Workers’ Compensation
Fall 2013 Eaton
I. Employees’ Remedies
· [A] Common Law as Applied to Workplace Injuries
o (i) Tort System
§ (1) EE could sue ER for negligence
· ER’s had to use rsb care, but cause-in-fact and proximate cause could be an issue; the MAIN problem was defenses:
§ (2) DEFENSES of ER to common law
· (i) Fellow Servant Rule
o the principle of respondeat superior subjecting the master to liability for the torts of the servant does not apply when:
§ (1) suit by one servant against ER
§ (2) for the negligence of fellow servant
o EX: Murray v. South Carolina RR
§ combination of fellow servant and assumption of risk
§ 2 aspects of case
· (i) fairness aspect = there was a K, and inherent in the K you accept the risks of working w/others
· (ii) utilitarian aspect = if you know that you are going to get hurt from a co-workers neg, you, and not the owner, are in a better position to influence their behavior and reduce such risk
· (ii) Assumption of Risk
o EE impliedly assumes the risks inherent in the employment
§ (1) 2 views: (i) ER owed no duty of care to EE as to risks that were readily observable to one with open eyes
· (ii) EE impliedly consented to accept risks of employment
§ (2) whatever the view result = ER insulated from liability to EE injured by employment risks that were in some sense either:
· (a) observable; OR
· (b) knowable
o (i) EVEN if risks were negligently created AND EE did not know of or observe them
§ (3) EXCEPTION
· ER liable for active concealment of risk
· (iii) Contributory Negligence
o (1) complete bar to recovery if EE had anything to do with injury that was culpable
o (2) EXCEPTION
§ (i) EE might recover if ER:
· (a) had last clear chance
· (b) gross, willful, or wanton neg
o HOWEVER, b/c industrial workers are regularly exposed to risk through forgetfulness or lack of caution, this defense was almost always a complete bar
§ (ii) EE does not have to inquire into latent defects
§ (iii) Knowledge of threat of safety
· EE might recover for a known and understood risk if it appears the risk was not imminent
§ (iv) EE ordered to face known and understood risk OR who is assured the risk is of no danger
· = not liable for cont. neg
· [B] Legislative Reforms Giving Rise to WC
o (1) Expansion of Negligence Per Se (OSHA)
§ (i) P must be in class designated to be protected
§ (ii) injury is risk statute protects against
§ (iii) violation of statute was the cause of the harm
o (2) Elimination of Assumption of Risk by Statute
o (3) FELA
§ provides remedy and measure of proof different from CL
§ (i) std of proof
· = fault (negligence)
§ (ii) measure of recovery
· = full compensatory damages
· = full tort damages (pain and suffering)
§ (iii) defenses available
· (a) pure comparative fault
o if EE 99% at fault, can recover 1%
o **The real pragmatic difference of FELA is getting the case to the jury through the relaxed standard of proof**
o add social security
II. The Compensation Principle
· [A] Historical Background
o WC grounded in belief that workplace injuries affect all of society
§ EX: if no compensation for worker, he winds up on SS, and therefore society pays
o Theory is internalization of costs
§ compared to tort law and FELA, WC lowers transaction costs
· it costs more to litigate than process claims administratively
§ undelines the social policy of having the ER pay
· if ER didn’t pay, society could do 3 things:
o (i) let ee starve on the streets
o (ii) give county relief(welfare)
§ this stigmatizes the worker as a pauper
§ places the cost of the injury on that geographical subdivision
o (iii) grant WC
§ plaes cost on consumers of the product
o 5 goals of WC:
§ (i) provide broad coverage
§ (ii) substantial protection from the interruption of income
§ (iii) provide sufficient medical care
§ (iv) encourage workplace safety
§ (v) deliver benefits in an effective manner
o Early arguments by ER against WC
§ (i) Constitutional Argument
· = violation of substantive due process
o i.e. “it lies beyond the authority of the government to do this”
· Court response:
o = valid exercise of state police power
o this is a quid pro quo system
§ (a) ER gives up right to defend for limited liability and to set expenses to be paid
§ (b) EE gives up right to bring tort suit
III. The Employer-Employee Relationship
· [A] Contract of Employment
o Need for K of hire for WC?
§ if the statute requires it
o 2 views:
§ (1) basic master-servant analysis:
· (i) who assumed the direction and control of the ee? (Maj. test)
· (ii) who can fire/hire ee?
· (iii) who pays wages?
· (iv) whose work was ee engaged in/ whose received benefit of services?
· (v) who furnished equipment?
· (vi) who was responsible for ee working conditions?
o POLICY REASONS FOR VIEW
§ (a) adds element of predictability
· ER knows who is covered and who is not since he has to pay insurance
· WC is predicated on insurance so you need to know how much to buy
§ NOTES
· **this view ties in with arguments of misrepresentation of prior injuries by ee (discussed later in outline)
o essentially can argue that the K was voidable b/c of fraudulent misrepresentation by ee of former injuries if it meets the test, and therefore, EE is not covered
· Characteristics of a K for hire:
o (i) can be express of implied
o (ii) need some consideration—can be other than money
o (iii) can be given by someone other than purported ER
o (iv) mutuality of obligation
§ (2) Liberal Approach taken in Apostolou
· emphasis on mutuality of obligation
o payment of wages is simply 1 factor and not the determinative factor in deciding EE status
o Standards to Apply in Determining if someone is an EE
§ (1) Right of Control Test(Maj. Test/Used by GA)
· factors to consider:
o (i) evid
ations may elect to be exempt from WC
o (i) must file written certification
o (ii) only up to 5 officers
§ NOTES
· CLAIMANT seeking compensation carries BOP that he is entitled to compensation
· it is a QUESTION OF FACT whether on is:
o covered as an EE
o injury was in COE
· individuals in training NOT covered
o North v. Floyd County
§ P trained as bus driver, was not guaranteed employment, only that name would be entered into a pool
· Not EE primarily b/c (i) no guarantee of future employment and (ii) P received no compensation
· sudden emergency
o considered w/in scope of WC if:
§ (i) when confronted w/an emergency
§ (ii) ee steps beyond ee’s regular duties to:
· (a) save oneself OR another from injury; OR
· (b) save the ER’s property
o the fact that the ee was not actually in danger of injury is IRRELEVANT if:
§ (i) ee acts as a reasonable person would in like situation
o OCGA 34-9-2
§ “exclusions from coverage”
· (i) railroad workers engage in intrastate commerce
· (ii) farm laborers
· (iii) domestic servants
· (iv) companies w/less than 3 ee’s
o UNLESS they elect to be covered
· (v) real estate brokers
o as long as they are considered IK’s
· (vi) person who perform services by written K which state:
o (1) person is an IK
o (2) IK buys and then resells product
o (3) IK receives no other compensation
· (vii) IK who performs services for an ER who is a publisher or distributer of printed materials and IK:
o (1) has a written K as an IK’er
o (2) $ paid to IK is on basis of # of deliveries accomplished
o (3) ER exercises no general control, other than the route and materials for packaging/delivery, regarding method of transporting, assembly, or delivery AND
o (4) such a K does not prohibit the IK’er from transportation/delivery for more than 1 ER
o OCGA 34-9-2.1
§ “exemption of corporate officers”
· (1) corporate officers or members of LLC’s who wish to be exempt must:
o (i) give writing to insurer
§ if no insurer, to State WC Board
· (2) Limitations
o (i) Corporations and LLC’s cannot exempt more than 5
o (ii) such officer must be identified by name in writing
o (iii) before the filing, such corporations and LLC’s are subject to WC except in the case that after exemptions are filed, there are no more ee’s covered
o (iv) can always re-elect to be covered
§ must be in writing
