The Pacific Daily News reports that the families of five workers who were swept out to sea are being denied workers’ compensation on the grounds that the men were not working at the time.
Five employees of Guam Seawalker Tours were out in kayaks setting up for the next day’s business when they were swept away. A storm had only just passed the area and the water was still dangerous; at the time of the accident surf advisories were in effect.
There is a debate over whether the men were working or not at the time of their deaths. The Guam Workers’ Compensation Board concluded that the accident was not work-related and the families are therefore not entitled to payments, which could amount to $100,000 per family.
The report determined that they were acting out of the scope of their employment and they willingly put themselves into a dangerous situation. The families have filed a petition. They say the men were trying to rescue one of their co-workers who had fallen out of the boat.
Robert Keogh, the attorney representing the families, said the court should have applied the rescue doctrine to the case, which would cover the rescuers and the employee who was in trouble.
In cases like this it is hard to determine what should really be done. If the men did willingly go out without management’s knowledge or approval, it seems that their actions would not be the responsibility of the employer. But if their manager told them to go out, then it’s up to Seawalker to see that their families are taken care of. Even though Guam is not a state it is still under the jurisdiction of several insurers who are probably very interested in which way the case unfolds.