Workers Compensation Flashcards
Intro - WC
Exception: Employer Intentional Tort
WC benefits are an employee’s exclusive remedy for compensation for injuries that occur on the job.
Exception: Employer intentional tort
- employee injured as a result of deliberate act of employer and
2) the employer specifically intended the injury ( had actual knowledge that injury was certain to occur and willfully disregarded that knowledge)
Exception: 3rd party liability
- employee can sue a 3rd party that is liable ( ie employee wants workers comp from employer & seeks to recover from negligence claim against 3rd party). But 3rd party first pays employer for worker’s comp. benefit
If injury occurs outside Michigan?
Michigan still has jurisdiction if
1) employee is employed by employer subject to Michigan Act AND
2) employee is either michigan resident or contract for hire was made in Michigan
General Coverage Formula
Need to fall under formula to get workers comp.
1) Injured party must be an employee, who 2) sustains injury or develops a disease 3) arising out of and in the course of employment 4) and if employee seeks wage loss benefits, a disability must result
Part 1 of coverage formula
WC only covers employees not IC or volunteers.
IC vs Employee - courts use 20 factor IRS test (mostly looks at control)
Part 2 of coverage formula**
Pre-existing conditions:**
- must take plaintiffs as they are, so pre-existing conditions don’t bar benefits
- employers responsible only if work related event aggravates the pre-existing condition so as to create a medically distinguishable change in pathology
- worsening of symptoms is not enough
For the following conditions need to show work contributed in a significant manner:
Heart disease
Age ( including degen arth.) AND
Mental disability *
- compensable if they arise out of actual events of employment, and if the employee’s perception of the actual events is reasonably grounded in fact or reality.
- no physical injury requirement
Part 3: arise out of
injury is traceable to an employment risk
Employment risk:
- horseplay is compensable because it is viewed as a natural consequence of working together*
- NO compensation if employee injured by their own intentional and willful misconduct
- NO compensation when employee is injured while engaging in a mainly social or recreational activity*
Part 3: “in the course of”
Statutory presumption that injuries occuring at work premises (including business trips) during normal work hours are injuries sustained in court of employment
*injuries sustained coming from and going to work are generally not compensable.
Exception: employee is on the premises within a reasonable time before or after work hours
Weekly Wage Loss benefits [TESTED FEB 2021]
Must cause a disability
- disability is a limitation of wage earning capacity. It means a worker cannot earn his highest pre-injury wages. Employee has to show that he cannot perform any job within his training and qualifications that pays the amount typically earned. Employee must take any bona fide offer of reasonable employment.
Partial disability benefits [tested feb 2021]: if lesser paying jobs of same type an employee had are available and employee refuses or takes it, then employee is partially disabled and will receive partial disability benefits
Wage Earning Capacity of employee who returns to work after sustaining compensable injury, and then loses job w/o fault & is still disabled
less than 100 weeks - compensation based on avg. weekly wage at time of original injury
100-250 weeks) - magistrate determines whether there is a new wage earning capacity
250 weeks or more: employee is presumed to have established a post-injury wage earning capacity
Types of Benefits
1) Weekly wage loss benefits
80% of employee’s after -tax avg. weekly wage if employer is considered DISABLED
- reduced dollar for dollar from money from other sources (social security benefits, unemployment benefits, pension.)
- employer doesn’t have to offer substitute employment to employee
2) Medical Benefits: all reasonable and necessary medical benefits. No compensation for pain and suffering
Litigated Workers Comp - Burden of Proof
employee has initial burden to show disability
employer has burden of production of evidence to refute claim, so has right to discovery b4 hearing if necessary
Settlement is subject to approval/rejection by a trial magistrate
