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Workers Compensation
Wayne State University Law School
Evans, William

Workers Comp- Evans

Semester: Fall 2013

1) Introduction- different than strict tort liability

a. Arose out of deaths from minors being killed in mining accidents

b. During the industrial revolution

c. Amount and duration was minimal in beginning

d. Had to overcome defenses:

i. Contributory negligence

ii. Assumption of risk

iii. borrowed servant

iv. Juries were made of current employees so they didn’t go against employer

e. Remedial legislation (right a wrong) to aid injured worker shifting burden of costs to consumer

i. When economy is good bigger awards

ii. In depression not as big awards

f. Benefits

i. Wage loss benefit

1. 80 percent of average weekly wage is what employee can recover up to the maximum State average Weekly Wage

2. Add 39 weeks of highest earnings divide by 39 of the 52 previous weeks from date of injury= average weekly wage

3. Tax free

4. $798 dollars is the maximum weekly benefit in 2013

a. July 1st department of labor decides what the State Average Weekly Wage

b. Maximum is 90%

c. 2/3 of Average Weekly wage discontinued fringe benefits ( maximum is $591.04) can raise the rate but not higher than $591.04

d. Attorney fees is 30% of the 2/3 of SAWW

e. $443.28 (50% of SAWW) minimum benefit for death cases- payable up to 500 weeks

i. If surviving spouse remarries, can only receive another 6 months after marriage.

f. $221.64 (25% of SAWW) minimum benefit for specific loss and total and permanent disability

i. Michigan allows one more time to revalue that their wage would have gone up (2 years after the date of disability)

ii. Specific loss

1. lost finger- thumb

a. 65 weeks of benefits at minimum

b. Even if employee goes back to work

2. Lost hand

a. 215 weeks

iii. Degree of injury

1. Temporary partial

a. You can still perform favored work

2. Total and temporary

a. Cant perform work

3. Total and permanent

i. 800 weeks

ii. 16 years

ii. Reasonable medical care

1. Hospital bills etc.

2. Attendant care

a. Licensed practice nurse and vocational expert amount money per hour

b. Personal hygiene

c. Only limit is if person is part of family then can only bill 56 hours a week.

iii. Vocational rehabilitation

iv. In theory compensation is not available for pain and suffereing, loss of sexual function etc. but a good attorney will get a psychiatrist to say how it makes her

g. 15% contingent fee up to 25k after 25k only 10% if its tried record closed and before judgment then 20 percent if after judgment and appeal then 30% until date of paid but no attorney fee on future benefits

i. There is a cap on attorney fees

h. Dif. Between social security disability and workers comp

i. SSD

1. Inability to perform gameful employment within the national economy

a. Each judge has different definition

b. Maximum benefit can be higher than workers comp

i. B.c directly corrolates with employees income

c. Causation is irrevelant

ii. Workers comp

1. Has to arise in course of employment

2. In theory academically fault is no factor

a. Really (in the real world) it is element to every workers comp

b. If employer can show certain safety regulations were universally adopted, enforced, written etc.. a judge may deny workers comp… willful misconduct

i. Liability test

i. Work connection- not fault- in theory (like mentioned above)

j. Philosophy

i. Social protection- not righting a wrong

ii. To provide dignified, certain, financial and medical benefits

k. Nature of injuries- elements of damage

i. Only injuries that produce liability thereby affect earning power

l. Defenses unavailable

i. acts of g-d

ii. acts of third party

iii. contributory negligence

m. Amount of compensation

i. Only amount to keep claimant from being a burden on others

1. Usually ½ or 2/3 of salary

2. Maximum in terms of dollars per week allowed

n. (Ownership of award

i. No ownership in terms of inheritance and cant assign them to someone else

o. Significance of insurance)

p. New York Central Railroad Company v White- basically that everything above is constitutional

q. Coverage formula

i.

2) General principles and doctrines

a. Coverage formula

i. Michigan Arising out of , and in the course

1. Elements

a. In the employ of someone else pursuant of contract to hire

b. Receives a personal injury

i. Distinguishable medical condition in association with employment activities

c. Arising out of

d. In the course of

i. Time place circumstances

e. Subject to this act at time of injury

f. Injury must result in disability

i. Disability

1. Changes

2. If before he could have lifted 100 pounds and then he can only lift 99 pounds he is considered disabled- democratic- if he could do any job he could do he is not disabled-republican

3. Substantial available job

4. If employee made a good effort to get job and couldn’t he might be able to get comp.

5. MCLA 418.301- cant do any job in with your qualifications

a. Must show

i. Disclose his education and qualifications

ii. Provide jobs that you can perform

iii. Demonstrate that injury prevents from doi

( standards of evidence) Preponderance of evidence

1. appeals

iv. Centilla of evidence

1. Slight very small evidence

3) Assaults

a. Personal motivation

i. Martin v J. Lichtman & Sons- martin exchanged some words with another employee and got hit in the head and suffered injuries. The words were not related to work. Court held claim was compensable applying the “but for” analysis. The employment enforces contact between employees which could lead to unjustified assault. This wasn’t an argument that happened out of work. And the friction and strain of work and forced contact between employees started it. Part and parcel of the work

ii. Stewart v Chrysler Corp.- McCoy provoked Stewart to hit him. McCoy then killed him. Claim was compensable since although stewart hit first McCoy provoked so he was considered the aggressor and this would not have happened but for McCoy’s part. From this case it seems whoever is aggressor their claim is not compensable. But in Michigan the aggressor can collect unless it happened after a cool off period.

iii. White v Atlantic City Press- paper man picked up hitchhikers on his way to pick up the papers, who in turn turned a knife on him and injured him. Claim was compensable, since foreseeability is not a requirement, it is still considered “in the course of employment”. Deviation was minor since it is a reasonable reaction to pick up hitch hiker. Reasonable human reaction, minor deviation doctrine

iv. Jordan v Farmers State Bank- wife of employee of bank was taken hostage in demand for money. Employees brought money eventually were shot. Claim is compensable. Since it is reasonable that this circumstance could arise from employment. Procedural and guidelines doctrine. Increased risk doctrine. Extended premises

v. Meo v Commercial Can Corp. the superintendent of the company got assaulted outside his home when there was a strike and he kept the plant open. Claim was compensable. Was considered “in course of” especially since he was on 24 hour duty. zone of danger doctrine. Prisoner employee doctrine- where an employee is on 24 hour duty basically everything is compensable.

vi. MCL 418.301(1); MSA 17.237(301)(1).

vii. Totality of circumstances doctrine