Outline: A Story of Love, Hate and the Human Condition

Outline: A Story of Love, Hate and the Human Condition

By Jacques Fowler

I.Overview of Workers CompA. Basic Features

B. Historical Development

a.Old system you needed wrong doer; not tort no recovery

b.assumption of risk if worker continued to work in same environment

c. creation of fellow servant doctrine, where you cant sue employer for a co-workers negligence

d. CL fixed these problems around the 1900s

a. Vice principal rule to get around fellow servant doctrine- if a superior has power they where an extension of the employer so you could sue employer for supervisors actions

b. Created safety as a non-delegatable duty that employers could not delegate away.

c. But you still needed negligence to recover and contrib. was still a viable defense.

e. Later England and Germany created new systems on the idea that those who reap the benefits (consumers) should suffer the cost, and it shouldnt be forced onto the worker

a. Social Compromise Theory- employer gets limited damages (insurance premiums) and the worker gets recovery w/o showing negligence (no fault system). Design is no punishment of employer and some recovery by the employee- these are the trade-offs.

b. Abolished CL defenses

c. Now there are 4 elements for the system to work

i. Injury must be result of current business activity

ii. Must be activity w/ predictable accident cost

iii. Consumers- persons who get benefit of activity

iv. Projected accident costs reflected in insurance premiums (reason ii. Is so important)

II.Specific ProvisionsA. Exclusivity of Remedy- 656.018

a. 656.018- benefits under workers comp are sole remedy for employee and others that may have a claim under an injury

b. sole and exclusive remedy means that if worker is injured and the only suit that can be brought is a workers comp suit; if injury not covered by workers comp then employee is screwed.

c. Or. Case Major contributing factor- if employment is not major contributing cause then employer is not liable. This is done by weighing preexisting system v. the stress caused by employment and seeing which is major cause of injury.

i. Newer case Smothers says that employee in this situation would be able to bring a negligence claim, so if you win on a workers comp claim as defense counsel then you set your self up for a negligence claim

d. Exclusivity also protects co-worker negligence if in AOE/COE

e. AOE/COE arising and in the course of employment- must be AOE/COE to recover

B. Employer Misconduct and Intentional Injury by Employer/ uninsured employer

a. 2 exceptions to exclusivity of remedy

i. Uninsured employer is subject to lawsuit at common law

ii. Always can sue for intentional (Or. Case says supervision punching employee company is not liable)

1. includes willful intent, failure to safety devices, or willful misconduct

III.Employment Status- important because if not employee then no recovery

A. Employee Defined

a. 656.005 (30)- need three elements

i. Contractual relationship- express or implied

ii. To furnish remuneration- wages

iii. Subject to direction and control of employee- need not be exercised to exist

b. These elements may all blend into one another ex a volunteer may have no contract or remuneration

c. This includes unlawful workers

B. Element of Contract

a. All hinges on control power to release employee is also important

b. Prehiring tryouts are not employment, unless the activity of the tryout was an integral part of the job and the employer derives a benefit from the tryout as long as state statute is silent as to element of remuneration

c. End of contract of hire continues a reasonable time after the actual work ended

C. Element of Remuneration

a. Anything counts

b. Is usually the least important and easy to find, but is most important in that it is the purpose of workers comp to provide economic relief to the injured

c. Remuneration must be intended to give and expected to receive- volunteers usually not covered

d. Employee is not required to receive the remuneration directly and it can go to another source if worker so desires

D. Control Test

a. Primary consideration in defining employee relationship have to decide if person is employee or independent contractor (IC)

b. Usually control is right to exercise control over a worker.

c. Bowser case in Or. Sets forth several secondary tests used to determine if control actually exists- answer these questions and then count up the results

i. Right to terminate relationship- if liable for severance then maybe not an employee

ii. Nature of work contracted for- specific work is usually given to an IC, look at term and specific amounts of work to be done

iii. Right to employ assistants- Employees have no such right to subcontract out the work

iv. Furnishing and maintaining equipment- ICs own there own equipment

v. Former relationship w/ the parties- do past dealings show a history of contract or employment

vi. Performing services for others- only can work for one boss and have set hours and a schedule that you are responsible to keep

vii. Manner and method of establishing relationship- is it an ad in the paper or did you submit a bid to have the honor of working this job

E. Relative Nature of the Work Test

a. This is a new test offered by Larson

i. When the work being done is an integral part of the regular business and when the worker does not furnish an independent business or professional service

ii. The claimants work (how skilled is the worker and should he be expected to insure himself) and look at the relationship between the employees job compared to the employers business (is it an integral part of the job).

iii. This test is used by most states if the control test is not conclusive; also it is the primary test for the federal government

iv. Nature of work where you work so exclusively for a person that you cant work for any other person

v. Employer can electively choose to cover IC if the IC consents; but the employee cant opt out of the workers comp system.

b. Or. 670.600- gives the standards for identification of ICs, so based on the statutes you wouldnt need the control test because you just have to decided if worker falls under the IC definition. It doesnt work this way and Or. Courts use this statute with 656 and the IC definition as a last resort if both the control and nature of the work test fail to reach a result.

F. Lent/Dual Employees

a. Definitions

i. General employer- lending employer- one who worker customarily works for

ii. Special employer- borrowing employer

iii. General is always liable for workers comp, special is liable if on there own will.

b. Tiffanys case- it is reasonable to say that a special is paying for the workers comp of an employee when dealing with seasonal help because the extra rate that a general receives as profit is also used to pay for the workers comp insurance.

c. If three elements are not present then an employee cant file against a special-in other words special employer is only liable if:

i. Employee made contract w/ the special either express or implied

ii. Work is essentially that of the special employer

iii. Special has the right to control the details of the work

d. 656.850- Worker Leasing Company- for agency/placement services- says leasing company has obligation to pay workers comp of leased employees and leasing company becomes liable of all workers of the client, unless the client has a guarantee contract for all of its workers and the leased workers; either way one of the companies covers all of the workers- so make sure that client has a guarantee contract to cover workers comp

i. in Or. acts like .029 say where a person is letting a contract and the sub isnt covered, the lettor better be covered.

e. If an employer accepts a persons claim of workers comp then they cant latter revoke the award because they found out they are not the actual employer; In Or. There is a 2-year extension before they close the door on employers. So need to make sure before you grant a claim that you are actually the employer

f. Joint/ Concurrent employment

i. Joint employment- where worker has contract w/ both employers and simultaneously is controlled and paid for by two people; Cop acting as a security guard while on duty so both employers are liable for apportionment of the benefits.

ii. Concurrent (dual employment)- duty to serve 1 employer is independent of the other employer. Guy is janitor and security guard at the same place. Company he is doing work for when he is injured is liable- because it can be separated

1. Note for exam question- if workers comp is no fault and he is walking down the hall and falls who is at fault- janitorial or security company? Maybe there is no answer or maybe they both share like in apportionment or he doesnt recover?

G. Inclusions and Exemption

a. To determine if general contractor will pay if the sub is uninsured the general rule of thumb is the statute covers employee when the work being done by employee would normally be accomplished by the employer through their own employees

b. Even w/ contract, remuneration, and control you may still have an exclusion for workers comp. 656.027 describes who are non-subject workers.

c. 6656.029- brings employees in- Statutory Employer law- a person may have to provide workers comp even if not an employer of the employee; a general maybe held liable for workers of subcontractor b/c sub is non-complying employer (NCE).

i. When you have an NCE employee can still sue sub and get their benefits; sole and exclusive remedy doesnt apply for NCE

ii. But all states say workers comp is mandatory, so presumption is all employees are covered; Even charities b/c it doesnt matter if you are in business for profit or not, it only matters if you are in business

d. Persons excluded 656.027- all are allowed to have selective coverage

i. 2- excludes worker around the house b/c no consumer is paying for the end good; the prime idea behind workers comp is to pass the insurance premiums on to the consumer, but in a home there is no consumer

1. Anfilofieff case- cuts hand on metal siding and he was working at the instruction of his boss who had taken him off another job to work at the bosses house that day the result is 2 exceptions

a. Commercial use of the property- if the property has a commercial use then it cant be 2

b. Or if services are commercial- scope of regular employment is broadened as in Anfilofieff

ii. 1 excludes domestic servants- 50% of the states use this exception, the rest allow for voluntary coverage; reason there is an exclusion is b/c there is no consumer to pass the premiums on to

1. 2 tests to determine if a person is a domestic servant

a. location- in or around the house

b. nature of the duties test- what is the use to which the employer is putting the employee too

2. if the labor is used in a commercial purpose for the master then person is an employee, but if the person is merely contributing to the personal benefit of the master and the work is not in the normal trade of the master then the worker is a domestic servant

iii. 3 excludes casual employment- brief, short- majority of states include if work is casual and outside of the scope of employers business

1. case with the pony riding girls- must be under a certain dollar amount and outside of the scope of regular employment

iv. number of employees- Or. Says one employee is enough to say that you are an employer, other states have a critical number of employees and cant sue the employer if you have less than 3 employees

v. Farm labor- once every state excluded- now 39 jurisdictions cover farm workers to some degree; 14 states make no distinction b/t farm and factory workers; 14 states have no coverage

vi. Executives and partners- execs are usually covered by .027 b/c employer is the corp., unless they own the company; partners are not b/c they are the business and you cant be your own employer all states do allow elective coverage

1. Dual capacity rule- at time of injury not acting as an executive, but was acting as a worker when injury occurs then is usually covered; allows for recovery of execs, but some circumstance may still stay the old way and they are not covered

vii. Public employees/officials- majority covers employees, but not officials- officials are those that exercise sovereign power

viii. 12 exemption for newspaper carriers

ix. 15 persons who own equipment are presumed to be ICs

IV.Defining Compensability

A. Arising Out of Employment (AOE) Generally

a. AOE focuses on nature of the risk of injury- distinguish b/t employment risks and those risks that we are normally exposed too

b. COE focuses on the time, place, circumstances of the injury

c. Must be in COE or cant be AOE b/c employer didnt hire you to do that; w/o COE then no AOE, that is why in real life you decide if COE then determine AOE

d. AOE does not mean caused by employment- job can just put you around harm (street-risk)

B. AOE Types of Risk

a. Peculiar Risk Doctrine (PRD)- risk had to be unique and peculiar to the employment, this doctrine is dead

i. Door to door salesman slipping on ice isnt covered b/c everyone is exposed to this type of risk

b. Increased Risk Doctrine (IRD) - increase of risk b/c work exposes the workers to the danger more often or too a greater degree than the public is exposed- majority rule

c. Actual risk doctrine (ARD) - if nature of job exposes employee to injury dont care about public. First used in acts of god and street risk cases- next most popular (pg. 43)

d. Positional risk doctrine (PoRD)- almost adopted in Or. And some states use it when the have to; but for test would injury occur but for the job- broader than ARD b/c you dont have to be working- bringing the employee into peril b/c employee has to be there due to employment; COE doesnt always need to be meet- this is the benefit over the ARD; PoRD is the standard in Oregon

C. Categories of Risk

a. Employment risks- universally covered by 5 doctrines

b. Personal risks- only connection w/ job is b/c person was at work; nothing to do w/ job

i. Heart attack at work- not compensable just b/c you are at work- never compensable under the 5 doctrines

c. Neutral risks- gray area b/t the other two risks; neither personal or employment ex natural disasters, acts of god

d. Mixed risk- personal factors combining w/ employment factors to create risk

i. Preexisting condition usually compensable if job contributes to; Or. Major contributing factor

ii. Acts of god- usually neutral risks

1. Whetro case- killed on the job by tornado one on the roof and one hotel- one is ARD and the other is the PoRD

2. an exception used to soften the IRD, when claimants injuries take effect through contact with the employers premise

e. AOE is concerned w/ the nature of the risk

i. Court says in Garguilo "foreseeability is not the test in Workers comp", this is kind of true, but workers comp. includes predictability in the insurance premiums so it is not always true that foreseeability is not important

f. Unexplained falls

i. some states have statutes that presumed an injured worker found at work was injured AOE and is compensable

ii. Oregon worker has burden to prove injury occurred in COE 656.226

iii. idiopathic condition completely personal and has no relation to the employment so it is not compensable; unexplained is usually compensable- burden on employer to show idiopathic fall, but you have to show you didn't fall b/c your knee gave out (case w/ guy walking and hurts his knee question was if the fall caused the injury or was it a part of the patients history that burden is on the employer vs. the bus driver walking to the bus and his knee gives and you hurt your back then it is idiopathic

iv. Cali- if you have 3 possible causes of death and only one is compensable then courts favor employee and compensability

v. generally it is a preponderance in most states and the burden is on the employee to prove which caused the death

D. AOE: Assaults

a. to see if personal risk see if they had a relationship and not an employment relationship b/c not over work so it is a neutral risk and maybe not compensable

b. Rule is even if subject of the dispute is unrelated to the work, the assault is compensable if

i. work of the participants brought them together andii. created the relationship and conditions which resulted in the clash

1. in other words- so did work bring them together and create relationship and conditions which lead to the clash

2. test is not where they on the premise of the employer, the test is whether the work environment was the cause of the incident

3. burden is on the worker to show this

c. jealous spouse cases not compensable if workplace is just an easy place for the attack, must be stemming from workplace relationship and person must be working and in scope of employment (why milkmen can get shot because they shouldn't be inside the bedroom.)

d. Aggressor defense- Oregon has one 656.005 (7)(b)(A)- an aggressor can not recover (excluding bouncers and cops)

i. no cool down period needed so an attack 2 hours later doesn't matter

ii. when claimant is victim of assault it doesn't necessarily matter if you are on or off the premise- can be either street risk or PoRD

E. Personal Risk to Employee

a. idiopathic when polio makes teacher fall b/c brace gives out and employment didn't contribute to injury. Might make difference if injured by the fall- floor level rule- if you fall form floor level and you are injured then not compensable, window washer or janitor fall then window washer might be compensable b/c he was put at more of a risk.

i. if you fall on carpet or concrete might be a factor in determining compensability

ii. see bus driver example above

b. cooperating cause- even w/ personal risk did work and condition of the premises act as a cooperating cause to cause the injury (did he fall over a work chair that was defective and this theory only works in fall cases)

c. Imported dangers are not compensable if you bring risk to work with you

i. Truck driver struck in eye as he was lighting a cigarette was an imported risk so it is not compensable pg 82 has some examples

ii. #4 is compensable b/c provided break room which was a potential risk created by the employer

F. Course of Employment (COE); Time and place Issues

a. The injury must arise in the COE, the rule is not that the employee is in the COE; also the rule uses the word arise in the, not occur in the

b. Coming and Going Rule

i. Must travel to and from work. Workers Comp never applies to a straight trip coming and going trips including off clock lunches

ii. There are exceptions to the coming and going rule

1. If worker has reached the premise

2. hasnt left work yet, but is off the clock

3. Employer conveyance exception- when employer provides the conveyance since it is under the employers control and the risk is provided and incident to contract

4. If paid or reimbursed for travel

5. If employee injured on public or private road if employee is exposed to a greater risk that that of the general public

6. Parking lot exception- if provided by employer it becomes part of the premise

7. Special Risk exception- if close enough to employers premise, but exposed to a special risk caused by employers premise

8. Personal Convenience doctrine- not necessarily coming and going, but is for benefit of the worker; such acts as are necessary to the life, comfort, and convenience of the servant while at work, even if strict personal and not acts of service then injury is deemed to be AOE

9. dual purpose rule- when hurt on a commute and taking work home with you

10. Journey itself is Service- if trip is for work then it is an exception pg 120 explains this a little more but that is the gist of it

iii. if employers place of business is on the 7, 8, and 9 floors then a person working on 15 is using the steps as a common area, but it may be possible for someone who works on 7 to be injured on the 8th floor steps and the court finds that the steps where part of the premises. This is like the case of the woman in the mall that falls in the common area but cant recover because employer doesnt control the common area

G. COE; other issues

a. Meals and Breaks

i. If unpaid and off premise lunch time injuries noncompensable

ii. Off premise, but paid breaks might be compensable especially if the supervisor is accompanying the employee (Jordan handout case)

1. uses 7 elements, but now a days it is reversible error to use these steps, but they are handy

b. Dual purpose/ impedimenta of the job

i. If one guy has to drop something off at the office and the other guy was just along for the ride then the one is compensable. In a liberal jurisdiction both might be especially if one of them is a supervisor

ii. If papers from work dont cause the accident then not going to be an impedimenta, but if stop fast and logs that you are hauling roll forward then it might be an impedimenta (sarcasm added)

iii. Rule is if the journey would be undertaken regardless of the work or if work wouldnt have been done if you didnt need to go then the work is not the purpose of the trip

1. in other words would someone else be sent on the job if you were not going on the personal trip- if not probably not compensable

2. an injury that serves both business and personal purpose is in course of employment if the trip involves performance of services that someone else would have had to go and do if not for the personal trip (tad bit redundant from above)

c. Working from Home

i. If employer knows about employee working at home and employer acquiesced you might look to the Jordan factors to see if AOE/COE

d. Deviations

i. If a deviation for business you are covered until you get back to your personal route

1. but if it changes the times and circumstances of the personal route then it still might be compensable

ii. if a deviation from a business trip for personal reasons you are not covered until back to the work route

iii. intoxication might be a deviation or maybe employee misconduct

H. COE; Activity

a. Misconduct

i. Usually irrelevant unless abandonment of the job or you are using a statute argument

ii. Unusual rash act doctrine is crap since this isnt a fault system and it is not a defense to compensation

iii. If no statutory defense then you can look to ultimate work to be done- what is to be done and how much closer are you to getting it done- this means that different people can do the same job in different ways so you have to look at end product

iv. A violation of a direct order might be a ban to recovery- must be direct and possibility of immediate termination

1. must be unrelated to job and strictly forbidden (question whether it is really forbidden) then you might have a defense, if one element is missing you are screwed

v. willful misconduct is a defense if you have a statute 656.007

1. intoxication- it is not enough to just be drunk at work, but you also need to have the alcohol lead to the accident

vi. breaking the law/ statute is probably not a defense ex 60 mph in a 55 is not misconduct, but 110 mph in a 20 mph school zone in a semi loaded with nitro and TNT and you are drunk and getting a blowjob then it might not be compensable, but it depends

b. Personal Comfort Doctrine

i. Dont leave COE if dont abandon the job while tending to personal comfort

1. questions are whether prohibition of the acts of the employee by the employer who expressly prohibited actions of the employee

2. some say if method is unusual, unreasonable, or abnormal then it will not be compensated

ii. Larsons test- compensable unless 1. the employer would have prohibited had the subject been addressed and 2. the employee knew or should have known of the implied prohibition

iii. Personal comfort activities may be compensible if they expose the worker to the hazards of the employment place

c. Recreational and Social Activities

i. 656.005(7)(b)(B) at 1st used the word solely instead of the word primarily and under solely no claims ever succeeded even when traveling salesman died b/c he was with a prostitute and his heart popped so legislature amended the statute

ii. Larsons test (if you have only one then you get compensated)

1. occur on premised during break or lunch as regular incidence of employment

2. Expressly/Impliedly requires participation or make it a part of the services

3. employer derives substantial direct benefit from activity

iii. 656.005(7)(b)(C)- Employer cant provide or have actual knowledge of consumption of alcohol

iv. 5 factors from Moores case to get compensation in recreational cases pg150-51

d. Horseplay

i. Pretty much the same as misconduct, but can be considered assault

ii. True victim always compensible, perpetrator usually compensated- difficult to deny horseplay b/c usually a result of working conditions and has become customary i.e. rubber bands just laying around The availability of weapons of horseplay hurt the defense

e. Resident employees or Bunk House rule

i. If required to live there if either 1. 24 hour on call (actually had to be on call) or 2. source distinctly related to condition of remaining on the premise

1. very similar to parking lot cases b/c under control of the employer

ii. Remote residence- employer requires employee to live a certain distance away- an extension of the bunkhouse rule

1. Construction team in Guam and employee teaches a night class on her own; supervisor agrees to pick her up and return her to the dorm, but they stop off at look out point and then they get hurt, she sues and wins this rumps the dual purpose doctrine

f. Traveling Employees

i. Continuous coverage unless deviation-pretty much always compensible

1. Larson lists some that may constitute a departure examples of these are on pg 173

g. Acts outside of Regular Duties

i. When furthering good will of employer, employer is receiving indirect benefit while employee is outside of his regular duties and his work might not be furthered

1. dealing w/ someone who has business good will or might lead to good will

2. person being helped is in a business or possible business relationship w/ the employer

3. Could also be a special mission so not coming and going rule (guy plays Santa at whore house)

h. Acts in an Emergency

i. 3 rules that are compensated if acted on

1. Worker injured in rescue/ emergency activity and the employer has an interest in the rescue

2. Rescue of stranger(not business relation) if job puts employee in the position to make moral obligation to help

3. (RARE) Public duty presses worker into service- police make you get out of your car and help with a fire

i. Delayed Action injuries

i. AOE is strong but COE is weak

1. ex. Employee is soaked w/ gas at work and catches fire at home

ii. Court doesnt create SOL when ex-employee attacks supervisor later after employee was fired- b/c not looking at the result but at the origin of the injury

iii. Or. Statute requires 2 prong AOE/COE, but Rodgers case the S. Court says you need a unity test and remand to appellate court to determine that test, so that court remands it to the Work Comp Commission who develops the 7-Prong Jordan test which was overturned and now AOE/COE is a nebulous test and it is kind of a 2-pronged test, but you can borrow from COE to get AOE. So apply 2-prong test, but call it the work place connection test in Or.

V.Accidental Injury v. Occupational Disease

A. Personal Injury by Accident

a. Distinguish b/t personal injury and occupational disease

i. Old rules said you needed to be hurt and occupational disease (OD) had a statute of limitations

b. 656.802 OD statute Or. Had no law until 1959 and made new law not part of workers comp law; some states didnt recognize OD until the 90s

i. artificial limbs if injured are not covered

c. 2 elements of an accident: Accidents needed to be 1. unexpected and you needed to show 2. certainty of time (when injury happened)

d. Unusual and usual exertion makes a problem because usual exertion might mean nothing unusual about the action- result maybe unexpected, but not unusual cause large minority requires unusual exertion majority requires some exertion

i. Larson says if have a heart problem need to show exertion was greater than that of everyday life (kind of like Or.)- work needs to be the cause

ii. If you have a diseased heart you need to show work was a greater exertion than everyday life

e. Scheduled and unscheduled statutes means list or no list. If scheduled you just look to list to see if you get compensated

f. Repetitive exposures for workers whose damage is done over time each breath is an accidental injury- micro chromatic exposure- also used in carpal tunnel cases

g. Determine date when disease manifests itself

i. Inability to perform work

ii. When medical attention is needed

h. Hearing loss and carpel tunnel both are repetitive but might not be compensible; for hearing loss most are compensible, but which employer did the hearing loss occur at if employee has had more than one job

i. Trend is too make micro exposure an OD not an accident like micro chromatic exposure

B. Mental and Nervous Injury/Disease

a. Mental/mental- mental trauma causes mental injury

i. Rules for mental/mental

1. Or. 656.002(3) says not compensible unless 4 things in statute

2. if emotional event didnt effect others then not compensible b/c you are just strange and hypersensitive

3. take worker as is if stress caused that injury then compensible

4. needs to be acute event not long and drawn out

ii. If any physical trauma and mental problem then compensible

1. if accident worsens an underlying or dormant condition then you take the employee as you find them

iii. mental/mental, mental/physical, and physical/mental

iv. Some states say stress needs to be precipitated by an extraordinary or drastic event; same as in ORS 656.002

v. No General rule for mental claim and it depends on the jurisdiction if the claim is compensible if employee proves the criteria

vi. Read case on page 266

C. Occupational Disease

a. 656.802 definition of an OD- employee is exposed to activities not ordinarily subjected too

b. any disease arising out of exposure to a harmful condition of the employment, when those conditions are present in a peculiar or increased degree by comparison with employment generally

i. familiar harmful elements are present in excessive degree

c. 4 elements if you come to the job w/ preexisting condition- but they can change depending on the jurisdiction

i. has to be work activity

ii. which caused the worsening of the condition

iii. resulting in an increase of pain(this one is a given)

iv. to the extent it produces disability or requires medical treatment

d. Last injurious exposure

i. Who is the employer that will pay for the diseases that occur over time when you deal w/ cases that dont develop for a long period of time

ii. Employer that exposure could have occurred while employee was working there. If couldnt have caused the injury use the last injurious exposure rule

1. ex. If employee has a disease which takes 5 yrs to discover the effects of that disease, you go back to last employer that potentially contributed to the disease

iii. Courts generally dont apportion awards between employers unless state statute allows you to

1. Or. Case law allows apportionment in hearing loss cases if you have 1 employer with 3 insurance carriers then you determine damage done to hearing while each company was serving as the carrier and you apportion accordingly

iv. If employee attacks the last employer, the employer can not use the last injurious exposure to claim that they didnt do it. So if worker can pinpoint which employer caused the harm then the last employer can only say current employer only helped cause the injury

e. Employee who works in a mill (cotton dust) and is a pack a day smoker

i. Last injurious exposure doesnt require significant exposure only needs to a slight exposure then it is compensable

D. Special Proof Problems

a. Standard for proof is generally by a preponderance of the evidence ( Wash is by clear and convincing)

b. Must prove case to a medical probability so if a witness says it is possible then you will lose, if they say it is probable then worker gets compensation

c. Or. Case allows for worker to prove his prima facie case w/o the need of medical testimony if;

i. The case is a simple case

ii. With immediate appearance of symptoms

iii. That is reported to a supervisor

iv. And later worker consults a physician

v. Employee had no prior history of that condition

d. Some cases w/ hard to prove or understand illness say you might need expert testimony as to what needs to be done or to the cause and a doctor offering a conclusion alone wouldnt work

E. Evidence

a. Worker comp is an administrative hearing so all of the evidence is let in and the only question is with what weight will the evidence be given

i. You still need to object so that the court can not give the evidence the greatest amount of weight when the time comes, but you will not keep it out

ii. Residuum Rule- incompetent evidence let in and considered, but need a residuum of competent evidence to make a finding

iii. Courts can use their own knowledge gained w/ experience

iv. Employers report of accident is declared an admission against interest

b. Medical evidence

i. Courts can say that timing alone allows compensation w/o affirmative medical evidence

ii. Payment of medical bills or services is not an admission of liability

iii. Some cases may require expert medical evidence

c. Special Problems

i. When it is a heart attack you must 1st show stress or exertion @ work then you need to have causation witnessed by a doctor; This is because most people that have heart attacks have heart problems that pre-existed their employment

1. Or. Major contributing factor standard says heart attacks dont come in healthy heart so heart attacks hard to develop cases for in Or.

ii. Firefighters- presumption that any respiratory or heart problems are presumed to be work related. This is the case in Or. And most other states

d. Circumstantial evidence

i. Worker dies at home from cyanide poisoning. Court assumes he picked it up from work on his boots and passed it on to his fingers as he took his boots off, then he chewed his fingernails and ingested the cyanide.

ii. 656.266 says that a worker cant prove their case by disproving other possibilities of how the injury occurred

e. Masking

i. One injury masks another injury

ii. Can get compensation for idiopathic condition if injury masks or impedes the detection of the idiopathic condition and allows the condition to develop then is compensable

1. ex. Lower back hurts which stops the doctors from finding out that the worker has cancer in his Kidneys

VI.Subsequent Independent Injuries

A. Range of Compensable Consequences

a. 2nd injury is compensable if it is a direct result of the natural consequence of the 1st compensable injury, unless independent intervening cause attributable to claimants own intentional conduct

i. employees own contributory negligence is not ordinarily an intervening cause; generally only an intervening cause that is the sole and exclusive cause of the ultimate injury

ii. If the primary compensable injury makes it impossible to treat the independent condition, then a worsening of the independent injury becomes compensable

1. Or. Says it needs to be the major contributing cause where surgical action delayed until something could be fixed ie. Weight loss before doctor will operate on back

iii. 2nd injury needs not be a result of the 1st injury the 1st only needs to be a contributing factor to the 2nd

iv. Problems on page 88

1. #6- no compensation in Or. B/c not a major contributing cause

2. #7- if break doctors orders then you might break the chain of causation. The more strict the Doctors order the more likely the injury is not compensable. Some states have enacted statutes saying this and may effect and change the award

b. Subsequent Aggravation of original injury

i. Quasi-Course- unless injury is the result of an intentional act of the employee then it is AOE/COE

ii. 2 principles

1. if subsequent injury is the true course of injury unless employee engaged in activity that was expressly or impliedly prohibited by employer ex. Crutches for broken leg causing shoulder problems is directly related

2. if not quasi course injury, but distinctly unrelated (boxing w/ a broken hand) then not compensable

a. engaged in distinctly separate action that is not in the course of a normal persons daily, regular activity

iii. same 2 principles said in the opposite way

1. primary injury is directly and naturally caused by it

2. claimants conduct was not unreasonable to break the casual chain

iv. Compensable if 1st injury made you more susceptible to the 2nd injury

v. Any problems arising from medical malpractice that arises b/c of the employers original injury is also covered by workers comp

c. Refusal of Medical care

i. Can refuse if appropriate grounds

ii. If no risk of further injury from undergoing treatment w/ a reasonable chance of success then employee has to undergo operation

1. general anesthetic is not a risk

iii. never required to undergo a repeat surgery if the 1st surgery is unsuccessful

iv. medically stationary(aka fixed or stable)- not anticipated any material improvement w/ more medical treatment or passage of time

v. if the operation is not attended w/ great danger and the operation offers a reasonable prospect of relief from the incapacity, the employee must submit to the operation or release his employer from the obligation to maintain him

B. Successive Disabilities

a. Last injurious exposure rule is used by Larson to descried OD and this section which gets confusing so we use the term last injury rule

b. Aggravation(656.273) v. re-injury

c. Massachusetts- Michigan rule (last injury rule)

i. 2 parts

1. if 2nd injury takes the form of occurrence of the 1st and is a continuation of the original injury then the 1st employer is liable

2. if 2nd injury contributes independently to the injury the second insurer is solely liable even if the injury would not have been so severe if not for the existence of the 1st injury, even if 1st injury significantly contributed to the final condition

d. 3 types of treatment for successive disability- in the absence of one of these the general rule is that the employer is liable for injuries to his employee regardless of when or who caused them

i. Second Injury Funds

1. some state have 2nd injury funds for people w/ prior injuries this makes up the difference that an employer would have to pay so to prevent discrimination

ii. Full responsibility- 2nd employer gets fucked w/o any sort of lotion

iii. Apportionment Statutes- employer only has to pay for what was lost in his time of employment with the current employer

1. Or. Allows apportionment in hearing loss cases if the worker had the same employer for years, but the employer had several insurers over the years

C. Suicide

a. Majority- suicide is compensable if injury produces mental derangement and mental derangement produces suicide; minority not compensable unless as a direct result of injury an insanity begins that causes the victim to take his own life through an uncontrollable impulse or delirium of frenzy w/o conscious volition to produce death w/o conscious volition to produce death(Sponataski)

b. ORS 656.156- says no compensation for suicide

i. At first Or. Would not adopt the Whitehead test and instead created a test that said if injury produced impairment that stops compulsion not to take ones own life then it is compensable, after years of wiggling they finally adopt the Whitehead rule

c. 2 tests

i. Sponataski- not compensable unless as a direct result of injury an insanity begins that causes the victim to take his own life through an uncontrollable impulse or delirium of frenzy w/o conscious volition to produce death w/o conscious volition to produce death

ii. Whitehead (Chain of causation test) injury caused the deranged mental condition which in turn caused the suicide

iii. Sponataski- is an eccentric and violent death will Whitehead you kind of fade away

VII. Types of Benefits

A. Medical and Rehab Services

a. Medical Benefits

i. Always covered under workers comp and are the largest cost with in the system

1. 656.245

a. curative care- to end the injury

b. palliative care- to alleviate discomfort not to bring about a physical change in worker ex- travel expenses

ii. 656.245(1)(b)- other related services)

b. Medical services

i. Wife can provide medical care and should be compensated if services are beyond ordinary wifely duties, any conscientious wife would give her husband

ii. ORS 656.245- allows this, but collusion is possible if 2 people are living with a disabled roommate and the 2 people are at the same address and being paid for helping one another and doing the same duties

c. Choice of medical provider

i. Some states have a limit on the number of doctors you can change from and who may elect the 3 doctors.

1. Or. Only allows 3 doctors

2. some states say doctor is selected from the list that is provided by the state

3. Or. Has an MCO contracts which provides many different doctors for workers to choose from

ii. Weight loss program might be compensable b/c it is an ancillary condition so if the injury is a major contributing cause then a weight loss program might be compensable; but other states may not be as strict as Oregon

d. Rehabilitation

i. Debts of a worker would be a great therapy if they were paid off, but the psychological boost doesnt have a rational basis to the injury

1. payment of consumer debt not repayable

a. but if the person is a paraplegic and needs a specially equipped vehicle for the worker to use

ii. remodeling of a house or car for injury usually has to be provided

1. each time you move or get a new car the employer is liable for remodeling if it is reasonable or necessary

2. the initial cost of the van might be the responsibility of the employer, but after that it is the responsibility of the employee

3. employee gets 1st car free and then has to use that to buy further cars or workers comp may require price of regular van less the price of a regular car to be paid

iii. vocational rehabilitation

1. is usually given by statute different ways of payment. Oregon used to make the state pay it for vocational training, but now Oregon is a cost boar by the employer and private certified (by the state) vocational counselors now do the job

2. some states do allow compensation for formal education and training for an entirely new type of job, but it is state specific

3. Refusal by employee to participate in rehab or to do light duty work (if capable of performing the work) might be grounds to terminate the award

B. Benefits paid to injured worker

a. Compensation is benefits, they are not damages, unlike in torts. The design is to provide for the worker and to supplement the work wage loss supplement. Also by contrast w/ the tort system awards are not given for the physical injury, but instead for the resulting disability that is produced

b. Time loss benefits

i. TTD- temporary total disability

ii. TPD- temporary partial disability

iii. PPD- permanent partial disability

iv. PTD- permanent total disability

1. temporary- you pay until you are medically stationary which is 1. no material improvement 2. where medical treatment or the passage of time will help out; if this is the case the claim will cease and become a permanent

c. TTD and TPD

i. TTD- means you can not earn wages temporarily- anticipation you can go back if you can go back, but you are limited by what you can do then you are TPD

ii. TTD is usually 66 2/3 % of wages but maybe not vacation or benefits but includes overtime and bonuses; TPD is difference between wages of TTD minus what you get at a modified wage

1. Ex TPD= what you make of TTD (or the ceiling or floor) minus what your boss is now willing to pay you

2. Ceiling is set at state average weekly wage, so lawyers and doctors get screwed by losing money

a. so keep executive on the job and only have to pay the ceiling

3. Floor is set at a rate so workers can make some money

iii. Oregon has a mixed system which means they use scheduled (arms and legs) and unscheduled (from your hips to the shoulders)

1. unscheduled is 656.214(5)- is all others cases need 320 degrees

a. a degree is the amount of time you receive for your injury. So if you lose an arm and get 190 degrees that means you get 190 weeks of loss of wages even if you do not return to work

b. when Oregon changed to degrees scheduled needed a loss of physical ability and unscheduled became a loss of earning power which includes age, physical loss, and education

c. Florida is the only state to move to a wage loss principal

iv. PPD and PTD

1. not a time loss b/c only temporary, this is permanent and is designed to take into account the injury

2. PPD is measured at the time you are medically stationary

3. if you have a combo of injuries and cant return to work PTD b/c not going to change and incapacitated from work

v. Actual earnings v. Earnings capacity

1. actual is the difference between what you earned before and what you earn now

2. earnings capacity is what you lost in your ability to compete in getting a job the ability to earn a wage and compete in the job market

a. focus is on what is your loss in your ability to compete in getting a job

3. if you receive an award and the employer wants to reduce the amount b/c worker is earning more than he was earning before the injury

a. 7 factors of Larson pg 379 shows that employee deserves more than he used to receive so the employer cant go dollar for dollar just the way the employee cant ask for more money because his old job is paying so much more now

vi. PTD can be statutory

1. Oregon says any combo of schedule or unscheduled injury to find PTD

2. Worker has burden to prove PTD and to seek employment

vii. Odd Lot Doctrine- worker not PTD by physical injury alone, but the person is now unemployable

1. Person is 20% disabled and courts look at education, qualifications, skills, abilities, and experience to do other work. What is the employees ability to get suitable gainful employment

2. Burden shifts to the employer if employee can show prima facie case of PTD and shifts back to employee if employer can show suitable gainful employment.

3. an injury makes the worker incapable of obtaining employment in any well known branch of the labor market. Services that an odd-lot worker can provide are so limited in quality, dependability, or quantity that a reasonable stable market does not exist for such jobs

viii. if worker is PPD and is given a light duty job, but leaves to another job in the pursuit of money the worker cant get back the old job if later on he wants it back. If the change in job was for economic reasons then it may make a difference.

ix. PTD means you get benefits and any income you can get, but is subject to a 2 year evaluation to make sure you are still injured

VIII. Dependency and Death Benefits

A.Dependency

a.2 prongs

i. statutory law says youre a dependant

ii.dependency in fact- requires proof- restricted by who fits into statutory categories

1.this is the destitute stuff, and the obligation part they fall under this category when trying to determine if person is a dependant if fact

b. 656.204(5)(a) says if a dependant in fact 656.005 (10)- describes who can fit into this category do you rely on them to continue your current standard of living- the test is not whether you will become destitute

c. age usually 18 unless person is still in school- spousal continues for life unless remarries then a lump sum payment is made

i. Or. Has a cohabitation cut off so it doesnt matter if you dont get married

d. Illegitimate children no longer excluded

e. Obligation to support v. actual support

i. If actual support even w/ legal obligation to support you can find dependency in fact

1. majority- obligation w/o support does not create dependency

2. minority says give the kid the money

ii. if spouse in a state of abandonment, usually 2 years, then can collect if no enforcement of support in the 2 years spouse cant come for workers comp award

iii. if all of the elements in statute met then a conclusive proof of dependency

f. It is a denial of equal protection if 1 class needs to make a showing of dependency and the other class was conclusively presumed to be dependent

i. ORS 656.226 man was denied b/c he wasnt presumed to be dependent until Or. Supreme Court changed the statute

g. Living With

i. Maintained standard of living

ii. If statute provides the award may be increased by number of dependents

B.Death Benefits

a.Survivor benefits (not dependency benefits) statutes say not derivative of workers rights so survivors might be able to bring a claim that the victim failed to bring

i.SOL runs and employee then dies so wife can bring a claim separately

ii.when a surviving spouse remarries and benefits are terminated the unspent balance may be distributed to other dependents that where in a lower priority

IX.Third Party Actions

A. Theory of 3rd party Recovery

a. Sole and exclusive remedy may apply to relatives as well, but doesnt come into effect if you have a negligent 3rd party

i. Ex car accident while in AOE/COE

b. Employers have immunity to CL suits, but immunity does extend to coworkers that are acting in the COE

c. Workers doesnt get to keep recovery unless intentional injury by the employer or if the employer is non complying they dont get to share in the 3rd party recovery

d. Cant sue employer if not an intentional tort; if employee or co-worker commits an intentional tort employee gets workers comp and any tort claim against the employer

i. Cant sue employer unless directly liable, only can get co-worker

e. Exclusivity only applies injuries in the COE

f. Joint Supervision and Control Rule

g. Non-Complying Employer (NCE)

i. 656.020- in short no CL defenses and worker can sue if no workers comp laws where ever in existence

ii. Employer becomes self insured and pays all the bills of the state from the injury and the employer is still liable

iii. 7-8 states say can sue insurance companies for malfeasance; others say cant sue

1. exception when insurer is liable for conspiracy to trick an employee out of his award

iv. physicians can be 3rd parties unless they are co-workers

1. Dual persona Doctrine- might be an exception where doctor might be different- when employer possesses a second persona so completely independent from and unrelated to its status as employer that by established standards the law recognizes it as a separate legal person

a. not suing in employment but in use of equipment- delivery tires and has a tire blow out

b. so no products liability if an employee is injured using your product

c. will not be found merely because the employer has a number of different divisions or departments

B. Subrogation

a. Employers right to recover from 3rd parties judgment

b. 5 ways this is handled

i. no statute so employer can sue and get everything

ii. employer should have cause of action so assigned right to employer

iii. race tot eh courthouse- other party must join in the action to get a share

iv. employee has a period of time to bring the 3rd party action, if not acted on then cause of action is assigned to the paying agency

v. employer has cause of action, but if they dont take an action, then employee gets the right

c. even if employee brings action employer still gets their share, but employer always gets to approve of the settlement

d. Or. Statute says not allowed to bring tort and settle then file a workers comp claim and that way employer couldnt recover

e. Attorney fees come off the top of the recovery; worker gets 1/3 of whats left, and the rest goes to the payor of the benefits for what has been paid out and any reasonably expected costs; anything left after current expense are taken out go back to the injured worker

f. 3rd party defenses

i. all defenses available at CL regardless of workers comp laws

1. ex Contributory negligence and SOL