Workers' Compensation

Question 1

Conditions for employee to recover where employer is liable (also Er defenses)

Answer 1

1. no contributory negligence
2. no assumption of risk
3. Fellow Servant Rule

Question 2

Fellow Servant Rule

Answer 2

• employer doesn’t assume risk of injury caused by another employee
• employee only has injury against other employee because risk was assumed
• BUT, employer liability for injuries caused by 3d party

Question 3

What is an injured employees exlusive remedy?

Answer 3

WC; no tort claim (exception for intentional torts, criminal conduct, and discrimination)

Question 4

What test is used in establishing whether an employee is eligible for workers comp?

Answer 4

Right to Control Test (so it doesn’t apply to independent contractors, but see Borrowed Worker Doctrine)

Question 5

Neutral Risk Doctrines

Answer 5

Street Risk Doctrine
Increased Risk Doctrine (majority)
Positional Risk Doctrine (majority)
Peculiar Risk Doctrine

Question 6

Street Risk Doctrine

Answer 6

employment involves indiscriminate expsoure to general public, so the injury is covered

Question 7

Increased Risk Doctrine

Answer 7

employee must demonstrate that employment duties expose him to greater risk than general public for the injury to be covered

Question 8

Positional Risk Doctrine

Answer 8

But for the employment, the employee wouldn’t have been injured.

Question 9

Coming and Going Rule

Answer 9

Injury during commute isn’t covered.

Question 10

Workers Comp Coverage Standard

Answer 10

arising out of and in the course of the employment

Question 11

Arise out of

Answer 11

Proximate cuase of employment was related activity

Question 12

In the course of

Answer 12

actually happens at work (nexus in time and place between injury and work)

Question 13

Exceptions to the Coming and Going Rule

Answer 13

Wage Payment or Travel Expense (P is paid to commute)
Required Transportation
Special Mission/Errand
Second Job Site (P travels between sites)
Home as Job Site
Close Proximity (P is in parking lot, etc.)

Question 14

Factors in assessing “in the course of:”

Answer 14

Test 1

1. injury occurred within period of employment (workday)
2. at place where P reasonably may have been
3. employee reasonably fulfilling duties or something incidental to them

Test 2
Was the employee performing an incidental task or engaged in a substantial deviation?
Consider time, place, extent of deviation, duties, etc.

Question 15

Is employee horseplay covered?

Answer 15

Yes, if P wasn’t participating but was injured by another employee (majority view; minority view requires P to prove employer knew of the horeseplay “habit”)

Question 16

Traditional WC Coverage Test

Answer 16

particular risk/proximate cause standard

Question 17

Positional Risk Doctrine

Answer 17

Employment took employee to the place where he or she encountered the risk.

Question 18

When is occupational disease covered?

Answer 18

1. P proves it developed due to the causes and conditions of the employment (peculiar risk)
2. Not an ordinary disease public is equally exposed to

Question 19

4 Types of WC Benefits

Answer 19

1. Medical
2. Rehabilitation
3. Income
4. Death

Question 20

Medical Benefits

Answer 20

Include all cost of reasonable and necessary medical treatments to ease worker’s pain and suffering and return him or her to maximum medical improvement

Question 21

Rehabilitation Benefits

Answer 21

Rehabilitative service benefits can include medical rehab, vocational rehab, and psych rehab.

Question 22

Income Benefits

Answer 22

Scheduled or calculated benefit generally designed to replace approximately 2/3 of the worker’s wage loss (subject to mins and maxs, not taxed)

Question 23

Death Benefits

Answer 23

Include a limited amount towards funeral expenses plus a scheduled lump sum or weekly benefit to dependents.

Question 24

How are the maxs determined for WBA?

Answer 24

In some states only 2/3 of SAWW, in other states up to twice as much as SAWW.

Question 25

Types of Income Benefits

Answer 25

1. Temp Partial
2. Temp Total
3. Perm Partial
4. Perm Total

Question 26

Temp Partial

Answer 26

Ee will recover basically fully. Can work light duty on a temp basis. After a waiting period, benefits include 2/3 of lost wages or pay differential if income is lower for light duty.

Question 27

Temp Total

Answer 27

Ee will fully recover, but can’t work for a period. After waiting period, Ee receives WBA during recovery.

Question 28

Perm Partial

Answer 28

Ee won’t recover, but can return to do some type of work. Usually scheduled income benefit. If unscheduled, calculated based on impairment, loss of earning capacity, or actual wage loss. States vary on how long they will pay WBA.

Question 29

Perm Total

Answer 29

Ee can never return to work. Gets WBA, but in some states it may run out or end at “retirement” (65).

Question 30

Can employee receive WC for 2 claims?

Answer 30

Yes, the two claims can be added together, but total employer liability can’t exceed max statutory amount.

Question 31

Burden on P claiming PT

Answer 31

Burden to prove inability to earn any meaningful wage in other employment = total disability. Other factors, such as lack of education, may support this.

Question 32

Odd Lot Doctrine

Answer 32

Even if the only work available to a person is an odd job, they can still be totally disabled. D bears the burden of showing other permanent jobs are available in the market that P could do.

Question 33

Requirements for Parents to Claim Child’s Death Benefits under WC

Answer 33

1. only unmarried child, under 18, living at home
2. Benefits presumed to last until 18. No benefits after that UNLESS…
3. Parents submit facts to ALJ demonstrating dependent on child’s income

Question 34

Approaches to Cummulative Injury

Answer 34

1. Apportionment Solution
2. Last Injurious Exposure Rule
3. Second Injury Funds

Question 35

IT Exception to Exclusive Remedy Defense

Answer 35

Substantial Certainty Test: If Er knew Ee could be injured with substantial injury as a result of Er’s policies, Er is liable in tort because viewed as “intentional.”

Question 36

Benefit Modification (Reduction) Test

Answer 36

1. Ee must refuse/fail to undertake court-ordered rehab
2. refusal must be w/o reasonable cause
3. burden of proof on Er to demonstrate program rehab would’ve made a difference

Question 37

Test for Determining Disability Under SSDI

Answer 37

1. is P presently working in substantially gainful activity?
2. Is P’s impairment severe?
3. Does the impairment equal or meet at least one of a list of specific impairments described in regulations?
4. Is P able to do any work that he or she has done in the past?
5. Is P able to do any other work?