Workers’ Compensation I
Wayne State University Law School
Professor William N. Evans – Fall 2010
Workers’ Compensation Law: Cases, Materials, and Text by Lex K. Larson
I. Introduction to Workers’ Compensation
A. Basic Features of Compensation
· Workers’ Compensation – benefits paid to employees by employers
· A nuisance valued claim is one where the cost of the claim is more than value
· The doctrine of equal inferences – if there is equal support for compensation and no compensation, then cannot award compensation (plaintiff always carries the burden of proof)
o Inference – set of facts that will support a conclusion
o Improper to pack inference – building inference on inference (because of this inference, presume this)
1. Typical Compensation Act – Generalized
(a) Employee is NOT automatically entitled to benefits whenever he or she suffers a personal injury by accident arising out of and in the course of employment
(b) Workers’ comp is not really no-fault in practical application
(c) Coverage is limited to persons having the status of employee, as distinguished from independent contractor
(d) Benefits to employee include wage-loss benefits (portion of weekly wages), and hospital, medical, and rehabilitation expenses; in death case benefits for dependents are provided
(e) Depending on circumstances, employee and his or her benefits may give up their common-law right to sue the employer for damages for any injury covered by the act
(f) The right to sue third persons whose negligence caused the injury remains, however, with the proceeds usually being applied first to reimbursement of the employer for the compensation outlay, the balance (or most of it) going to the employee
(g) Administration is typically in the hands of administrative commission; and, as far as possible, rules of procedure, evidence, and conflict of laws are relaxed to facilitate the achievement of the beneficent purposes of the legislation
(h) The employer is required to secure its liability through private insurance, state-fund insurance in some states, or “self-insurance”; thus, the burden of compensation liability does not remain upon the employer but passes to the consumer, since compensation premiums, as part of the cost of production, will be reflected in the price of the product
2. Injuries and Elements of Damage Compensated
Workers’ comp is exclusive remedy for employees injured at work
· Unlike tort, the only injuries compensated for, generally, are those which produce disability and thereby presumably affect earning power
· No compensation for (unless you have a good lawyer): Disfigurement, Loss of reproductive organs/capability, or Pain and suffering
· Could make a claim for compensation for pain if you can show that pain results in reduction in earning power
· Must show a distinguishable medical condition or change in underlying pathology to prove pain
· Rare not to have 6 figures of value
Three primary benefits of workers’ compensation:
· Accrued benefits (due from date of injury to date of filing of claim?) and future benefits
· Entitled to reasonable and necessary medical care
· Under appropriate circumstances, entitled to 52 weeks of vocational rehabilitation
B. Historical Development of Workers’ Compensation
MI Work Comp state adopted in 1912
Three sisters – defenses given up by employers:
1. Fellow servant – injury caused by fellow servant
2. Assumption of risk
3. Contributory negligence
Employer offering limited liability in exchange of wavering 3 sisters’ defenses
II. General Principles and Doctrines
A. Coverage Formula
MCL 418.301(1); MSA 17.237(301)(1).
Coverage Formula: An employee, who receives a personal injury arising out of and in the course of employment by an employer who is subject to this act at the time of the injury, shall be paid compensation as provided in this act.
· Arising out of is the causation element
· In the course of is the time, place, and circumstance
· Arise out of and in the course of employment often lumped into “worked related”
· 2-prong test, both must be satisfied (arising out of and in the course of)
1. “Arising” interpretations:
· Peculiar-Risk Doctrine – claimant had to show that the source of the harm was in its nature peculiar to his occupation (obsolete)
· Increased-Risk Doctrine – differs from peculiar risk doctrine in that the distinctiveness of the employment risk can be contributed by the increased quantity of a risk that is qualitatively not peculiar to the employment
o Employment increases risk
· Actual-risk doctrine – courts do not care whether this risk was also common to the public, if in fact it was a risk of this employment
o Actual risk of the employment
· Positional-risk doctrine – an injury arises out of the employment if it would not have occurred but for the fact that the conditions and obligations of the employment placed claimant in the position where he or she was injured
o Employment positioned you where you got hurt
· But for doctrine – but for employment, it would not have happened
But for and positional risk establish causation or arising out of
2. Types of Risks
· Risks distinctly associated with the employment (peculiar to employer) and employee injured due to risk associated with that employment
o Likely have causation or arising out of employment nailed
· Risks personal to the claimant – e.g., 55 year-old male who is overweight and smokes and suffers cardiac arrest and will never work again
o This is a person injury
· Neutral risks: Liberal tendency is to stick employer because there are only so many places you can get the money
· Mixed risks: aggravation of pre-existing condition, part from employment and part from employee
B. Acts of God and Exposure
Lightning, Tornadoes, Windstorms, Etc.
Pg. 31 Whetro v. Awkerman (1970)
Facts: Whetro was injured when the tornado destroyed the residence wherein he was working for his employer and seeks reimbursement for his medical expenses. Emery was killed when the motel in which he was staying while on a business trip for his employer was destroyed by the tornado, and his widow seeks compensation for his death.
· They have brought the law in Michigan to the point where it can be said today that if the employment is the occasion of the injury, even though not the proximate cause, compensation should be paid
Holding: employment of Whetro and Emery was the occasion of the injury which they suffered and therefore the injuries arose out of and in the course of their employment
· If employment was the occasion of the injury, doesn’t have to be the cause
the decedent who later died.
Analysis: Chain of causation remained unbroken from when they were driving down the road
Holding: The award of benefits was proper.
Dissent: Should use increased-risk approach (not positional risk doctrine)
· Increased risk he as a truck driver is exposed to is a motor vehicle accident, not attacking another driver
· Substantial deviation from course of his employment – not compensable
Pg. 54 Dodson v. Dubose Steel, Inc. (2004) – SCT
Reversed and remanded for reasons stated in dissenting opinion.
B. The Aggressor Defense
Pg. 55 Stewart v. Chrysler Corp (1957)
Facts: Stewart slapped McCoy in the face with his hand. McCoy had removed steps that had been provided by the employer for the use, convenience, benefit, and protection of the employees in the course of their work. McCoy struck the decedent, causing his death.
· The court agreed that Stewart was not the aggressor.
· Stewart was at his own place of duty when the altercation developed.
· There was a cooling off period between the time that Stewart slapped McCoy and McCoy moved the stairs – this allows Stewart to compensable
Note: The first blow is not controlling – this has nothing to do with the law, court looking to protect the widow (Court acted arbitrarily and capriciously)
C. Assaults by Strangers
Pg. 58 White v. Atlantic City Press (1973)
Facts: Petitioner employee picked up a hitchhiker while delivering newspapers and was assaulted. Analysis: The court reasoned that respondent placed petitioner on the highway, thus subjecting him to the hazard of a hitchhiker encounter which was a compensable event, regardless that petitioner’s decision to pick up the hitchhiker was not prudent.
o Argument – deviation from course of employment
o Court calls it a minor deviation (reasonable human reaction) – so trivial that it does not make a difference (doesn’t cut the chain of causation) so compensable
Pg. 61 Jordan v. Farmers State Bank (1990)
Facts: Bank president’s wife was taken hostage and the assailant instructed the president to get him $ 100,000. The president called the vice-president, who decided to go with the president to give the money to the assailant. Upon arriving at the president’s home, the assailant made the two go into a garage and lie down, at which time they were shot by the assailant.
· The injuries arose out of employment
o There is a hazard that employees or family members may be held hostage because banks have large amounts of currency and are preyed upon
· The injuries were in the course of employment
o They were reasonably fulfilling the duties of employment at that time