Workers' Compensation Flashcards
Conditions for employee to recover where employer is liable (also Er defenses)
- no contributory negligence
- no assumption of risk
- Fellow Servant Rule
Fellow Servant Rule
- 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
What is an injured employees exlusive remedy?
WC; no tort claim (exception for intentional torts, criminal conduct, and discrimination)
What test is used in establishing whether an employee is eligible for workers comp?
Right to Control Test (so it doesn’t apply to independent contractors, but see Borrowed Worker Doctrine)
Neutral Risk Doctrines
Street Risk Doctrine
Increased Risk Doctrine (majority)
Positional Risk Doctrine (majority)
Peculiar Risk Doctrine
Street Risk Doctrine
employment involves indiscriminate expsoure to general public, so the injury is covered
Increased Risk Doctrine
employee must demonstrate that employment duties expose him to greater risk than general public for the injury to be covered
Positional Risk Doctrine
But for the employment, the employee wouldn’t have been injured.
Coming and Going Rule
Injury during commute isn’t covered.
Workers Comp Coverage Standard
arising out of and in the course of the employment
Arise out of
Proximate cuase of employment was related activity
In the course of
actually happens at work (nexus in time and place between injury and work)
Exceptions to the Coming and Going Rule
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.)
Factors in assessing “in the course of:”
Test 1
- injury occurred within period of employment (workday)
- at place where P reasonably may have been
- 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.
Is employee horseplay covered?
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”)
Traditional WC Coverage Test
particular risk/proximate cause standard
Positional Risk Doctrine
Employment took employee to the place where he or she encountered the risk.
When is occupational disease covered?
- P proves it developed due to the causes and conditions of the employment (peculiar risk)
- Not an ordinary disease public is equally exposed to
4 Types of WC Benefits
- Medical
- Rehabilitation
- Income
- Death
Medical Benefits
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
Rehabilitation Benefits
Rehabilitative service benefits can include medical rehab, vocational rehab, and psych rehab.
Income Benefits
Scheduled or calculated benefit generally designed to replace approximately 2/3 of the worker’s wage loss (subject to mins and maxs, not taxed)
Death Benefits
Include a limited amount towards funeral expenses plus a scheduled lump sum or weekly benefit to dependents.
How are the maxs determined for WBA?
In some states only 2/3 of SAWW, in other states up to twice as much as SAWW.
Types of Income Benefits
- Temp Partial
- Temp Total
- Perm Partial
- Perm Total
Temp Partial
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.
Temp Total
Ee will fully recover, but can’t work for a period. After waiting period, Ee receives WBA during recovery.
Perm Partial
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.
Perm Total
Ee can never return to work. Gets WBA, but in some states it may run out or end at “retirement” (65).
Can employee receive WC for 2 claims?
Yes, the two claims can be added together, but total employer liability can’t exceed max statutory amount.
Burden on P claiming PT
Burden to prove inability to earn any meaningful wage in other employment = total disability. Other factors, such as lack of education, may support this.
Odd Lot Doctrine
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.
Requirements for Parents to Claim Child’s Death Benefits under WC
- only unmarried child, under 18, living at home
- Benefits presumed to last until 18. No benefits after that UNLESS…
- Parents submit facts to ALJ demonstrating dependent on child’s income
Approaches to Cummulative Injury
- Apportionment Solution
- Last Injurious Exposure Rule
- Second Injury Funds
IT Exception to Exclusive Remedy Defense
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.”
Benefit Modification (Reduction) Test
- Ee must refuse/fail to undertake court-ordered rehab
- refusal must be w/o reasonable cause
- burden of proof on Er to demonstrate program rehab would’ve made a difference
Test for Determining Disability Under SSDI
- is P presently working in substantially gainful activity?
- Is P’s impairment severe?
- Does the impairment equal or meet at least one of a list of specific impairments described in regulations?
- Is P able to do any work that he or she has done in the past?
- Is P able to do any other work?
