Blog

YOURS, MINE, AND HOURS: WHO PAYS WHEN AN HOURLY CLAIMANT LOSES HOURS TO ATTEND APPOINTMENTS ASSOCIATED WITH THE ACCIDENT?

By: Caitlin Oliver Horowitz, Associate, Orlando

I received an interesting phone call from an Employer on a claim recently.  A claim was being actively litigated and settlement negotiations were at a standstill.  The claimant was denied indemnity benefits and was missing work to attend mandatory events associated with her claim – depositions, mediations, doctor’s appointments.  The Employer raised a seemingly simple question:  Who pays for this missed time?

As we are all aware, Workers’ Compensation occupies a niche in the more expansive and endlessly more complicated realm of Employment Law.  Guidance for this question can be found in the precedential case Copeland v. ABB, Inc., 521 F.3d 1010 (8th Cir. 2008).  In Copeland, an hourly Employee received extensive medical treatment for work-related injuries, including doctor’s appointments related to her work injuries during her regularly-scheduled shift.  The Employee alleged 3.8 hours of missed time for attending a doctor’s appointment should be considered “hours worked” under the Fair Labor Standards Act.

Ultimately, the Court agreed with the Employee.  According to Department of Labor Regulations, “[t]ime spent by an employee in waiting for and receiving medical attention on the premises or at the direction of the employer during the employee’s normal working hours on days when he is working constitutes hours worked.” Id. at 1012, citing 29 C.F.R. § 785.43 (2007) (emphasis theirs).  The Employee’s medical appointment at issue was made “at the direction” of the Employer because the Employer’s third-party workers’ compensation servicing agent scheduled the appointment and directed the Claimant to attend it.  As a result, the hours the Employee missed to attend her doctor’s appointment constituted hours “worked” under the FSLA, the Employer must compensate the Employee for that time.

Now, this case only speaks specifically to doctor’s appointments and not other claims-related mandatory event such as the aforementioned depositions and mediations.  However, it provides valuable guidance on an issue that Adjusters and Employers alike should be aware of regarding the delineation of responsibility for reimbursement of lost wages.  Particularly, in events where a claimant is not receiving indemnity the claimant is likely to raise this issue of reimbursements.  Be wary that this responsibility may fall on the Employer, not the Adjuster!