WComp + Disability

Question 1

What is the basic idea of worker’s comp?

Answer 1

When there is a connection between work activities and the injury.

Question 2

Can one collect workers’ comp for emotional injury?

Answer 2

Historically there was hesitation, but scientific data/lit helped. There is still a cap on emotional injury $ in states that allow for this.

Question 3

Prior to the existence of workers’ comp, what recourse did employees have?

Answer 3

Seek compensation via torts. However, employers defended themselves by saying the employee was negligent, the employee assumed the risk by taking the job, or that another staff was responsible for the injuries.

Question 4

Is workers’ comp compulsory?

Answer 4

Yes. In all states, employers and employees have to give up rights they have in tort law. Thus, employers have to guarantee payments regardless of fault, but they are protected by “schedules” (set amounts) for payout.

Question 5

Is workers’ comp resolved in a formal hearing?

Answer 5

No. It uses informal proceedings and provides for summary, because one of its primary goals is expedient adjustment of claims for compensation.

Question 6

What is the burden of proof in workers’ comp?

Answer 6

Preponderance. The claimant has the burden of making the case for their recovery by demonstrating: (1) an injury or disability, (2) that it arose out of and in the course of work; and (3) that it was “accidental” or unanticipated.

Question 7

What are the types of compensation one can receive in wcomp?

Answer 7

Permanent total disability
Permanent partial disability
Temporary total or partial disability

Question 8

What is permanent total disability?

Answer 8

Paid out for lifetime or large number of weeks.

Question 9

What is permanent partial disability?

Answer 9

Percentage of total impairment.

Question 10

What is temporary total or partial disability?

Answer 10

Paid weekly for duration of disability.

Question 11

Is the fragile egg concept applicable in workers’ comp?

Answer 11

Yes. Employers take their workers “as they are.” If work aggravates a preexisting issue, comp is still due.

Question 12

What are the 3 kinds of emotional damage cases in wcomp?

Answer 12

1) Physical trauma —> mental injury (PTSD or dep after an accident)
2) Mental stimulus —> physical injury (protracted stress/exhaustion —> heart condition or stroke)
3) Mental —> Mental injury (Seen as less legit

There’s also gradual/incremental stress claims, but the stimulus complained of exceeds in intensity the emotional strain normally encountered by employee on a daily basis.

Question 13

What laws govern wcomp?

Answer 13

Statute, which is overseen by administrative decisionmaking. Not case law and judicial interpretation like tort law that is managed by the courts.

Question 14

What do wcomp and tort have in common?

Answer 14

Both require proximate cause. A recent cause. In emotional injury cases, we should say the legally relevant incident appears to have played a role in the claimant’s current mental injury.

Question 15

What is the definition of a disability?

Answer 15

It is defined functionally. An inability to perform a specific set of behaviors.

Question 16

What are the four ways in which benefits can be sought if an ability to work is compromised by illness or injury?

Answer 16

Private disability insurance
Employer-paid disability insurance
WComp
Social Security Disability

Question 17

What is private disability insurance?

Answer 17

An insurance policy purchased by an individual (usually self-employed) to provide $ if an injury or illness prevents them from being able to work at PT or full capacity.

Regulated by the McCarran-Ferguson Act o 1945

Question 18

What is the McCarran-Ferguson Act of 1945?

Answer 18

The regulation and taxation (business) of insurance should be handled by states v. At the federal level.

Question 19

What is employer-paid disability insurance?

Answer 19

Provided by the employer as part of employee’s health benefits.

Regulated by the federal Employee Retirement Income Security Act (1974) aka ERISA.

Question 20

What is worker’s compensation?

Answer 20

Provides for workers who become ill or are injured on the job. Differs from other disability benefits in that the causation of the illness or injury must be directly related to employment.

IT is a no-fault system, so one doesn’t have to prove negligence (tort action) by the employer, because it is designed to reduce litigation, and preclude tort.

Question 21

What is social security disability?

Answer 21

When one has a severe disability (or combo of many) that has lasted or is expected to last at least 12 months or result in death. It prevents one from working at a “substantial gainful activity” level. May include $, vocational rehab, medical insurance

Question 22

What are two main “causes of action” for litigation in private disability insurance?

Answer 22

1) Breach of contract - Claimant argues that insurance co has breached the terms of the policy, and has to pay disputed benefits.
2) Bad faith - insurer fails to evaluate the claim adequately or fairly, or engaged in conduct like intimidation or misinformation

Can get reinstatement of benefits + pain and suffering

Question 23

How does one qualify for benefits with disability insurance?

Answer 23

IT needs to be a “factual disability” - the effects of an illness/injury prevents them from working.

Different from social or legal disability, where inability to work is due to circumstances (social stigma, loss of license)

• Gates v. Prudential - farmer had typhoid and related social stigma, but court said Prudential didn’t have to pay him bc his inability to work was due to limitations imposed by society.
• Goomar v. Centennial Life Ins Co - lost medical license due to raping patients. Denied benefits for claim of mental illness, as he stopped working as a result of losing lic.

Question 24

When you want to collect disability benefits, is it based on the job you had at the time of disability or the one you had when the policy went into effect?

Answer 24

Duties at the time of disability. Emerson v. Fireman’s FUnd + Brosnan v. PRovident Life and Accident Insurance CO.

Question 25

Why might a claimant remain out of work when they have recovered?

Answer 25

“risk of relapse” (e.g., heart conditions, anesthesiologists addicted to opioids available in the OR).

Question 26

What are some common and qualifying conditions in disability evals?

Answer 26

ID/DD, scz, Axis II (dafuq), depression (leading cause of d/a ages 15-44), bipolar, anx, AOD, mod-severe TBI

Fx’l capacities must be observable and measurable (cognitive, interpersonal, and emotional fx)

Question 27

What percentage of disability claimants have engaged in some type of sx exaggeration?

Answer 27

30%