Workers’ Compensation is a no-fault insurance program in the state of Nevada that is paid for by the employer. It provides benefits to employees who are injured on the job and protection for employers who have provided coverage at the time of the injury.
Workers’ Compensation coverage is a requirement, by the state of Nevada, for employers who employ one or more employees. In addition to the coverage requirement, Nevada also requires that employers furnish a safe workplace with no hazards that may cause death or serious injury to employees. However, no matter how safe the workplace, injury is always possible. As such, benefits provided by workers’ compensation coverage may include: Medical Treatment, Lost Time Compensation, Permanent Partial and/or Total Disability, Vocational Rehabilitation, and Death Benefits.
However, the Assumption of Risk doctrine excuses certain employment from providing the benefit of workers’ compensation.
Often, workers in the casual labor industry are not considered “employees” and thus, their employers are not required to protect these workers with a workers’ compensation policy. Examples of “casual labor” include a landscape company for hire, or an office manager hiring a contractor to paint the office building. Basically, the work the individual is doing is not in the normal realm of what would normally be done by an employee of the company.
In addition to casual labor workers, farmers and other agricultural workers are generally exempt from workers’ compensation laws.
One of the main reasons why these types of workers are exempt, or not protected, under workers’ compensation laws is the Assumption of Risk doctrine.
To prove negligence, a claimant needs to prove that a duty of care was owed, in this case, by their employer. However, when a worker (since they are not technically employees) assumes the risk of an inherently dangerous activity, that duty of care no longer resides with the employer. Thus, because a duty of care does not exist, negligence cannot be proved and the risk was assumed by the worker agreeing to the job.
To determine if an activity is inherently dangerous, a court will look at the relative possibility of harm, the level of seriousness of potential harm, if the possibility of harm is decreased with the utmost care, whether the risk of harm is decreased with the utmost care, whether the risk of the activity outweighs its social value and the inappropriateness of the activity in the area it was conducted.
However, it is possible that the Assumption of Risk defense is going by the wayside. For example, the Kansas Supreme Court recently overruled its prior case law which permit employers to assert the Assumption of Risk doctrine as a complete bar to recovery in cases involving inherently dangerous activities. Now, when defending a lawsuit brought by an injured employee in which worker’s compensation does not apply, Kansas employers may still argue that a plaintiff’s own negligence contributed to his injuries, but they can no longer argue that the employee assumed the risk of injury and is thus barred from potential recovery.