Workman’s Comp Employer/Employee relationship Employer (ER)—the respondent— o Def: a master of principal who employs another to perform services for hire—usually has rt to control and pays wages o ER wants something to be covered under WC b/c no tort liability Employee (EE)—the claimant o Def: one who works for, and under the control of, another for hire Public Policy o WC evolves through judical decisions, legislature, or artful litigation Key Q—Is the situation compensable (payable) under WC o If the EE’s claim is compensable then they will get: Wage replacement Medical treatment A formula for permanent damage Right to Control Test—factors to consider: o Who has assumed the direction and control of the EE o Power to hire and fire o Responsibility for wages and comp o Whose work was EE engaged in and for whose benefit was work done o Who furnished for EE o Who bore responsibility of EE’s working cond Relative Nature of Work Test (Larson) o An inquiry be directed at the nature of the EE’s work in relation to the ER’s regular business. o Any worker whose efforts are regularly and continually included in the costs of products of services should receive WC from the manufacture of such products o Used to determine whether independent contractor or EE o A case would be decided a different way under this test than under the rt to control test o Some JX follow Rt to control—others evolved into the relative nature test Different Classifications of EEs o Casual EE Usually casual if temporary in nature and limited in purpose—or if incidental, accidental or irregular Factors to consider Contract for hire Nature and service of work Scope and purpose of ET Maj view is to exclude ET from comp only if casual and outside course of ER’s business
If a statute defines work being done as the regular work, then it’s regular work of the EE ER relationship Discuss casual ET if it comes up in statute or relevant case law
o Agricultural EE Maj—exclude agri workers and farm laborers from coverage Exception—if work is for big farm that is business o Loaned/Special EEs Focuses on whether EE has moved out of the control of the gen. ER and into the direction and control of the special ER—to see which ER is liable for WC coverage Varies by jx—some have statutes others follow case law o State/municipal EE (police officers) Generally not considered “workmen” or “EE”—no coverage Some WC acts have special provisions for these EE o Managers and Executives Typically, even if injury happens while acting in managerial duties, one can still recover under WC Executives are usually not covered unless they are acting in “dual capacity” and at the time of the injury, they were acting as an EE— not Executive (Hirsch case) o Volunteers Usually not entitled to WC—not EE—Most statutes require a person to perform duties under a service for hire o Aliens Are considered EE’s and can recover WC o Minors Considered EE and can recover but in some states minors are entitled to double recovery o Independent Contractor Classification can bar WC coverage Factors for determining—apply rt to control test and relative nature of the work test ER can tell the EE that he is an independent contractor but he could still be found to be an EE under the WC laws Domestic EE o Most WC statutes don’t include domestic EE—but KS doesn’t have exemption—if there’s 20K worth of payroll then covered under WC
Employers o Min #of EE Most WC statutes require set # of EEs (usually 3-5)—Maj rule KS—goes by amt of payroll—20k Then WC doesn’t apply but EE could still sue under neg o General and Special ERs (loaned EE or ET placement) It is possible for the EE to be EE of both at the same time Test: rt to control WC can treat the labor co or the actual ET place as the ER o Subcontractors and Statutory ERs Statutory ERs provisions are designed to protect an EE injured or killed while working for an uninsured subcontractor. To maintain claim against statutory ER the subcontractor’s EE must prove that the work that gave rise to the injury was a regular part of the statutory ER’s business Gen rule: if EE got WC from the contractor or sub, he can’t sue the other one for neg b/c of exclusive Remedy o Charitable Orgs Some statutes expressly prohibit WC coverage for charitable orgs o Concurrent ER When EE has more than one ER for WC purposes Statutes make liability joint, apportioned or placed on just one ER o Successive ERs Q—which is the ER for WC purposes—ways of determining liability in occupational disease: Last ER who employed EE when last exposed to disease ER where disease was contacted Liability apportioned among ER
WC Analysis: “Personal injury by accident arising out of and in the course of ET 1) Arising out of o Risks—3 broad categories 1) ET related risks—Positional risk (most liberal) Min JX—Q is whether ET was responsible for EE being at the time and the place when injury occurred 2) Personal risks—unrelated to ET (injury by seizure or aging) Not covered 3) Neutral Risks (random violence) Covered b/c risk is neutral to EE and ER 4) Acts of God
You wouldn’t be in that time in place if it weren’t for ET—usually covered
2) In the course of employment o Must show sufficient relation to ET—time, place and circumstances If EE deviated from the course of ET then no WC b/c of abandonment 3) Factual Cause o Need factual connection between ET and activity at the time of injury “Arising out of” Circumstances o Horseplay (Positional risk) Horseplay fall into 2 catagories Innocent victims—covered Someone is aggressor—usually not covered o May be able to recover on the basis of longevity and customary nature of the practice KS—horseplay doesn’t have to be foreseeable to be covered— if they didn’t participate in the horseplay Heart Cases Look at statute Look to see if there’s pre-existing risk factors Some jx will distinguish the level of activity req’d before the heart attack is said to be work related Some statues say if there’s pre-existing cond, you have to show unusual exertion—If no preexisting then usual exertion what ever level of stress EE suffers, he still has to prove causation to recover Pre-Existing injury or disease Pre-existing med problems constitute personal risks that wouldn’t be WC EE must prove aggravation of original injury through med experts and causal connection Underlying cond (seizure) ct will treat injury for effect of fall not underlying cond—EE hit head on concrete floor—if it wasn’t for the concrete, EE wouldn’t have injured himself Gen rule ER takes the EE as they find them natural effects of aging process can be considered a preexisting weakness or cond Public Policy: effects of aging is not supposed to be an injury but WC law says that you can aggravate a cond
Aggravation is when something wasn’t bothering you but then injury flairs it up-- asymptomatic then becomes symptomatic o Defense, say you’ll treat the aggravation b/c once injury heals it goes back to its former state—this will defeat a claim for a permanent injury
Causes and Cond independent of the work relation Standard—the ER is responsible to provide med treatment to cure and relieve effects of injury—has to be reas and nec Should comp be awarded for the abnormal result of injury— usually, the ER is responsible for result of treatment If worker is going to die anyways but injury cause person to die quicker—the death would still be compensable o Gen Rule: Every natural consequence that flows from the injury arises out of the original injury—Unless injury is a result of an independent intervening cause Quasi-course of ET—(Larson) where EE is on way to medical treatment for WC injury = in course of ET—if injured-WC EE goes to have WC surgery but finds out he needs heart surgery from unrelated problems—EE doesn’t have to pay for heart surgery Intervening cause—weak knee caused by injury and then when he carried trash downstairs and fell b/c of knee—ct said carrying trash down stairs was intervening cause Unexplained accidents (including death and idiopathic falls) Cts usually establish presumption that death arose out of ET it occurred at appropriate time and place at ET Given obj and policies of WC, effort should be made to resolve unexplained injury and death for EE Some jx—if there’s 2 possible causes of death—one ET related and one not, cts will often award comp—depends on jx Current trend is away from liberal interpretation Idiopathic fall— happens for unknown reason—depends on specific fact as to whether this will be a personal risk o If fall was caused by increased risk from ET—then WC—if floor was concrete, might be able to show increased risk Off Premises Liability Co sponsored athletic teams—factors to be considered: o Whether activity takes place on the premises On premises—more likely to be WC
o When did the activity take place—during work o Is ER trying to get PR—what benefit is ER getting o What kind of control does the ER have KS passes a statute that said that if activities in social activity was voluntary then not WC o ER provided exercise equipment on site and injury is related to equipment or location then maybe WC Target practice off duty-- Police office o WC b/c PO req’d to keep up skills off duty—PP Leaving on break or for errands o Most cts say EE that leaves work on personal errands are not eldgible for WC o Lunches off premises are usually not covered b/c of coming and going rule o Personal comfort doctrine—allows WC for getting a drink—if you go somewhere, you can’t deviate too far Risk from smoking, eating or drinking may be compensable if ET increases risk of injury
Fights at work among EE (Hartford) o Supervisor called EE name and EE called supervisor name and then Supervisor started fight with EE. In order to be WC it can’t be personal—work brought on the work related clash Some JX will award aggressor comp b/c WC is suppose to be a no-fault system—but for public policy reasons some JX don’t cover the aggressor Attack at work by other EE o EE was raped by other EE at her ET during lunch—this wasn’t personal risk b/c she didn’t know him—this was positional risk or neutral risk that would have been subject to any female EE Job assaults by non-coworkers o (Weiss)—asked HR dept not to give out address b/c she didn’t want her harassing husband to be able to get a hold of her and—husband called under a ruse and HR dept gave out info EE didn’t want WC b/c she wanted to sue civilly Ct said that EE was entitled to WC but not neg suit Ct said accident was HR giving out the info 3P Assistance EE goes to assistance of 3P then he may or may not be covered—but if ER requests the aid then it will be WC
Gen rule is that if you go to the aid of a patron it is WC b/c the goodwill is transferred to the ER
Willful misconduct— Sometimes you can prove willful if there’s statute that says behavior is willful misconduct—affirmative defense of ER Intentional violation of a safety rule is usually enough of deviation to prohibit WC unless ER doesn’t enforce safety rule Intoxication—usually statute that will deny comp for intoxicated EE If intoxication didn’t cause injury then statute won’t apply look at causation & see if alcohol/drugs was cause of accident If statute doesn’t defines willful then safety rules will govern— statute strengthens public policy of safety concerns
Common “in the course of” problems Going and coming Rule Generally, accidents that take place on the way to and from work are not in the course of one’s ET Exceptions: o If EE is on ET premises even though they haven’t arrived or left work o The ER provides the transportation or travel expense o ER comps EE for time spent in travel o EE is on call and travels is a significant portion of ET duties o No fixed work site, then no application of coming and going— you’re covered Mixed/Dual-purpose trips o Dominant Purpose—if primary purpose of trip is for ER then usually EE would be covered o Errand directed by ER of EE on the way home are still in the course of business o If injury happens before you get to the personal part of trip then its compensable o Other cases say that if you complete the business part of it and then you head home—personal activity, then it’s not covered o Personal trip but ER asks you to do something for ET while on trip—ct says for time that you are doing personal pursuit—not WC Suicide o Many JX—if unbroken chain of causation is established between work injury and mental cond that leads to suicide, then WC o Suicide as intervening cause—if injury results in mental derangement that results in suicide—lots of statutes will allow WC
Personal Injury by Accident Look to see how the law defines accident in WC law Brings up factual causation between accident and ET 3 Major areas: 1) occupational disease o Use to be limited by statute (list)--Now concept is broader o Need to look at notice req’t o Need Medical Causation Q—Whether the ET caused or substantially contributed to the disease Need to show higher risk of contacting disease through ET than gen public has o Exposure happens over a long period of time and there’s no identifiable time of accident o Many statutes exclude ordinary disease of life o KS says there must be a reas degree of medical certainty 2) Mental illness o Maj rule: allows recovery w/ just mental injury o Substantial Min: need physical injury before you can recover for mental o Post traumatic stress disorder—hard to prove, has to be really traumatic (seeing a co-worker die) narrowly tailored o Psychiatric conditions are usually litigated b/c they want to make the claimant prove it 3) Diseases or illnesses that develop over time o Repetitve use injuries over time—must have a causation opinion o What is the date of accident for when an injury happens over time Important b/c the date sets the rts, obligations and SOL Larson—The date the disability manifests itself—when injury becomes plainly known—Things to look for: When EE can no longer do job, pain is so bad that EE goes to DR (did EE tell DR injury was from ET) KS—the last day the EE worked on the job and did the activity that caused injury o Whether notice of claim is timely—SOL o What types of people come up w/ carpal tunnel—cashiers, butchers, data entry, construction workers, sewing machine workers Injury by accident from infection o Need identifiable time and place of exposure (over time or gradual)
Allergies o Most cts will comp for allergies if causation elements are met Medical opinions o Usually 2 opposite positions—EE has the BOP to show what is more probably true than not true possible is enough for EE but might be for ER EE has to show that it’s w/in a reas degree of med certainty New or recurrent injury Q--whether EE was injured in a new injury at ER or it was a recurring injury from another ER—these cases are very fact specific
Types of Benefits (3) 1) Medical Benefits o Reas cost of med care—includes rehabilitation, nursing, drugs, etc o Sometimes will mean living quarters or a prothetic limb o Some jx allow family member $ for home health care o ERs aren’t responsible for unauthorized med care—judges are there for that WC benefits are weekly and start w/ the day of accident—sets law in effect for the accident—if law changes, won’t change the case Vocational rehabilitation--To restore earning power by vocational counselor or new training—some state have it and some states don’t 2) Disability Benefits Designed to provide comp for loss of earnings or earning power— usually determined on medical loss or wage loss theories 2nd injury fund: some jx pay comp when EE had a prior injury o Pays when old injury is aggravated or there is a combo effect o ER benefits b/c financed where it’s not supported just by ER Some states will reduce WC payments if EE is getting SS or disability Temporary total disability (TTD) Person has to be temp totally disabled o Dr has to testify that person if off work b/c of injury o You get a certain % of your wage—most jx get 66 2/3% Waiting period—benefits don’t start immediately—we don’t want WC too easy o KS there’s a week waiting period Restrictions o Dr can put EE on “light duty” but if ER doesn’t have light duty then ER has to pay temp total disability o Can’t get WC and an un-ET check
o Can get a private disability policy (aflac)—but most policies have a WC exclusion that doesn’t allow you to draw both Temp partial disability o Hurt where he can’t work normal job but can still work in some kind of gainful ET o ER puts EE back to work w/ restrictions but pays less than normal—EE can recover some of diff—doesn’t pay all the diff o Encourages ER to provide light duty work Social security disability—will pay when someone is unable to perform substantial gainful ET for 12 months Total disability—need treatment plan o This happens at the max med improvement—decided by the Dr o Condition is permanent o If worker doesn’t agree w/ Dr then the EE can get 2nd opinion Permanent partial disability (PPD) o You’d get weekly payments either for o Functional impairment for scheduled injury or o Whole body injury—for functional impairment and earning capacity loss o What body part is involved o Scheduled injuries—if injury is on list, then EE will only be pd for Dr’s rating for that body part—their functional impairment Look at body part injured to nearest joint & see if its on chart 30 states say you need AMA guides for rating of impairment % If you have amputation then you can have some weeks added on for recovery You have to match the body part with injury and then also with the loss wages Loss of scheduled body part that effects another body part then you are not limited to the schedule payment Whole body injury Not on the schedule list—Ex: neck or back, organs Usually have higher maximums than scheduled injuries Wage loss will be factored in In KS there’s a diff # of weeks for whole body Where are they on the time line—If they have surgery and they’re off for 6 weeks, subtract that from 415
wks=there’s 409 wks left max--then take that # times DRs ratings (AMA guides/ functional impairment) If EE has wage loss, the value goes up—whole body plus wage loss (EX: if ER didn’t have light duty or diff between light duty and reg wages) To compute “work disability” for wage loss—look at loss of wages in term of capacity Some jx will compute wages—someone doesn’t try to get job after injury—ct can say that this person COULD make x amt if they actually tried Person gets pd the back wages when the judgment is rendered and then they’ll get future pay If something happens to the persons wage earning ability then the # can be refigured this is called a review and modification A WC atty gets pd weekly out of the EE’s WC check
Permanent total disability (PTD)—highest amt a person can get and still be alive o Really hard to prove o EE injures both eyes—most jx will say this is permanent total o Odd lot doctrine—person can be PTD but still work a little
3) Death Benefits Expenses include burial expenses and comp for beneficiaries There’s a max and it’s a weekly payment Based on accident, date of death and dependents IF there’s a compensable claim—Look for heirs of the decedent Presumed heirs to be dependents: the spouse and minor children (statutory heirs or dependents) o Posthumous children—some jx will include these children and some don’t o Illegitimate—recognized if paternity is determined Wholly dependent heirs—have to prove they were dependent of the decedent for income o If they were dependent, then they will be the only one that will recover—over partial dependent Partially dependent heirs—must prove degree of dependency Some jx—you don’t have to prove that you’re related by blood You may have to look to local domestic relations law EE settling dependent’s claims (can EE settle future claims of their dependents while they are still alive?) o Differing case law—one case—once there’s settlement, no further lawsuits—other case said that the ER doesn’t have the right to
preclude the benefits of his surviving heirs unless they also sign the settlement o Maj rule—heirs claim—is separate from the alive claim Spouse remarries—Most jx say if spouse remarries they can no longer receive the same death benefits—some jx lower it, others give lump sum, some discontinue it
o Administrative o 6 obligations of administration of WC o 1) To initiate administering the act o 2) Provide continuing review and seek periodic revision of WC statutes o 3) Advise EEs of their rts and obligations o 4) Advise ERs of their rts and obligations o 5) Assist voluntary resolutions o 6) Adjudicate disputes that aren’t voluntarily resolved Many jx have state agency w/ trier of fact—only a few jx begin w/ initial judiciary adjudication Evidence o Heresay is admissible 2 kinds of hearings o 1) Prelim hearing to get benefits started (expedited hearing) ER may need TT or med benefits Use Drs report for this hearing—doesn’t have to be sworn in o 2) Full hearing Done when you know what the full nature of the disability Usually have hearing on all issues and give people deadlines— evidence from claimant need w/ in 30 days, evidence from other side w/in 30 days (depo of dr taken in his office) De nono review (at appellate level)—everything is all new— Another appellate review—usually substantial evidence review—usually just arg law—no fact or evidence at here Notice of claim is needed b/c: o ER has opportunity to mitigate injury and opportunity to timely investigate o Notice can be excused (usually not in KS) but most of the time it’s req’d or the claim is barred by the SOL o Usually notice has to be to a supervisor—can be verbal or in writing o In KS—you need to tell ER in 10 days—if not, you better have good reason—but no jx will ever let it go longer than 70 days o For repetitive use accident, you may get the date pushed back o Actual notice—the supervisor actually sees the ER get injured
Filing a claim—written document claim 1 to 2 yrs (KS 6 months) o 2 statutes of limitations: filing a claim and notice How WC is diff than civil SOL o If ER starts WC, SOL is tolled and doesn’t start again until payments stop o If WC doesn’t start rt away, you have what the SOL allows to file claim Litigation costs and fraud Reforms o Informal dispute resolution Fraud investigators to pick up on fraud cases
Lump sum settlements and settlements You usually have to have some sort of admin approval to settle a wc claim We want to protect people b/c the settlement will cut off their future rights Review and modification Can be done by EE if the injury is worse or ER if he thinks the EE has gotten better or if there’s possible fraud involved Exclusive Remedy Steel door concept—the ER can’t be sued for neg when the injury is covered by WC—even if the laws don’t pay or not enough, it’s still the exclusive remedy Fireman case—injury to pubic nerve and was impotent—didn’t lose wages so WC law said that he could recover from ER b/c WC governed Exclusive Rem bars tort claim even if WC doesn’t pay on injured Family members cant sue ER b/c of EE’s injury—only can recover through WC Family members can sue ER in tort only if they get hurt themselves—they wouldn’t be covered under WC Does Exclusive Rem protect ER from sex harassment o Some Jx say b/c sex har doesn’t involve physical injury—only WC o Other Jx say that you can sue in tort o Larson—look to see if WC or fed law was meant to protect such action Exception to exclusive remedy/steel door ER had intent to injure EE—intentional tort—not neg—very high burden to meet EX: co was working with really dangerous chemicals and hired only EEs who couldn’t read English so the wouldn’t know how dangerous the chemical Some jx standard—injury is substantially certain to occur When ER provides co Dr If ER fraudulent conceals the possibility of an injury Or if the ER isn’t telling the EE what is showing up on his med tests w/ co Dr
3P liability o ER and EE want 3P to be at fault—then there can be tort case (can’t be co-EE) o Look for: Products liability, car accident, Med Malpractice o ER Subrogation—Tort judgment, must pay ER $ already pd w/ tort judgment o Retalitory discharge o ET at will—most common, where EE can be fired w/out any reason— doesn’t apply if there’s a contract or a statutory obligation o Exception—can’t be fired as retaliation for WC claim or discrimination o Timing can be inference of discrimination—close in time—look at intent o KS—Retalitory/wrongful discharge o Policy—don’t want EE afraid to file WC but theirs a higher BOP for EE than a reg civil case--Applies to EE who hasn’t filed claim but can file one
o Conflicts o JX can decide if they’ll exercise jx over an injury that opposes conflict w/ laws o Usually set by statute--Generally when jx can be accepted: Injury in state Contract in state Acceptance of job in state—by phone, then what state you were in Principal place of business o EE can make claim in one jx and then another jx—if applicable—but can’t get double recovery but you can get the diff—if the other jx pays more than the other o Other areas of ET that relate to WC o Family med leave act (FMLA)—no actual payment, just preserves the status o Allows for time off work for injury—not every EE is covered For injured worker or family member need Dr to say they are needed to stay at home to take care of the injured person o Need at least 50 EEs and have to work there 1 yr o If EE is hurt, he will usually qualify under FLMA b/c the act is broad o 12 weeks max—but if still injured under WC they can be gone longer o EE doesn’t need to be concerned about max b/c WC doesn’t have a max and the FMLA isn’t the same as WC o If co Dr released EE to work then he can use FMLA to stay off work if another DR will certify that the EE still needs time off o ADA—(Americans w/ disability) fed civil rts leg o Must be very diabled to qualify—Then ER has to provide accommodation o ER can’t ask EE before they hire if they have filed a WC claim o OSHA—gives workers the rt to know what chemicals are in their environment o Doesn’t give worker private cause of action
o SSDISAB o Social security disability—available to injured EE that can be drawn at the same time as WC but there could be on offset on the SS b/c of WC o Medicare set aside trusts—ER pays future medical so medicare doesn’t have to o Settlement of SS Disab—spreads WC payment over lifetime expectancy (SS rule) o Rail Road—if someone is injured by RR work—get a specialistFELA governs—this is totally different than WC law—you have to prove neg for FELA—doesn’t have to show a lot of neg o Entitled to jury trial