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Workers Compensation
University of Mississippi School of Law
Bradley, John R.

When injured worker or family wants to assert claim against employer or another employee then Worker’s Comp covers. WC is carved out of tort law. Tort law would not handle these claims.
1996 Dean’s death, he died while attending conference in NO. Widow sued for WC. IHL contested claim on: didn’t arise out of and in the course of employment. Issue was decided by administrative judge and State WC commission. Widow won, she got death benefits.
President of Alcorn state died jogging on campus. Depending on circumstances, could be/could not wc. May have had nothing to do with his employment duties.
If it is work injury wc law is designed to provide benefits to employee/family from the employer. WC only been around about 100 years. MS was the last of 48 states to adopt in 1948 to go into effect in 49.
Goals of WC – speedily provide compensation, inexpensively provide
WC was taken out of tort law b/c:
1) helping the lower classes (Frederick the Great – state has on obligation to help those who cannot help themselves)
2) industrial revolution, steam engines, cities grew, more industrial work, no social support if employee got injured they experience severe economic distress.
The Common Law as Applied to Employees’ Workplace Injuries
·         The fellow servant defense – comes from 1837 English case, an exception to respondeat superior, employer isn’t liable when the injury to one employee is caused by another employee. Complete Defense
·         Assumption of risk – complete defense – employee was aware of the risk when they took job
·         Contributory negligence – if worker was at all negligent (even a little bit) complete bar to recovery
Tort law had been adjusted in employee’s favor, prior to WC statutes.
In Mississippi before WC we had comparative negligence. Changing to comp neg was a reform in favor of employee.
MS – pretty much been a cancellation of the fellow servant defense. Employer has a non-delegable duty to provide a safe place to work, can’t blame it on the employee.
Other problems with the tort system: proving fault, delay (employee may settle for less to just get something), friction. 
So the WC system was created. It is no-fault. The money is put aside money based on the predicted number of injuries, and when someone gets hurt we’ll just pay them a certain amount.
The early WC systems were no-fault. Putting money away and making sure there was enough was done through insurance.
P 65 note 1 Ives
NY had a no-fault WC law. The statutory system was challenged as unconstitutional. The railroads said that requiring them to pay was taking their money without due process of law. In 1911, NY court of appeals agreed and legislature doctored it up to make it ok.
*NY Central RR v. White – Sup Ct deciding constitutionality of the NY statute. Which was still a no-fault system. SC decided WC law was constitutional. Both sides had argued unconstitutional, employees thought they should be able to get more (which they would if based on tort law) and companies didn’t want to pay without fault. So WC system is kind of a mid-ground b/w the sides. Not having to prove neg helps employee, but not having to pay outrageous judgments helps employers.
Worker’s comp chart – on back of syllabus – caps on how much employees can recover. MS has low benefits, but all states have caps.
By in large the 1917 White case validated WC and has continued to be upheld.
Each of the 50 states, Virgin Islands and PR, DC have WC statutes, also Federal employee/r statutes. No two are identical.
Also the Longshore and Harbor workers act – Federal WC act dealing with people on fringe of Maritime and State jurisdiction.
Federal Employers Liability Act – Federal modifies act not employer, generally deals with interstate railroads. It is not WC, it is not no-fault and it doesn’t have a cap. It’s a tweaking of tort law. Generally fault is easier to prove under FELA and its regulations.
Tort law – in MS WC is mandatory if employer has 5 or more workers. So if less than 5 workers and employer doesn’t offer WC, then tort law controls. If employer is supposed to have WC but doesn’t then you have the choice of going after them for default or tort suit.
Congress has jurisdiction over maritime – Admiralty Law – Jones act, Death on the High Seas Act.
Disability – social security system – WC and disability added together to not exceed more than 2/3 of worker’s wage
OSHA – p.43
Chapter 3 The employer-employee relationship
Section 2 The Contract of Employment
Statute will define employment, but then up for interpretation
Johnson v. City of Albia
Johnson was injured the day after he quit. He came back to get his tools and then helped the new employee do something and was injured. The activity was for the benefit of the employer and it took place on the premises, but he had quit the day before and was no longer a paid employee. He argued that it was customary for engineers to stick around and help train the replacement, but court didn’t give that much credit – they didn’t make a finding that it was customary. There was also an argument that the new employee basically had the authority to hire, it’s an agency doctrine – possibly if there is an emergency they may have the authority to hire. Emergency doctrine was also rejected. Court also put weight on fact that he had only come back to get his personal belongings. Didn’t award WC.
Aspen Highlands v. Apostolou
Ski Instructor, who agreed to be a ski patrol but negotiated that his girlfriend would get a free day ski pass whenever she wanted one. No requirement of cash wages.
Golf course example – guy injured that maybe/maybe wasn’t an employee. He got to use a golf cart, no wages, performed minimal services. He filed a tort suit, but the golf course defended that he was an employee and WC was his only remedy, and won.
Section 3 Employments Distinguished from other relations
Marcum v. State Accident Ins. Fund 
Out of season logger, who was pruning trees on a golf course. He was injured and wanted WC, b/c he claimed to be an employee but employer said he was ind contractor. GC didn’t withhold anything (taxes, SS etc) from payment, and employer didn’t have sufficient right of control. Court decides he was an IC.
Court looked at method of payment, right of control, furnishing of equipment, and right to fire (part of right to control).
Most important element was Right to control – right to control the details of how the work is done.
*missed day – get notes
Jackson v. Fly (handout)
General contractor is liable for sub who does not have WC for his workers. And an employer can’t employee less than the given number of employees on one day to escape the WC requirement.
Statutory employer provision came into effect and gave Fly the right to benefits from Jackson.
Section 4 Statutory Treatment of Particular Employments
Sandburn v. Hall
Casual employment. Depends upon facts and circumstances whether employee was casual and therefore not covered. Length of time to complete can be important.
? Mississippi – statute covers all employees (not otherwise excluded) without reference to casualness or business character of the employment.
Illegal employment, farm employment, hazardous employment etc….
Section 5 Statutory Employments
Oakwood Hebrew Cemeterey v. Spurlock
Although maintenance man was not a regular employee of the cemetery, he performed through a sub-contractor, he was deemed a statutory employee b/c maintaining the cemetery was something that was part of the “trade, business, or occupation” of running a cemetery.
Compare country club case to cemetery case. CC – he was IC and wasn’t covered, cemetery case he was covered although he was technically employed by an IC of the cemetery. There were provisions in the statute that made this so. The statute says that b/c what he was doing was part of the “trade, business…” and since he fell under that language he was provided WC coverage.
Jackson v. Fly – MS statute requires that the relationship be a “subcontractor” and that it meet the MS definition. In order for there to be a sub K’or, there must be a prime k’or. MS statute on sub contractor would not have come into play in the cemetery case but did in Virginia b/c that statute is worded differently. 
Subcontractor in MS is a person who agrees with contractor to do part of the work called for by the contractors contract with the owners. In order to have subk there must be prime contracting.
Airborne Express à Company à injured employee
Company had let WC policy lapse. So EE went to Airborne. Two ways to view it, either Airborne was the employer of Company and therefore EE was too, or that there was a prime K b/w customers and Airborne and sub K was b/w AE and company and if company is a subK then statute says employer must provide WC benefits unless subK’or company provides it. 
Company was an IC, Airborne didn’t withhold social sec taxes, income tax etc.. but AE still had to pay under the tort suit. They wound up paying 6 million b/c they refused to pay in bad faith. But had they just agreed to pay in the first place they would only had to pay the medical bills and WC benefits which aren’t much. The Seattle house counsel missed that the statutory employer provision in MS trumps the IC exclusion.
Boyd v. Crosby lumber (big MS WC case) (Two tests to consider in IC situations)
Crosby à Durham à Boyd (boyd wanted workers comp from Crosby b/c durham didn’t have it)
Durham had K to haul lumber for Crosby. Boyd was injured. At the time the statute said if you have 8 or more employees you have to have WC. Durham had fewer than 8 employees. Crosby wanted Durham to be deemed an IC and pointed out that he owned his own equipment, hired on workers, contracted to do a job, no right to control the details of the work, they just contracted to receive the result. Crosby lost on that argument. Court regarded Durham as an employer of Crosby and therefore Boyd was too. Crosby had tried to write the K to negate all the factors that would implicate them for WC, they were hiding behind IC, that really wasn’t independent.
Bradley never persuaded by the right to control argument in the case, the court said they did, but that in addition to Right to Control, an equally valid test is the Relative Nature of the Work

sarily agree. K said CP was an ind contractor and other factors negate CP being an employee of Shell. So CP is the only one with immunity. Pitts can maintain suit b/c CP was an independent contractor of Shell.
Doubleday (1982)
State à Boyd à Ratliff à Doubleday
First time a subcontracting tort immunity case got to the MS SCt. So the clause we talked about in Jackson v. McFly comes into play. DDay gets WC from Ratliff, sues Boyd in tort. Boyd claims the statutory employer provision clearly places a hypothetical obligation on him to provide coverage (like Stubbs). DDay says last clause says, you have the obligation unless sub-contractor has secured such payment, so that means Boyds claim isn’t good b/c Ratliff had coverage. Case decided in favor of Boyd, they got tort immunity. Said the legislature did not intend to subject a general contractor to common law liability if he complied with statute by requiring the subK’tor to have WC insurance. It would defeat the purpose of the statute.
The statutory employer provision makes general Contractor a surety for benefits. The actual employer is supposed to have benefits but the prime contractor guarantees there will be benefits.
Nash v. Damson Oil (diff from DD)
Damson à Trigger à Nash
Illogical to give tort immunity to contractor’s opinion. 2 justices also said they would overrule DDay. So the court thinking again in ’87 about the issue of contractor’s tort immunity. Under the idea that why should they have immunity if they didn’t actually provide the insurance.
Nash lost, but for a different reason. They lost b/c they said there wasn’t subcontracting. Important case b/c it distinguishes some sub K factors but also b/c it cast some doubt on DDay. 
Damson wasn’t the type of GC contemplated by the statute. Damson had a contractual obligation with the owner, but Damson was also one of the owners. Being an owner differentiates Damson’s status from GC, that would be protected by Doubleday.
When the sub doesn’t have WC insurance, the application of the statute is clear. The GC will be liable for benefits for the subs employees. When the GC pays the benefits does the injured employee have a tort suit against their direct employer (the sub)? Can depend on whether they were in default (just didn’t pay) or exempt (not enough employees). If they were immune they’re not part of the bargain of WC so they don’t get tort immunity. If they are in default do you reward the sub with tort immunity? Several pending MS cases dealing with this issue.
Miss Power and Light (diff from DD)
Park serv à MP&L à Devinny à Falls
Falls got WC from Devinney and then filed tort against MPL. MPL claimed WC was exclusive remedy. However, court didn’t go for it. MPL was GC, Devinney was sub. MPL was on Owner/permitee (like Damson) so MPL not immune.
Brown v. Williams (same result as DD, adds extra employee immunity)
Byrne à Williams à Jones à Brown
Jones paid WC and has tort immunity. Williams is claiming tort immunity under DD. Court says this case lines up with DD. Byrne and Williams had a GC relationship, Jones was sub so immunity b/c statutory employer. Suit against an employee of Williams was also dismissed for no liability under exclusive remedy (although he’s not really part of the WC deal).
Interesting that this was 2 years after Damson (where they mentioned that maybe DD didn’t make sense) they applied DD and didn’t question it.
Morris v. W.E. Blain (affirms DD, adds aspect of 3rd party and enterprise immunity)
State à Blain à AB à Morris. TC was also a sub of Blain.
Blain claiming immunity under DD rule and wins. So court reaffirms DD. Morris also sued TC who was a sub of Blain. Since Blain had no responsibility to provide WC to Morris, they don’t get immunity. TC also argued enterprise immunity (like in Index drilling but called common employment), argument is that everyone on the job with insurance gets immunity. Uses Biggart v. TX as the basis for the argument (where BR and Rivers had no contractual relationship but both got immunity). Court mentions Dunn’s treatise on MS WC which recognizes enterprise immunity. The Court REJECTS enterprise immunity.