Workers’ Compensation Research Paper - 10 - 12 Page Paper - High Quality - 12 - 15 Hours
Compensability Arising Out of Employment Part I
OSH 390 Workers’ Compensation
Eastern Kentucky University
Dr. Barry s. Spurlock, Esq., CSP
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Recapping key points from week one
Workers’ comp supplanted traditional tort law claims for injuries.
Workers’ comp is:
No Fault
Exclusive Remedy.
Fault is the “F” word in OSH 390.
Employer liability for workers’ compensation is established through work connection – not fault.
Key question in workers’ compensation is: Is the injury/illness compensable?
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Compensability: legal basis
Created by statutes.
Refined by the courts.
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Example statutes on: compensability and exclusive remedy
Kentucky
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KRS 342.0011 Definitions for chapter. As used in this chapter, unless the context otherwise requires: (1) "Injury" means any work-related traumatic event or series of traumatic events, including cumulative trauma, arising out of and in the course of employment which is the proximate cause producing a harmful change in the human organism evidenced by objective medical findings. "Injury" does not include the effects of the natural aging process, and does not include any communicable disease unless the risk of contracting the disease is increased by the nature of the employment. "Injury" when used generally, unless the context indicates otherwise, shall include an occupational disease and damage to a prosthetic appliance, but shall not include a psychological, psychiatric, or stress-related change in the human organism, unless it is a direct result of a physical injury;
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"Occupational disease" means a disease arising out of and in the course of the employment; (3) An occupational disease as defined in this chapter shall be deemed to arise out of the employment if there is apparent to the rational mind, upon consideration of all the circumstances, a causal connection between the conditions under which the work is performed and the occupational disease, and which can be seen to have followed as a natural incident to the work as a result of the exposure occasioned by the nature of the employment and which can be fairly traced to the employment as the proximate cause. The occupational disease shall be incidental to the character of the business and not independent of the relationship of employer and employee. An occupational disease need not have been foreseen or expected but, after its contraction, it must appear to be related to a risk connected with the employment and to have flowed from that source as a rational consequence;
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KRS 342.610. (1) Every employer subject to this chapter shall be liable for compensation for injury, occupational disease, or death without regard to fault as a cause of the injury, occupational disease, or death
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KRS 342.610(3) Liability for compensation shall not apply where injury, occupational disease, or death to the employee was proximately caused primarily by voluntary intoxication as defined in KRS 501.010, or by his or her willful intention to injure or kill himself, herself, or another.
(4) If injury or death results to an employee through the deliberate intention of his or her employer to produce such injury or death, the employee or the employee's dependent as herein defined shall receive the amount provided in this chapter in a lump sum to be used, if desired, to prosecute the employer. The dependents may bring suit against the employer for any amount they desire. If injury or death results to an employee through the deliberate intention of his or her employer to produce such injury or death, the employee or the employee's dependents may take under this chapter, or in lieu thereof, have a cause of action at law against the employer as if this chapter had not been passed, for such damage so sustained by the employee, his dependents or personal representatives as is recoverable at law. If a suit is brought under this subsection, all right to compensation under this chapter shall thereby be waived as to all persons. If a claim is made for the payment of compensation or any other benefit provided by this chapter, all rights to sue the employer for damages on account of such injury or death shall be waived as to all persons
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342.690 Exclusiveness of liability. (1) If an employer secures payment of compensation as required by this chapter, the liability of such employer under this chapter shall be exclusive and in place of all other liability of such employer to the employee, his legal representative, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to recover damages from such employer at law or in admiralty on account of such injury or death. …. The liability of an employer to another person who may be liable for or who has paid damages on account of injury or death of an employee of such employer arising out of and in the course of employment and caused by a breach of any duty or obligation owed by such employer to such other shall be limited to the amount of compensation and other benefits for which such employer is liable under this chapter on account of such injury or death, unless such other and the employer by written contract have agreed to share liability in a different manner. The exemption from liability given an employer by this section shall also extend to such employer's carrier and to all employees, officers or directors of such employer or carrier, provided the exemption from liability given an employee, officer or director or an employer or carrier shall not apply in any case where the injury or death is proximately caused by the willful and unprovoked physical aggression of such employee, officer or director. (2) If an employer fails to secure payment of compensation as required by this chapter, an injured employee, or his legal representative in case death results from the injury, may claim compensation under this chapter and in addition may maintain an action at law or in admiralty for damages on account of such injury or death, provided that the amount of compensation shall be credited against the amount received in such action, and provided that, if the amount of compensation is larger than the amount of damages received, the amount of damages less the employee's legal fees and expenses shall be credited against the amount of compensation. In such action the defendant may not plead as a defense that the injury was caused by the negligence of a fellow servant, that the employee assumed the risks of his employment, or that the injury was due to the contributory negligence of the employee. (3) An employer shall retain all common law defenses against any action by an employee who elects not to be covered, as provided under subsection (6) of KRS 342.650.
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Compensability: two-prong test
In order for a workers’ compensation claim to be compensable, it must have:
Arisen out of the course of employment,
AND*
Arisen in the course of employment.
*Some jurisdictions may omit the word “and,” or word their statutes slightly differently. Even in those jurisdictions, however, the analysis for compensability is still very similar to those using ”arising out of and in the course of..”
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Arising out of
Causal Connection:
Key questions:
Did the employment increase the risk(s) causing injury/illness?
Did the employment merely create the risk(s) of injury/illness?
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Arising out of: common risk doctrines
Peculiar Risk (Now Obsolete – No jurisdiction follows this now.)
Increased Risk
Actual Risk
Street-Risk
Positional Risk
Risks may be:
Exclusively presented by the employment;
Exclusively presented by the employee;
Neither presented by the employer nor the employee;
Presented, in varying degrees, by both the employee and the employer.
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Development of risk doctrines by courts
Time
Uniqueness of Risk
Ease of Establishing Compensability
Peculiar Risk Doctrine
Peculiar Risk Doctrine
Increased Risk Doctrine
Actual Risk Doctrine
Positional Risk Doctrine
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Arising out of Case reviews
Adopting Increased, Actual and Positional Risk
Erosion of Tort Defenses in Workers’ Compensation
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Whetro v Awkerman
Two cases with the same issue before Michigan Supreme Court.
Whetro – injured while working inside a residence.
Emery – killed in motel he was staying in while on business.
Employers lost on every level – even this level.
Employers hung tightly to an “Act of God” defense and cited lightning cases as authority.
Court of Appeals Distinguished various acts of God and “contact with premises.”
Michigan Supreme Court Holding:
Act of God no longer a defense.
No longer necessary to show proximate cause.
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Hughes v Trustees of St. Patrick’s Cathedral
Early days adoption of actual risk.
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Hanson v Reichelt
Sole issue: Did the injury (death) “arise out of” employment.
Rule of Law in Iowa had been general public-increased risk rule; generally heatstroke not compensable.
Two Key Prior Cases:
Wax Case
West Case
Prior case, West v. Phillips, allowed compensation because of expert testimony on bakery environment. (Artificial heat.)
Actual Risk Adopted – Narrow adoption however – only cases involving elements.
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Katz v A. Kadans & Co.
Even though risks of the street are common to all those there, if the employment exposes the employee, then it arises out of employment.
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Coomes v Robertson Lumber Co.
Unexplained Fall/Stuck By Injury (Death?)
No Witnesses
Little to No Evidence
How injury occurred
Whether a personal condition caused a fall
While Arising Out of and In the Course Of Are Separate, they are to be analyzed together.
The But-For Reasoning Applied.
Several Prior KY Cases Awarding Compensation for Idiopathic Falls, Epileptic Falls, etc.
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PERSONAL RISK GENESIS FOR WORK INJURY EVENT George v Great Eastern Food
Employee dies as a result of a skull fracture sustained in a fall brought about by a non-work related personal health condition that caused him to become dizzy.
Lower courts looked to 1954 law (Henderson case) where injuries sustained in falls set in motion by personal health conditions are not compensable.
This court refined Larson’s comments and explained the difficulties in parsing out idiopathic fall cases.
Abandoned law in Henderson – “employer takes the employee as he finds him.”
Still no compensation for the idiopathic/personal health incident itself (i.e., non-work connected heart attack, non-work-connected seizure) – only the injuries sustained in the fall that is subsequent.
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PERSONAL RISK GENESIS FOR WORK INJURY EVENT Leon County School Bd. v Grimes
Media Tech who needed a full length leg brace on her right leg because of childhood polio falls because brace gives way when she gets up from her desk to go to a file cabinet.
Breaks left ankle as a result of falling onto it.
Florida Supreme Court held that carpeted floor presented no increased risk, and ultimately no benefits.
FL Sup Ct. had previously held concrete floor increased risk, but declined to adopt that the carpeted floor did.
FL Sup Ct rejects actual risk doctrine.
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PERSONAL RISK GENESIS FOR WORK INJURY EVENT Fragale v Armory Maintenance
Employee dies after falling onto a chair, after first being pushed onto another chair by co-worker.
Subject of argument between co-workers not germane to the work.
Questionable if deceased worker’s pre-existing/personal condition contributed to the severity of harm (death).
Risks posed by furniture in guard shack a major consideration in determining if they presented the risk that contributed to injuries.
Employee gets benefits.
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Subsequent injury: State Compensation Insurance Fund v Industrial Accident Commission
Original Injury: Carpenter’s eyeball penetrated with rusty nail while in the course of employment. Clearly compensable.
Secondary Injury: Over one year later, amputated his finger while sawing wood at home. Injured party attributes secondary injury to his inability to see properly which was caused by the original injury.
Issue: If an original, compensable injury just contributes to the cause of a secondary injury which does not occur in the course of employment, is the secondary injury also compensable? Alternatively, does the initial compensable injury need to be the sole cause of the secondary injury in order for the secondary injury to be compensable?
Holding: Initial injury need not be the sole cause of the secondary injury in order for secondary injury to be compensable.
Keep in mind,:
California
Case was decided in 1959 and the concept of contributory negligence was still alive in ordinary tort law.
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Subsequent injury: Klosterman v Industrial Commission Of Arizona
Employee sustains compensable injury to left knee – cartilage tear.
Employee develops soreness in same knee three months later after playing frisbee. Diagnosed with torn ACL.
Treating physician, Dr. Chandler (and only medical expert to testify), indicated the subsequent injury was directly related to first injury because knee was in a weakened condition from initial injury.
Issues: 1) Was the Frisbee activity the sole cause of the secondary injury? (Really a fact question.) 2) Was the subsequent injury a direct and natural cause of the secondary injury?
Holdings: 1) No. 2) Yes.
Analysis:
All testimony and facts presented by treating physician; largely uncontroverted by employer/insurance carrier.
Was injured worker’s activity so unreasonable “so as to break the causal chain?” Court ruled it was not.
Evidence indicated the second knee injury was a direct and natural cause of the first injury.
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REFUSAL of Medical Treatment: Risk and Success rate of procedure Couch v Saginaw Malleable Iron Plant
Employee sustains compensable back injury.
Employee refuses corrective surgery for his back.
Surgery only had 50% success rate; failures/complications could worsen symptoms or even cause paralysis.
Employee wanted more benefits because of condition. ALJ awarded higher benefits, however, on appeal the Board denied on the basis of his refusal of the surgery.
Issue: Under what circumstances may an injured worker refuse medical treatment and receive benefits for their current injured state?
Holding (paraphrased): Risks of complications are weighed/balanced against chances of success.
Employee is required to submit to low risk but high chances of success procedures.
Employee is not required to submit to procedures with high risk but low chances of success.
Case-by-case balancing.
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Refusal of medical treatment: religion Wilcut v Innovative Warehousing
Jehovah’s Witness truck driver refuses blood transfusion that would have saved his life.
Employer argues the refusal was unreasonable, and therefore no benefits pursuant to statute.
Upon Appeal to the Workers’ Comp Commission, Commission agrees with Employer.
Missouri Court of Appeals reverses Worker’s Comp Commission, finding driver’s refusal was reasonable.
Court outlines basic considerations for determining when refusal of treatment for religious reasons is permissible (reasonable):
Actual Religion?
Is the refusal tied to a legitimate belief of the religion?
Is the religion the injured worker’s sincerely held belief?
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Mixed Risks
Secondary Injuries/Exacerbations
Exacerbation of Pre-existing Conditions
Refusal of Medical Procedures
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KeY Points: Week two
“Fault” is the “F-Word.” Using the “F-Word” in OSH 390 is problematic!
In analyzing the “arising out of prong” of compensability, look to see whether the risks of the employment either increased or merely created the connection to the injury.
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Key Points week two: Secondary Injury
Is the secondary injury a “direct and natural result of the original compensable injury?
Did the claimant’s own conduct act as a sufficient, independent intervening cause?
If secondary condition results because of the initial injury without any intervening act of the claimant, then compensable.
When claimant’s actions are involved and the original injury only contributes to the cause, it is a VERY FACT DEPENDENT analysis.
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KEY POINTS week two: Personal Conditions and Exacerbation of pre-existing condition
Largely, employers “take workers as they find them.”
Did employment increase or create risk that exacerbated or aggravated pre-existing condition?
Generally, employer is only responsible for medical or rehabilitation benefits related to the exacerbation.
Generally, employer is only responsible for PPD or PTD benefits to the extent the exacerbation made the pre-existing condition worse.
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KEY POINTS week two: Refusal of Medical Treatment
Risk and Reasons for Refusal are Key
Refusals on the Basis of Medical Procedure Risk and Success Rate
Odds of Potential Side-effects
Severity of Side Effects
Likelihood of Success
Degree of Success/Recovery
Refusal on the Basis of Religion
Actual Religion?
Refusal align with religion’s beliefs?
Is the religion the claimant’s sincerely held beliefs?
Reasonableness is Key
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Questions?
Please post questions about the material in the virtual office.
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