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					Workers’ Compensation by Beth Foerster, Summer 2003, Kyungjoo Park
Textbook: Workers’ Compensation –Cases & Materials by Little, Eaton, Smith, 4th ed.

Violation of Statute (p.19)
OSHA(Fed. Occupational Safety and Health Act of 1970): employer’s positive obligation
 to satisfy safety standards and regulation in the workplace.
     General: violation of OSHA cannot serve as the independent basis for a civil suit for
          damages.
       --- But can be basis of negligence by employer.
Fed. Employer’s Liability Act: not no-fault system
 The obligation to compensate an injured worker is conditioned upon proof of employer
          fault: the measure of recovery is full compensatory damages.

Johnson (p. 67)
The worker quit the job one day before he was injured when he was there to secure his
tools. He volunteered to assist his successor with defective pump at the request of
assistance and lost left arm.
Holding: The injured worker was not within the scope of employment unless he was
     there to complete any work unfinished.
     - He did not go there for the purpose of aid new engineers.
     - There was no custom to help the successor in the operation of plant.
Dissenting: general custom at work was for the predecessor to impart reasonable
instruction and extend reasonable aid to his successor. The worker was still an employee
of the plant within the meaning of the compensation act.
i) Rendering assistance in good faith
ii) It was incidental to the termination
iii) Discharged employee has right (when within reasonable time, he is deemed to
     employee not trespasser.) to enter upon the premises to remove his tools.

Nat’l Auto and Cas (p. 115)
· The injured, manager, worked for both the Cooperative and Warehouse (dual
employment). His salary and compensation insurance premium was paid by Coop., which
in return used scales and premises of the Warehouse. He divided working time b/w 2
concerns. While engaged in the supervision of shipment of rice of the warehouse, he was
injured in the warehouse of the Warehouse Co.
· Issue: dual employment?
          if so joint or concurrent employment?
Holding:
- issue I: Entire salary from Coop. not establish sole employer. Warehouse shared the cost
     of service. Both had right to control work.
- issue II: Correct construction of purpose and effect of the arrangement b/w two
     employees concerning his employment.
     The worker did not give a specific portion of his working hours to each but all of it to
     both. He was always on call by the other. The service is joint, so employment is joint.
Hirsch v. Hirsh Brothers (p. 119)
· Two brothers owned their company (excavation and road building) as president and vice
president). Brothers received $1.75 an hour while working. Brother’s airplane was
crashed after returning from a business trip to buy a trailer. Young brother died.
· Issue: His business trip was in executive or employee capacity?
Holding: the determination of buying a suitable trailer was already decided. The
determination of whether the trailer was suitable was delegated to a qualified servant.
They took a trip as employees.

Frampton v. Central (p. 123)
Injured at-will employee was fired one month after receiving settlement for 30% of loss
    of his body function.
Public policy: if employers are permitted to penalize employee for filing WC claims, the
    important public policy will be undermined.
Retaliatory discharge would constitute and intentional wrongful act by employer.
General rule: At-will employee terminated w/out cause.
Exception: when retaliatory discharge.

            Chap. 4 Injuries Occurring within the Course of Employment

Sect 1. Classification of Risk Covered by WC Act

Risk classification: character or source
Acts protect against all risks of employment
Both must be satisfied: i) arising out of employment (what risk; normal risk)
                         ii) within the course of employment (when and where)

Sect 2. Injuries suffered during social, recreational and similar activities

Jocquelyn H Shunk (p. 131)
· Female worker for real estate co. had dinner with a prospective customer. Fell down
from the apartment to elude the improper advancement toward her, while she
accompanied the customer to ascertain the apartment room number for the trip early next
morning.
· Holding:
    - nature of claimant’s employment: involving solicitation, salesmanship, persuasion
    and follow-up action and working hours are not fixed.
Taylorv. Ewing (p. 135)
· His finger was injured cutting grass at the employer’s home when employer directed the
worker to do so. His main duty was to maintain auto dealer offices.
· Rule: i) Employee must be actually engaged in furthering the business of the employer
             at the time of injury if accident occurs off the premises of the employer.
        ii) if not connected with the employer’s business, it must appear that the employer
             ordered or directed the act.
        iii) but-for causation
Sect 3. Injuries suffered by employees ministering to personal needs or pleasure

Leckie v. Foote Lumber (p. 138)
· Worker injured when he ran the saw to cut scarp lumber for his personal uses.
Employee’s duty: scaling logs and fling crossed saws and general tasks and free to do
whatever needed at the mill.
· Employer’s argument: employee turned aside from his employment and was engaged in
a task for his own interest.
· Rule: whether accident arises out of the employment:
     i) engaged about employer’s business, not merely pursuing his own business or
            pleasure
    ii) necessity of the business require that employee be at the place of the accident.
Holding: worker was reasonably required him to be at the place. Worker was attending to
employer’s business when cutting the log slab.
Rehearing: · accident must occur arose out of and/or was incidental to such employment.
· Factor of distance is not entirely controlling: To the nature of the act of deviation or
turning aside should be accredited controlling influence. Reversed.
Pacheco’s (P. 144)
· During coffee break which allowed workers to leave the premises, she went to bank to
cash her paycheck and got car accident to death on the way to bank.
Hawaii is in minority view: coffee break is for employer for increased productivity.
Away from premises for personal matters is beneficial for employer, connected to work,
compensable if employer acquiesces in such practices.
Dissenting: not on the premises, not under control of her employer, accompanied by co-
employees of no managerial responsibility, four-tenths of a mile away, not under
constructive control. Personal convenience and unrelated to work. Only restriction on her
was time. Employer had no actual or constructive knowledge of claimant's intent to go
out. Employer did not acquiesced in her activity. Coffee break is not part of employment
but incidents of employment. Distinction b/w injuries arising out of activities directly
related to the primary purpose of coffee break and injuries arising out of activities merely
incidental to it.

Sect 4. Injuries by Caused by Horseplay among coworkers

Burns v. Merritt Engineering (P. 153)
· A coworker handed Barclay’s gin to the worker, which contained carbon tetrachloride.
The drinking disabled the worker. Company’s written regulation: possession or drinking
alcoholic beverage at company is forbidden.
Holding: Not injured b/c violating the rule of plant but innocent victim of cruel and
senseless joke.
- To be victimized by a prank perpetrated by co-employee is an incident of employment.

Sect 5. Injuries by employee’s willful misconduct and violation of rules &
Instructions

Carey v. Brayan and Rollins (P. 158)
· Driving a pick-up truck too fast (violating speed limit) and lost control when distracted
by recovering the cigarette
· WC statute: Not entitled to recover damages or compensation if his willful failure or
refusal to use a reasonable safety appliance
· issue: meaning of “willful”
· holding: violating speed limit was not willful but just careless and inadvertent.
           negligence per se does not bar WC.


Sect 6. Injuries while Coming to and Going from work

Hammond v. Great Atlantic and Pacific Tea (P. 165)
· Worker fell down on the way to the pick-up place after work instead of going to parking
lot of the work.
· Going and Coming Rule: No compensation for the injuries in the commutations.
    - Exceptions (4): special mission for his employer
                       employer furnishes transportation
                       vehicle is required in the performance of K
                       employer’s payment for transportation
· Going and Coming Rule should be liberally construed within the spirit of WC
legislation.
    - injury occurred on a necessary route b/w 2 portion of the employer’s premises
         (parking lot and office building --- in the course of employment
Kaplan v. Alpha Epsilon (p. 174)
· Female house mother slipped and fell down on the street near the work. She was on the
way to drugstore to buy bandages for her work and then tried to take a streetcar to attend
a religious service.
· Even though it is his own trip, then detour made for dispatching employer’s business
must be held to be within the scope of his employment.
    - If employment creates the necessity for an employee’s errand, it is wholly
         immaterial whether such errand is beneficial or detrimental to the employer.

Sect. 7 Synthesis: Relationship of “Within the Course” & “Arising out of ”Tests

Strother V. Morrison Cafeteria (p. 181)
A cashier at cafeteria was assaulted and robbed at her home by two men who were
present at the restaurant and chased her after work. The attacker thought she was carrying
the cafeteria’s money.
Rule: Within-the-course: continuity of time, place, and circumstances (reasonably
                fulfilling duty/engagement incidental to it)
        Arising-out-of: the origin of cause of accident (causal connection; incidental to)
         Special hazard exception to “going & coming Rule.”
The attack arose out of employment (demanded cash). The attackers were at restaurant to
case it (the time bomb began ticking).
                    Chap. 5 Injuries Arising out of the employment
 (strong showing of “within-the-course” compensate for a weak showing of “arising-out-
                                          of.” ? )
neutral source injury: lightning
mixed source injury: heart attack (work stress + weak heart)

Davis V. Houston General Ins. (p.190)
Nurse aide felt “pop” when wearing her coat at work to go home. She had operation after
that. The causative danger must be peculiar to the work.
Excluding a hazard equally exposed apart from the employment.

Sect. 2 Positional Risk Doctrine-street Risks (street doctrine)
Increased risk test: arising –out-of
Positional risk doctrine: Accidents arise out of employment if the conditions or
obligations of the employment create a zone of special danger out of which accident
causing the injury arose. (p.222)

Donahue V. Maryland Cas. (p.192)
Salesman slipped on the ice and fell on the way to selling church goods.
Arising-out-of: if employment was a contributing, proximate cause
The risk of slipping upon the ice was common to the public, no peculiar to his work.

Katz V. Kadons (p.193)
The claimant, a dairyman’s chauffeur, was stabbed by insane man when he drove
employer’s car.
 The fact that the risk is one to which every one on the street is exposed does not itself
defeat compensation. The employment exposed the workman to the risks by sending him
on to the street.

Sect. 3 Injuries caused by Acts of Nature & Fortuitous forces from outside the
employment.

Whetro V. Awkerman (p.195) (1970)
Whetro was injured when tornado destroyed the residence where he was working for his
employer. Emery was killed when the motel in which he was staying while on a business
trip, was destroyed by the tornado.

Michigan: No longer requirement of establishing a proximately causal connection b/w
           employment & injury, even though not the proximate cause, compensation
           should be paid.

Employer: injury did not arise out of the employment b/c employment did not expose the
workman to any increased risk of to a more hazardous situation than faced by others in
the area.
Sect. 4 injuries caused by imported & personal Risks

Hill-Luthy V. Industrial Comm. (p.201)
The injured was to drive a truck, deliver water tanks, and install them at customers’
homes. On the way to the next stop, in truck, the head of match hit his left eye and lost
his vision when he struck the match.
No causal connection b/w employment & injury. Smoking is not incidental to the
character of the employer’s business.

George V. Great Eastern Food Produces (p.205)
The worker hit the concrete floor, died from fractured skull b/c of idiopathic fall (purely
personal condition having no work connection).
Compensable if that injury was caused or contributed to by some added hazard of special
condition of employment.

Both the circumstances causing injury the striking of the floor and the consequences upon
the employees’ person were unexpected.
Unexpected fall is compensable. Unexpected mishap arises out of employment when it is
due to a condition of employment.

Sect. 5 Injuries Caused by Fights & Assaults among coworkers.

Hartford V. Cardillo (p.208)
Helper of produce warehouse, loading vegetables on the employer’s truck. Personal
injury resulting in his disability when a coworker assaulted him suffering a laceration of
right eye brow & fracture of right maxilla. His supervisor was aggressor.
Employer: the assault was personal quarrel.
The entire sequence of incidents occurred not only while the claimant & his assailant
were at work, but as a natural & normal product of working together.
   The entire sequence of events arose out of the fact that the work of the participants
brought them together and created the relations and conditions which resulted in the
clash.

   In Re Ouestion V. Martin (p.213)
Tobert, entry level professional, was raped by a janitor, coemployee when she was on her
way to lunch at the company.
Issue: tort suit against employer is barred by w.c statute?
Incident occurred in-the course-of. Arising-out-of is at issue.
Positional risk test: neutral source injury: e.g., lightening. Neutral force is one which is
not personal to the victim, nor distinctly associated with the employment.
Test (3 elements): employee in the course of employment, was reasonably required to be
at particular place and time and met with a neutral force.

  1) Time requirement is met
  2) Place requirement: “but for” the conditions & obligations of the employment.
  3) Neutral force requirement:
     -3 injuries: inherent connection with the employment
                  inherent private
                  neutral (blind of irrational forces)
The rape could have happened. The victim happened to be there
  - net neutral attack (not specific to the victim)
Holding: injury arose out of employment.

Sect. 6 injuries caused by on-the-job assaults by non-coworkers.

    Weiss V. city of Milwaukee (p.218)
Wife commenced divorce action and husband harassed her by phone calls. Wife was
terminated from former work due to husband’s harassing calls. Milwaukee City (new
work) disclosed her home address & phone number to her abusive former spouse.
Wife couldn’t change residence b/c of financial inability, so suffered emotional distress
from fear for safety of her and children.
Holding employer increased the risk of personal dispute.
   (1) In the-course-of: taking place within the period of employment, at place where the
         employee reasonably may be, and while he is fulfilling his duty or engaged in
         doing something incidental thereto
      Personal comfort doctrine: within the course of employment when briefly turns
         away from work to tend to matters “necessary or convenient to his own personal
         health or comfort (not abandoning the job temporarily)
       Answering personal phonecalls is within the course of employment.
  (2) arising-out-of (causation): B/C a condition of her employment (Requirement to
       provide address & phone numbers) facilitated the accident which caused her injury,
       the accident arose out of employment.
    Statute: when employer is liable for w.c, the exclusive remedy provision precludes and
             injured employee from maintaining a negligence action against employer and
             fellow employee.

  Sect. 7 injuries suffered by Employees while attempting Rescues

  Cheker Taxi V. industrial comm. (p. 227)
The taxi driver got out of the cab to help the boy who tried to got in in an effort to escape
the fight. The colored boys shot at him and was wounded.
Employer’s argument: Employer is not liable for compensation when employee
voluntarily expose himself to a danger not incident to employment.
  Giving aid to an injured child on the highway is natural and expected. (the doctrine of
Puttkammer)

   Note: Injuries due to rescue of fellow worker, customer passenger are compensable.
Injury from rescue of a stranger is compensable if positional risk (duty brought the
worker to the spot.) Injuries due to rescue of stranger is compensable if employer is
subjected to possible liability.

Sect 8. Unexplained death
  In re Leblane’s case (p.230)
No other party was involved in the accident. A stock boy at and department store was
crushed to death B/w the platform of an elevator & one of the floors. No witness. He was
warned not to operate the elevator.
His death was not caused by the performance of any duties. He was hired to do ? or
anything incidental thereto.
His presence was not connected either directly or indirectly with his employment.

                        Chap. 6 Accident & Occupational Disease.

Occupational diseases were not initially covered by w.c.

Sect. 1 Concept of Accident

Matthews V. Alen & sons. (p.235)

43-year-old woods worker suffered disc trouble & hospitalized . His job: loading
pulpwood into trucks by hand.

Accident: include not only injuries resulting from accidents but also injuries which are
themselves accidents.
Injury by accident includes the breakdown of internal parts of the physical structure.
Accidental injury: unusual, undesigned, unexpected, sudden.
Personal injury appears either to have been caused by the exertions of Nov. 13 or
aggravated by them.

Peoria County Nursing V. Industrial commission (p.241)
Worked at laundry room 6 years: sorting & loading laundry and carrying laundry bags.
Injury: carpal tunnel syndrome in her left wrist.
   No need to demonstrate a precise moment of collapse & dysfunction.
   Must prove injury is work-related & not the product of the aging process.
   Employee may be accidentally injured as the result of repetitive, work-related trauma
even absent a final, identifiable episode of collapse.
   Dissenting: injury must be traceable to a definite time, place, and cause. Accidental
injury encompasses a cause-and-effect analysis. No unusual happening on Oct. 4. 1976

  Sect. 2 Infectious Diseases as an accidental injury.

   Connelly V. Hunt Furniture (p.249)
The worker, embalmer’s helper, at the undertaker, was infected with gangrenous matter of
a corpse, causing death.
Broad construction of accidental injury by adding “such diseases or infection as may
naturally and unavoidably result therefrom.

  City of Nichols Hills V. Hills V. Hill (p.250)
63-years-old maintenance worker was directed to cut grass of field. During the afternoon
he had difficulty in breathing. The worker injured at throat, lungs, and respiratory system,
50% permanent partial disability by inhaling contaminated dust.
Histoplasmosis is widely infected among people & majority people suffer no illness.
Injury resulted from unexpected exposure & the infection could remain dormant.
* where accidental injury aggravates or lights up a pre-existing condition, the resulting
disability is compensable.

  Sect. 3 Occupational Diseases

  Occupational Diseases & Ordinary Diseases

  Booker V. Duke Medical Center. (p.259)
Blood test lab technician at a hospital was infected with serum hepatitis. He routinely
spilled blood upon his finger. He was hospitalized for treatment. After that his job was
changed to electronical engineer. But he was sick and died.
Lab is much higher risk to contract serum hepatitis, which is an illness caused by a single
exposure to a virus.
  Appellee’s argument: serum hepatitis is an ordinary disease of life.
The disease must be distinctively associated with employee’s occupation with a direct
causal connection b/w duties of employment and diseases. The statute does not preclude
coverage for all ordinary diseases of life but instead only those to which the general
public is equally exposed outside of the employment.
  The greater risk provides the nexus b/w disease & employment.
Causal connection factors:
   i) extent of exposure to disease or its agents
   ii) extent of exposure outside employment
   iii) absence of disease prior to the work-related exposure.

His occupation exposed him to a greatly increased risk of contracting serum hepatitis.

  Dual Causation
   Plson V. Federal American Partners (p.267)
  Malignancy caused by radiation. Died of lung cancer. He was uranium miner for a year
and 7 months. Before that he had been employed as underground uranium miner 12 years.
He was a heavy smoker 22 years.
  Employer: no causal connection b/w employment & lung cancer.
             Radiation exposure was within safe limits.
  Finding for employer.
   Dissenting: Bone specimen shows 1.63 picouries lead per gram of tissue, quite higher
               than heavy smoker ----connection with employment
               Last employer aggravated of the diseases – last injuriously exposed

  Rutledge (p.276)
Worker worked for 4 textile companies for 26 year she smoked a pack a day from at 15,
she was absent for bronchitis one & half months. Diseases: chronic obstructive
pulmonary diseases, pulmonary emphysema, chronic bronchitis
  Last injuriously exposed: exposure to proximately augment the disease to any extent
however slight.

  Occupational diseases: 1) characteristic of persons engaged in the occupation
                         2) not an ordinary diseases of life
                         3) causal connection
                               - extent of exposure
                               - extent of non-work-related exposure
                               - manner of the development of diseases.
  Medically impossible to distinguish the effect on the lungs of cigarette smoking and in
halation of cotton dust.
  Significant contribution principle: balancing the employer & employee.
   Lung disease was an occupational disease.

  Sect. 4 Heart conditions, Mental & Nervous Injury, Other Special Cases

  Lancarter (p.289)
Ski resort worker suffered heart attack while clearing snow. Experience chest pains which
were more severe than the one 4 days earlier. 20-year smoking, elevated serum
cholesterol level, elevated uric acid level, borderline diabetes.

By-accident: 1) unusual event/occurrence
             2) unusual result (unexpectedness) if ordinary exertion
Causation requirement: 1) legal cause: employment contributed substantially to increased
                            risk
                        2) medical cause: the stress, strain or exertion required by
                            occupation led to the injury.
Claimant’s injury was not cause by work related factor (medical cause).

Sparks(p.296)
She initiated a program to eliminate illegal drug use by employees on the hospital
premises. She suffered from thefts, vandalism, urination in to her coffee pot and waste
basket. She suffered from “adjustment disorder.” (job related)
Patient History: depression, sinus headache, headache.

Accident : unforeseen event
Injury: physical + mental injury (compensable)
       Mental stress + physical injury (compensable)
       Mental stress + mental injury
Split courts: mental complications after being robbed at gunpoint - not compensable
       post traumatic stress syndrome as a result of threats to her safety - compensable.

Mental injury must be precipitated and accident not general conditions. Physical threat on
April 6 was an accident, prior event reinforce the seriousness of the threats.
Holding: incompensable
     Chap. 7 Effects of Causes & Conditions Independent of the Work Relation

To be compensated for subsequent injury or exacerbation the claimant should establish
cause-in-fact relationship

Sect. 1 Results of preexisting Weakness or Disease

Braewood (p.311)
A cook slipped & sustained injuries to his back & elbow. He had been chronically
overweight since child hood. He was required by physicians to lose weight in order to
obtain relief from, and to aid in the cure of, his industrial injury. He took part in obesity
clinic, and claims the cost.

An employee with preexisting condition is compensable even though specific treatment is
for non-industrial condition which must be treated in order to cure or relieve the effects of
the industrial in jury.

Statute: employer is subject to payment for temporary disability during the treatment ( to
compensate for wage loss)

Sect. 2   Falls & similar mishaps.

Williams Constr V. Garrison (p.319)
Bulldozer operator fell from the tracks of a pusher-tractor and sustained injuries to his
back. Paid benefits. After laid off, he was injured when trimming trees, claiming his
injury was due to his former accident b/c he felt dizziness after 1st injury.

Employer’s argument: Despite his dizziness, the worker ascended the ladder
             - reckless & unreasonable conduct breaks the causal relation b/w accidents.
Quasi- course activity: trip to the doctor’s office
Holding: subsequent accident was the direct result of the former injury.
Supporting facts: no restrictions on the worker’s activity by employer or physician.
Ascending ladder is poor judgment, not willful misconduct.

Sullivan & Constr (p.323)
A painter slipped and sustained injury to his leg. Again twisted the same leg when ladder
was broken. Paralyzed from knee to hip. One year later the worker was hurt in auto
accident b/c losing control when his knee was paralyzed.

 Rule: compensable only if the accident & injury resulted directly and naturally from
prior injury and disability produced.

Holding: not compensable b/c persisting in operating a car at a higher speed, not adding
left foot or hand brake. Claimant’s own act of driving, supervening b/w accident and car
crash broke the chain of causation.
Sect. 3 Complications & accidents during medical Treatment

Sect 4 New Injury or recurrence of old Injury

The classification is important for determining liability b/w employers or insurer, for rate
of compensation, for change in condition, jurisdiction.

Loclcheed V. bobchak (p.333)
    The worker sustained fracture to his left knee. At the new company, his injury
reoccurred when climbing ladder, needing additional surgery on his knee.
    Where no actual new accident, the distinguishing feature that will characterize the
disability as either of a change of condition or new accident is the intervention of new
circumstances.
New circumstances: more strenuous work at a new work when worsening, injury is new
accident, rather than change in condition.

Sect. 5 Refusal to accept medical treatment

Commonwealth V. London ( p. 337)
Minor injury to his left foot, resulting in psychoneurosis conversion hysteria, which
enabled him not to work. He was convinced that he had constant pain in his foot & leg.
He refused to take psychiatric treatment.
Holding: compensation should be withheld until submitting to treatment.

Sect. 6   Suicide as an intervening act or cause

Food Distributors (p.342)
Injury to left shoulder when tripping over a phone cord. Suffering post traumatic
impingement syndrome, unable to work with pain, insomnia. Pains and numbness in left
arm & hand. Serious depression led him to suicide.

The doctrine of compensable consequences (chain of causation rule) : when the chain of
causation from the original industrial injury to the condition for which compensation is
sought is direct, and not interrupted by any intervening cause attributable to the
employee’s own intentional conduct, then the subsequent condition should be
compensable.

Once compensable, the employer is liable for the full extent of injury (complications &
worsening injury)

When primary injury arose out of and in the course of employment, every natural
consequence flowing from the injury arises out of the employment unless it is the result
of an independent intervening cause attributable to claimant’s own intentional conduct.
Holding: causal connection found.
                       Chap 8. Compensation for non-fatal Injury

   Workers’ compensation: payments are called benefits (i) medical & rehabilitation
   benefits (ii) disability benefits.

Sect. 1 Medical & rehabilitation benefits

Squeo V. comfort control (p.351)
Fell from a roof while working. Totally & permanently disabled.
Statute: employer must provide an injured worker with other treatment or other appliance
        that serves to cure.
Employer’s argument: other treatment or appliance is not intended to encompass
construction of self contained apartment attached to his parent home.
Under certain unique circumstances, when sufficient & competent the construction of an
apartment addition is necessary & reasonable to relieve the injury. Cost should be
reasonable to relieve the injury.

Supporting facts: A lot of complications; Complicated living arrangements independent
                  of his parents aggravated mental depression at a nursing home;
                  Attempts to commit suicide 3 times. Fear of institutionalization.

     Smith V. Hastings (p.361)
   Suffered the amputation of several fingers while operating a punch press. She is taking
   vocational rehabilitation class to allow to obtain a job not requiring constant use of
   two good hands. She suffered a reduction in her earning power due to accident.
   Holding: entitled to rehabilitation.

Sect. 2 Disability Benefits

A. Duration and degree of disability

Disability benefits: to compensate for earnings lost as result of compensable injury
(income, indemnity, cash benefits) percentage of average weekly wage, subject to limit.
66.2/3% for total disability is common.
WC benefits not subject to fed. Income tax. (not gross income)

Degree: total (completely unable to work)
       Partial (capable of performing some work.)
Duration: temporary
          Permanent
Categories: temporary total disability, temporary partial disability,
            Permanent total disability, permanent partial disability
Some states: 500 weeks (10years) for permanent total disability
Many states: for life or duration of disability for permanent total disability
B. Disability as impaired Earning capacity

Fletcher (p.367)
Injury in left arm, 20% permanent partial disability, and properly compensated.
Reinjured his shoulder & unable to work & fired. Unable to secure employment until
April 1991. Seeking total temporary disability benefits from discharge to new
employment.
 Employer’s argument: not totally disabled b/c possession of the capacity to earn wages.
Provided unemployment insurance for workers, able to work, but who are not employed
b/c of economic condition whatever the health of economy at any given time, wc statutes
are to be liberally construed to give full effect to their humane purpose and remedial
character.
Holding: employee with work related injury is not precluded from wc compensation
benefits when that employee, while employable within limitations in certain kind of work
cannot after reasonable efforts obtain employment due to unavailability of jobs.

Karr (p.374)
80% loss of voice by inhaling chemical smoke. No compensation for the voice loss. He
was paid more by the employer than before the accident.

Actual earning, earning capacity.
Disability test is to determine the wage that would have been paid in the open labor
market as injured, by discounting other variables increase in general wage level, greater
maturity or training, longer work hours, payment increase out of sympathy.
Holding: remanded for reconsideration of disability test elements.

C. Disability as Physical Impairment
    Bishop (p.379)
Back injury: 35-40% permanent impairment of spine, 20% to the whole man. Employer
discontinued temporary benefits b/c reaching the end result of the healing process, but
employee entitled to permanent partial disability benefits
Statute: permanent disability benefits are calculated solely on physical impairment.
Employee’s argument: should consider his age, ability to work.
Holding: In computing the permanent partial disability, the percentage of impairment in
            injured part, not whole man should be used.
          Precludes the individual wage loss b/c i) scheduled benefit system is to achieve
                                                      efficiency with the protection of wage
                                                      loss
                                                   ii) when considering individual wage
                                                      loss, no distinction b/w total and
                                                      partial benefits.
     Slover Masonry (p.389)
Fell off a scaffold, fracturing right knee. After surgery still suffering cramping pain, foot
drop: 50% loss of leg (AMA guide)

Employee couldn’t do 78% of his job. Labor market consultant: 65% loss of hod
carrier’s job.
5% loss of leg movement might slightly disable a lawyer but could markedly disable a
laborer or professional dancer. AMA guide does not truly reflect a claimant’s loss.
Judge must use his discretion to hear additional evidence

Sect. 3 2nd injury problem

Lawson (p.395)
Lost right eyesight in an accident unconnected with employment. During this
employment, he is now blind in both eyes b/c of injury. Issue: employer is liable for total
disability with both eyes?
Statute: the employer is responsible for subsequent injury when employee sustained
permanent total disability combined with a pervious disability. Employee shall be paid
additional compensation for permanent total disability by special fund.

Special fund is purposed to aid the handicapped. A distinction b/w a worker with
previous industry injury and one handicapped by a cause outside of industry.
Holding: special fund is liable for payment for permanent for total disability.

Sect. 4 coordinating worker’s compensation with other sources of benefits

Department of public health (p.404 & 31)
The worker awarded temporal total disability & permanent total disability benefits.
Employer reduced it to setoff the federal social security benefits for the employee: set off
provision is subject to approval by deputy commissioner.

Florida: when total benefits from SS + WC exceed 80% of salary, the extra money is
          required to be deducted by state or SS administration.
Policy: duplication of benefits reduce worker’s incentive to return to work.

                                 Chap. 9 Death Benefits

Death benefits: for covering burial expenses, for taking care of surviving family

Sect 2 Nature of dependency
Factors: Nature of dependency, what persons, members of family, relationship, priority
          among dependents or class, legal status of accrued /unaccured benefits
Durbin (p.406)
Before death, the deceased lived with parents, who were given $10-20 per week. Parents
fixed him meals. The father claimed he deceased on father’s income fax.
Test of dependency: D’s contributions were relied on by claimant to maintain claimant’s
                      accustomed mode of living. The dependency must exist at the tine
                      of accident & death
Holding: D stop contributions one month prior to death. Parents adequately supported
themselves- no dependency.
Partial dependency: When dependents receive less than all of his support from the
deceased employee.
Percentage of total dependency: ex) D’s contribution / total income or D’s contribution /
dependent’s total income

Sect. 2 widow, widower, child, member of the family

Spaldig county (p.413)
Even after the divorce, the couple maintained common law marriage. The man died. The
common law wife claimed the dependency. Two wives claimed the widow.
The common law marriage was never terminated by divorce, therefore all subsequent
marriage is invalid.

Sect. 3 Special aspects of claims of survivors

Bnchanan (p.421)
Underground uranium miner for over 20 years. Work-related back injury, silicosis claim.
Worker released the employer from liability for silicosis claim at $15,000. He died of
lung cancer. The widow claimed death benefit.

The claim of a dependent is not derivative of the worker’s claim, but a new & separate
claim. A unilateral settlement or release by worker does not bar the surviving dependent’s
claim. Claimant was not a party of the settlement and received no consideration.
Intent of legislature: to award death benefits notwithstanding what the worker received
during his life time.

Duni (p. 426)
Injury to lungs, heart, eyes, nose & other body parts. Disabled & settlement stipulation to
bar claims for further liabilities. Surviving family claimed survivor’s benefits.
Wife’s argument: her right is independent of decedent’s rights.
            Settlement stipulation not bar her claim.

Public policy: favoring the pretrial resolution of disputes.
         Prompt & comprehensive resolution
       - employer faced with the prospect of litigating additional claims upon employee’s
               death is less apt to be willing to settle the employee’s claim.
Decedent’s death was a reasonably foreseeable consequences, the parties contemplated
               the situation.

               Chap. 10 Administration of worker’s compensation laws

Contested cases: notice of injury, statues of limitations, rules of evidence, judicial review,
              compromise of disputed claims, lump-sum settlements, and modification
              & reopening of awards.

Sect. 2 Waiting period.
A specified period of time must elapse before employee has the right to disability benefit.
Not compensable unless longer than waiting period.
Not required for medical benefits.
Purpose: to exclude minor injuries, to discourage malingering, and to avoid excessive
               costs & administrative overhead.

Sect. 3 uncontested cases

  A: agreement system

  Employer/insurer propose a settlement-approval by state body
  - payment

  B. direct payment system

  Most states, employer reports the injury to state body – the injured is given information
about right & duty. State agency impose the prompt payment duty.

Sect. 4 contested cases.

Notice of injury:   within the time specified in the statute. Important for statute of
                    limitations
                        Purpose for employer- 1) mitigate the effect of injury by
                                               furnishing medical treatment
                                               2) investigate the circumstances of the
                                               occurrence of injury.
Discovery rule
Actual knowledge
Knowledge of supervisor

Statutes of limitations
    One or two years from the date of injury or accident
    Litigious: latent or progress condition
    Discovery rule: not begin until reasonably recognizing the injury
    Death: runs from the date of death
    Death benefit right created directly by statute
    Deceased employee’s failure to claim timely is not defense to dependent’s claim for
death benefits.

Efforts to reduce litigation
Reforms: 1) attorney’s fees imposed on injured workers from insurer
           2) increased use of informal dispute resolution(requirement of mediation)
           3) stronger penalty for fraud.

Sect. 5 Compromise (settlements) & commutation (lump-sum payments)

Insurer & employer tend to favor the lump sum option to save administrative costs;
attorneys do so too.

Sect. 6 Reopening & modification of awards

Worsened physical condition

                 Chap. 11 Exclusive remedy doctrine & 3rd party suit

Hyett V. northwestern (p.461)
Exclusive remedy doctrine bars a tort suit against employer when injury is covered by
WC, even if it is not compensable b/c it does not impair earning capacity. Even if worker
is not entitled to receive disability benefits for an injury that does not impair earning
capacity, medical or rehabilitation benefits may be available.

First injury of a fireman was paid. 2nd independent injury not amount to a disability to
perform his work, was not compensable. WC does not allow payment for permanent
disability.

WC: employee is given compensation & protection, implicating the relinquishment of
his common law remedies. Employer is protected from suit at law for the negligent injury.
The right to recovery of benefits in WC is employee’s exclusive remedy.

Sect. 2 limitations on the exclusive remedy doctrine.

Travis V. dries (p.465) intentional tort exception. (Michigan)

Travis’s fingers were crashed by press. He did not follow the supervisor. Golec was
advised to return to work after a small explosion at a furnace. He burned 30% of his
body. Both filed tort claims.
Exception to exclusive remedy doctrine: intentional torts.
If the employer had actual knowledge that an injury was certain to occur & willfully
disregarded that knowledge.

Beauchamp: “substantial certainty” standard ( for possibility of injury) (p.468)

3 elements of intentional torts: actual knowledge, certain to occur, willfully disregarded.
 - Actual knowledge: supervisory or managerial employee had actual knowledge
 - Certain to occur: subject employee to a continuously operative dangerous conditions.
 - Willfully disregard: failure to act to protect a person when might foreseeably be
injured.
Tavis case: no intentional torts
Golec case: intentional torts

Byrd V. Richardson (p.478)
 Female employee brought claim for assault, battery, IIED, & negligent hiring &
retention b/c male employee repeatedly touched the women and made sexual verbal
advances.
 Injury: personal injury by accident arising out of and in the course of employment,
and such diseases or infection as naturally or unavoidably results from such injury.
 Sexual harassment does not fall under worker’s compensation. Exclusivity rule of
WC should not exist to shield an employer from all tort liability based on incidents of
sexual harassment. Sexual harassment claim cannot be barred by the exclusivity rule
considering the public policy (civil rights & human rights acts)

Sect. 3 3rd party actions who is a 3rd party?

Wright associates (p.488)
The employee of subcontractor injured and recovered from his company. Later the
employee sued the general contractor for negligence. General contractor is statutory
employer: Georgia Code.

Statutory employer who paid compensation benefits, is immune from suit in tort (by 3rd
party). The code places an increased burden, in the form of potential liability for WC
benefits, on statutory employer.

Sect. 4 Right of employer and employee in 3rd party actions.

Castleman (p.494)
Employee of a subcontractor was paid by WC insurance company for general contractor.
The worker’s suit against 3rd party for torts. Insurer claimed a subrogation right and lien.

Damages: $ 1,500,000
    68% fault to def. ($ 1,020,000)
    16% fault to employer ($ 240,000)
    16% fault to employee. ($240,000)

employee’s award: $1,020,000-$100,000 ( worker’s com. Benefit)
employee’s argument: employer’s subrogation rights are conditioned on the recovery
“made whole” (are not enforceable unless the employee has recovered the full amount of
the damages not attributed to his own fault).

Statute: subrogation lien attaches to the net recovery collected and secures the amount
          paid by the employer.

Schonberger (p.500)

Employee was injured in car accident when he was on the way to work after picking up
employer’s mail. He was paid WC benefits and sued the perpetrator for the tort injury.
D’s argument: excessive award, seeking to introduce evidence regarding the payment of
medical bills and WC benefits.

Collateral source rule: a tortfeasor’s obligation to make restitution for an injury he or she
caused is undiminished by any compensation received by the injured party from a
collateral source.

The evidence of medical bills and WC benefits were not admitted b/c they let the jury
reduce the award.. Any recovery from tortfeasor is to be pledged to reimburse his WC
insurer.

Sect. Adjustment of rights of 3rd parties and negligent employers
Lambertson(p.507)
Plaintiff’s(employer’s) arm was crushed in the press brake. The press brake is double
cycling, the ram descended again w/out stop. Certain safety devices could have been
installed and that such devices would have prevented the accident. Plaintiff’s negligence:
15%, employer negligence: 60%, defendant’s negligence: 25%
Damages: $40,000 D’s amount: full damages-15%

D’s argument: employer should bear 60%
Holding: employer is immune form tort liability on the ground: WC’s exclusive remedy
clause. However, employer is responsible for the amount up to WC benefits with regard
to damages.

				
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