MS Workers' Compensation

Do "imported" or personal risks "arise out of" employment?

Hill-Luthy Co. v. Industrial Comm - In this case, the worker was a smoker, like many people did at the time. He was performing his duties when he lit a cigarette, but as he lit the match, the match head flew off the stick and into his eye, injuring him. Smoking was not an unusual activity. Much like taking a short break to use the restroom, in many places under the Personal Need Doctrine - things that the worker must care to, such as taking a break for a meal, or smoking, or going to the bathroom, does not take the employee out of the course of the employment. It doesn't amount to a departure from the work. The test the court used for an imported or personal risk is whether the risk was incidental to the character of the employer's business or entirely independent of the employment relationship. Is there a causal connection? This court decided the risk was personal, and denied coverage. Notes: Many courts treat personal risks such as smoking or eating as compensable if causally enhanced by the duties. And at least one other court ruled the opposite way, saying that an employee smoking during a rest period, and was injured, compensation was awarded. - Injuries caused by risks imported into the employment for employee's personal convenience or pleasure have been treated variously Chapman v. ____ - the employer takes the employee as he gets him. While things like lung cancer are imported and not covered, a weak worker who missed a jump that another worker would have made is still covered despite his lack of agility. Mitchell v. Clark County School - The plaintiff fell and hit her head, but did not have a pre-existing condition like Chapman. She inexplicably fell down a flight of stairs at work. The court took a different approach than Chapman, rejecting the positional risk test, it likewise rejected the proposition that non-compensable injuries that have no causal connection with the employment become compensable when they are exacerbated by workplace conditions that are neither peculiar to employment nor related to the cause of the injury in the first place. The injury took place at work while working. What kind of risk was it, though, that the worker would fall down the stairs? In Chapman, the court made the point that the hard factory floor was a neutral risk. But this court rejected application of the positional risk doctrine. So even if the court were to admit that it was a neutral risk, it didn't matter because of its rejection of the positional risk doctrine in this setting. Notes: - An "idiopathic" fall injury is one that is caused by the fall itself rather than the personal physical condition or attribute that caused the fall. Such an injury is not usually covered. But even in a truly idiopathic fall, if the injury can be attributed to the falling body's collision with a dangerous work condition, or even a neutral risk, like a hard factor floor, compensation is often awarded. - In most cases, the injured person of an idiopathic fall must show at least some enhanced risk of injury, either by showing it accentuated the plaintiff's personal weakness, or by showing that the risk of suffering a dangerous collision was higher Milledge v. The Oaks - the plaintiff was a housekeeper at a nursing home. After exiting her car, on the premises of the employer, she twisted her ankle. The court said that there three general approaches to the arising out of language in unexplained falls cases. (Sometimes viewed as neutral risks) 1. The worker has to rule out an idiopathic fall - meaning the fall occurred because of the plaintiff. This is an employee-friendly approach because the burden is light. 2. Another approach is to place a heavier burden on the employee to show a causal connection between the injury and the employment. 3. The third approach is the positional risk doctrine, where the burden is on the employer to demonstrate that the injury was actually the result of a cause personal to the plaintiff. Generally this applies only when the unexplained fall is determined to be a neutral risk.

In showing disability, what must an employee prove to determine his decreased wage earning capacity?

Hole v. General Box - "disability" means incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or other employment. Two ingredients prove disability: disability in the medical or physical sense - proof of lack of ability due to injury to perform work, and disability in the de facto inability to earn wages as evidenced by proof that a claimant has not earned what he used to. There can be and are cases where the medical proof would say the claimant is only partially disabled but the court is not bound by such evidence - the facts can show that the claimant is incapable of working and earning wages. Here, the lower court was in error saying that the claimant had recovered when the evidence clearly showed that six months after the date the court found he was recovered, he applied to work somewhere and the doctor giving him a medical examination said he could not work. Also, where injury by accident arising out of and in the course of employment is shown, the burden is on the employer to prove his defense that present disability is due to some other intervening cause or preexisting condition for which he is not responsible. Karr v. Armstrong Tire and Rubber - the worker was injured by inhaling gas, which caused a permanent 80% loss in voice and 4 weeks where he could not work at all. The referee covered the 4 weeks but said the voice loss was not compensable. The claimant said he didn't have to talk a lot at his job, but when he did he had to raise his voice now, which was a strain due to the loss. Also, his wages had gone up since the injury. (Using the "Comparative Actual Wage Pay" test, this was strong evidence that the voice loss had not disabled him.) MS does not use this test. Instead MS uses a multi-factor test to determine the wage-earning capacity of the injured person after the time of injury compared to thereafter in the same or other employment: - The court must award the best possible estimate of future impairment of earnings, on the strength not only of actual post injury earnings but of any other available clues - The employee may be awarded for permanent disability even when earning the same or more than before - There is a presumption if the earnings do not go down, but that presumption may be rebutted by evidence. Wage earning increases are unreliable because they may be due to increase in general wage levels, claimants own greater maturity or training, longer hours, sympathy, and the temporary nature of post-injury earnings - The test must discount these variables and determine the wage that would have been paid in the open labor market under normal employment conditions to claimant as injured, taking all the factors into consideration: wage levels, hours of work, age, state of training, and so on. Therefore, the case was remanded for further proceedings. Russell v. Southeastern Utils - affirming that the wage earning capacity test is theoretical, that all factors must be considered, all relevant evidence must be weighed. Here there was evidence that the only reason the claimant kept his job was out of sympathy, and while his wages went up slightly, he would have made more if not for his injury. We don't include in the rule wages that are increased by further training, increased demand for workers, sympathy, and so on. King v. Westinghouse - the claimant was injured such that she could no longer do heavy lifting, then later found employment as a secretary making about the same amount of money. But the work was not very permanent. The lower court said there was no permanent disability. The court found that finding light work in a temporary position which paid the same per week is not conclusive that her earning capacity was not lowered. Under the wage earning capacity test, she was able to recover for permanent partial disability. Ebasco Services v. Harris - the question arose: this person has a partial disability, so he presumably won't get the same benefits as one with a total disability, so how do we determine to reduce the benefits in respect to the partial disability? - this time, employer hired investigators who took pictures of the claimant doing yard work, carrying stuff around, and bending over in his yard. This in spite of medical testimony that he could no longer do his lifting job due to a lumbar injury. The formula for permanent partial disability is "sixty six and two thirds percent of the difference between previous average weekly wages and wage earning capacity thereafter in the same employment or otherwise. This question also arose in the Durbin case: doctors told the claimant what he could and could no longer do, which resulted in the former employer not rehiring due to not having any light-duty jobs. Ultimately, doctors are not experts on the job market and cannot really testify as to whether the claimant will be able to find work. Coulter v. Harvey - employee injured by contact dermatitis from cement poisoning. The question was whether an illiterate laborer who engaged in a specific trade for many years, who was now allergic to the materials - was permanently partially/totally disabled. The statute at the time said "disability means incapacity because of injury to earn the wages which the employee was receiving at the time of the injury in the same OR OTHER EMPLOYMENT, which incapacity and the extent thereof must be supported by medical findings." The claimant proved he could not work in the SAME job. But the court said it was not enough to prove you can no longer do the same job; you must also prove you cannot get other employment. Since he could do other work, he was only partially disabled and not permanently totally disabled. The claimant failed to seek other employment. In order to get money for disability, the claimant must show he cannot get work. He should have made efforts to look for other employment. (In Durbin, the claimant did this - he went back to his old employer, who denied him, as well as other employers.) Thompson v. Wells-Lamont - glove seamstress exposed to dust at a factory could no longer work there, and all the other places she was qualified to work at were also very dusty. She tried to get other kinds of work and failed. The question, as in Coulter, is whether the claimant makes reasonable efforts to obtain work after the injury. The claimant here was different in that she: - Went to another sewing place and had an allergic reaction - Sought training for a secretary job and was turned down - Was turned down for a school job - Turned down for a library job - Was still trying to find work The test for reasonable effort entails several factors: the jobs available in the area, the industrial aspects of the area, the claimant's general educational background, work skills, and the nature of the disability for which compensation is sought. States are divided on who has the burden of showing reasonable effort: some require the claimant show unavailability, others say the employer must show availability. The MS rule; claimant must show a case prima facie for disability, after which the burden goes to employer to rebut or refute by evidence that employment was available. In this case, the claimant made her case prima facie by showing her training and attempts to find work, which was unrefuted. Pontotoc Wire v. Ferguson - the claimant's showing that he applied for two jobs was enough to meet the Thompson prima facie standard, even though he had an offer for work in Memphis (he lived in Pontotoc and didn't take it). The question was whether his search was reasonable when he wouldn't leave his area for the job? The court said that a reasonable effort does not mean taking a job far outside your area. The cost of the commute as a portion of the earnings was unanswered. The search need only be in the person's area. The presumption could have been rebutted but the defendant failed to use readily available evidence of local employment opportunity. Marshall Durbin v. Hall - worker injured his back on the job. The employer wanted to use the medical testimony that the claimant was "30% permanently partially disabled" to show he was not totally disabled, as if there are two separate tests. The court said it was enough that he was gainfully employed before the accident and could no longer find any work of any kind after. The claimant met the burden of a prima facie showing that he could not obtain work elsewhere "in the same or other employment". There was no "substantial evidence" provided by the employer to disprove this showing under Thompson. The employer sought to punish Hall's eagerness to return to work by arguing that since he wanted to return to work, he must not be disabled. (but not employable by us!) "The disability contemplated by the act is an occupational disability, not a medical disability. An employee is entitled to compensation to the extent that he has been incapacitated to earn wages." Georgia Pacific v. Taplan - while operating a hy-hoe, claimant strained his neck jumping clear of a faulty machine. Employer fired him soon after due to medical conditions. He applied for eight jobs and got none. The finding of the lower court, that he sustained an injury, leading to disability, which diminished his wage-earning capacity, and that he reasonably made effort to find employment, was enough to support a judgment. Jordan v. Hercules - several injuries while in a collision sitting in a company truck. When an injury occurs to the body as a whole, scheduled member standards do not apply. Since the claimant's injuries not only involved his arm, but also his upper shoulder and back, it must therefore be treated as an injury to the body as a whole. Where the finding of permanent partial disability, claimant bears the burden of making a prima facie showing of attempting to find work. When he has reached maximum recovery and goes back to work and the employer won't rehire him, this is a showing of total disability. The burden then shifts back to employer.

Do "arising out of" and "in the course of" mean the same thing?

"...Injury arising out of and in the course of employment..." Is it a work injury? We normally think of "course" having to do with TIME and PLACE. But even before that, is "arising out of" and "in the course of" a two prong test or a single test? When addressing this issue, we want to know whether the source of the risk of injury was found in the employment, or the personal activities of the worker, or a mixture thereof? If this is a unitary test asking only about the source of the risk, then out of and in the course of mean the same thing - we are looking for the connection the risk has to the employment. If this wording is meant as a dual test, though, we are looking at both time and place and the source of the injury. Meo v. Commercial Can - addressed the issue. There was a strike. The plant was still running under the operation of the supervisory employees. The injured plaintiff was at home at the time of injury. He was not performing work duties, nor could he be. He, however, was intending to go to the plant to get into a vehicle to go to work. Before he could get in his vehicle, though, he was slugged by an unknown assailant who referred to the plaintiff as a "scab" - someone not honoring the strike, leading to the inference that he was assaulted for going to work. So in terms of the source of the risk, as opposed to something like an affair, the source of the risk was work-related. (If he was hit for having an affair, even at work, the SOURCE of the risk would be his personal life). His work for the employer engendered the hostility that resulted in the assault. So, how do we apply the "out of and in the course of" test? It depends on whether it's a unitary test or a bifurcated test! This court said the injury was test. The risk of injury arose out of the employment. Had the court looked at more - time and place - then coverage may not have attached. This would then perhaps be an example of a court treating the test as unitary.

What does the MS statute define as employment?

"Compensation shall be payable for disability or death of an employee..." 71-3-7 MS CODE "Employee means any person, including a minor, whether lawfully or unlawfully employed, in the service of an employer under any contract of hire or apprenticeship, written or oral, express or implied..." 71-3-3(d) MS CODE Employers, not including non-profits and charities, and having 5 or more workers, are included in the MS WC statute. 71-3-5 MS CODE 71-3-9 MS CODE - an insured employer's liability is limited to the WC benefits, meaning exclusive to the WC statute. There is an incentive to secure coverage: if you are not covered for WC, you are stripped of the three common law defenses and subject to suit at tort. If you are covered, all your liability is taken care of. So, 71-3-9 gives tort immunity to covered employers, incentivizing WC coverage. So get coverage!

When there are two different state compensation laws that could apply, and have different provisions in them, which law controls?

(Full Faith and Credit Issue): Carol v. Lanza - the employee, who lived in MO, as did the employer, and the contract, but the employee was temporarily in AS when the injury occurred. The question was whether AS or MO law applied. the suit for benefits was filed in AS. Restatement Second: Factor Test Balancing Interests - The place of RESIDENCE of the Employee - The place of regular employment - The state where the INJURY occurred - the place of the employment contract The full faith and credit clause says that states will respect each other's laws. If the place of residence and the place of injury are in favor or the forum state, thats a sign it has a sufficient interest to apply its law.

In MS, what are disability benefits and what four categories do they fall into?

- Disability benefits are money payments to the injured worker to compensate for earnings lost as a result of compensable injuries. - Usually calculated as a percentage of the recipient's average weekly wage, subject to a specified dollar limit. (I.E. 66% of the worker's weekly wage but not more than 600.00 per week.) - Workers Comp benefits are not taxable income under the IRS - "Maximal Medical Improvement" - the point at which medical treatment can no longer IMPROVE or RESTORE the worker to his previous wage-earning capacity - The extent (whether fully disabled or partly disabled) and duration (whether temporary or permanent) often determine the types of benefits that the worker receives: Temporary total disability (vast majority of claims) - a ladder falls on a worker and he breaks his arm. For a period of time, he is unable to work at all. In about six weeks, though, the physician will say the bone is healed and he can go back to work. That six week period was temporary, but total, disability. (MS 71-3-17(b) says that you get 66.6% of the average weekly wage of the worker during this time, for up to 450 weeks and not to be more than 2/3 of the state's prevailing average weekly wage. Temporary partial disability (very rarely an issue) - the worker doesn't completely stop working, but rather gets paid to be a secretary while his arm heals. Permanent total disability (some states limit liability, ie, for 500 weeks, but other states may require paying benefits for life) - it can be proved in a few ways (MS): loss of use of two hands, feet, legs, eyes, or any two thereof proves permanent total disability - regardless of the effect on wage-earning capacity. The other way is to show that with the impairment, the employee is no longer to get employment in the labor market. Permanent partial disability (the largest amount of money paid for claims, often has a specific statutory payout, such as 100k for a lost limb) - 71-3-17(c) says that the worker will be paid 66% of the difference between the pre-injury wage and the post-injury wage-earning capacity for 450 weeks. Or, for a scheduled member injury, the difference for how many weeks are on the schedule. There is also something called "temporary total" which gets added on. So, if the worker is permanently or temporarily totally disabled, he will get the lower value (in MS) between 2/3 of his average weekly wage and the state average weekly wage, but not for longer than 450 weeks. The wages are based on the rate in the statute at the time of disability. SO if the rate goes up next year, you don't get a raise.

In MS, how do you determine the diminished earning capacity?

- Karr v. Armstrong Tire and Rubber - claimant unable to work for 4 weeks and suffered 80% loss of his voice - he was initially denied a claim for the disability of his lost voice on the grounds that his wages had actually gone up since the accident, so he did not suffer injury. The generally accepted principle is that a determination of earning capacity involves more than a comparison of post and pre-injury earnings. The evidence is relevant but not conclusive. - However, earnings DO serve as an effective presumption of earning capacity, though. - A worker may be disabled despite higher earnings post-injury if the rise is explained by other factors. Conversely, lower earnings do not conclusively show a lower earning capacity. - Evidence that the claimant can find occasional work does not prove he is not totally disabled. "A worker so injured that he can perform nothing other than services so limited in quality, dependability, or quantity that a reasonably stable market for them does not exist, may well be classified as totally disabled." - Some injuries carry a presumption of total and permanent disability - ie, suffering the loss of both eyes, both hands, total paralysis, or insanity.

Who may sue a third party in tort who is not immune, and who gets what, generally?

- MS CODE ANN 71-3-71 - the employer has no further liability when covered. Fellow employees are also immune for negligence. But other people, third parties, have not participated in the deal of WC, so these people have no claim for immunity under 71-3-9 (exclusive remedy). Accepting WC or making a claim for WC does not bar the worker from suing a third party. But the employer may intervene into the suit to protect its right of subrogation, and receive from the award/settlement the cost of intervention. - All states recognize a right of subrogation or a right to reimbursement out of tort suit proceeds when the employee receives compensation through the employer. There are several general approaches: Unconditional Assignment of the Employee's cause of action to the employer Both the worker and the employer may sue the third party tortfeasors, and the claims may be joined The most common rule gives priority to one or the other, with priority usually going to the employee. If the priority party fails to sue, the other may. - The employer's interest is usually the compensation paid or payable, complicated by trying to guess future compensation, solved by either calculating the present value of future benefits, or simply using the recovery as a credit against future benefits. It is further complicated by allocating the expenses of the third party claim between the employer and employee. The court may apportion attorney's fees based on the ratio of the judgment each party will receive. - Some statutes require that the employee be made whole before subrogation can occur. (no recovery until the claimant has been compensated for all economic and noneconomic damages) - The lien usually attaches to the entire judgment, even when segregated among things like economic and pain and suffering damages - Whether the jury can apportion part of the fault to the employer is of great significance in a state that has gotten rid of joint and several liability - When an employee settles without the employer's knowledge, the employee may jeopardize his right to future payments of compensation

What does the Jones Act do?

- Makes the Federal Employers Liability Act applicable to Seamen - Cases often arise questioning whether a workers remedy is under the Jones Act, Workers Comp, or the longshore act. The crucial question is whether the worker is a "seaman". Wilkes v. Mississippi - sufficient connection to the dangers of marine service to require a finding that they were seamen and could sue under the Jones Act. Three part test: 1. Vessel must be in navigation, 2. The worker must be more or less permanently connected with the vessel, and 3. The worker must be aboard primarily to aid in navigation - Robinson v. Offshore company - three part test recasted: 1. Assigned permanently to the vessel, or performed most of his work on the vessel, 2. The capacity of employment contributed to the function of the vessel or the mission

How are medical benefits usually provided in WC?

- Medical benefits usually are provided on an "unlimited" basis, meaning the time of medical aid could last indefinitely - Medical benefits cover the reasonable cost of necessary treatment. Incidental care may also be covered. - Courts are divided on such specifics as whether to cover modification to automobiles for physically disabled workers - Two big limits are the necessity and the reasonableness of the cost of treatment - Patients have latitude in choosing their physician, but the employer footing the bill will want a cheap doctor. This causes issues. The usual approach is to allow the employee to make the initial selection of physician. Some states require the employee to select from a state or employer approved list. In some states, the employer chooses the physician but the employee may later change doctors. - Employers are not responsible for medical expenses incurred through unauthorized treatment. (issue usually arises in jurisdictions where the employer has the initial choice of doctor) - Nursing services provided by a family member may be compensable in many states, at the rate that a licensed nurse would be paid. (Big $$$)

What does the Federal Employers Liability Act do?

- Railroads - Courts use an "on the spot" or "pinpoint" test to determine whether the law applies as a valid extension of the commerce clause. The question is whether at the moment of injury the worker was then and there engaged in interstate transportation or in work so closely related to it as to be practically a part of it (Shanks v. Delaware) - If so, then "every common carrier by railroad while engaging... shall be liable in damages to any person suffering injury while he is employed by such carrier while engaging in such commerce" - You would apply the rest of FELA as per notes above

Does WC apply to shores and waters?

- Since the Fed had jurisdiction over "navigable waters", (admiralty and maritime affairs), the Jones Act covers the actual crew of vessels - The Longshore and Harbor act covers waterfront workers who sufficiently qualify as being in the work of the navigable waters - Southern Pacific v. Jensen - waterfront workers could not be covered by state workers comp laws - But Grand v. Rohde later allowed recovery under state schemes where the work, although maritime in nature, was local in character. - This led to a "twilight zone" where it was unclear whether (Davis v. Dept of Labor) letting either the state law or the longshore law would encroach on the others sovereignty. The practical effect was that some workers ended up being compensated by neither scheme. - Calbeck v. Traveler's Ins - the federal requirement of the longshore act is read as requiring injury on navigable waters AND not being compensable by state workers comp laws. This second part was all but done away with in Calbeck where Brennan basically said to hell with it. This just leaves the navigable waters requirement for all but unlimited applicability - Narcirema v. Johnson - the slingers on the docks don't count as being on navigable waters - Congress reacted and changed the law to try to say who is an employee and who is covered. But the changes leave much to be desired in terms of clarity. - There are two requirements for coverage under the act: worker must be at a place within the statutory definition of navigable waters. (situs req) and engaged in maritime employment (status req). both have divided courts.

How do different states handle the different tests for IC v. Employee, and how do they handle particular types of employment?

- Some courts apply the tests concurrently. - Some states define IC v. Employees by statute - In some states the distinction is pointless because IC's are entitled to WC - Nurses and Doctors are usually employees for the purposes of WC - Sometimes an attorney is an employee, even when on retainer - Buyers and Sellers can sometimes exercise a degree of control amount to employment, but are also often distinguished from employment. In MS, for example, there is a statutory 71-3-5 exception: mere buyer seller relationships are not employment. Key word: MERE - Insurance salesmen often count as employees - Newspaper Sellers - MS: newspaper carrier said newspaper boy was not an employee, but rather, that he bought the papers from them and sold them to others. MS ruled they had control over the routes and whatnot to make him an employee. Now MS CODE 71-3-3 excludes newspaper boys.

What does the MS 2 year statute do, generally? How is it confusing?

1. A disability claim must be filed within two years after the injury, or the claim for any further medical benefits or disability is barred. Payment of disability within the two years affects the statute, either erasing it so that it does not apply, or delaying the running of the statute. (Case law differs). 2. Under the latter line of cases, the statute begins to run at the time of last payment. Both the two year and one year period can run at the same time, and a claim is barred when the later of the two expires. 3. Under the former line, disability payment causes the two year statute to go away. The one year statute then becomes the governing provision. For the one year statute to start running, a B-31 must be filed following the most recent payment of disability or medical expenses. More disability or medical expenses renew the one year statute unless another B-31 is filed. 4. The 2-year statute itself says what happens if benefits are NOT paid, not what happens when benefits have been paid. That is why there is case law that tries to decide what happens. In Martin v. L.A., the court said, "If the statute did not prevent the running of the limitation period (which it does), appellees would be estopped from denying that the statute was tolled while they were voluntarily paying claimant compensation benefits under the act..."

What are three reasons for having WC?

1. Industrial injuries a scourge of working people in nineteenth and early 20th centuries 2. Torts is not a compensation system, but a means of making wrongdoers pay for negligence. Many injuries thus went uncompensated 3. At the time, the welfare state was not large or strong enough to help many of the people who had no recourse at law Tort used to be our only form of recourse. But states have adopted workers comp reform. Tort law focuses only focuses on finding fault. Workers comp is a no-fault system, fundamentally different. In the time that reform was born, industry work was extremely dangerous and the free market economy had not recourse for workers who were injured and could no longer work.

How can an employer properly use the one year statute to bar a claim, generally?

5. The 1-year statute says (71-3-53), "...the commission may, at any time prior to one year after the date of the last payment of compensation, whether or not a compensation order has been issued, or a rejection of a claim, review a compensation case..." (B-31 form - now, "NOTICE OF FINAL PAYMENT"). The court said that, in 1958, only a default would begin the 1-year period. But that promise did not hold true. While filing the B-31 begins the 1-year period, failure to properly file a B-31 at all, failure to file a new one when needed, and failure to file one properly have ALL resulted in allowing claims over one year after the limitations period. To file a B-31 properly, the employer must: Have a Good Faith belief that the obligation has ended (believing that there is a continuing need for medical services means you don't meet this requirement) The Claimant's Signature If Unsigned by Claimant - employer must give claimant opportunity to sign, delivery two copies of the completed form to the commission, one for filing and one to be marked and returned, AFTERWARDS sending the completed file to the claimant by certified mail (denial of receipt of notice may unbar claim) with a letter of intent that the obligation is complete and the claimant has an opportunity to be heard before the case can be closed - then the limit starts A form with minor inaccuracies or delivered late can still begin the period All interested parties must be given notice and opportunity to be heard (dependents, claimant, medical providers) (for a minor, period does not begin to run at least until maturity) Only the final delivery of notice begins the limitation period Gibbs v. Bass - until there is a default in the furnishing by the employer of the medical services and supplies contemplated by WC, the statute of limitations which bars a claim for compensation within a specified time from the payment of the last monthly installment of compensation would not begin to run. In other words, furnishing of medical services/supplies tolls the statute of limitations so that the same will not take effect until the employer or carrier is in default in the obligation to furnish the same for such period as the nature of the inquiry or process of recovery may require.

If an injury produces temp total and then later perm partial benefits, can they collect more than the statutory maximum?

A combination of multiple disability payments cannot themselves exceed the overall maximum cap in MS WC law. So if your temporary total disability and permanent partial disability add up to more than the maximum recovery, payment will stop early.

What are the two general time bars to WC claims in MS?

A. Provisions, Principles and Problems - there are two time provisions that are important. The two-year statute (71-3-35(1)) bars claims for benefits for medical services, disability, and death. The one-year 71-3-53 statute can bar claims for medical services, disability income benefits, and claims for further death benefits to dependents. These two statutes conflict with each other and are poorly written, leading to conflicting and confusing case law.

What's a 13(j) settlement and when can the commission reopen a case after one and review it?

Armstrong Tire v. Franks - there is a system for voluntary payments, unless the employer and carrier controvert the claim. The employee in this case had a weekly award for 100 weeks on a 50% disabled arm, but wanted to get a lump sum settlement to pay accumulated debts. The employer paid the sum and filed a B-31. A month later, the claimant filed for more benefits, introducing evidence that his arm was now 100% disabled. The commission has the authority to find there was a mistake in determination of fact, and can reopen the claim under Section 21. (abuse of discretion standard) Here, discretion was not abused because the previous finding of 50% was erroneous, and therefore the award and lump sum based on 50% permanent partial disability was also erroneous. The commission can make a redetermination at any time short of the running of the statute of limitation. Lump sums are within the discretion of the commission to grant based on the claimant's need, which is based on section 13(j). It is not a settlement like a normal settlement. The employer need not be party to the application. A section 13 lump sum is not a binding agreement on the parties which precludes reopening the case. Lawrin v. Frazier - having requested and received payment of a 13(j) lump sum for permanent and total disability, and having refused surgery which would, in medical opinion, substantially reduce her disability below total disability and probably would enable her to return to work - is the claimant estopped to demand additional medical payments from the employer-carrier for the surgery she had previously declined? The court said there is no estoppel for future benefits (either for disability, as in Armstrong, nor here, for medical) after signing a 13(j). Dixon v. Green - the commission does not have to reopen a claim under section 21 when there was an actual "settlement" (a 9(i) compromise settlement which requires the parties to agree, unlike a 13(j) settlement) between the claimant and the employer and no indication of fraud or unfair advantage. The commission properly approved the settlement under section 9(i) and had not reason to have to reopen under section 21.

What is the effect of a foreign WC claim on a local common law claim?

As a general rule, when an employee sues an employer in tort in one suit, it will not override the tort immunity that employer has from WC in another state. The court has said that the state where the injury occurred is the state which the laws of immunity apply, granting immunity. But in another case, the court applied the law of the state of employment, also giving immunity. The cases, then, are consistent only in the result being immunity. As long as some state with a sufficient interest would grant immunity, it would seem there is immunity.

Are volunteers ever "employees"?

Aspen Highlands v. Apostolou - the plaintiff agreed to be a snow patrolman on the defendant's ski slopes. He wasn't paid but he arranged for free ski passes for his girlfriend and wouldn't have agreed without the passes. While patrolling the slopes, he was injured and filed for WC. Defendant denied the claim on the basis that 1. He was a volunteer, not an employee, 2. Didn't receive wages, and 3. The WC act specifically excluded snow slope volunteers from recovery. Rule: the basic definition of employee is a person in the service of the employer under any contract of hire, express or implied. This was satisfied because the plaintiff gave up a right and took on a duty in exchange for certain benefits from the defendant. Rule: "wages" - a ski pass is not a form of wages as defined by the WC statute, but the applicability of the WC statute is not contingent on receiving wages enumerated by the statute. Rule: a volunteer is a person who gives his services without any promise of remuneration. It is unnecessary to determine whether the ski pass was a form of "remuneration" or a "fringe benefit" because while his ski pass may have been a fringe benefit (all snow slope volunteers got one), the one he negotiated for his girlfriend was negotiated for and not part of a common practice by the defendant. In essence, since the agreement was that the plaintiff was obligated to perform ski patrol duties and the defendant was obligated to give the girlfriend daily passes, there was an employment relationship that fell outside the scope of volunteer work contemplated by the statute. Notes: in a similar case, a snow patrol worker was not an employee, but an "individual assisting another with a view toward furthering his own interests". - Payment of wages is always at least a factor in determining employment, but not always dispositive (but should almost always prove employment DOES exist) - Student teachers could be an employee of either the school they receive credit from or possibly the school they work at (student teachers are not employees in MS - 71-3-3(d)) - An off duty but on call police officer might be within the scope of employment if he helps direct traffic during a flood (emergency) (more likely than a citizen) - Farmers who agree to help each other out probably not mutual employees of each other - "mutual assistance" - Someone paid money more as an allowance may or may not trigger WC (ie, CEO's son paid 35.00 a week so he would stop asking for money, but he did occasionally do work, courts could go either way) - Third parties could be employees under WC: a caddy was paid by an individual golfer but was held to be entitled to WC. (Waitresses used to not count as employees; paid by tips) - People who volunteer services during emergencies have gone both ways, but usually are not employees Bradley: we all know that a contract require consideration. The worker was not paid, but he did get something in exchange for his work: a ski pass for his "friend". The dissenting judge did not think this amounted to employment. Similarly, in MS there was a case where a volunteer at a golf course was injured and filed a tort suit against the owner, and the issue was whether he was an employee. The notes bring up the fact that you can be an employee even if you receive your wages from a third-party other than the entity you sue as employer for WC.

What's a 9(i) settlement and when can the commission reopen a case after one?

Bailey Lumber v. Mason - an illiterate man entered into a 9(i) settlement after a back injury. His doctors had not released him to work and said he was permanently totally disabled, but his employer took him to a distant doctor who said he was partially disabled and that part of it was due to a preexisting condition. At no point before settling was he represented by an attorney. At no point was he advised that he could get more money than 6.5k. The WCC officials who spoke to him did not advise him of hits rights. 71-3-29 ("9(i)") settlements are good because they let the parties settle without a long process what the injury is worth, but they shouldn't be used to railroad workers into bad agreements because 71-3-29 says that the purpose of a compromise settlement is to do what is best for the worker. The court went on to say that there was no reason for distinguishing between a compromise settlement and a commuted lump sum because both are compromises. 71-3-53 (Review of Award by Commission) draws no distinction between the two and its purpose is to give the commission the authority to correct mistakes - both mistakes due to change in conditions or a mistake in determination of facts. Therefore, the court ruled that his 9(i) settlement should be reopened under section 21, under the authority of 71-3-53 (the one year limit), finding that the worker had been taken advantage of through an unfair advantage as mentioned in the Dixon case. Metal Trims v. Stovall - again affirming that a mistake of finding of fact is grounds to reopen a 9(i) settlement, where facts arose showing that the claimant at the time of the settlement was actually permanently totally disabled by an injury that was causally connected to the compensable injury.

When is a traveling employee within the course of employment?

Ball-Foster Glass v. Giovanelli - The "travelling employee doctrine" also known as the "commercial traveler rule" or the "continuous coverage rule" is the majority rule for travelling employees. A travelling employee is considered to generally be continuously in the employment during the entire business trip, except during a distinct departure on a personal errand. The risks associated with eating, sleeping, and personal needs away from home are an INCIDENT of the employment even though the employee is not actually working at the time of injury. The employee is subjected to hazards he or she would otherwise be able to avoid. In this case taking a Sunday stroll to the park was not a distinct departure from the course of employment on a personal errand. Both the employee's wages and expenses for the trip had been paid. The dissent argued that it was a personal activity, but the majority stressed how the departure was not distinct, arguing that to restrict coverage to the hotel room would unduly limit the purpose of the statute. In a MS case, the court listed "seven exceptions to the coming and going doctrine." 1. When the employer pays the employee for the travel, provides the vehicle, pays for the time during which the employee was travelling (even if the payment was not FOR the travel) (ie, a woman was paid as if she worked until 5:00, knowing she would leave at 4:20, and she was injured while travelling home between 4:20 and 5:00) 2. ...

what are the four categories of WC benefits?

Benefits fall into four categories for WC: 1. Medical - 71-3-15, G Rule 9, 12 2. Disability (What we will spend the most time talking about) 3. Death 4. Rehabilitation (MS 71-3-25)

Does MS EVER allow for enterprise immunity?

Biggart v. Texas Eastern Transmission - In the days of cases like Index, only the employer got immunity. A few years later, people like Stroup and Green were getting immunity. Now we move to the 70s - Texas Eastern, owner of an interstate pipeline, hired River Company to help with a project, and River employed Biggart. Biggart was killed on the job when he was helping to dig up some defective pipes. Just like the Robertson case, although Biggart was not paid by Texas Eastern and received no pay from them, he was an employee of both Texas and River at the time of his death because Texas Eastern had the right to control the details of his work by virtue of the fact that it had the right to control River's work. Bradley: One argument is that Texas Eastern had the right to control, in which case the reasoning in Green would apply and create immunity. And the court agreed. But the court went on to say that Brown and Root would also be immune, having contracted with Texas Eastern - but on what basis? This, therefore, seems to be an example of Enterprise Immunity - all the employers on a common project got immunity, some of which make sense, but some of which lack any explanation. The court has continued to reject enterprise immunity, but these cases seem to have snuck in. Pitts v. Shell Oil Co. - unlike the last case, it was less clear here whether Pitts, a roughneck drilling employee, was an employee of Shell, or only the Pruett drilling company. The contract between shell and pruett described the relationship strictly as one of an independent contractor: shell was worried only about the results. The federal district court said this case presented a genuine issue of material fact as to whether Pitts was an employee of shell, because the question turns on Shell's right to control and the nature of the work. The evidence was mixed as to who Pitts took orders from - a shell employee or a Pruett employee. It was important that the contract between shell and pruett was for this one specific hole to be drilled, that pruett was to bear part of the risk of loss, that Pruett had to supply many of its own tools, that shell might not have had the power to fire Pruett employees from the job, and so on. This previous string of cases was broken by this federal case, where the court didn't buy the immunity argument.

Are injuries caused be rescue attempts arising out of employment?

Blakeslee v. Platt Bros. - the plaintiff suffered a non-compensable seizure (personal), and was restrained by fellow employees in an attempt to help him. Their attempts at helping him and resulted in further injuries, the state supreme court reversed the lower court rulings that the further injury was also not compensable. The test the court used was that if an act is one for the benefit of the employer or for the mutual benefit of both an injury arising out of that act is compensable, but an act performed for the exclusive benefit of the employee is not compensable. Since the restraint was not only for the plaintiffs benefit but also to prevent injury to fellow employees, it was compensable. Notes: - In an Arizona case, the appellate court said coverage should be allowed, limiting the standard of review, raising the issue of what the role of a court is in reviewing the decision of an administrative agency. The court gives deference to finding of fact, but, review of legal conclusions is de novo. Questions and conclusions of law are within the final authority of the judiciary.

What test(s) does MS use to determine whether a worker is an IC or an employee?

Boyd v. Crosby - Boyd was the employee of Durham but was suing Crosby, the head of the logging operation that Boyd was working on. (because MS didn't have a statutory employment rule like Virginia?) The question was whether Boyd was an independent contractor or an employee, and the Court used elements of both the Right to Control Test (the dominant test) and the Relative Nature of the Work Test, (important to consider) noting that hauling logs was an integral part of Crosby's business and that Crosby had the final say on how the work was done. They ruled Boyd was an employee. Crosby's defense was that neither Boyd nor Durham were Crosby's employees, but rather, independent contractors. The issue then was, to determine whether Boyd was Crosby's employee, to determine whether DURHAM was Crosby's employee. Crosby's contract with Durham was specifically for hauling, but had noteworthy restrictions: 1. No hauling when the ground is wet, 2. And no hauling when there is no storage space ready (but Bradley says neither of these come close to the right of control necessary to negate independent contract, but they mattered to the court). 3. Additionally, Crosby provided a shop for people like Durham to get repairs on trucks made, and deducted the cost of the repairs from Durham's pay (Bradley sees this as a much more persuasive factor). 4. The contracts were short-term, amounting to a right to fire on Crosby's part. 5. Despite the shortness of the contracts, Durham worked solely for Crosby - he had no business aside from his relationship with Crosby. 6. Finally, it is worth noting that the work Durham was doing was a regular and recurring part of Crosby's business operation. Bradley says the repairs, the length and exclusivity of work, and its regular and continuing nature as integral part of Crosby's business were the key factors that caused the court to decide Boyd was an employee. Control of the "details" is not as important in WC as it is in Respondeat Superior. Elements of MS Right to control: 1. How skilled the work is, 2. How separate the work is from the work of the primary, and 3. To what extent the work can be expected to carry the burden of accident. Elements of MS Nature of work: 1. Continuous or intermittent, 2. Duration amounting to hiring for continuous service rather than a specific job, 3. An integral part of the primary's regular business This case marks turning a corner in MS courts: MS applies the control test, but relies greatly on the nature of the work doctrine. Empire Home Builders v. Guthrie - again affirming that MS seems to use both the Relative Nature and Right of Control tests, this time affirming employment noting that Empire withheld social security and taxes from pay, that Guthrie agreed to work exclusively for Empire and not hold himself out to the public, Empire had the right to fire, and Guthrie's work was not like an independent business. Guthrie did plumbing work for empire: he had a series of short-term contracts for individual jobs on houses. When Guthrie bought parts, he would charge them to Empire's account.

When is an injury caused by horseplay within the course of employment?

Burns v. Merritt - plaintiff was injured when at the end of the work day, he was handed a bottle of clear liquid he thought to be gin, by a co-worker. It was a dangerous liquid and he was injured when he drank it. It is a question as to whether horseplay is reasonably incidental to the workplace. Another question is as to fault: if you did something outside of your employment that would put you at fault, you should not be covered. Under this theory the aggressor could not recover, but the victim could - this theory brings fault back into WC, which is supposedly a no-fault system.

What notice must an employee give the employer in a third party suit?

Bush v. Dependents of Byrd - the employee is required by statute to notify the employer or carrier within 15 days of filing the suit. But failure to do so does not apparently bar a claim by the employee?

What is the "borrowed" or "lent servant" doctrine in MS?

Clark v. McGill - Clark was an oil drilling "roughneck" employed by Hurst to drill and also was occasionally asked to move equipment for Luther McGill, the equipment hauler. Clark was injured when someone from McGill shouted for him to grab a line and a beam fell on his foot, and the question was whether he could sue McGill in tort. The issue is whether he was an employee of McGill, making them immune to tort and WC the exclusive remedy for Clark. This is the "lent employee" or "loaned servant" doctrine, and it was successful in the lower court. Another doctrine is "Enterprise Immunity" - whereby all workers on a common project where WC is secured, cannot sue the various employers. In MS, though, Enterprise Immunity did not exist. So only Hurst was immune unless McGill was also Clark's employer. There is a presumption that the employee was continually employed by the general employer. To overcome this presumption and show you have barrowed the servant, you must clearly demonstrate that: 1. a new temporary employer has been substituted for the old, 2. which shows that a contract was made (explicit or implied) between the special employer and the employee, 3. by proof that the work being done was essentially that of the special employer, and 4. proof that the special employer assumed the right to control the details of the work. Demonstrating some control is not enough. In this case, there was no evidence of a contract of hire. Duration was a key fact: if Clark had been called to stop his oil drilling work and go help haul equipment for a few weeks with McGill, you would have a pretty strong argument for loaned servant.

when is Injury Caused By Employee Wilful Misconduct And Violations of Rules and Instructions within course of employment?

Daniel v. Department of Corrections - the employee injured himself out of depression over being disciplined by his employer for his sexual harassment of a lawyer. The courts went back and forth over whether or not the statute covered him. "If an employee is injured by his own wilful, intentional misconduct, there is no coverage." The court ended up deciding his injury was the product of his own intentional conduct and not compensable.

Is disease "accident" covered by WC?

Disease was originally not covered by WC. But over time WC statutes have been changed. Occupational Disease is now often covered. There is no comprehensive definition of Occupational Disease. Some statutes define it as either, 1. Any disease, other than hearing loss, which proves to be due to causes and conditions which are characteristic of and peculiar to a particular trade, occupation or employment, but excluding all ordinary diseases of life to which the general public is equally exposed outside the employment (kind of like positional-risk doctrine) 2. ??? Connelly v. Hunt Furniture - the claimant had to handle a corpse missing a leg which was full of gangrene. He was infected and died. As a whole, the court ruled, his infection and later death were within the meaning of accident from a common-sense view. City of Nichols Hills v. Hill - contaminated dust, which caused or aggravated histoplasmosis was breathed in by the plaintiff while mowing for the defendant. On the day he breathed in the dust he had never had breathing problems before but his eyes nose and throat became irritated and he had to go to the doctor. His condition deteriorated to the point of disability. There were fact questions as to when the claimant was infected - was it by the dust or did the dust merely aggravated an infection that already existed? Either way, the court ruled that where accidental injury aggravates or lights up a pre-existing condition, the resulting disability is compensable. Therefore, the plaintiff's award was affirmed. Notes: 1. Workers compensation is not supposed to be health insurance, but some diseases are so closely related to the claimant's employment and so similar to personal injury that they merit compensation. Where the statute does not mention disease and also says the injury requires an accident, there may be a problem, though. 2. One way states handle the problem is to include compensation for diseases that follow an accidental injury but exclude all other disease. (ie, only disease that results naturally from an accident) 3. Connelly holds that if the disease is caused by the entrance of germs into the body at a definite time through an abnormal channel, there is a personal injury and an accident. Many courts follow this rule. (ie, coverage for bug bites on the job, germs entering cuts got on the job) 4. Now many courts recognize coverage even for germs that enter the body through normal channels such as where the claimant experienced some unusual occupational exposure to the disease (ie contracting a disease exposed to while working at a hospital) 5. When the state has a separate Occupational Disease provision, infection may be covered as an injury, or a disease, both, or neither.

What is the "positional risk doctrine"?

Donahue v. Maryland Casualty - the issue is whether the injury arose out of the employment. The court again looked for a causal connection. The court said unless the employment was a contributing proximate cause, no coverage. If the risk he was exposed to he would have been equally exposed to apart from his employment, then the injury does not arise out of it. Sliding on a public street was not peculiar to the work, but was a hazard common to persons engaged in any employment or anyone walking on a street. (235) This doctrine only applies to "neutral risks" - risks neither the result of the employment, nor the personal activities of the plaintiff, but rather, neutral as in the example of slipping on a street or being attacked by some random berserk person. Either a dual test or unitary test court may apply this test. Katz v. Kadans - these cases have in common, along with Whethro, the question, "What is a neutral risk, and how is it dealt with?" This question comes up again in cases much farther over. On 256, in the Hartford v. Cardillo case, the question of neutral risks comes up again. In Katz, a milk wagon driver is attacked by a random berserk person. There was no specific reason for the attack - the attacker had nothing against the Milk truck driver, nor a personal grudge against the driver. The court doesn't really speak of that as a neutral risk, but it should have - the source of the risk was neither the work nor the worker. Another way to think of it, which courts sometimes do, is to ask whether the work increased the risk of the injury (the risk is peculiar to the employment), or whether a general member of the public would be equally at risk. In Donahue, the court ruled that slipping on the ice was a risk that was common to the general public, but the court could and maybe even should have recognized that the job increased the risk of slipping on ice by requiring the employee to be on the ice. Similarly in Katz, if a milk driver is required to spend a lot of time on the street, it seems like his risk of injury on the street is increased by the employment. Suppose someone walks into a bar and fires a gun and it hits the bartender - he had nothing against the bar or the bar tender. The older cases would probably say there is no coverage. But later cases seem to recognize the positional risk doctrine toward intentional acts. Older cases would probably ask whether being in a bar increases the risk of being shot. This case denied the positional risk doctrine, but today there would probably be coverage under the positional risk doctrine since the work placed the worker in a position to be subject to the neutral risk.

Is a prime contractor immune or liable in tort when a subcontractor's employee is injured?

Doubleday v. Boyd Construction - The plaintiff, Doubleday, had already received WC benefits from the subcontractor, Ratliff, for two reasons: Boyd, the general contractor, required all its subcontractors to secure WC coverage, and the STATUTE required it (and has penalties for failing to acquire it). Doubleday then sought to sue the general contractor for negligence on the theory that Boyd was not an employer because the Statutory Employer statute only applies when the sub does not have coverage. The test for whether the prime contractor in a contractor-subcontractor is a statutory employer under the Mississippi code is a four factor fact based test: 1. Whether you have a subcontractor working under the prime contractor for a project, 2. Whether the injured person was an employee of the subcontractor, 3. Whether the subcontractor regularly had 5 or more employees when the plaintiff was injured, and 4. Whether the subcontractor had failed to secure compensation insurance The injured plaintiff argued, then, that since the subcontractor had acquired workman's compensation, this rule did not apply and the general contractor was liable in tort (since he wasn't liable for WC). The court disagreed, holding that it would be paradoxical to allow the general contractor to be immune from suit if his subcontractor failed to secure WC (making him liable for WC), but to make him liable to suit if he made sure his subcontractors acquired it. So for all intents and purposes he was an employer and immune in this case. So, whether or not a prime contractor is the one liable for WC (depending on who acquired WC insurance), he is immune from tort suit as a third party by injured workers on the project as a matter of policy. In essence, Doubleday held that when a highway construction project's general contractor subcontracted out a portion of the construction project and required the subcontractor to secure compensation benefits to its employees, the contractor became a statutory employer entitled to the protection of the exclusiveness of liability in the statute. Even hypothetical coverage equals immunity. This seems a little unfair because it allows the prime contractor to contract away liability while avoiding quid pro quo. Similarly, in Mosley, the general contractor was held to be immune from suit by an employee of an uninsured subcontractor, when he had not yet received WC benefits. Nash v. Damson Oil - Damson Oil was the lessee of an oil well and had a master service contract with Trigger Contractors, an independent contractor, which called for Trigger to do "certain work with respect to oil or gas wells, as well as any other services" Damson required until the contract was up. The language of the contract specifically pointed out that it was an independent contract - the typical right to control language was used. The contract also provided that Trigger would procure WC insurance. Nash, the plaintiff, was injured when he tightened a valve according to faulty instructions given to him by W.L., an employee of Damson. This case, looking back at Doubleday, turns on whether Damson Oil was the kind of "contractor" that the statute contemplated. The problem with Damson's argument is that it is not enough for a "contractor" to require its subcontractors to acquire WC in order to become immune. It must also be the kind of contractor contemplated by the statute, meaning that it would have been liable for WC if its subcontractors had not acquired insurance. (the basic formula of quid pro quo.) The benefit of immunity should only go to those who would at least in theory be burdened by liability under the act. Because Damson was not a "contractor" like the defendant in Doubleday, it is not entitled to immunity. Trigger was not a "subcontractor" like the subcontractor in Doubleday. Doubleday had a "general" or "prime" contract, but this case did not. Damson had an ownership interest in the well, pointing towards it not being a general contractor on a larger project. A merely requiring B to carry WC will not in all situations cause A to be immune from suit. Brown v. Williams - Byrne, the owner, had a contract with Williams Drilling, who had hired Jones Casing to do part of the work, who employed Brown and was insured when Brown was injured. Brown sued Williams, because he was injured while casing the oil well that was being drilled by Williams. Pevey, the supervisor of the drilling operation, called Jones Casing Crews and requested a crew to set the casing pipe of the well. Brown was one of the casers on the crew. Williams had agreed to take on the drilling contract with Byrne in exchange for money and an ownership interest. The question was whether the ownership interest made Williams like Damson Oil, who was not a prime contractor because Oil Well was their business. The court answered no, saying that Williams was a prime contractor contracting out the drilling of the well. Thus, Williams would be liable under the contractor statute. Pevey, an employee of the held immune employer, was also held to be immune, hinting again at a form of Enterprise Immunity. Morris v. Blain and Sons - Morris was killed while driving a truck in the performance of his job for A&B Paint Stripping Co. A& B was a subcontractor on a highway project which Blain and Sons was the prime contractor. The subcontract required A and B as well as Traffic Control Products to procure WC. The court first rejected the idea that it mattered whether the suit was for wrongful death or personal injury. Blain and Sons were a statutory prime contractor just like in doubleday. Traffic Control, however, was different. This presented the question of whether a fellow subcontractor should receive immunity like the prime contractor. (Enterprise Immunity?) The Court held that no, the fellow subcontractors on the same job do not benefit from the Prime's immunity. (Subcontractors may have to supply WC for their own employees, but they are never in a situation where they would be liable for each other. So no quid pro quo.) The court distinguished this situation from other cases where it seemingly granted Enterprise Immunity by saying that those decisions rested on the rationale that making a fellow employee liable in tort would defeat the remedial purpose of the WC act because the employer could recoup its compensation payments from the co-employee/tortfeasors, shifting responsibility for accidents away from the party best able to distribute the cost as part of its business expense - the employer. So, the limit of "enterprise liability" as an umbrella is to only the prime contractor's employees and immediate employer's employees. Since Traffic Control was not an employee of Blain and Sons, but rather an independent contractor. Therefore, it is in a better position than a mere employee to disburse the cost of WC. Note: one employee has no obligation to provide WC to a fellow employee - forming the basis for the assumption that he doesn't get immunity. That issue is addressed in the next case.

Are Injuries Caused by Fights and Assaults Among Co-Workers "arising out of" the employment?

Hartford Accident v. Cardillo - assault by a co-worker was deemed to be an injury arising out of employment, discussion of the positional risk doctrine. There is a natural "friction" between workers, which is the natural outcome of employment - a result of employment. When you put people together for a long time every day, eventually they will get pissed off at each other. This is a risk arising out of the employment and reasonably incidental to the employment. Notes: 1. Where assault arises out of a dispute among co-workers concerning the performance of the employers work, tools, protection of property, collection of money owed the employer, or some other aspect of employment, compensation is generally awarded. 2. Many fights among workers that start over non-work matters are still often covered 3. In many courts, though, when the dispute is "purely personal," it is not covered if the employment merely brought the employees into contact 4. A few states specifically exclude assault where the employee was targeted for personal reasons and not assault directed at the employee as an employee or because of his employment 5. Other statutes specifically include only assault targeted at the employee as or because of his status as an employee 6. Initially only the victim was covered, but because this re-injects fault, the doctrine has been retreated from 7. Willful or premeditated conduct that results in assault is not covered under many state statutes, including the federal laws, where the assault wasn't the result of a flair of temper, but rather, planned and carried out In Re: Tenth Cicruit's Question v. Martin Marietta Corporation - the plaintiff was assaulted and raped by a janitor while walking between the workplace and the cafeteria. She wanted to sue the employer in tort so it was necessary to decide whether the employer was immune under WC. The court applied the positional risk test to the intentional assault by the janitor. It decided the rape was a neutral risk because the janitor did not know her personally and did not rape her for any personal reason about her, but rather because she was the first one to walk by. The positional risk test is a but-for causation test. The positional risk test supports coverage where the employee was injured by a stray bullet, a roving lunatic, and other random stuff where the only connection of the employment with the injury is that its obligations placed the employee in the particular place at the particular time when he was injured by some neutral force, meaning by neutral neither personal to the claimant nor distinctly associated with the employment. Intentional or unintentional character of the injury is therefore not dispositve. "arising out of" refers to the cause or origin of the injury. Although the victim was on her lunch break, she was where she was at the time of injury because of her employment responsibility. She was in a place she might "reasonably be" due to her employment. Time, place, neutral force. It was not necessary that the worker be performing her duties at the time of employment. Walking to the cafeteria to eat was something she could reasonably be expected to do because of her employment obligation.

Can an employer get in trouble for trying to get out of WC liability by encouraging workers not to file claims, or through other behavior?

Frampton v. Central Indiana Gas - even though the plaintiff was employed "at will", it was still within the purpose of the WC statute which says that employers may not use any "device" to avoid the obligation of the statute to fire the plaintiff in retaliation of the statute. So while there would normally be no injury for firing an employee without cause, here it contravened the statute by incentivizing employees not to make WC claims. Notes: - Several decisions keep this one in tight limits. For example, firing an employee for being absent from work due to injury is allowed. Or based on threat to sue for non job related injury. Or refusal to drive under dangerous conditions. Or lying to employer about job related matters. - MS has yet to address the issue? Two MS cases have touched the issue. The public policy exception in MS is very narrow - as it is with most states. Neither of the two MS cases have recognized that the public policy exception would allow a tort suit for wrongful termination. A third case on page 146 brings up another question: where the plaintiff was not fired, but rather, claims to have been discriminated against on account of her actions in opposing the employer's policies in treating people who had been injured. One question was: is discrimination, as opposed to retaliatory firing, actionable under the employment at will doctrine's public policy exception? That case was Touchard v. La-z-Boy - the doctrine of retaliatory discharge extends to both actual and constructive discharge (ie where working conditions are made so bad that a reasonable employee would consider them intolerable). But it does not extend to retaliatory harassment or discrimination. Nor does it extend to an employee who opposes the employer's treatment of other employees entitled to coverage

What happens in MS when a worker receives two injuries from one occurrence?

General Electric v. McKinnon - the worker injured his hand on a conveyor belt, then twisted, injuring his shoulder and back. The former was a scheduled member, the latter a whole body. The question was whether he could recover for both and how. Where two separate and distinct injuries arise out of an occurrence, since there is no exclusiveness provision in the statute, the employee can recover for both injuries, but not more than the overall maximum.

In determining whether a worker is an employee or an Independent Contractor, what is the Relative Nature of the Work Test?

Hanson v. Transportation General - the issue was whether an injured taxi driver was an employee of the taxi company or an independent contractor. The driver said he was an employee of the taxi cab company, while the company said vigorously that it was an independent contractor. In MS and other states, the coverage of Workers Comp insurance is not governed by contract, but rather, by statute. The employer pays a premium for the insurance, a percentage of payroll. A company in construction will have more injuries than a law firm, so the premium will not be the same. Companies with good safety records pay lower premiums. Likely in this case, the employer was not paying a premium on the cab drivers, and if it lost and had to pay its premium was going to go way up. Issue One: which test to use - there are at least two possible tests. • First is the Relative Nature of the Work test: whether the worker's performance is an integral part of the regular business of the putative employer. This is a two part test, - 1. Asking about the character of the work involved. The claimant must show A. Degree of skill involved, B. degree to which work is a separate calling or business, and C. extent to which worker could reasonably be expected to carry the burden of accident. (we assume the employer could absorb the cost of injury) - 2. Asking about the relationship of the work to the putative employer's business, the claimant must establish: A. extent to which the work is a regular part of the employer's regular business, B. extent to which work is being performed continuously or intermittently, and C. whether the work is of sufficient duration to constitute continuing services rather than a particular assignment. This court used the right to control test, not wanting to complicate the process (Bradley did not like this reasoning). Issue two: whether the cab company was an employer - the court concluded that the defendant took adequate precautions to avoid having too much control, by leaving it to cab drivers to decide when and where they would take their cabs on the road. (This affirms the commissioner's report).

Are unexplained death/injury arising out of the employment?

Hypl v. Industrial Com'n of Arizona - the plaintiff suffered injury while delivering wire but had no memory of what happened and the evidence failed to show anything other than that he showed up somewhere severely injured. His claim was denied. The issue was whether there is a presumption that his injury was compensable. Normally the plaintiff has the burden to prove his claim, but there is an unexplained death presumption which shifts the burden of production. Generally, when an employee is found dead with no explanation at the place where his duties required him to be, in absence of evidence that he was not engaged in the master's business, there is a presumption that the accident arose out of and in the course of employment. The requirements are relaxed. The policy for the rule is that the employee is the only possible witness and he's gone. So in this case applying the doctrine was okay because the plaintiff could not remember what happened. Notes: - In this particular case, the facts were very strong. If they hadn't been, the decision might not have gone this way.

What is the test for "accident" in MS?

In Brookhaven Steam Laundry v. _____, the worker's death, having been shot and killed during paid work time, was ruled as a compensatory accidental death arising out of and in the course of employment. But after the case was decided, the makeup of the court changed, and on a motion for rehearing, the court changed its decision. Looking at the language of the MS statute, the court ruled the injury was not "accidental," the language in question being, "caused by the wilful act by a third person directed against the employee because of his employment while so employed and working on the job." There was no proof that the act was directed against the man BECAUSE of his employment. This case established a MS rule that, as a matter of statutory interpretation, where the injury is caused by the wilful act of a third-person, there is an additional burden on the employee to show not only that the injury arose out of and in the course of employment, but that the attack was directed at him BECAUSE of his employment. Many states do have exclusions for attacks by third parties for personal reasons, not directed against the worker as an employee. But the MS statute says "included..." indicating not an additional burden of proof, but rather that EVEN such injuries are included. So the court seems to have dun goofed. In one case on B7-8, Big Two Engine v. _____, though, where the worker pulled over while working to help someone stuck on the side of the road, who then proceeded to strike and rob him, leaving him a head injury. In this case, the court said that, in regards to the third party wilful injury doctrine, the statute employs INCLUSIVE language, not exclusive, and is to be construed broadly. How would the worker prove the injury was directed against him because of his employment? All that is required is a rational connection between the employment and the injury. (Relaxed notion of causal connection, less than what torts would require) This sounds like overruling the previous case. Instead of approaching the case as a rescue case or a neutral risk, it said this was not a deviation and a risk his employment subjected to, and he did NOT have to prove he was attacked because of his employment. In another case, Total Transportation Co. v. ________, a man and wife working together for the company were driving a truck for the company. They received a load in Washington and headed for Mississippi. The truck began to run poorly in Wyoming, so they pulled into a town and found a repair place and have a meal. The husband was eating while the wife was at the repair shop with the truck. He caught a ride to the repair shop, but was shot and robbed by the driver. He was shot during paid work time. The wife filed for WC. The finder of fact determined that the time the husband spent playing pool and drinking beer at the café constituted a deviation from the employment. However, catching the ride to the repair shop was a reentry to the course of employment. The MS SC and CoA reversed for different reasons. The CoA didn't like the idea of the worker going off and drinking beer all day then trying to get coverage. The SC agreed with the CoA result, but listed different reasons: the worker was on an "escapade" off drinking beer and playing pool, which was outside the scope of employment. This raises a question of standard of review: the commission's finding that the worker had reentered was a finding of fact. Wasn't it? What happened: who what when where why and how - those are questions of fact. What those facts mean is a question of law. In 2005, the court reverted to its old ways, in one case saying an injury was not covered against the wilful attack of a third party because the attack was not directed to him as an employee. So it is unclear how MS would handle this issue today.

What can a "statutory employer" do when he has to pay out of pocket because the subcontractor did not get WC insurance?

In many states where we have statutory employment, the statutory employer can go after the subcontractor for indemnity. In MS this is not so.

In MS, where there is a pre-existing condition that manifests itself at work, when is it sufficiently connected to the work as to fall within coverage?

Ins. Dept. of MS v. Dinsmore - the plaintiff was injured when some kind of heart issue arose during employment. Expert testimony conflicted as to whether the condition was caused by work, exacerbated or contributed to by work, unrelated to the work completely, or cause part by work and part by her unrelenting nature. Disease or illness not caused by the work which merely manifests itself during the work is not compensable. A dormant condition, however, precipitated by specific exertion or from the special hazard of work not experienced by the public generally, is compensable. The work must at least be a "contributing cause." It need not be the sole or even primary cause, but substantial contribution with casual connection is required. There was enough evidence on the record for jurors to find that the claimant's stress from the particularly demanding job brought it within the realm of the power of the jury to find that the injury was compensable. "Stress and strain" may be a legitimate contributing cause to an injury. While it was true that the employee's determined nature and her underlying arterial condition played parts, the employer takes the employee as it finds her. It was enough that the work contributed. If you look at the statute, it now adds the contributory language that codifies the court's opinion. Bradley asks, did the medical evidence show that the injury was connected to the work? In an overarching way, we want to look for connections to the workplace. Riverside v. Russell - also holding that between thrombosis and a hemorrhage, there was sufficient proof when the plaintiff showed that there was no preexisting condition, no history of health problems, no narrowing of the arteries, and strenuous labor at the time of injury Charles Clark v. Robinson - the claimant had a back condition, not caused, but aggravated by, his work. He was killed on his way to the doctor to have the injury treated. The rule is that when an employee suffers additional injury during a trip to the doctor for a compensable injury, the new injury is also covered. So the question is whether the aggravation of a preexisting back injury is compensable. The aggravation was compensable. Therefore, when the claimant was killed on his way for treatment (treatment not for the purpose of furnishing a WC claim, but rather, treatment needed directly due to the compensable injury), the death was compensable. Protip: you can ask, was it more likely than not? Or, to a reasonable medical certainty? Or something else. In the following case, the doctor never answered that in the affirmative. "Possibly" is not enough. Segar v. Garan - surgeon did surgery on the patient's right hand to relieve carpal tunnel. She was a seamstress for several years. The claimant, who has the burden of proof, would have talked to the doctor ahead of time, to see what he thinks caused the injury. The doctor was willing to testify that the work was connected with the injury: "in my opinion it is entirely possible that the initial problem began as a result of her work." The preceding case, two years earlier, dealt with a condition that was not caused by, but rather, aggravated by the work. Sperry Vickers v. Honea - Occupational Disease - the claimant has the burden to prove that the occupational disease was caused by dangerous conditions at work, but where the claimant presented all possible testimony to connect his working environment as the cause of his disease, that the chemical agents he was exposed to on the job and not elsewhere could have caused the disease, there was sufficient proof to show an occupational disease and coverage applied. In this case, the doctor testified that the medical field could not be sure what causes the plaintiff's medical condition (pulmonary fibrosis). But the court ruled that the plaintiff had bridged the "Causal Gap" by showing that he had a condition, and that he was exposed to the chemicals that can cause the condition. So there was enough to find in fact and support a judgment for coverage. Part of this judgment was about not putting a burden on the plaintiff he could not carry. If it was impossible to show with medical certainty what caused the plaintiff's condition, how could he carry a heavy burden of proof? On the matter of burdens and proof, Substantial Evidence is more than a "bare suggestion," something that a reasonable person could believe. If a reasonable person could not reasonably believe it, there is no substantial evidence, and therefore, there are grounds for reversal based on the standard of review. Courts can also reverse based on improper application of law, failure to follow rules to the point of prejudice, or failure to protect a constitutional right. Bates v. Merchants - medical expert testimony is not essential in every industrial injury case to establish causation - the fact, character and consequence of an accident or injury - but it is necessary in cases where there is a serious question resolvable only by skilled determination and which is not within the knowledge of lay witnesses or members of the fact-finding tribunal. (ie, where the plaintiff falls and breaks his arm, a lay person could testify he was injured; but where this is not so, and there is a question of causal connection, the plaintiff needs expert skilled medical testimony to prove that the injury was connected to the work in order to carry his burden of proof) Additionally, incapacity for work due to a mental condition not resulting from a work-connected injury, but due to other causes, is not compensable.

What's the general rule to determine whether there was a contract of employment, and what are three exceptions some courts will recognize to its end?

Johnson v. City of Albia - plaintiff quit his job on the 15th, and came back the morning of the 16th to retrieve his personal belongings. While there, he discovered his successor who needed help. He went to help him and was injured. The issue at trial was whether he was an employee at the time of injury. To determine employment, we ask whether there was a contract, express or implied, at the time of injury. In this case, the plaintiff had already quit and was only back for personal reasons. In one case, a plaintiff could recover on his way out of the plant, but this is distinguished in that he came back the next day. The majority and dissent differed on whether there was a custom of employees in the area providing training and assistance to their successors in a way which would bring them into the realm of employment at the time of injury. (case might have ended differently if the tradition was well established, or possibly ordered by the employer) Note: other aspects of a contract can come into play, such as misrepresentation (but materiality will be an issue) Bradley: we know that the plaintiff was employed up until a certain date, and that he was injured after that date when there was no longer a contract of hire. The first two courts decided the plaintiff was still an employee or was re-entering employment by going to get his tools, or because he was helping his replacement at the replacement's request. Another argument was that an emergency arose, giving the replacement implied authority to make a sort of ad hoc contract of implied employment. Still another argument is that it was customary for someone who leaves employment to come back to give instruction and assistance to his replacement. All these arguments try to show that the plaintiff's employment extended to the time of his injury. The supreme court of the state rejected all of these arguments. The weakest was probably the argument that an emergency arose because that argument has its origins in tort law. The dissenting judge was persuaded by the argument that there was a custom to come back and help.

What are the general rules for showing that a heart attack arose out of the employment?

Lancaster v. Gilbert Development - a heart attack while shoveling snow was not covered when the claimant had several preexisting risk factors that predisposed him to heart attacks. The applicant's heart attack was unexpected, but there was nothing about his work activities that could constitute an "unanticipated, unintended occurrence different from what would normally be expected to occur in the usual course of events" according to the administrative judge. The finding of fact was that it was a coincidence that he had a heart attack while working, This court had already ruled that an accident occurred even if there was only normal exertion if the result of the exertion was unexpected. The critical factor was the unexpectedness. But the result being unexpected depends on the causal connection between the heart attack and working conditions. There must be legal and medical causation. - Legal causation exists where a claimant with a preexisting condition shows that the employment contributed something substantial to increase the risk he already faced in everyday life because of his condition. When the patient has no preexisting risk factors, any exertion connected with the employment and causally connected with the injury satisfies the test. - Medical causation is proven when the claimant shows that the stress, strain or exertion required by the job led to the resulting injury. The evidence at the hearing failed to show that the work substantially contributed to the heart attack. While it was certainly POSSIBLE the work precipitated the condition, the proof was not conclusive. One doctor said it was 90 percent likely the preexisting conditions caused the attack, and 10 percent likely the work did. Notes: - Heart disease is a large tricky area - The majority or at least many courts award compensation for heart attacks caused by ordinary job stress (like this case, the strain need not be unusual, only the result) - But many courts require a showing of unusual exertion or emotional stress to support compensation for heart attack. Unusual compared to...? the strain may be compared to other similarly situated employees. Or workers generally. Or unusual for that particular employee. - The Larson approach distinguishes between claimants with preexisting conditions and those without. The latter may receive compensation for heart attacks caused by ordinary exertion or stress while the former must prove that the heart attack was caused by unusual stress or exertion. - The claimant must ALWAYS prove a causal connection between the stress and the heart attack. (even under the least burdensome test) usually by expert testimony.

When are Injuries Suffered By Employees Ministering to Personal Needs or Pleasure "within the course of employment"?

Leckie v. H.D. Foote - certain facts pointed toward the injury being personal, other facts pointed toward employment. The plaintiff was injured while cutting slabs of wood. The employee was on the premises, on the clock, getting paid, and cutting wood, for his own personal use. This was no violation of his employment (it was allowed). It got rid of wood the employer would otherwise have to get rid of. Bradley says the operative fact was that he was using an instrumentality of the employer, the power saw, when he was injured. So, the source of the risk, being cut by the power saw, found in its source his employment. But the court found that his cutting the wood for his own use was a "deviation" from his employment, and thus his injury did not arise out of his employment, but rather, from his own personal activity. It probably would not be decided the same way today. The pendulum swings on how statutes have been written and how courts have read them. So, while in Meo being off the premises did not prevent recovery, in Leckie being on the premises did not guarantee coverage. Bradley says the first question is where the source of the risk originated - employment, personal, or mixed. If mixed, was the risk reasonably incidental to the employment? A mixed risk of personal and employment concerns arises, for example, when an employee goes to the bank during work hours because the employer has asked him to work late, or when the worker is on an off-premises unpaid break for lunch - which is different than an on-premises or paid break, and which would change depending on the nature of the risk that injured the plaintiff. In all these situations where the risk is a mixed source of personal and employment reasons, we begin a murky inquiry into whether it was reasonably incidental to the employment.

Is an agreement for indemnification between an employer to indemnify a third party enforceable?

Lorenzen v. South Central Bell - workers compensation acts do not bar a claim for indemnity by the third-party from the employer when that claim is based on an express contract of indemnity. The employer may therefore sue the third party for indemnification notwishstanding the WC statute. Therefore, in this case the employer was able to sue the third party for the cost of WC it paid to its employee since it had an applicable indemnification agreement with the third party. NORMALLY, A THIRD PARTY CANNOT FILE A THIRD-PARTY COMPLAINT AGAINST THE EMPLOYER WHEN SUED BY WORKER IN TORT. But here there was a contract by the employer to indemnify the third-party. But MS CODE ANN. 31-5-41: With respect to agreements for construction or related work, agreements to indemnify for that person's own negligence are void for public policy reasons. This one was valid because it was for electric systems, which were not listed in the statute. Water, sewer, gas, other utilities, demolition, roads, and so on, are all included though.

When does the paying of compensation toll the two year statute?

Martin v. L&A - the payment of compensation under the Florida statute tolled the running of the Mississippi two year statute if it was INTENDED to be made on account of compensation liability, or if the employee reasonably believed it was so intended. Both of those requirements were met here where the employer paid benefits under the Florida statute, failed to file notice in MS, and the claimant believed he was receiving MS compensation. In dictum, the court said that the two year statute would start to run when the benefits ceased. But this is not really consistent with the statute or even other rulings.

What does "accident" usually mean?

Matthews v. R.T. Allen - employee injured loading pulpwood onto trucks by hand. The pain began that day and increased gradually, and was not attributable to any one specific lift or slip or trip. Later that day he had to stop and eventually he had to have a herniated disc removed. Doctors couldn't tell whether the injury formed that day, or formed beforehand and was aggravated that day, or what. "Accident" can include not only injuries which are the results of accidents but also injuries which are themselves accidents. This is the majority rule. An unexpected, unforeseen, or unintended result from usual or customary exertion constitutes an injury by accident even though there is no unexpected or fortuitous cause. The suddenness of an injury is not necessary for coverage. In this case, whether the disc ruptured gradually during previous work and pain or the injury occurred abruptly was not controlling. In either case the heavy labor of the day in question constituted the critical episode which completely incapacitated the man with increasing pain. There was a sufficient "causal connection". Notes: 1. Accidents carry some loaded terms - they are usually "unexpected" which usually simply means the injury itself was not expected, most jurisdictions do not require an unusual event that was unexpected in addition to the unexpected injury, but a few do. 2. Some jurisdictions distinguish between usual and unusual "exertion" in defining "accident". There has to be a special activity requiring extraordinary strain for an accident to occur. (minority) 3. States have often gotten rid of the "accidental" language entirely. It seems to inject fault 4. The real issue is one of causation - did the activity have a "substantial causal relation" to the injury? This is a good approach Belwood v. Industrial Commission - injuries sustained as the result of work-related repetitive trauma are covered under the WC act absent one precise, identifiable incident labeled an "accident" when the claimant meets his burden of proof. Therefore, the plaintiff, who had developed carpal tunnel syndrome in her left wrist in the course of her job in a laundry room after 12 years from sorting and loading laundry, was compensable. The court got rid of its previous requirement showing proof of some specific "accident" traceable in time to some specific occurrence at work. Notes: 1. The dissent points out many practical reasons for keeping the distinct time and place requirement 2. This case dealt with a "cumulative trauma disorder" (CTD) which often results from repetitive tasks over time. They are frequently litigated and costly injuries. 3. States are divided as to how to characterize CTD claims. A possible majority does what this case did and treats them as accidents without regard to time and place. (causation question). Some, a possible majority, side with the dissent and say there was no accident because there was no specific time. Rather, it is an "Occupational Disease" 4. States have often separate rules for "Occupational Disease" with a higher standard of proof, which is why plaintiffs want to try it as an injury 5. Either way, the employee must prove the injury is work related 6. A similar issue is where an employee breathes harmful gas or chemicals that later develop into a respiratory condition. Where the inhalation took place over a short period, the courts often call it an injury saying there was a specific time. Where the exposure is over a much longer period, courts often there was no accidental injury. But there is no hard and fast rule

Is a fellow employee liable for negligence; what about an officer or agent?

McCluskey v. Thompson - McCluskey worked for Betchel on the construction of a nuclear plant, when a "portable light plant" fell on his head and killed him. Thompson was a co-employee of the decedent, whose wife brought a WD suit against him. The Court refused to allow suit against a fellow employee on the grounds that this would allow the employer to shift the burden of WC from itself to employees, which is not the purpose of the statute. The MS WC act should be construed to bar suit for NEGLIGENCE by an injured employee against a fellow servant when the plaintiff is covered by the act. If suit had been allowed, the employer would have had the option at its discretion to join the suit. The statute was not written with the intent to make fellow employees liable in suit for negligence. We don't know what would have happened if the employer had not been insured for WC. Brown v. Estes - 1 year after McCluskey - Brown suffocated in a soybean bin while employed by Madison County Cooperative. WC death benefits were paid to the parents (because they were dependent. If they were not dependent they would not get benefits). His parents sued the Cooperative board of directors and the general manager, Estes. The court held that they were immune: an officer or agent of a corporation who is acting within the scope of his authority for and on behalf of the corporation comes within the purview of the MS WC statute and is entitled to immunity from NEGLIGENCE. The court did not believe the legislature intended for officers or agents conducting business of the employer were to be treated differently than fellow employer.

Can an injured worker sue an employer or fellow worker for an intentional tort?

Miller v. McRae's - the plaintiff had already received WC benefits. She sued McRae for an intentional tort. The trial court dismissed her claim saying WC was her exclusive remedy. It was never the intention of the WC act to bar an employee from pursuing a common law remedy for an injury that was the result of a willful and malicious act. Therefore, the plaintiff was allowed to file her false imprisonment claim. Bradley's Note - several cases have affirmed that when there is an intentional tort by a co-employee, the employer can be liable under a theory of respondeat superior, making the employer vicariously liable. WC was never intended to provide immunity from intentional torts. Intentional torts are not accidents. Also, the harm recovery is sought for in these cases consists of specific elements not covered by WC. Bradley's Note - Employers ARE protected from suits for Gross Negligence or Reckless Conduct.

What's the general rule for "joint" and "concurrent" employment?

National Auto v. Industrial ACC - two employers, Cooperative and Warehouse, had an agreement about the employment of Pitt, who managed a rice drier that joined their premises. Cooperative paid Pitt, and Warehouse made space and resources available to him. He was always working for one and on call for the other at any given time. When he was injured, the lower court ruled that he was solely an employee of Cooperative, so that only Cooperative's insurance carrier was liable for his WC. Warehouse argued that, per their agreement, it had escaped liability for WC for Pitt. The Court ruled that this was error - you may not escape liability for WC by agreement. It further ruled that Pitt was a dual employee of both Cooperative and Warehouse. Cooperative paid Pitt, but Warehouse bore its share of the cost of his service by providing space and property to him. Both employers equally possessed a right to control the work done by Pitt. Another issue is whether at the time of Pitt's injury his dual employment was concurrent or joint - whether he was acting only within the course of his employment with Warehouse or acting within the scope of both. A joint employment is one that benefits both employers at the same time to some mutual end. A concurrent employment is one where the employers both independently hire the same person for different purposes and to different ends. This situation did not fit either one of those perfectly, but was closer to being a joint employment. If the employment had been concurrent, only the employer he was helping at the time of injury would be liable, but since it was joint, both are to be apportioned liability.

What is the Compensation Principle?

New York Central v. White - Workers Compensation comes with two facets that fly in the face of traditional tort: no fault, and limited liability. - NO FAULT: The defenses at common law do not matter here. - LIMITED LIABILITY: In MS, for example, the limit on compensation benefit for disability is 454.42 per week (2/3 of the state average weekly wage or 2/3 of the worker's previous wage) and an overall limit of 204,849. Remember, though, that disabled workers can also collect social security disability benefits. So, these are very real limits. They are limits on the employer's liability but also on the recovery the worker can get. The court reasoned that the state has a real interest in taking care of injured workers. Tort law is a means to compensate the injured, but it also has a deterrent effect on bad actions. The state has police power such that it can regulate activities, under which workers comp falls. In examining the due process question raised by Irving, the court used a balancing test: the employee gets something without having to show fault, but also gives up the right to show actual damages. The employer is similar situated: it now has to pay regardless of fault, but is guarded from high damages. The court did not try to quantify the balance, but rather, deferred to the legislature's judgment in making that balance. This is the compensation principle. All fifty states and DC have WC laws. The Fed has the Federal Employees Compensation law. All of these laws embody the compensation principle from NY v. White. There is also the Federal Employers Liability Act but this is not a compensation principle law. (it originally only applied to rail roads and was a tort based system, but the common law defenses were stripped away and the employee only had to show a little fault, also rail roads are not popular with jurors). Admiralty law: Long Shore and Harbor Act - applies to workers at the edge of the maritime such as shipyards, is a workers comp law, but operates on a federal instead of state law. The US const. gives the fed power over the navigable waters. Injured seaman have a right to maintenance and cure. The Jones Act is a federal statute that takes the Federal Employers Liability Act and applies it to seaman. There's also a death on the high seas act. There are several areas, though, where there is no governing workers comp law (ie non profits, household workers, agriculture, small employers, and so on) and tort law still applies (You can use OSHA to try to establish the standard of care. Workers Comp also does not apply when a worker is injured outside the scope of his employer. Nor does it always apply in a suit against a third party (not the employer) alleging that the third party negligence caused the injury. 3rd parties get immunity in some situations but not others. Finally, if the employee can prove that his injury was intentional, he can sue for intentional torts.

What is the general rule for "statutory employment"?

Oakwood Hebrew Cemetery v. Spurlock - defendant only had 4 employees. Everything the business needed done it contracted out: graves were dug by contractors, bookkeeping was handled by their bank, and the grounds were kept by Lineberry. Lineberry was not a grass cutter so he subcontracted Spurlock to cut the grass. Spurlock cut off four of his toes with a lawnmower and sued for workers compensation. The defendant said they were not under WC due to having no employees and that they didn't hire Spurlock so they were not liable for his injuries. Holdings: the company had four executive officers which count as employees. An employer is liable for a subcontractor's employees unless the subcontract has insurance, so long as the work is within the scope and nature of the business the employer is engaged in. this is dependent on the circumstances. The court must consider whether the business was public or private - for a public business, you consider the laws that created them; for a private business, you consider whether the activity contracted is "normally performed by employees of those in the business, rather than independent contractors". Since mowing the grass was normally part of the business, hiring a contractor who paid the plaintiff to do the work brought the Association within the rule that requires the company to be liable for work done by a subcontractor. Notes: - Sometimes the number of employees requirement has added: "regularly employs ___ employees" Jackson v. Fly - in MS the court ruled that never having more than 7 workers at a time but having 10 employees did not escape the (8 at the time) limit for minimum employees required for coverage under WC. - Most states have a provision like this case that assures workers on large projects and enterprises are not excluded from WC by hiring several subcontractors which may not have to get WC due to size, leaving some workers in the cold. The statute specifies which employers who must assume liability for workers within the statutory employment. Regularly the issue arises whether the work done by the employee is part of the regular business of the employer that an employee rather than a subcontractor would be hired for. So the test for whether work is part of the business is whether an indispensable activity in the business is NORMALLY carried out by employees rather than ICs. - In some states the employer can seek indemnity against the subcontractor , or the subcontractor is "secondarily liable" - "trade business or occupation" - when someone undertakes to perform work under this, and contracts with another (ie like how Oakwood did with Lineberry) (subcontractor, independent contractor), the owner shall be liable for WC to any employee hired by the contractor (Virginia Statute). This keeps you from using loopholes like independent contractors to avoid liability

When does the two year statute begin to run?

Pepsi v. Long - when does the two year statute begin to run? - the two-year statute does not begin to run until by reasonable care and diligence it is discoverable and apparent that a compensable injury has been sustained - latent injury doctrine - so where the claimant was assured after hurting his neck that he was find and not until after the limitation period he learned of his true condition, the statute did not bar recovery. The statute did not begin to run until his latent injury disabled him. The resulting award is to be calculated based on the time of discovery rather than the time of actual injury. Bradley: A later case clarified that the claimant needn't know he has a claim for the statute to run, only that he has received an injury, which is also compensable. Ingalls v. Harris - whether the two year statute begins to run at the time of injury or at the time of death - the claim of the decedent's family is derivative of the decedent's death, rather than his injury, so the claim begins to run at the time of death.

What is the MS "Dual Employment" rule?

Ray v. Babcock - "Dual Employment"? - when an employee is engaged in the service of two employers in relation to the same act, both are exempt from common law liability, although only one of them has actually provided workers compensation. If an employee does sue successfully in tort, his remedy will go in part to reimburse the cost of workers compensation. Look for what is important in the relationships between the employee, employer, and third party. This case could have been decided as a loaned servant, but the important distinction is that this decision implies that BOTH employers are immune to tort suit. Typically, dual employment describes something else

What is the substantial acts doctrine in regards to scheduled member injuries?

Reed v. Martin (MS) - Martin broke his femur while working for Reed. The leg was permanently shorter. The doctor and insurance said he wasn't that bad off, but he said he could no longer work and was in constant pain. Local employers knew of his injury and saw his limping and would not hire him. The court adopted the substantial acts doctrine: "Martin, by reason of his injury, is prevented from doing the substantial acts required of him as a carpenter... [or] pursue any other gainful employment." He is therefore totally disabled. Rule: "If the insured is prevented by his injury or illness from doing the substantial acts required of him in his business, or if his physical condition is such that he cannot work, he is totally disabled within the meaning of the policy." (But it seems like he was still limited to the time-frame established by the schedule?) Bill Williams Feed v. Mangum - substantial use doctrine question - medical expert testimony ranged as to how bad the leg was impaired, but he could no longer climb a ladder alone, which he did before the injury. Therefore, it was proper to award him the full scheduled injury amount for partial disability since now he could only write tickets and do other work, rather than 50% of the scheduled injury.

What are the MS rules for disbursement of money from a third party suit?

Richardson v. United States Fidelity - when the third party action settled for 50k, the amount was paid into the clerk's office, 16k was given as the attorney's fee, the proven amount of liability was given to the employer, and the balance to the claimant. The question on appeal was whether the remainder should go to the claimant or to the employer as a credit towards future benefit liability. The court ruled that the proceeds go to the beneficiary but are credited towards future payments such that the employer will not be liable until it would have been liable for more than that total amount. In some cases the court has not awarded the part given to the employee as credit, such as when the employee pays his insurance premium, or has earned sick leave. Tadlock v. US Fidelity - the order of payment: 1. The cost of recovery/collection for both the employee and carrier/employer intervenor - reasonable attorney's fees 2. The amount due to the carrier for medical/disability benefits paid 3. The remainder (if any left) goes to the employee but is credited against the employer/carrier towards future WC payments Owen v. Travelers - the cost of recovery cannot be charged or apportioned to the employer, even when the claimant's lawyer does all the work and the employer merely intervenes Powe v. Jackson - whether settlement of a tort claim without knowledge and approval by the employer, before suit and without approval of the WCC, is binding on the employer and carrier - the employee can settle when the carrier has notice, and does not try to intervene. The normal rules for disbursement apply.

How do you allocate the loss when a worker only has partial (permanent) loss of a scheduled member?

Richey v. City of Tupelo - an injury to the shoulder might result only in the loss of the use of an arm, a scheduled injury, or it may result in a back or neck injury, which would be whole body. In this case, where a fireman injured his should resulting in loss of use of his arm, and no medical testimony or evidence showing loss of use of any other part of the body, therefore it was a scheduled injury. The lower court erred in saying that the claimant suffered only a 50% injury to his arm. He lost 100% use of his arm. He could no longer do heavy lifting, so he got the full scheduled benefit. Medical testimony ranging from 30-50% loss did not prove the loss. He could no longer do his work. However, when the claimant has only a partial loss of use of a scheduled member, you reduce by the percentage lost from the total weeks. So where an arm normally gets 200 weeks and is only 50% impaired, you get 100 weeks.

Can an unusual injury to a scheduled member get around the schedule?

Rivers Const. v. Dubose - hernia that allegedly spread - the rule is that where an employee has received a specific injury which spreads to other parts of the body and produces a greater or more prolonged incapacity than that which naturally results from the specific injury, or the injury causes abnormal or unusual incapacity with regard to the member, the employee is not limited to recovery of the special allowance (schedule) provided for in case of injury to a specific member or members, but may recover under the act, for compensation in case of disability (body as a whole). The burden is his to prove, though. In this case, the only proof was that the claimant suffered pain. Pain is not itself compensable, only lost earning capacity.

Might a MS court extend the dual employment doctrine beyond the typical situation of actual dual employment or lent servant scenarios?

Robertson v. Stroup - Stroup had a rental care business and hired James to do several things for him such as manage the rental cars. James had four employees including Robertson. They formed services for the filling station as well as the rental car business. James hired and paid them. Stokes worked at the local airport. He was employed by James on behalf of Stroup and was paid by Stroup. James supervised Stokes. Robertson was injured when James instructed Roberston to drop off a car at the airport and on the way back got into an accident with Stokes. Robertson was covered under James' WC insurance but filed in tort against Stroup. The question was whether Robertson was Stroup's employee. The court held that Robertson was at the time of the accident both an employee of Stroup and James. This is different than lent servant because the argument is not that Robertson was normally James' servant but lent to Stroup in this situation, but rather, that he was an employee to both of them. HOWEVER, it is unclear in what way or on what basis the court ruled that Robertson was acting as Stroup's employee. Unlike Green Brothers, the court doesn't say on what basis Stroup could be called Robertson's employer. (Ray v. Babcock? - Dual Employment) Bradley: The Court ruled that somehow, James' WC insurance protected Stroup from liability as a third party to a tort suit.

What are the general rules of the exception for "Casual Employment"?

Sandburn v. Hall - casual employment is a typical exemption from state WC coverage, so the case would turn on whether the employee was a regular or casual employee. The plaintiff was hired by the defendant to do renovations on the defendant's house, and while working on plastering the ceiling, some plaster fell into his eye and injured him. He had been hired to modernize the house because it had no bathroom or modern kitchen, he had gone at the same time and worked the same hours for several weeks. He sued for workers comp and was denied based on the state's statutory language which says that WC does not apply to "casual" employment. Rule: "Casual Employment" is a contract for work that does not fall within the scope of WC and the determination may be governed by the length of time contemplated for the employment, OR by the nature of the contract of employment. It depends on the circumstances. When an employment occurs by chance, with intent that it should not be continuous, is not permanent or is periodical in nature, for a limited temporary purpose, usually about 3 or 4 days and usually not more than a week, it is casual employment. The trial court was reversed because he was hired to work ongoing with regular hours for an indefinite amount of time. So, for this court, the most important factor was the length and regularity of the employment. Notes: - Many states require that an employee be hired "in the furtherance of the business" - Casual workers are often referred to as "fortuitous" workers. This usually means one or both of two things: an isolated purpose and a temporary nature. The statutes usually do one of the following: 1. Exclude all casual employment (TN) 2. Exclude all employments not in the course of the employers trade, business or occupation, but make no distinction between casual and non-casual nature of employment 3. Majority: require excluded employment to be both casual AND not in the course of business. 4. Exclude if the employment EITHER casual OR not in the course of business. 5. Exclude none, as in, cover all employees. (MS - Donnell v. Whatley) - Courts also differ on the meaning of "casual" employment. While the principle case defined casual by time, others might define casual by nature of the work. Confusing. - Maintenance work is usually not casual and within the course of business even if inconsistent - Employers with less than a certain number of employees are often exempt from WC. (only covered employees would count toward the total) (MS: 5) - Illegal child workers are usually covered - As for other illegal employment, courts often distinguish between illegal activity (a bartender in a dry county) versus an illegal contract - Agricultural and Farm employees are usually not covered, but are sometimes covered when operating certain dangerous equipment. The nature of the work usually determines whether the worker is a farmer, rather than the nature of the business. - Domestic Employees are usually excluded, but a few states cover regularly employed domestic servants. - Some states exclude charities, while others exclude employments not carried on for "pecuniary gain" - Coverage for public positions varies a lot by state but there is usually at least limited coverage. States often exclude "officers" or "officials". Police officers have been excluded in some places, as well as fire fighters, but other states have held they are covered. (In MS: public employees of all kinds: professors, teachers, garbage men - all covered) - A few states do not cover "ultra-hazardous" workers - Some places will still opt into workers comp when they are not required in order to get tort immunity

IF a claimant gets an award against the employer and a third party, how is the award apportioned?

Sawyer v. Head - the suit was against the employer, denying liability, and another tortfeasors. When the claimant got an award from both, the lower court said that the employer only got credit toward the settlement with the third party recovery, but the reviewing court ruled that the entire judgment given to the claimant would be credit against WC payments. Bradley: fault can be divided up in a tort suit - the employee's portion of the fault will reduce the total award, as well as non-parties.

When does the MS scheduled member injury apply?

Scheduled Member Injuries (71-3-17(c)(1-24)) The scheduled member rule applies only to permanent, not temporary, injuries. Temporary benefits are the same for scheduled and whole body injuries. Scheduled benefits are usually lower compensation than normal partial disability compared to a whole body injury or total disability. Two exceptions can get you out of scheduled member hell: 1. A worker who loses and TWO major body parts - totally disabled (hand, foot, leg, eye, etc) without evidence of wage earning loss 2. A whole body injury (not a scheduled member) is entitled to permanent partial disability at the normal rule, meaning he might very well reach the overall maximum eventually (450 weeks) 3. (It seems like you can also show that your scheduled member injury has permanently totally disabled you, in which case 71-3-17(c) does not apply to you Where the scheduled member is not lost but rather diminished, the rule is to receive the % of loss use as a % of the scheduled benefit for the member. BUT: when a worker is unable to perform substantial acts of the usual employment (usual employment means the employment at the time of injury), he gets compensation at 100% of the scheduled loss. The two main areas of contest in MS WC are whether the employee made reasonable efforts to obtain other employment. There is no bright line test, only the persuasiveness of the evidence. Notes on Scheduled Member Injuries: - Scheduled benefits are payable without proof of actual wage loss or loss of earning capacity - If the loss of a scheduled member adversely affects another part of the body, usually benefits are not limited to the schedule. If the other part is not a scheduled part, the schedule does not provide the exclusive remedy. (eg, loss of finger causing pain to hand and forearm was compensable as 50% permanent partial disability to whole body) But, if the other injury is also a scheduled injury, the employee may recover the greater of the two scheduled benefits (eg, loss of three toes which resulted in 25% loss of foot, could be calculated as one or the other, but not both) - A tricky situation is when scheduled injuries result in total disability. Some states have allowed higher levels of compensation, while others have held the schedule the exclusive remedy. - Cosmetic injuries may be compensable, but usually only when it affects wage earning capacity. Many states now have specific statutes for disfigurement.

When are Injuries Suffered During Social, Recreational, and Similar Activities "within the course of" employment?

Shunk v. Gulf American Land - here the plaintiff was clearly an employee. She wasn't the kind who punches a clock, but rather, she was a host for visitors who are hoped to buy real estate. She went to the hotel room of one of the guests, then fell from his balcony trying to escape his room after he made "improper advances" on her. The question is whether going up to the guest's hotel room was within the scope of her employment or whether it became part of her personal activity. The court said the question is whether the risk of injury finds its source in the employment. It concluded that the risk was connected to employment and there was coverage. Taylor v. Ewing - plaintiff was injured at the personal residence of his boss while mowing his boss's yard. His boss sent him there - it wasn't a favor. The court ruled that the employee did not become a domestic employee (exempt) during some incidental part of the employment not part of the business of his employer. He did not become a personal actor nor a domestic worker, and therefore, there was still coverage. Doing what the employer tells you to do is a good sign that you are still within the course of employment.

What is the mental-mental rule and does MS use it?

Smith and Johnson v. Eubanks - Mr Newbanks was a traveling employee, engaging in something incidental to employment by staying at a motel. There is a fine distinction between a traveling employee and a commuting employee. In one case an 8 hour day did not include the commute which was important. MS seems to have a "Mental-Mental" rule. Where the stress or cause/event is mental, as in mental stress or strain, and the injury is also mental, as in emotional distress or a breakdown, the employee has to prove that the stress that caused the injury was abnormal or an unusual amount of stress caused by an untoward or unusual event. The plaintiff has to prove the causal connection between the employment and the injury by clear and convincing evidence. "To be sure, our law does not compensate disability attendant upon the general stress or normal human wear and tear of the workplace. Where an employee experiences a series of identifiable and extraordinary stressful work connected incidents, benefits may be available, however."

What if a scheduled injury cases the employee to be unable to work any more?

Smith v. Jackson Construction - re-thinking the Reed and Cantrell Exclusiveness rule: if a claimant is permanently and totally disabled, he should be entitled to compensation for a permanent total occupational disability, not a permanent partial disability. The scheduled compensation, then, comes on the assumption that the worker will be able to work again. 71-3-17(a) covers ALL permanent total disabilities established by the facts. This partially overrules Reed, Walker, Richey, Lucedale Veneer, Liker, Nowlin, and Modern Laundry.

How are benefits apportioned in MS for preexisting condition?

Southeastern Const v. Dodson - Dodson fell dead while working. Medical testimony agreed that the work aggravated or precipitated Dodson's death, but there was evidence of a pre-existing condition. Rule: "Where a pre-existing physical handicap, disease, or lesion is shown by medical findings to be a material contributing factor in the results following injury, the compensation which, but for this paragraph, would be payable shall be reduced by that proportion which such pre-existing physical handicap, disease, or lesion contributed to the production of the results following injury." The lower courts disagreed about whether there was evidence of a preexisting condition and what proportion it contributed. The test for reduction of award based on apportionment of injury between the condition and the accident is: "The burden of proof is upon the employer and insurance carrier to establish by a preponderance of the (substantial) evidence several factors: (1) There must be a pre-existing condition (2) Shown by medical findings (3) To be a material contributing factor in the results following injury, and (4) The compensation otherwise payable is reduced by that proportion which the preexisting condition contributed to the production of the results following the injury." Where medical testimony agreed that there was a pre-existing condition, but the best they could do was guess as to the amount, it was within the discretion of the court to apportion 25% of the loss to the condition. Cockrell banana v. Harris - Addressing the question of whether apportionment due to preexisting condition applies to weekly benefits and the maximum allowed recoverable benefits - the claimant first gets Temporary Total disability payments until he has reached Maximum Medical Recovery. Then Permanent Partial payments kick in. Apportionment of disability payments starts as of the time that the claimant has reached maximum medical recovery (The referee determines the date of medical recovery, as well as the apportionment, subject to the finding of the commission), or from the date of the injury when it is determined that the claimant was totally and permanently disabled on the date of the injury. Both Weekly and Maximum benefits are affected by the apportionment. Both are reduced by the proportion of the preexisting condition. (Excess payments beforehand will be added as credit). The weekly amount is reduced rather than the number of weeks, by the percentage of the pre-existing condition's contribution. The maximum receivable compensation is also reduced by the same percentage. MEDICAL BENEFITS, however, ARE NOT REDUCED by apportionment. Why does it matter when apportionment applies? In the Hayles case, there would be a high incentive to delay the claim if apportionment does not start until an order is issued. So now an adjustment will be made such that paid benefits will be what they should have been. New & Hughes Drilling v. Smith - a preexisting condition which does not reduce wage-earning capacity before the injury cannot be used to apportion benefits after the injury. But, where the pre-existing condition DID detrimentally affect wage earning capacity, and the condition was symptomatic, apportionment is appropriate. The essential distinction is between a disability that independently produces all or part of the final disability and a preexisting condition that in some way combines with or is acted upon by the industrial injury. So, to be apportioned, the preexisting condition must both (1) manifest itself symptomatically before the injury, and (2) reduced wage-earning capacity before the injury. There is a 25$ per week floor for disability payments, but there is an exception for partial disability, which has no floor - Bradley. Stuart v. Brown - not talking about heart attack cases or occupational disease, reaffirming Hughes v. Smith as the rule for apportioning a preexisting condition.

When can you sue the WC insurance carrier in tort?

Southern Farm Bureau v. Holland - Plaintiff filed for WC from the carrier, who refused to pay. Plaintiff sued for several intentional torts from breach of contract to emotional distress, The issue was whether the exclusive remedy clause barred suit. The court held that a worker is permitted to file an action for an independent tort against an insurance carrier in WC cases, where the insurance company acted intentionally and in bad faith. The exclusionary provision of the WC statute does not bar an action by the employee against the insurance carrier for the commission of an intentional tort. Taylor v. _____ - An insurance carrier would be immune to a negligence claim Dial v. Hartford - in federal court, before bringing a bad faith claim, a plaintiff must "exhaust his entitlement to WC prior to commencing a court action for the same failure to pay his claim." Rogers v. Hartford - the quicklube case - 5th circuit case - carriers have a mandatory affirmative obligation to pay benefits if they have no arguable reason not to. Either way, Hartford would have to pay, so it was okay for the plaintiff to sue for the intentional tort of bad faith.

What is the general "mental mental" rule?

Sparks v. Tulane Med Center - the court had previously ruled that mental injury caused by physical trauma and physical injury induced by mental stress were compensable. Now it addressed whether mental injury induced by mental stress is compensable (mental-mental rule?) the employee was suffering from "tension headaches" brought on by the mental stress from work. There are three general categories: 1. Cases in which observable physical trauma causes mental injury (physical-mental) 2. Cases in which mental stress causes observable physical trauma (mental-physical) 3. Cases in which mental stress causes mental injuries (injuries unaccompanied by physical trauma) (mental-mental) Coverage applies to 1 and 2. Lower courts were split over the statutory language whether to cover 3, ie, requirement of "injury by violence to the physical structure of the body". The court went with the majority rule and found that mental-mental injuries are compensable, but emphasized that the plaintiff must still show that the injury was precipitated by an accident, ie, an unexpected and unforeseen event that occurs suddenly or violently. The mere unexpected onset of symptoms does not establish causation without pointing to a specific causal event at work. Therefore, when the plaintiff showed there were threats made against her which made her fear returning to work, and expert testimony to support this, compensation was appropriate. Notes: - Workers suffering from psychological disorders face two questions: 1. Is the injury genuine? And 2. Is it sufficiently work related? - Mental-physical injuries where mental stress produces a physical injury are usually compensable where the causal connection can be proven - A majority compensates for mental-mental injuries under some circumstances. Usually a precipitating event is required. Gradual stress leading to a condition is the hardest to prove. Courts disagree when compensating whether the stress must be unusual in some manner. The most liberal position is to award compensation even for normal, gradual, workplace stress leading to mental disorder. - A significant minority does not cover mental-mental. - Statutes increasingly address this issue. - Predisposition to mental disorder does not lessen compensability if otherwise proven. You still have to prove causation.

What does the two year statute cut off when it runs?

Speed Mechanical v Taylor - the two year limitation applies to both disability and medical benefits. Therefore, when the claimant went two years without filing for compensation "other than medical compensation", then filed for medical treatment, his claim was barred by the statute of limitations. This case stands for the proposition that the employer, by not filing a B-31, was able to use the two-year statute to cut off the claim. If the last payment is less than a year after the injury, the employer will probably filed a B-31, but if it is over a year, the employer will probably just wait for the two year limit to run. While the one year statute of limitations runs from the time of last payment for disability or medical, the two year statute runs from the TIME OF INJURY where medical only (or none) is paid. This statute cuts off all kinds of benefits. An exception to the two-year statute is where an injury is latent and not reasonable apparent.

What are the exceptions to the MS coming and going rule?

Stephney v. Ingalls Shipbuilding - there are two exceptions to the "Coming and Going" rule called the "Threshold Doctrine" and "Special Hazards" rules. Claimant was driving pn the only access road back to work from lunch and injured in a car accident on the way into the parking lot while on the access road. The general coming and going rule is that it is not incident to the employment and not covered. The employee has the burden of proving an exception. The exceptions are, as set out in Lumber Company v. Wallace, there was no coverage for coming and going, but there are six MS exceptions: 1. Furnishing the vehicle or remuneration (any pay for the travel like the dentist office case) 2. Performance of a duty in connection with the employment at home 3. Injured by some dangerous condition inherit in the necessary route. (in two cases, there was a single route that was regarded as dangerous, so it was unavoidable and uniquely dangerous) 4. Where the employer furnishes a hazardous route 5. Where the employee is injured in a hazardous parking lot furnished by employer (in one case where the parking lot was designated across the street and the employee was injured crossing the street, there was coverage.) 6. Where the place of injury, although owned by one other than employer, is in such special proximity to the premises owned by the employer as to be, in effect, a part of such premises. The "special hazard" doctrine says to consider two things: (1) the presence of a special hazard at the particular off-premises point, and (2) the close association of the access route with the premises, so far as going and coming are concerned. Especially when the route is the ONLY means of access. (for example, an employee who was crossing train tracks and was hit by a train on his way out through the only access way was covered because his employment essentially required him to be on the road.) In this case, the road was the only access to the work, the street was used principally by employees, the road was particularly busy during lunch hour because of the employer, the premises on either side of the road belonged to the employer, the employer recognized that the road was dangerous and admitted as much by having a sign that said "CAUTION - HAZARDOUS" - the court therefore ruled that the employee was at a greater risk on that road and therefore there was coverage under an exception to the coming and going doctrine. Ingalls v. Dep. Of Sloane - defendant needs to show, by evidence, that the plaintiff had a PRACTICAL alternative means of coming and going from work in order to break the special hazard exception.

How do courts that address the arising out of and within the course of employment prongs as one test form the rule?

Strother v. Morrison Cafeteria - again addressing whether the test for coverage is a dual test or a unitary test: "personal injury or death by accident arising out of and in the course of employment" - "arising out of" means the origin or cause of the accident, and "arising in the course of" means the time, place, and circumstances surrounding the accident. They are separate elements of the test for coverage. You can prove the course of employment by showing that the causative factors occurred during the time and space limits of employment. So, the SOURCE of the risk, must arise out of AND in the course of employment. The dominant approach is to say that the test is a unitary test: the test is whether the injury "AROSE" out of and in the course of. Only a minority of courts say the test is a dual test. Courts that use a unitary tests treat arising out of and in the course of as two elements of the same test. Courts that treat the test as a dual test add "occurring within the course of" language. As long as the injury found its SOURCE either arising from the employment or in the course of the employment, the unitary test is satisfied. Not so for the dual test.

In MS, how can statutory employment be used as a test for tort immunity?

Stubbs v. Green Bros. - Stubbs was employed by McDonald to haul gravel, and was struck by a truck driven by a Green employee. He wanted to sue Green. Green says Stubbs was a Green employee for WC purposes. Of most importance was that McDonald had been hauling gravel exclusively for Green for several years (4) - this was not a case where Stubbs was told to go haul gravel for Green on just one particular occasion. The exclusivity of the working relationship was by oral agreement. McDonald was nothing like Durham in the sense that McDonald was insured for WC. As a side note: merely having a detailed contract with specifications on how something must be built, for example, is not necessarily evidence of control. Sometimes things just have to be done a certain way in order to be done correctly. Green was not the "actual employer" like McDonald was, but rather a third-party, so was the circle of tort immunity to be extended to Green? The Court said, like in Crosby, although Green was not the one paying Stubbs, and may not have even known who Stubbs was, looking at Green's relationship with McDonald and supposing this were a coverage case: we see McDonald doesn't have an independent business in that they only haul for Green Brothers, that the hauling of gravel was a regular and recurring part of Green Brothers' business - therefore there would be coverage if this was a suit to determine Green's liability for WC. It's not a coverage case because McDonald is insured. So, quid pro quo, if there would be coverage, there shall be immunity.

What does the MS statute say about "accidental injury" arising out of an in the course of employment?

The MS statute used to say, "ACCIDENTAL death, arising out of..." Now it says, "Compensation shall be payable for disability or death of an employee from injury or occupational disease arising out of and in the course of employment." There are two typical examples of "accident": an unexpected EVENT, or an unexpected RESULT

To what extent to states have to choose to apply their own law to out of state injuries? (Extra-Territorial)

The MS statute, for example, tells the court when to apply the statute to out of state injuries. In MS its about the permanency of the departure to another state. The issue isn't really whether state A or state B has the exclusive right, but rather, whether the state in question has a sufficient interest.

What's the difference between most statutory employment states and MS's rule?

The difference between that and MS's statute is that MS's is not so broad: there MUST BE A PRIME CONTRACTOR. If the second person had been an independent contractor, there would be an exclusion, or, loophole by which the primary employer could escape liability. - So, places like Virginia have closed the loopholes with workforce coverage broad statutes that say and employer hiring people for his trade/business is liable - Places like MS leave loopholes open by limiting workforce coverage to Contractor/Subcontractor relationships - Bradley: the key difference is whether there is a primary contract (as opposed to work in the furtherance of the employer's trade). That's why the rule didn't apply in the Crosby case Jackson v. Fly - White contracted with Jackson Brothers, the contractor, who contracted with Beach as a subcontractor, who hired fly and did not have WC. (statutes like the MS one make the main contractor liable as a surety, meaning that they are only liable when the subcontractor does not carry insurance.) Beach's argument for not carrying coverage was that he never had the minimum required employees working at the same time. The court ruled this argument invalid: the question was whether his total amount of regularly working employees reached the minimum. Jackson Brothers' argument was that if Beach had no obligation, they had no obligation under the statute. Since Beach met the req and was uninsured, Fly had a WC claim against Jackson Brothers even though Beach was an independent contractor. The rationale is that otherwise, a large contractor could hire only independent contractors who themselves each hire less than the minimum requirement. (example: contractor hires five independent contractors, who subcontract out the work to 4 employees each. The contractor is 1 person so he doesn't meet the minimum.) The court was concerned, overall, with the magnitude of the work to be completed. It came down to Beach's trying to get around the minimum requirement on a big contract. MS has no statutory employment counterpart to the Virginia statute which makes anyone hired to perform work "which is a part of the trade" of the contractor an employee. But MS does seem to have a counterpart to the statute for employers hiring others to do work not a part of their trade? MS 71-3-7 says where an employer is a subcontractor, the CONTRACTOR is liable and must secure coverage for employees of the subcontractor unless the subcontractor secures payment... Sounds really similar? Looking back at the Crosby case, if that case came up in Virginia, there would have been no question of coverage because of Virginia's statutory employer rule. Because there was an employer accomplishing part of his trade, business, or occupation by hiring someone else, a subcontractor, making Crosby liable for the workers hired by the subcontractor.

What three defenses did employers have at CL against a claim for negligence?

Three major defenses prevented the tort system from being an effective measure to compensate workers: assumption of the risk, (a complete defense) the fellow servant rule, (also a complete defense) and contributory negligence (sometimes a complete defense). - Priestly v. Fowler (1837) - set as precedent two ideas: the principle of respondent superior did not apply where the suit is by one servant against the master for the negligence of a fellow servant, (so this is an exception to respondent superior) and a worker assumes the risk of being injured or killed by reason of dangerous working conditions that an alert worker would discover, by accepting employment - Woodley v. Metropolitan - assumption of the risk: "a man who enters on a necessarily dangerous employment with his eyes open takes it with all accompanying risks." (normally the elements are subjective knowledge and appreciation of the risk and voluntarily encountering the danger) - Contributory Negligence was also a defense for employers at common law, sometimes in whole or at least in part

What is the "Dual Capacity Doctrine" and does it apply to MS?

Trotter v. Litton Systems - Dual Capacity Doctrine - the employee had a cut on his thumb, so he went to a doctor that was provided by the employer, who sewed up the cut, which got infected. He now wanted to sue for malpractice. In his view, the employer was not acting as employer in providing a doctor, but rather in another role, as healthcare provider. Under this doctrine, an employer, normally immune from tort in negligence, may become liable to his employee if he occupies, in addition to his capacity as employer, a second capacity that confers on him obligations independent of those imposed on him as employer. MS did not adopt the dual capacity doctrine in this case, instead ruling that, where, as here, the plaintiff suffered a compensable injury which was aggravated by a physician hired by the employer, that aggravation of the injury is also covered under the act and therefore compensable only through WC. Mississippi rejects the dual capacity doctrine. Harris v. Casualty Reciprocal Exchange - the vice president of the company also at the time of injury was working the position of night manager. The court ruled that the executive officer of a company may also be an employee of that company under a theory of dual employment or "dual capacity" if at the time of injury he was performing the tasks of an ordinary employee. At the time of injury, plaintiff was performing the duties of a regular bar tender. Therefore, he came within coverage by the act. (he would not have if he had been performing the duties of an executive.) Notes: - Most statutes draw no distinction between coverage of of administrative employees and normal employees. In most states coverage is universal. Other states explicitly exclude executives. Some states corporate officers may elect coverage or may reject it. - When states don't say, the dual capacity doctrine applies - In cases where the employee shares in the success of the business but not the share in the losses, he is covered - One issue is whether such people are covered, another is whether they are counted towards the minimum limit of employees making the statute applicable

What is the most common way to demonstrate an employment relationship exists?

Usually employment can be settled by showing an offer and acceptance of a contract of employment. Rarely is this fact disputed. But there are cases where someone is injured where no clear employment agreement was entered into. Courts are then left to interpret the factual context of what happened and determine whether it is the legal criteria of employment.

When is an employee within the course of employment while going or coming from work?

Usually trip between work places during the work day are covered. Trips to and from home and work may in some cases be a substantial part of the employee's duties especially when the employee has no specific usual workplace. Employees who are regularly engaged in travelling or have no fixed place of work sometimes are within the course of employment from the time the leave home for work. But, the general rule is that coming and going from work falls outside of the scope of employment. The employer has no control over the employee's coming and going from work. Mississippi amended its WC statute in 2012 to, like many other states, to reduce the coverage for coming and going injuries. One situation that arises often with some variation is when an overall trip is determined personal or business, an issue of whether an injury suffered on a deviation from the principal purpose can still arise. For example, the overall purpose of the plaintiff in a trip might be driving home from work, but her employer may have asked her to take some tapes with her when she left. In all these types of cases, the injury occurs off the work site, while the plaintiff also had a personal purpose. Courts are inconsistent here. Courts will often look for the "dominant purpose" of the trip. If the dominant purpose is work, the court then looks to see whether the deviation was incidental or substantial. A. If the trip is essentially a business trip with a business destination and a separate personal destination ahead on the same route and the accident occurs before reaching either destination, the accident is within the course. B. If essentially a business trip and the employee reaches the employment destination first then proceeds onward to personal destination, injuries suffered after leaving the business destination are not within the course. C. If the trip is essentially a business trip and the employee detours from the route for a personal errand, injuries suffered during the detour or after the errand but before returning to the route are not within the course. D. Business trip but EE detours from the shortest route for a personal errand, decisions are divided as to whether to compensate for injuries suffered angling back to the business route. E. Where the trip is essentially or dominantly a personal trip or an extension beyond a personal destination for an employment purpose, the injury suffered while making an employment detour before returning to the personal trip is within the course. A detour may have to be substantial or extensive in order to take the injury out of the course of employment.

How do MS courts address the issue of whether a heart or medical condition arose out of the employment?

Washington v. Greenville MFG - When the testifying doctor said that he believed the worker died from a heart attack arising out of a preexisting condition and not out of the work (no one was around to see), this was not enough to overcome MS's requirement for substantial evidence needed to overturn the presumption of a work related death in such a case. When an employee is found dead at a place where his duties require him to be or where he might properly be in the performance of his duties during work hours in the absence of evidence that he was not engaged in his employer's business, there is a presumption that the accident arose out of and in the course of employment. No evidence indicated the worker was not doing his master's work when the injury occurred. The doctor's testimony was aimed at overcoming the presumption that comes therefrom. The court ruled that the medical testimony was not enough. University of MS Medical Center v. Dep. Of Stewart - in this case, there was a witness to the decedent plumber's heart attack, and medical testimony to the degree of medical testimony that the heart attack came on suddenly, not as a result of or caused by in any way the work, and therefore, the death was not compensable. Unlike the female secretary who had a highstrung personality, this decedent was happy-go-lucky and laid back. This, in conjunction with proof that he was not doing intense work, and medical testimony that the work did not likely aggravate or precipitate the injury, sealing the case as not an injury arising out of the work. No connection between the work and the injury. This constituted substantial evidence to rebut any presumption that the plaintiff died in connection with the work. Union Producing Co v. Dep. Of Simpson - employee suffered a heart attack at work while checking ledgers and died shortly after reaching the hospital. Medical testimony varied as to whether the condition was aggravated by the work, leading to the heart attack, or due entirely to his preexisting condition. The court ruled there was no substantial evidence of a causal connection. Merely testifying that he should have been in bed and that any activity COULD have aggravated or worsened his condition, does not prove that the work he was doing was a contributing cause. To rule otherwise would mean anytime an employee is doing work when the heart attack arrives must be covered. Bradley: but several doctors testified that there was causal connection! The real reason they said there was no substantial evidence: "the ordinary wear and tear of life" is not enough to make the work a causal connection. So it seems maybe MS does have a rule requiring more than regular strain? Bradley said this case establishes that you need medical and legal causal connection. And the legal test is whether the exertion, mental or physical, must be MORE THAN THE ORDINARY WEAR AND TEAR OF LIFE. ("ordinary wear and tear" doctrine established). Mrs. Dinsmore passed this test - her job was a high stress level. But this leaves open whether the court meant ordinary wear for a normal person, or for this particular person. MS Ass'n of Ins Agents v. Dep. Of Seay - While the "ordinary wear and tear of life" is not enough to establish causation as in Simpson above, here the facts are different as the decedent was a very high strung worker and under considerable extra strain as he worked long hours without a break. Again the medical testimony was conflicting as to whether the employee's heart attack was aggravated by the work. The heart attack, if caused or aggravated by work, need not actually even occur at work, but may occur later, after he has finished his duties, without breaking the causal chain.

When can a state constitutionally apply its own statute to an injury?

We ask what the state's interest is in the injury. Ie, where did the injury occur?

What is the general rule for the "lent servant doctrine"?

Wedeck v. Unocal Corporation - Wedeck sued Unocal in tort for injuries she received from chemical exposure while working at a Unocal lab. She was working there as part of an agreement between Unocal and Lab Support. The agreement said that Lab Support would pay Wedeck, but it was up to Unocal to train Wedeck and tell her what to do. The issue at trial was whether Unocal was Wedeck's "special employer." The relevant factors in determining whether a "general employer" has lent a servant to a "special employer" are: 1. Whether the borrowing employer's control over the employee and the work he is performing extends beyond mere suggestion of details or cooperation; 2. Whether the employee is performing the special employer's work 3. Whether there was an agreement, understanding, or meeting of the minds between the original and special employer; 4. Whether the employee acquiesced in the new work situation; 5. Whether the original employer terminated his relationship with the employee; 6. Whether the special employer furnished the tools and place for performance; 7. Whether the new employment was over a considerable length of time; 8. Whether the borrowing employer had the right to fire; 9. And whether the borrowing employer had the obligation to pay the employee Several factors tend to negate the inference that there is a lent servant: 1. The worker is skilled and has substantial control over operational details, 2. The worker is not engaged in the borrower's usual business, 3. The worker works only for a brief period of time, 4. The worker does not use the tools or equipment of the borrowing employer, but instead uses his own or the tools of the lending employer, 5. The borrowing employer neither pays the worker nor has the right to discharge him The biggest factor is the Right to Control. Actual exercise is not necessary. The mere right to do it is usually enough. In this case, Wedeck was not sent in briefly to Unocal to perform a task with unlimited discretion, she was was given specific training by Unocal and was given regular assignments by them. Wedeck in this case was a lent servant and Unocal was her special employer, so she is barred from tort suit. Notes: - This is called a "Labor Broker Case" or "Employee Leasing" and there are many like it. - Statutes often deal with these types of cases - This type of question is usually a fact issue

Are injuries caused by on-the-job assaults "arising out of" employment?

Weiss v. City of Milwaukee - negligent infliction of emotional distress claims were dismissed against the former lover of an employee who had already claimed benefits under the act. Her former spouse supposedly bugged her while she was at work. That is a PERSONAL RISK. Her claim was that the employer was at fault in disclosing her address to the former lover. The court ended up with the seminal result: we have repeatedly stated that WC must be liberally construed to compensate injured workers, but the courts must be careful to avoid disrupting the balance. The court concluded that this would be covered! :O So the suit was barred! Notes: Probably would not be a universal result.

Can you get benefits in more than one state?

Where the texas statute said it was the exclusive remedy, and the worker collected under the texas statute, the Court ruled that the law was unmistakably clear. A later decision, dealing with similar facts, where the injury occurred in wisconsin, but benefits were given under Illinois law, and later filed under Wisconsin law. The court said this time that the Illinois law did not have the same unmistakably clear language, and therefore he could get benefits under the Wisconsin law, so long as credit was given toward benefits already paid under the other statute.

Do acts of nature "arise" out of employment?

Whetro v. Awkerman - this case addressed the neutral risk of an act of nature such as a bolt of lightning hitting a worker while working. Walking next to a caterpillar tractor would probably increase the risk of being stuck by lightning. But suppose the person was walking from one average building to another - it would be hard to show the risk is increased, other than to say that the work required the worker to be outside. In this case, the injury from the storm was Neutral - neither created by the work or the worker. This would seem to normally show that the risk of injury did not "arise out of" the employment. But this court said that, when there is a neutral risk, we adopt the "positional risk doctrine." This rule relaxes the arising out of requirement by making it a but-for test. In other words, the question for neutral risks becomes, if the worker was in a place that the work reasonably places him, whether the work placing him there was a but-for cause of the injury. Would he otherwise have been so injured? If not, then there is coverage. Whethro marked a change from the old doctrine of requiring a showing that the work increased the risk, to the positional risk doctrine. Notes: Suppose a tornado lifts a board from the worksite which slams into the plaintiff's face. While the source of the risk, the tornado, did not arise out of the work, the board was from the workplace so the risk was "enhanced" by the tornado. But suppose the board came from off site? Then there would be no coverage. This is what prompts the positional-risk doctrine - the results are seemingly random, based on factors that don't or shouldn't really matter. For force of nature injuries: - Some courts still require that the working environment at the time of injury exposed the worker to a greater risk of injury or death by an act of nature than one not so employed would have been exposed. - Other courts used a cause in fact Test. - Another test courts sometimes use is whether the work enhanced not the likelihood of injury but the consequences. - And many courts, like Wethro, have used the positional risk test. - Some courts only apply the positional risk test to "street risks" - A few states reject positional risk in favor of an "actual risk" test, which provides coverage if the injury can be seen to have followed as a natural incident of the work AND to have been contemplated by a reasonable person by nature of the employment. But excluded are causative dangers not peculiar to the work. - The positional risk doctrine usually only apply to neutral risks

What is the Restatement test for Employment vs. Independent Contract?

§ 220 Definition of Servant (1) A servant is a person employed to perform services in the affairs of another and who with respect to the physical conduct in the performance of the services is subject to the other's control or right to control. (2) In determining whether one acting for another is a servant or an independent contractor, the following matters of fact, among others, are considered: (a) the extent of control which, by the agreement, the master may exercise over the details of the work; (b) whether or not the one employed is engaged in a distinct occupation or business; (c) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision; (d) the skill required in the particular occupation; (e) whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work; (f) the length of time for which the person is employed; (g) the method of payment, whether by the time or by the job; (h) whether or not the work is a part of the regular business of the employer; Example: would a window washer who washes the windows of a retail store be an employee? Under the right to control test, probably not. Under the relative nature of the work test, probably not as well. But what if he was a janitor? Then, under either test, he probably would be an employee. (i) whether or not the parties believe they are creating the relation of master and servant; and (j) whether the principal is or is not in business.