, smoking, or even a failure to exercise, making a person more susceptible to work injuries and occupational illnesses. Employers, medical providers, hearings and appeals officer also make judgments all the time about whether an insurer must pay for more medical care or more compensation benefits for people they think have neglected their health before their work accident. The reality is that even if it is not written or verbalized, people who lead unhealthy lifestyles are judged as lazy and not as deserving of care or benefits. Whether that is true or not with regard to an individual injured worker is another question.
My concern is that those judgments about injured workers are not in line with what the Nevada legislature has enacted as our workers’ compensation laws. To date, only an intentional self-injury or willful failure to get medical care excludes a claimant from benefits, unless drugs or alcohol are involved. It is the job of the legislature to decide whether benefits should be limited to people under other circumstances. Meanwhile, injured workers should be prepared to show their efforts to lead healthier lifestyles if they are hurt at work.