Psychic Harm and Workers' Comp

Question 1

3 Mechanisms of Psychic Harm Restitution

Answer 1

1. Torts
2. Worker’s comp
3. SS

Question 2

4 Necessary Criteria for Intentional Infliction of Emotional Distress (IIED)

Answer 2

1. Defendant acted intentionally or recklessly
2. Conduct was extreme or outrageous
3. Conduct caused the plaintiff’s emotional distress
4. Emotional distress was severe

Question 3

Tort of Outrage

Answer 3

Other name for IIED: conduct must be such that it would cause a reasonable person to exclaim “Outrageous!” (so reasonable person standard; objective)

Question 4

Negligent Infliction of Emotional Distress

Answer 4

One has a legal duty to use reasonable care to avoid causing emotional distress to another

Question 5

NIED Difference b/w IIED (and acceptance)

Answer 5

In NIED, no need to prove intent or reckless behavior. Accidental infliction, if negligent, is sufficient.
Controversial, not accepted in many US jurisdictions

Question 6

3 Possible Standards of NIED:

Answer 6

Impact Rule
“Zone of Danger” Rule
Foreseeability/Relative Bystander Test

Question 7

Impact Rule (Def and Case)

Answer 7

“No recovery can be had for injuries sustained by fright occasioned by the negligence of another, where there is no immediate personal injury.” Basically physical injury required.
Mitchell v. Rochester Railway Co (NY 1896), miscarriage from lost control of horse drawn carriage that narrowly missed

Question 8

“Zone of Danger” Rule (& add req)

Answer 8

Must be in zone of danger of the actual accident, so close high risk of physical impact causing fear for safety.
Many states: “close relative” rule, where person witnessed harmed in zone of danger must be a relative

Question 9

Foreseeability/Relative Bystander Test (gen, 3 reqs)

Answer 9

Can be held NIED responsible to someone beyond zone of danger if emotional injuries were reasonably foreseeable:
1. Located near scene of accident
2. Shock from direct emotional impact of the accident, as opposed to learning of it later
3. Closely related

Question 10

Product Liability

Answer 10

Emotional distress from manufacturer’s negligence is a foreseeability test issue

Question 11

Foreseeability/Relatively Bystander Test Case

Answer 11

Dillon v. Legg (SC CA 1968): Dillon, child, struck/killed by Legg, motorist. Mother brought charges for herself and daughter who had witnessed

Question 12

Worker’s Compensation Purpose (& other point)

Answer 12

Provide alternative system of compensating injured workers rather than requiring employee use tort law. Both employer and employees give up rights possessed under tort law

Question 13

Employee Trade-off in WC

Answer 13

Forfeit potentially unlimited compensation in tort, but obtain more certain recovery based on schedule/pay/disability

Question 14

Unholy Trinity (what it is and what they are)

Answer 14

Before WC, Employer’s 3 major defense if sued in tort:
1) Contributory negligence (employee contributed)
2) Assumption of Risk
3) Fellow Servant Rule (if injury from negligence of fellow employee, that person responsible, not employer)

Question 15

3 Criteria for WC

Answer 15

1. Injury/disability affects earning power (facial disfigurement, sexual dysfunction, pain/suffering generally no bc not earning)
2. Injury arises during and “out of” employment (take employees as find; if work exacerbates existing ds, comp due. If independent from work, no).
3. Injury must arise by accident

Question 16

WC Claims Process (5)

Answer 16

1. Worker gives notice
2. Attempt voluntarily settlement, if necessary, hearing before hearing officer
3. Claimant has burden of making case for recovery, standard POTE
4. Hearing officer determines injury, extent, and compensability
5. Compensation: gen 2/3 earnings + medical care, funeral, etc

Question 17

4 Types of WC Compensation Disability

Answer 17

Permanent total disability
Permanent partial
Temporary total
Temporary partial

Question 18

3 Types of Mental Stress Claims in WC

Answer 18

Physical-mental
Mental-physical
Mental-mental

Question 19

Physical-Mental Claim Def & Example

Answer 19

Physical stimulus/trauma/injury causes mental injury/disorder
E.g., PTSD following injury/trauma at work

Question 20

Mental-Physical Claim (def & 2 types)

Answer 20

Physical injury caused by mental stimulus
1. Sudden: mental stimulus such as extreme fright results in physical injury
2. Protracted: Prolonged mental stimulus results in ultimate physical injury (eg MI from emotional strain at work)

Question 21

Mental-Mental Claim (def & 2 types)

Answer 21

Mental injury from mental stimulus
LImited to:
1. Compensation from sudden stimulus such as fright/shock
2. Mental injury results from “gradual stress”, but requires showing that stimulus exceeds strain/tension normally exp by employees

Question 22

WC vs. Tort Comparison:
Decisions
Created by:
Fault needed:
Compensates:
Damages:

Answer 22

Decisions: Admin vs. Judicial
Created by: Statute vs. Courts
Fault Needed: No vs. Yes
Compensates: Lost Earnings vs. All Damages
Damages: Fixed vs. Open-ended

Question 23

Emotional Distress vs. Mental Disorder (Differentiator and important point)

Answer 23

Emotional distress include general distress, anxiety, fright, depression, grief, trauma, etc, that may not rise to DSM-5 mental disorder.
- Emotional distress claims might not require expert witness to establish

Question 24

5 Causes of Disorder (w/r/t association w/ trauma)

Answer 24

1. Trauma was sole cause
2. Major precipitant
3. Agg factor
4. Minor factor
5. Unrelated

Question 25

Eggshell skull vs. crumbling skull

Answer 25

Regarding pre-existing conditions related to eventual impairment:
Eggshell: Pre-existing condition may have made more vulnerable, but harm was nevertheless caused by insult
Crumbling: Such severity that would’ve happened regardless