A Mandatory* System of Insurance
* In most states!
Allocating Financial Risks
Of Work-Related Death, Injury or Illness
New York Central RR v. White
Is the law a well-balanced compromise?
Why the Compromise?
Problems with Tort Law
• Difficulty of proving cause or
• Fellow employee fault a bar,
not basis for employer liability!
• Contributory negligence.
• Assumption of risk. If he hurts his back,
who’s at fault?
• Risk of employer insolvency.
Thus, the Compromise:
An Outline of the Law
• “Course of employment”
replaces “employer negligence.”
• Limited measure of damages
and exclusive remedy rule.
• Efficient and reliable
Does each side have • Financial security.
reason to be happy?
Workers’ Compensation Law:
Is It State or Federal?
• Mainly state law.
• ERISA exemption for plans to
comply with w.c. (saving state
w.c. law from preemption).
• Federal w.c. laws for railroads,
maritime industry, migrant
agricultural workers, coal,
The Texas Twist
Opt-Out for “Nonsubscribers”
• Employer or employee may opt out.
• Liability based on negligence.
• But no defense base on fellow
servant, contributory negligence,
or assumption of risk.
• Frequently accompanied by employer-provided
accidental injury insurance plan (an ERISA plan).
“A mishap or unexpected event.”
What Accidents Are Covered
By Workers’ Compensation?
• Those “arising out of and in
the course of employment.”
• “Arising out of:” causal link?
• “Course of:” (1) place, (2) time
and/or (3) work activity?
• Should courts look beyond Was it the freezing
literal terms to statutory goals? weather? Or the work?
Ben Hurt’s Accident: Slipping
On Ice In Employer Parking Lot
• Arising out of: Did work
“cause” the accident?
• In the course of: (1) work-
place, (2) work hours, or
(3) work activity?
Who Pays for injury/disability/death? • Policy issue: what risks
(a) workers compensation; should employer bear?
(b) employee health plan; or
(c) employee and his family.
• The practical effect of
Stillman v. WCB
Assault with a
Accident In Course of Personal
Activity: Work-Related Too?
• Examples: eating, resting,
socializing during work.
• Strict application of “arising
out of and in course of?” If it happens in the employer’s
cafeteria, is it work-related?
• Was work a “but for” cause (positional risk)?
• Did work increase the risk of this accident?
• Should employer bear risk of this accident?
Accident Caused by Nature
Or Other Non-Work Forces
• Lightening, terrorism, crime, hurricane?
• Strict application of “arising out of/in course of?”
• Was work a “but for” cause
• Did work increase risk?
• Should employer bear risk?
Stillman v. WC Board
In Course Of? Arising Out Of?
• Why did court remand for
consideration of the claim?
• Was accident in course
• Did it arise out of employment?
• Positional or increased risk?
Creamy? Crunchy? Or stingy?
• A risk employer should bear?
Technical Tape v. Industrial Commission
Accidents to and from Work:
Is the Employer Your Auto Insurer?
Accidents While Coming
And Going From Work?
• “Arising out of and in the course
• Inherent or increased risk?
• Positional risk?
• A risk employer should bear?
• The “coming and going” rule.
• Special missions; travel between
worksites; “homework” cases.
Technical Tape: Was Crain
Just “Going” From Work?
• Result under usual “going
and coming” rule?
• Was work a contributing
factor beyond the need to
• Policy reasons to shift risk
Will the employer be more likely
to invest in worker safety?
Dallas I.S.D. v. Porter
Was It Personal? Or Was It Business?
Intentional Workplace Tort:
Did It Arise Out of Employment?
• Is intentional act an accident?
• Was it in the course of work?
• Did it arise out of work, or
out of a personal dispute?
Will a crime victim’s claim
• Who should bear risk of third be barred at the door?
party intentional torts?
Porter:Was It Business?
Or Was It Personal?
• A statutory solution for
intentional tort of third party.
• Was the tort “for reasons
personal to the employee, Is school violence an
and not directed against him
as an employee or because of his employment.”
• Result in Porter?
Beyond Porter: Other
Intentional Tort Scenarios
• Porter’s car was parked on school property, a student
vandalized the car.
• Smith, another janitor, was hit by the bullet intended for
Porter. Smith wants benefits.
• The principle became angry at Porter because of his
failure to clean the principle’s bathroom. The principle
shot Porter in the heat of passion.
• The principle was jealous because Porter was having an
affair with the principle’s wife. The principle shot Porter
in the heat of passion.
Hopkins was assigned to his firm’s World Trade Center
office in Manhattan, where he worked as an office manager in the
International Financial Division. On the morning of September 11,
2001, he began his usual subway ride to his office. The train stopped
at a station a few blocks short of the World Trade Center station, and
an announcer explained that the train would go no farther and that all
passengers were required to exit. Hopkins emerged from the station
and continued to walk toward the World Trade Center while observing
a fire in the first tower. He decided to proceed in the direction of the
second tower because his employees were located in that tower and he
was anxious to determine their well-being. When he was two blocks
from the second tower, a plane struck that tower and debris from that
explosion seriously injured him.
And Other Progressive Injuries
When it’s no accident at all
From Accident to Disease
In Workers’ Compensation Law
• “Accident:” A mishap or unexpected event.
• What if injury not simultan-
eous with particular event?
• Special statutory tracks for
occupational disease and
progressive injury. Is breathing at work an accident?
• Problems: Causation more speculative; multiple
causes; indefinite “accrual” of cause of action.
Typical Statutory Categories
And New Practical Problems
• Repetitive / progressive
trauma injury (carpal tunnel
syndrome; back strain).
• Occupational disease (e.g.,
A bad back: Accidental injury?
Or progressive trauma injury?
• Uncertain category (disease?
Or accidental injury?): Psychic injuries; emotional
stress-related physical conditions; heart attack.
Brunell v. Wildwood Crest Police Dept.
When work makes you scream
PTSD: Accident? Disease?
What Difference Does It Make?
• Nature, cause and consequences
of injuries suffered by claimants?
• Accident: Can claimant prove a
particular event caused injury?
SOL runs from the event? Does your job do
this to you?
• Occupational Disease: Claimant must prove
injury was caused by conditions characteristic
of or peculiar to his work or workplace?
• Can Brunnell prove her PTSD resulted from an
accident? When does time begin to run?
• Can Brunnell prove her PSTD is an occupational
disease? When do time limits begin to run?
• Lawyer suffers severe depression. He is unhappy
with this work, which involves representation of
clients accused of drug offenses and white collar
crime. His marriage recently failed, possibly
because of his long hours at work. Six months ago
he was present when a disgruntled client shot and
killed a another lawyer at the firm.
Related Issue: Is Purely Psychic
• Initial compromise: Limited
damages (no emotional distress).
• Trend favors some benefits for
disability and medical expense
caused by emotional distress.
• Mixed rules in different states: (1) only psychic
injury combined with physical injury; (2) pure
psychic injury stemming from particular event; and
(3) progressive pure psychic injury.
Psychic Injury in Texas:
Judicial & Legislature Response
• Courts: No pure, progressive Bad Girl!
• Legislature: No emotional
injury from personnel action.
What about other “accidents?”
• Work-related heart attacks?
Could a reprimand be traumatic?
• Legislature: Compensable if caused by specific
event (“accident”?) in course of employment.
No-Fault Compensation and Moral Hazard
No Fault Compensation
And Employee Culpability
• Initial Compromise: Fault
of either party is irrelevant.
• Moral hazard? Moral outrage?
• Should we punish employee
Break time at the workplace?
for some misconduct?
• Is it fair to make employer responsible for
particularly bad forms of employee misbehavior?
Possible Statutory Solutions:
Disqualifying Employee Conduct
• Working under the influence.
• Employee’s own criminal
activity or intentional tort.
• Willful misconduct?
• Violation of particular safety
rules (e.g., refusal to use a
Carey v. Bryan & Rollins
Could a traffic ticket terminate your coverage?
Carey v. Bryan & Rollins
Did Carey Act “Willfully?”
• Del. disqualifies for willful
violation of statute.
• Willful: Intentional rather
than thoughtless or careless.
• Court: Speeding was
unconscious; reaching for Unconscious speeding?
cigarette was reflexive. Or willful speeding?
• The special problem of “driving” workers and
detailed statutory supervision of their “work.”
Texas Lab. Code § 406.032
• Injury occurred while
• Caused by willful attempt
to injure self.
• Caused by willful attempt
to injure a third party.
Punished for the accident, or for the injury?
A Form of Protected Conduct
• Typical statute: No
2000 lb. bomb
• Is discipline for having
the accident lawful?
• If employee is disabled If the driver wasbe unlawful?
from working, is
discharge for inability to perform work lawful?
Absence Control Policies
Swearingen v. Owens-Corning
• Reason for discharge?
• Did policy “discriminate?”
• Disparate impact analysis?
• Other potential issues: Can
she reapply? Will denial of
application be retaliation?
• FMLA/ADA implications?
See Henry Stoik and the safety
bonus program problem on p. 432.
Employer wants to maintain medical and health
records for all of its employees so that it will have
information about pre-existing injuries and
conditions in the event of a workers’ compensation
claim. Can the employer ask applicants to describe
any workers’ compensation claims they have filed
in the past?
Preserved Tort Claims
Injuries and Illnesses Reserved for the Jury
Preserved Tort Claims:
Exceptions to Exclusive Remedy
• Third party liability.
• Multiple-employer sites.
• “Dual capacity” problems.
• Noncompensable injury?
GTE Southwest v. Bruce.
• Wrongful death and employer Did a third party make
gross negligence (Texas). the asbestos?
• Employer’s intentional tort.
Mead v. Western Slate
When is negligence intentional?
Mead v. Western Slate
Moral Hazard Again?
• One view: Limit tort
liability to specific intent.
• Alternative: Was there
substantial certainty of injury?
• Was work merely risky, or
was “accident” nearly certain
• Are Mead’s actions relevant? A non-accident
waiting to happen?