Worker's Compensation Flashcards
Worker’s Compensation Introduction
Worker’s compensation is an insurance scheme designed to provide money for employees injured on the job.
General Rule: It is the employee’s exclusive remedy.
Exception: Employer’s Intentional Tort: Employee’s injury is the result of:
- A deliberate act; and
- Employer specifically intended the injury (willfully disregarded a known risk).
- Very difficult to prove
What if the employee has a valid claim against a third party, too?
They can sue the 3rd party.
- The employer will have a lien on any ward for WC benefits
- Any amount awarded is first used to pay back WC; employee will get the balance
You cannot get both WC and an award from a third party.
Statutory Procedure for Worker’s Comp Claims
- Employee has the burden or proving a disability
- Then employer has burden of producing evidence to refute the employee’s claims.
- This gives employer a right to discovery before a hearing if it’s necessary to present a defense and satisfy its burden. - Any settlement is subject to approval/rejection by a magistrate
Who is Required to Have Worker’s Comp? What about general contractors?
Every MI employer with one full-time, or 3 part-time employees.
General Contractors are liable for injuries to subcontractors’ employees if the sub does not have worker’s comp. The GC can then go after the uninsured sub.
What if the injury was in a different state?
MI has jurisdiction if:
- The employee’s employer is subject to the MIA Act; and
- The employee is either:
- A resident of MI at time of injury; or
- The contract was entered into in M
The Coverage Formula
Employee must prove:
- Injured party was an employee
- Who sustained an injury/developed a disease
- Arising out of and in the course of employment
- If seeking weekly wage loss benefits, a disability resulted.
Injured Party Must Be Employee
Step 1: Not independent contractors or volunteers.
For IC, use the IRS 20 Factor Test to assess the level of control. Some factors include:
- Provision of tools, method of payment, level of training, flexibility of schedule, whether worker works for multiple companies, whether worker makes services available to the public.
Employee Sustains Injury/Develops a Disease
Once employer has notice of the injury, they can request and pay for employee’s medical exam (and employee must do it).
Pre-Existing Injuries
- Employers take employees as they come
- Employers are only responsible if the work-related event aggravates the pre-existing condition, so as to create a medically distinguishable change in pathology. (Not just worsening of symptoms)
Some pre-existing conditions require the employee to show that the work contributed in a ‘significant manner’.
- Heart Disease
- Age
- Degenerative arthritis is statutorily considered a condition of aging - Mental Disability (not from being fired)
- Compensable if they arise from actual work-related event, and if the employee’s perception of the event is reasonably grounded in fact or reality. (Does not require physical symptoms).
For significant matter disabilities, consider the potential non-work related explanations for the injuries (ex: family, history, childhood difficulties, etc.)
What if the employee loses a body part?
They get an automatic lump sum for a specific period of time, regardless of whether they can work.
Injury “arises out of” employment
The injury is traceable to an employment risk.
Horseplay and disagreements can be considered employment risks because they are natural consequences of working. Consider:
- The extent of the deviation from work
- Whether horseplay was expected or even accepted in the workplace
- Ex: disagreement about sports that results in a push is compensable
What is NOT an employment risk?
- Employee injured due to his intentional and willful misconduct
- Employee hurt during activity that is primarily social or recreational
- Ex: drinking at a bar
Injury “in the course of” employment
Look at time and place of injury.
- Statutory Presumption: injuries at workplace during normal work hours are in the course.
- Coming and Going Rule: injuries coming and going to work are generally not compensable. Exceptions:
A. Injury is compensable if employee is in premises within a reasonable time before/after work.
B. Employees travelling on business trip are within the scope for entire duration of trip, unless they make a distinct departure on a personal errand.
‘Lunchtime Doctrine’
A) Employee injured on premises during lunch, even if on break = compensable
B) Employee running special errand for superior and hurt off premises = generally compensable
C) Employee off premises for no benefit to other = not covered
Must Cause a Disability
What if he accepts a new job and is terminated?
Employee must show he cannot perform ANY job within his training and qualifications that pays the amount he was earning. To do so:
- Employee must disclose all qualifications and training, including education, skills, etc. whether or not relevant to previous job.
- Employee must identify other jobs within the same salary range, including those which fit his qualifications (from step 1). Not only jobs he did perform.
- Employee must show the work injury prevents him from working some/all of the jobs
- If there are jobs he can perform, he must show he made a good faith effort to procure post-injury employment from jobs of the same salary or higher.
- Must accept a bona fide (w/i reasonable distance of home) offer
If employee accepts a new job and is terminated because of his own fault, he is not entitled to wage loss because he ‘VW’ from the workplace.
What is a partial disability?
If a lesser-paying job is available, of the same type of work employee was doing, and employee either refuses it or accepts it, they are considered partially disabled.
They will receive their full WC benefits, minus the amount they are earning (would be earning) at the lesser-paying job.
What if employee is fired from the replacement job (not at-fault) and is still disabled?
If employee was employed at new job for < 100 weeks, he will receive compensation of his average weekly wage at time of the original injury.
If 100-250 weeks, magistrate will determine if employee established a new wage-earning capacity.
If > 250 weeks, employee is presumed to have established a new wage-earning capacity.
What benefits does employee receive?
- Weekly wage loss benefits
- 80% of average after-tax weekly wages (reduced by other sources they are receiving like EI).
- Reduced by 50% if they get old age social security
- If they get have/declined to take a pension, benefits are reduced by the amount they receive/would have received - Medical benefits
- Employee will receive all reasonable and necessary medical benefits (employer can manage the post-injury care for 28 days, then employee can choose provider) - Vocational training
- May receive up to 2 years of VT, depending on case - Death benefits
- If employee dies, death benefits go to dependents he has - Pain and suffering
- None
