#12328 - Workplace Injuries And Diseases - Employment Law

Overview:

• Certain states exempt employers with a limited number of employees, certain industries (agriculture, state and local government), or certain occupations (e.g., household workers). Independent contractors are normally not covered.

• Four elements of a workers’ comp claim:

  • Injury

  • Accident

    • Sometimes construed to exclude injuries (and diseases) that develop over a long period of time

  • Arising Out of Employment

  • Occurring During the Course of Employment

    • Normally requires the injury to occur on the employer’s premises and during working hours

• Diseases are covered, although some courts construe the “accident” requirement to exclude them, and there are concerns with the statute of limitations and the arising out of employment test (some courts apply a “specific risk” test)

• Medical rehabilitation is likely to be provided; many states do not require vocational rehabilitation services

• Varying approaches to benefits:

  • Impairment Approach – rates the degree of impairment

  • Loss of Earning Capacity Approach – rates the loss of earning capacity resulting from the injury or disease

  • Actual Wage Loss Approach – pays the worker the actual loss of wages, or the loss of earning capacity, whichever is less

• Temporary disability benefits: Typically 2/3 the difference between the worker’s pre-injury wage and his current earnings

• Permanent partial disability benefits: Payment based on impairment approach

  • Worker obtains benefits regardless whether she has actual wages

  • Weekly benefit is normally calculated as 2/3 of pre-injury wages

• Permanent total disability payments are paid to someone who is completely unable to work for an indefinite period

  • In most states, permanent total disability benefits are paid for the duration of the total disability or for life

• Death benefits are paid to the survivor of a worker killed on the job

• Employer required to pay benefits; may do so by:

  • Purchasing insurance from a private carrier (premiums experience rated);

  • Purchasing insurance from a state workers’ compensation fund (premiums experience rated); or

  • By qualifying as a self-insurer and paying its own employees directly

Ezzy v. Workers’ Comp Appeals Board: Injuries that occur as the result of off-duty recreational, social, or athletic activity are compensable under workers’ comp where these activities constitute “a reasonable expectancy, or are expressly or impliedly required by, the employment.”

• A reasonable expectancy exists where (1) the employee subjectively believes his participation is expected; and (2) this belief is objectively reasonable.

• The employer bears the burden of demonstrating that no subtle or indirect pressure or coercion was applied to induce involuntary participation by the employee

• Factors to consider in determining whether employee’s belief that a reasonable expectancy existed was objectively reasonable:

  • Whether employer benefited from employee participation in the form of improved morale and camaraderie;

  • Whether employees were pressured to participate;

  • Whether the employer paid for equipment, and promoted activity during work time

  • Whether the employer posted notice instructing employees that the activity was not covered by workers’ comp

Policy Question: Should we require employers to file the workers’ comp claim, so that employees do not fear retaliation? There is a formal anti-retaliation provision, but it may be hard for plaintiff to prove that she was retaliated against, and she may fear retaliation anyway.

Hanson: An employee’s weather-related death “arises from employment” if the employee was exposed to the risk as the result of her employment; it makes no difference if the risk was common to anyone working outdoors.

• Occupational risks (e.g., being electrocuted by a machine on the job) are always covered; neutral risks (e.g., being struck by lightening) may or may not be covered; and personal risks (e.g., heart attack), which are never covered.

  • Hanson involves a “neutral risk” – one that is not specific to a particular job but that is not personal to the worker.

• Prior to this case, Iowa had applied the “general public increased risk test,” such that compensation was only due where the employee was exposed to conditions unusual or more intense than those experienced by the general community.

  • Application of this test (but not the test itself) criticized by Larson: “What does the average man, free of the obligation of any particular employment, do when it is (e.g.) twenty below zero? He does not stay outdoors all day.”

• The court does not simply respond to Larson’s criticism; it jettisons the general public increased risk rule entirely. The “actual risk” test covers any injury “if the nature of the employment exposes the employee to the risk.”

  • This is more liberal than Larson’s proposed rework of the general public increased risk test; Larson’s rule might not cover risks faced by members of the public generally (e.g., risk of being in a car accident, risk of being struck by lightning), while the actual risk rule does cover these events as long as the employee is injured while working.

Where an injury results from the interaction of old (or underlying) medical problems and a work-related accident or exposure, workers comp must be paid. “The employer takes the worker as it finds her.”

Chicago Bd. of Education: Whether mental illness qualifies as an occupational disease depends on whether the employee can establish the risk to which he was exposed arose out of and in the course of employment and has a clear causal relationship to the disability suffered. “Mental disorders not resulting from trauma must arise from a situation of greater dimensions than day-to-day emotional strain and tension which all employees must experience.”

• This is the increased risk doctrine; not unlike the application complained of by Larson

Millison: Workers comp provides the exclusive remedy for occupational injuries and diseases, unless the injury resulted from the employer’s “intentional wrong.” To prove an intentional wrong, a plaintiff must show a “substantial certainty” that the employer’s conduct would result in harm.

• Even willful failure to furnish a safe place to work or willfully violating a safety statute falls short of the type of actual intention required to rob an injury of its accidental character

  • The mere knowledge and appreciation of risk – even a substantial risk – will come up short of “substantial certainty” needed to find an intentional wrong

• Fraudulently concealing the existence of a disease is the sort of intentional wrong that is not barred by the exclusivity doctrine. Such intentionally deceitful action goes beyond the bargain struck by workers’ comp

• DISSENT: The court announces a “substantial certainty” test, but its application to the facts of this case suggests it is actually imposing a requirement that the plaintiff demonstrate a showing of “actual subjective purpose” to impose the harm

To Whom Does the Exclusive Remedy Doctrine Apply?

• An injured worker can bring a tort suit against a third party who was at least partially responsible for the injury

  • In such a case, the third party will be liable for the entire injury; the third party cannot seek contribution from the employer in most states (concern that this would jeopardize the exclusivity doctrine)

  • In most states, the employer can recover an amount from the award to reimburse the employer for any workers’ comp benefits that it has provided to the employee. This avoids a double recovery, but frustrates the deterrent effect of workers’ comp.

General Duty Clause. Section 5(a)(1) of the Act requires each employer to “furnish to each of his employees employment … free from recognized hazards that are … likely to cause death or serious physical harm.”

Occupational Safety and Health Standards. Section 5(a)(2) requires each employer to comply with occupational health and safety standards promulgated by OSHA. “Occupational safety and health standards” are standards “which requires conditions, or the adoption or use of one or more means, methods, operations, or processes, reasonably necessary or appropriate to provide safe or healthful employment and places of employment.” Section 3(8).

AFL-CIO v. Brennan: DOL is permitted to consider technological feasibility in setting occupational health and safety standards (provided that it does not dismiss an alternative to a proposed health and safety standard that “looms on today’s horizon”). DOL is permitted to consider economic feasibility in setting occupational health and safety standards (although it is permissible for DOL to regulate to the point of driving certain laggards out of business).

• If the DOL imposes a standard that differs substantially from a national consensus standard, it is required to explain why its rule is better than the national consensus standard in light of OSH Act’s purpose.

N.B.: Most employers are unlikely to be inspected by OSHA more than once a decade.

Marshall v. Barlow’s: OSHA inspectors cannot enter nonpublic areas of a business without permission or a warrant; but a warrant need not establish probable cause to suspect a violation.

• Section 8(a) of the OSH Act empowers OSHA agents to search the work area of any employment facility within the Act’s jurisdiction; no search warrant or other process is required by the Act

• The Warrant Clause of the Fourth Amendment protects commercial buildings as well as private homes; and protects against unreasonable searches in civil as...