Workers’ CompensationFall 2011

Professor BradleyMichael Barbee

Chapter 1: Employees’ Remedies Prior to and Apart From Workers’ Compensation

I. THE NEED FOR A WORKERS’ COMPENSATION SYSTEM

Workers’ Compensation: Limited to the extent that injured worker would want to assert claim against employer or fellow employee If worker is injured by a 3rd party, then he can sue that party under tort law, not WC “Arising out of and in the course of employment” is the essence of whether the injury is a work injury

o Work injuries come in many forms WC law is designed to provide benefits to the injured worker (or his family, in case of death) at the expense of the

employer WC is a product of the last century in the US

o It was not available before theno MS adopted WC laws in 1949 – it was the last state to do so

Why WC? State has obligation to help those who can not help themselves Anytime there is an injury that interrupts the person’s ability to work, and thus his ability to provide for his

family, then money must be provided for them Economy needed a better way to provide for injured workers than tort law Compensation objective: alleviate the economic consequences of injury to an individual worker

WC process: Administrative judge hears the case initially Then, in MS, WC commission (3 people) can review and make its own decision, if it wants If appealed, then Circuit Court hears – cannot decide facts, only questions of law If appealed, then to MS Court of Appeals If appealed, then MS Supreme Court

Problem w/ WC process: not expedient; one of early goals was to have expedient process; criticism that not speedy thus leads to more expense

How Does the Law Address Work Injuries? Every state has WC laws

o No two are identical LHWCA (Longshore and Harbor Workers’ Compensation Act)

o Deals with maritime/land workerso Admiralty has its own body of laws (Oceans)

Jones Act: federal statute; provides benefits within maritime through FELA Death on the High Seas Act – wrongful death act

FELA (Federal Employers Liability Act)o Deals with interstate railroads and their employees

NOT a no-fault system A “tweaking” of tort law There is NO cap in compensation

Features of WC Principle:1. Limits

o WC is the exclusive remedy for most workers – they usually can’t sue under tort law Employer has tort immunity for injuries covered under WC There is a statutory cap on the liability of the employer

2. Liability w/o faulto No-fault system: in order to be entitled to compensation the worker has to prove that the injury arose out of

and in the course of employment – doesn’t matter if the worker was totally at fault.

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o This erases: (1) master/servant rule; (2) assumption of risk; (3) contributory N; and (4) proof of N

II. THE COMMON LAW AS APPLIED TO EMPLOYEES’ WORKPLACE INJURIES

Tort Law Not all employees are covered due to exemptions in many state statutes, so employees may seek a remedy

through tort law. Applies to 3rd parties in WC cases

o Ex: a worker falls from a ladder – sue the company for product liability rather than his employer In MS, WC is mandatory if employer has 5 or more employees

Tort Law Defenses 1. Fellow-servant rule (Master/Servant)

o Principle of respondeat superior subjecting the master to liability for the torts of the servant does NOT apply where the suit is by one servant against the master for negligence of a fellow servant

o Courts developed a rule that employers owed a non-delegable duty to provide a safe working environment to employees – negates the fellow servant doctrine

2. Assumption of risk o A worker, by accepting employment, assumes the risk that he may be injured or killed by reason of

dangerous working conditions that he could discover for himself if he were alert § 11-7-19: MS statute that eliminates assumption of risk as a defense

3. Contributory negligence o If the worker contributed to the injury then the employer was absolved from liabilityo MS has comparative negligence

Main Point: WC, which provides remedies for injured employers irrespective of fault replaced the common law negligence procedures, which required the injured worker to prove the employer was negligent.

WC and Social Security Disability Benefits Benefits are broader in scope because they are payable without regard to what caused the disability, i.e., the

injury does not have to be connected to employment The disability plan is more limited in specific application because it provides only earnings loss benefits – no

medical benefits – and applies only to workers who are totally injured for extended periods of time. What happens to a worker (or his family) when he is injured in a non-work injury?

o SS takes care of disabled workers Workers must qualify for benefits, though SS requires employee to have paid into SS for 40 quarters (10 years) in order to be vested

o SS applies to illness and non-work injuries whereas WC is only work injuries Sometimes, both can apply to work injuries, but one or both are reduced SS is for a disability that is likely to last at least 1 year, so there is more waiting than with WC

o Medicare and Medicaid may also apply They are used for medical services

WC helps workers with disability benefits and medical services It would be more efficient to have only one system, but these systems began at different times Private income disability insurance policies can do a whole lot more than WC due to WC’s caps on payments

o WC was designed to provide benefits speedily and inexpensively

WC as a Cost of Doing Business: Proposition that when a company is doing business, company has overhead (i.e. – lights, water) that are costs of

doing business and WC is another cost of doing business Goal of WC is accomplished through insurance

III. PREVENTING WORK INJURIES: THE OCCUPATIONAL SAFETY AND HEALTH ACT (OSHA)

Features of OSHA OSHA does not set up the potential adversarial relationship b/w a claiming employee and a defending employer

b/c OSHA does not create private compensatory rights for employees. Therefore, conflicts under OSHA are primarily b/w employers and the agencies that administer the law.

OSHA requires employers to provide for a workplace free from recognized hazards that are likely to cause death or serious physical harm to employees.

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Chapter 2: The Compensation Principle

Ives v. S. Buffalo Ry. Co. (1911) Facts: RR challenged a statute that required employers to pay WC benefits for certain hazardous jobs and was optional for others. RR argued to make them pay would deprive them of property w/o due process.

Holding: Court found the compulsory WC system unconstitutional on the grounds of deprivation of property w/o the due process of law. Following this decision, states changed laws so that the WC system was optional for employers

New York Central RR Co. v. White (1917)Facts: RR worker died in the course of employment. Employer argued that the no-fault WC statute was a denial of substantive due process. Employee argued that taking away his tort remedy (right) and placing a cap on damages was a denial of substantive due process.

Holding: Court found the WC statute was constitutional b/c (1) state has police power to regulate in that state and (2) constitutional under the balancing test: Taken from employer—no fault liability Given to the employer—limited liability Taken from employee—theoretically unlimited recovery Given to the employee—right to recover w/o fault

Chapter 3: The Employer-Employee Relationship

I. INTRODUCTION

Courts Interpretation If an injury occurs and one person appears to work for another but has no K, then the courts must interpret the

factual context of what transpired to determine if it satisfies the legal criteria of an employment K

MISS. CODE ANN. § 71-3-5: Employer Every person, firm, etc. that has in service 5 or more workers regularly in the same business or in or about the

same establishment…under any contract for hire, express or implied.

II. THE CONTRACT OF EMPLOYMENT

General rules for employment:1. Not an employee = not covered; may be able to argue K for hire in emergency situations to get compensation

Johnson v. City of Albia (1927)Facts: Johnson quit on November 15. He went back to the plant to get his personal tools the next day and was injured while helping the new employee on the premises, i.e., doing work for the benefit of the employer.

Holding: Court ruled that Johnson was no longer an employee because (1) he had quit the day before, (2) he had surrendered his key to the premises, (3) he wasn’t there to complete any unfinished work, (4) he didn’t go there to aid the new employee, and most importantly, (5) he went there solely for his own private purpose—to get his tools.

2. Compensation does NOT have to be wages; if a worker is getting a benefit in return for services, then most likely going to be enough for K for hire

Aspen Highlands Skiing Corp. v. Apostolou (1994)Facts: Apostolou was a ski instructor and was compensated by receiving a free ski pass. He was also a member of the ski patrol and received no cash wages for his services; rather, he received a free ski pass for his girlfriend since he already had one.

Holding: Court ruled that a K for hire existed and thus Apostolou was an employee b/c Apostolou and his employer agreed he would work in exchange for the benefit of daily passes for his girlfriend.

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III. EMPLOYMENTS DISTINGUISHED FROM OTHER RELATIONS

Definitions: Employee: “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, provided that there shall be excluded therefrom all independent contractors” [§ 71-3-3(d)]

o Other exclusions: newspaper boy or student in training if not getting wages

Independent Contractor: “any individual, firm, or corporation who contracts to do a piece of work according to his own methods without being subject to the control of his employer except as to the results of the work, and who has the right to employ and direct the outcome of the workers independent of the employer and free from any superior authority in the employer to say how the specified work shall be done or what the laborers shall do as the work progresses, one who undertakes to produce a given result without being in any way controlled as to the methods by which he attains the result” [§ 71-3-3(r)]

General rule: Employer is not liable for torts of independent contractor and does NOT have to pay WC benefits to independent contractor

Policy: If the employer is able to control the means by which the worker uses to complete the project, then they should be able to ensure that the worker completes the work in a safe manner. Thus, if they can control the business activity, then they bear the cost of the injuries resulting from it.

Employment vs. Independent Contracting: MS courts use either test or both concurrently

1. “Right to control” testo Determines the relationship by asking whether the putative employer has “the right to control the

means and methods” used by the worker in the performance of his jobo Factors

Right to control the details of how the work is done Ex.: what hours should employee be working

Right to fire Can fire employee at any time Can fire independent contractor only if work is NOT satisfactory

Method of payment Furnishing of equipment

o Historically, most courts relied primarily if not exclusively on the common law “right to control” test – many still do

Some apply it so that it is defendant-friendly Some apply a relaxed version that is claimant-friendly

o Example case: Marcum v. State Accident Ins. Fund Marcum was pruning trees at country club There was definitely a contract, but the question is “was Marcum an employee or an

independent contractor?” Court used “right to control” test to decide and ruled that Marcum was NOT an employee,

and that he was an independent contractor2. "Relative nature of the work” test

o Determines the relationship between the worker and putative employer by asking whether the worker’s performance is an integral part of the regular business of the putative employer

o Parts in analysis Character of the work performed by the claimant

Degree of skill involved, Degree to which the work is a separate calling or business, AND Extent to which a worker so situated reasonably can be expected to carry the

burden of the accident Relationship of the work to the putative employer’s business

Extent to which the work is a regular part of the putative employer’s business, Extent to which the work is being performed continuously or intermittently, AND

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Extent to which the work is of sufficient duration to constitute continuing services rather than a particular assignment

o Some courts apply this test, which is claimant-friendly

Policy argument in favor of “relative nature of the work” test: 1. Right to control test more effectively implements the objectives of social legislation2. Right to control test more accurately depicts the employer-employee relationship by precluding

employer reliance on contracts drafted to avoid the costs of this social legislation3. Right to control test more directly advances the remedial purposes of social legislation4. Right to control test is too vague

Employment vs. Independent Contractor Example Cases

Hanson v. Transp. Gen’l, Inc. (1998)Facts: Taxi driver died while driving his cab. Metro owned the title but provided beneficial ownership to Hanson. Metro allowed Hanson to operate the taxi if he paid $425 per week. Metro did not pay Hanson, provide benefits, or collect taxes from him.

Holding: Using the right to control test, the court found that Hanson was not an employee of Metro’s. Facts for employee-employer relationship:

o Metro required drivers to (1) report all traffic violations, and (2) obtain Metro’s approval of any outside insurance

o Metro held legal title to cabs, and painted and marked them. Facts for IC:

o Drivers could set their own hours, work anywhere in metro area, refuse to accept dispatch calls, and hire a second driver.

o Metro didn’t pay or give benefits to the drivers and did not require them to report fares.

Boyd v. Crosby Lumber and Mfg. Co. (Miss. 1964) – watershed case in MS for WC in logging casesFacts: Crosby (∆) owned a large sawmill. Its crews cut the timber, but Crosby entered into short-term Ks with others to load and haul timber. Durham had entered into these short-term Ks w/ Crosby for 5 or 6 years. Crosby agreed to pay $17 per 1,000 ft bi-weekly, and to have no control over the method Durham handled timber. Durham was an integral part of the defendant’s business and Crosby often caused Durham to cease hauling b/c the mill was crowded. Crosby repaired Durham’s equipment and allowed him to buy tools and withhold the money from his paycheck. Boyd was an employee of Durham and was injured while working. Crosby Durham Boyd

Holding: Durham was an employee (not IC) of Crosby. The court used both the “right to control” test and the “relative nature of the work” test to reach its conclusion.

o Rule: If sub is employee of prime, then employees of sub are covered by prime’s WC If prime has no WC then he has obligation to provide payment

Empire Home Builders v. Guthrie (Miss. 1966)Facts: Guthrie (employee) did plumbing work for Empire (employer) and was injured on the job. Empire took taxes and social security out of Guthrie’s checks and Guthrie agreed to work solely for Empire.

Holding: The court, using both the control test and the nature of the work test, found that Guthrie was an employee.

IV. STATUTORY TREATMENT OF PARTICULAR EMPLOYMENTS

Casual Employments Many statutes exclude coverage of “casual workers” whose employment is (1) by chance, or (2) is hired for an

isolated job, or (3) temporary in nature. o Thus, the employer is not liable for WC

MS statutes cover all employees w/o reference to casualness or business character of the employment

Sandburn v. Hall (1951)

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Facts: Owner of residence hires workers to remodel a bathroom (all work except plumbing and wiring). The carpenters had their own tools and were skilled carpenters. A piece of sheetrock falls and fell into the claimant’s eye which results in loss of vision.

Holding: The court found that this was regular employment and not casual employment. The crux of the decision is because the work was going to take multiple weeks rather than a few days. RULE: If there is a single employment which lasts for several weeks or months, or for an indefinite period, it is

NOT considered casual employment.

Minimum Number of Employees MS’s WC law’s minimum number of workers = 5

o 5 in statute is not limited to employees – includes partners, etc.o 5 includes all workers under multiple subcontractors for general contractor

In other words, 5 total working on project for subcontractor or general If general has 2 subs with more than 5 total, then must carry WC insurance

Business or Personal Activities WC statute applies to business and personal activities Insurance company has obligation to pay for ALL liability of insured under WC system

Donald v. Whatley (1977)Facts: Whatley hired carpenter to build his home. The carpenter was roughly halfway finished when the owner realized the carpenter was dishonest and fired him. He then hired 4 individual carpenters to finish the home. One of them was injured in the course of the work. The homeowner also owned a pulpwood business, so he had WC insurance. Insurance company argued that their policy was only for the pulpwood business employees.

Holding: WC is not limited to business employees

Other Issues In MS, if illegal employment (i.e. – child labor, illegal alien), then covered by WC and entitled to double benefits In MS, agricultural employment is exempt from WC In MS, WC statutes expressly exclude charitable employers, but they might elect to have WC because: (1) they

don’t want to be subject to tort suits, and (2) they want to provide WC benefits to their employees

V. STATUTORY EMPLOYMENTS

What is a Statutory Employer? Statutory employer provisions extend an employer’s obligation to assure coverage to workers on the employer’s

project even though someone with whom the employer has a K may have hired the workers. The purpose is to assure that the cost of injuries that arise from the work is borne by the work project. If an employer is considered a “statutory employer” then he must assume WC liability for all employees w/in the

statutory employmento i.e., the statutory employer must pay WC benefits to statutory employees who are actual employees of some

other employer if the other employer cannot secure payment. Thus, the statutory employer has 2 choices:

1. Require its intermediate contractor to obtain insurance, or2. Provide such coverage itself

Subcontracting Subcontractor: person who agrees with the general/prime contractor to do part of the work contracted by the

owner and general/prime contractor. In MS, “In the case of an employer who is a subcontractor, the contractor shall be liable for and shall secure

the payment of such compensation to employees of the subcontractor, unless the subcontractor has secured such payment” [§ 71-3-7]o For sub to fall under the statute, there must be a K b/w the general and someone else (usually owner).

Sub must contract with general to do part of the work of the prime contract Then, general has obligation to carry WC for sub’s employees

In MS, statutory coverage of subcontracting trumps independent contractor exclusion

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Timber Haulers Exemption In MS, a timber purchaser is exempt from providing WC coverage to timber cutter-haulers if the purchaser

doesn’t pay unemployment tax for the cutter-hauler.

Example Cases

Oakwood Hebrew Cemetery Assoc. v. Spurlock (1992)Facts: Lineberry was hired by the cemetery to maintain the grounds. Lineberry had his own equipment and hired his own workers – one of whom was Spurlock who was injured on the job. The cemetery had 4 elected officers (Va. statute required 3 employees). Oakwood Lineberry Spurlock.

Holding: Under Va. law, Oakwood must compensate the employees of Lineberry when the employees are doing work related to the contract between the owner and sub-contractor. This policy is to close loopholes.

Jackson v. Fly (1952)Facts: The Whites (owner) wanted a house built and contracted with Jackson Brothers (general/prime contractor) to build a house. Jackson Brothers made a contract with Beach (sub-contractor) to furnish labor and tools for the construction. An employee of Beach, Fly, is injured on the job. Beach has no WC insurance, so Fly seeks compensation from Jackson Brothers. Whites Jackson Beach Fly.

Holding: Under § 71-3-7, the general contractor (Jackson Brothers) is liable if the subcontractor (Beach) cannot pay the employee (Fly).

This is coverage beyond traditional employment Jackson Brothers would be the statutory employer of Fly

VI. TORT IMMUNITY FROM THE EXCLUSIVE REMEDY PROVISION OF WC

Tort Immunity Whether an injured worker is deemed an “employee” for purposes of entitlement to WC benefits is one

question. Separate, but related, is whether in a given circumstance an employment relationship exists so as to entitle the “employer” to the tort immunity which comes from the exclusive remedy provision of the WC Act.

Statutory employers get tort immunity, i.e., can only recover WC benefits as exclusive remedyo If an employee recovers in a tort suit from anyone, then the employee must reimburse the employer who has

paid WC benefits, i.e., no double recovery in MS. In MS, tort immunity is granted to the employer only.

o An injured employee may bring a tort action against any person except his employer. Thus, an injured employee may sue a third-party in tort.

Non-Traditional Employment as a Test for Tort Immunity Lent-Servant : a loaned servant does not become an employee of the special employer unless:

1. A K of hire is entered into b/w the employee and the borrowing employer; AND This K of hire may be express or implied

2. The employee consented to the K of hire. Consent may be implied Note : This is high standard that the ∆-employer must show to get tort immunity.

Dual Employment When an employee is engaged in the service of 2 employers in relation to the same act (dual employment),

both employers are exempt from tort liability, although 1 has actually provided WC benefits. Usually involves employee actually having 2 employers and dispute over which one had to provide benefits Dual employment typically means that on a particular day the employee will work for one employer for a few

hours and for the other for a few hours Usually depends on which employer’s work is being done at a certain time

o If overlap and not divisible, then may divide up into pro rata share of benefits Pro rata share should be based on percentage of time employee has worked for each employer over

past period

Example Tort Immunity Cases

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Clark v. Luther McGill (1961)Facts: Hurst was a drilling contractor who had WC insurance. Hurst contracted with McGill to haul its heavy drilling equipment to a new location. Clark was employed by Hurst as a rough neck. Clark was injured while helping McGill employees. Hurst paid Clark WC benefits and Clark brought a tort suit against McGill. McGill claimed they were Clark’s employer and thus his exclusive remedy was under the WC Act.

Holding: Clark was not an employee of McGill; rather he was a lent-servant. Therefore, McGill was not immune from a tort suit. Just b/c McGill gave info and directions to Clark as to the details of the work does not make him their servant.

Index Drilling Co. v. Williams (1962)Facts: Index, Dapsco, and Production were 3 of 5 corporations owned by Martin. All 3 corporations were in the same building and were related. Williams was employed by Production and was injured after a Dapsco employee told him to help unload pipes from an Index truck. He received WC benefits from Dapsco and filed a tort suit against Index under the lent-servant doctrine. Index argued that it is not a third party; rather, that it along with the 4 other Martin corporations constituted a single employing entity.

Holding: Index was not Williams’ employer, so he had a right to sue Index as a third-party.

Ray v. Babcock & Wilcox Co. Inc. (1980)Facts: Ray was employed by Bechtel, the general on MP&L’s steam plant. Babcock was a subcontractor under Bechtel. Bechtel sent Ray to work for Babcock for a few weeks. He was injured while under control of Babcock. Ray received WC benefits from Bechtel then brought tort suit against Babcock. MP&L Bechtel Babcock Ray

Holding: Court found that Ray was an employee of both Babcock and Bechtel. Therefore, both employers had tort immunity since they were dual employers. Factors:

o Ray reported to Babcock supervisor for extended timeo Bechtel still paid Ray but billed Babcock

VII. DEFENDANT’S RELATIONSHIP TO ACTUAL EMPLOYER AS A TEST FOR TORT IMMUNITY

MISS. CODE ANN. § 71-3-71: Action by Employee Against Other Parties Provides for a tort action against the third party and for reimbursement to the WC system from any recovery

against the third party. This reimbursement operates to reduce the cost of WC.

MISS. CODE ANN. § 71-3-7: Payment of Compensation by Employer “Every employer to whom this chapter applies shall be liable for and shall secure the payment to his employees

of the compensation payable under its provisions. In the case of an employer who is a subcontractor, the contractor shall be liable for and shall secure the payment of such compensation to employees of the subcontractor, unless the subcontractor has secured such payment.”

MISS. CODE ANN. § 71-3-9: Employer Liability Exclusive “The liability of an employer to pay compensation shall be exclusive and in place of all other liability of such

employer to the employee . . . .”

Stubbs v. Green Bros. Gravel Co., Inc. (1968)Facts: Green owned gravel pits. McDonald owned 7 trucks that hauled gravel for Green. Stubbs was an employee of McDonald and was hit by a truck owned by Green. The K b/w Green and McDonald required that McDonald have insurance. Stubbs received WC benefits from McDonald and brought a tort suit against Green who does not have WC coverage. Green McDonald (sub) Stubbs (employee)

Holding: Stubbs’ exclusive remedy was WC. Green had the right to control McDonald; therefore, McDonald was an employee of Green and not an IC. Since McDonald was an employee, Stubbs was an employee of McDonald.

Robertson v. Stroup (1965)

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Facts: Stroup obtained a license from Hertz to operate multiple franchises. James contracted w/ Stroup to run his franchise in Columbus. James employed Robertson at the rental shop. James employed Stokes on behalf of Stroup. Stokes worked at the airport and drove his own car one night and Robertson was injured after Stokes lost control. Robertson received WC benefits from James and brought a torts suit against Stroup. Hertz (franchise) Stroup (franchisee) James Robertson

Holding: Robertson was an employee of James and Stroup at the time of the injury. Therefore, Stroup was immune from tort liability. This is the only case in MS where the defendant who is not insured gets tort immunity. Tort immunity extends to agency cases

Biggart v. Texas Eastern Transmission Corp. (1970)Facts: Texas Eastern was doing excavation work through its contractor River Construction who had Biggart, the deceased, on its payroll and through B&R. River Construction paid WC benefits to Biggart’s heirs. Biggart brought suit against Texas Eastern and B&R claiming that, as to him, they were third parties. Texas Eastern River Biggart

Holding: Since Biggart was an employee of River and was subject to the control of Texas Eastern and B&R, an employer-employee relationship existed; therefore, Texas Eastern and B&R received tort immunity.

Pitts v. Shell Oil Co. (1972)Facts: Pitts was employed by Pruet as a roughneck. At the time of the injury, Pitts was drilling an oil well for Shell who employed Pruet. Pitts received WC from Pruet. Shell Pruet Pitts

Holding: The court held that under the right to control test or the nature of the work test, it could not find as a matter of law that Shell employed Pitts. Therefore, Shell was not immune from tort liability b/c they were a third party.

Doubleday v. Boyd Const. Co. (1982)Facts: Boyd was the general for the Miss. Highway Dept. Boyd hired Ratliff (sub) to work on a portion of the project. Boyd required Ratliff to carry WC insurance. Doubleday was employed by Ratliff when he was injured and Ratliff paid Doubleday WC benefits for his injury. Doubleday sued Boyd for tort damages. State Boyd Ratliff Doubleday

Holding: The Court found that Boyd “secured” compensation insurance for the benefit of Doubleday within the meaning of § 71-3-71. Therefore, Boyd was a statutory employer and was not, under the circumstances, “any other party” as designated by § 71-3-71, and thus was immune from tort liability. Note: under § 71-3-9, if Ratliff had failed to get WC insurance, then Boyd could sue Ratliff in tort and make

Ratliff pay WC benefits out of pocket

Nash v. Damson Oil (1985)Facts: Damson, the lessee, hired Trigger as an IC to manage its oil fields. The contract required Trigger to carry WC insurance for its employees. Nash was injured and Trigger paid WC benefits. Nash brought suit under § 71-3-71 claiming that Damson was “any other party” within the meaning of the statute. Damson Trigger Nash The Court was faced with deciding if Damson was a “contractor” under the statute or not a contractor and thus

not a statutory employer. Damson owned part of the mineral rights to the land. This case is different from Doubleday because in Doubleday, Boyd had no ownership interest. Moreover, Boyd was the kind of “contractor” contemplated in § 71-3-7.

Holding: Damson was not a general contractor in the sense contemplated by § 71-3-7; rather, Damson was an owner/operator and therefore did not have tort immunity. RULE: Owner/operators do NOT have tort immunity under § 71-3-7.

Brown v. Williams (1987)

Facts: Byrne, an oil well operator, contracted with Williams to drill an oil well. Byrne also sold a royalty interest in oil, gas, and minerals to be explored. Williams then contracted with Jones to set the casing pipe under the prime contract. Brown, an employee of Jones, was injured by the negligence of an employee of Williams – Pevey. Brown received WC benefits from Jones and sued Williams and Pevey. Williams claimed immunity under Doubleday.

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Byrne (owner) Williams (general) Jones (sub) Brown (employee)

Holding: Williams and Jones had a general/sub relationship, thus Williams was immune from tort liability. Pevey was also immune because he was an employee. Note: Employees of a party who has potential to be a statutory employer are tort immune as well. This case

expanded tort immunity to include employees. For a subcontractor to be considered a subcontractor under the statute, it must be carrying out part of the work

under the prime contract.

Morris v. W.E. Blain (1987)Facts: Blain was the prime contractor who subcontracted A & B Paint and Traffic Control on a project. Blain required both to obtain WC insurance. Morris was struck and killed by a car while employed by A & B Paint. Morris settled with the driver and brought suit against Blain and Traffic Control under the wrongful death statute. Morris was not paid WC b/c he died. State (owner) Blain (general) A & B Paint and Traffic Control (subs) Morris (employee of A & B) The Court faced the decision of whether a subcontractor working under a prime should receive tort immunity

for an injury to an employee of a fellow subcontractor working on the same job.

Holding: Blain had a general/subcontractor relationship with A & B Paint and thus had tort immunity. As for Traffic Control, the Court found that they were “any other party” under § 71-3-71 and could be sued in tort. This was because Traffic Control, as a fellow subcontractor, was not statutorily obligated to provide coverage for A & B Paint’s employees. RULE: a parallel subcontractor of a prime contractor does not have a statutory obligation to provide WC

benefits thus they are not immune from tort. o This puts a limitation on the Doubleday decision.

Hypotheticals

1. Owner Contractor Subcontractor A Injured employee

2. Owner Contractor Subcontractor A Sub-subcontractor Employee

Injured Employee

Employees’ Obligation to Provide WC to Fellow Employees One employee has no obligation to provide WC benefits to a fellow employee. In one view, that employee then was not part of the original WC for immunity bargain. Hence, the tort immunity

from the exclusive remedy provision of § 71-3-9 is not a relevant defense if an employee is charged with fault in causing injury to another employee.

McCluskey v. Thompson (1978)Facts: McCluskey died while working for Bechtel. McCluskey was paid WC benefits by Bechtel and then brought a tort suit against his co-employees for negligence.

Holding: Fellow employees are immune from tort in a no-fault liability situation. There is no basis for suit unless the employee intentionally caused harm.

Brown v. Estess (1979)Facts: Brown was working in a grain elevator when grain rushed in and suffocated him. He brought suit against the general manager, Estess, and the board of directors of the Madison County Coop – not against a co-employee.

Holding: Corporate officers are immune from tort in a no-fault liability situation. WC is the exclusive remedy of the employee when he is injured by the employer or any of its employees during the course of his employment. Expands McCluskey to include officers and agents of corporations

VIII.LIMITS TO IMMUNITY OF EMPLOYER AND WORKERS’ COMPENSATION INSURER

Subcontractor B= Subcontractor B NOT immune

= Sub-subcontractor NOT immune

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Exception to the Exclusive Remedy Defense – Intentional Torts The exclusive remedy defense is not available (employers are not immune from tort liability) if:

o The injury was caused by the willful and malicious act of the employer; or o By a co-employee acting within the scope of employment so as to place vicarious liability on the employer

through respondeat superior.

MS Law Negligent, gross negligent, and reckless conduct are covered by tort immunity

o i.e., the employer’s actions must be “with an actual intent to injure the employee” in order for the injured employee to recover tort and WC damages.

Miller v. McRae’s, Inc. (1984)Facts: Miller, an employee of McRae’s, was suspected of stealing and was detained for interrogation. El-Amin, a co-employee, would not let her leave the room. Miller sued McRae’s and El-Amin for false imprisonment. The Court was faced with the issue of whether WC was the exclusive remedy for an employee who alleges that

she has been falsely imprisoned by her employer.

Holding: WC is not the exclusive remedy for an employee alleging an intentional tort. WC does not apply to intentional torts that do not arise out of employment. Therefore, Miller’s claim was not barred by the exclusivity exception of the WC Act (i.e., McRae’s could be sued in tort). The WC Act was not intended to bar an employee from pursuing a common law remedy for an injury that is the

result of a willful and malicious act Note: if the intentional acts arise out of the course of employment, then the employer is covered by WC

exclusivity provision and is immune from torto Lockheed (2005): Employee shot co-employees because he did not liking working alongside blacks.

Although there was a racist motive, the employee never demonstrated hatred outside of the workplace and thus the incident arose out of and in the course of employment. Therefore, WC was exclusive remedy for injured employees.

Bad Faith

The exclusive remedy provision of the WC Act does not bar an injured employee’s tort against an insurance carrier for an insurance bad faith claim (intentional tort).

Punitive damages can be awarded in insurance bad faith claims

To succeed, the π must prove:1. A WC contract existed between the ∆ and π’s employer;2. The carrier denied the π’s claim w/o legitimate or arguable reason; and3. The denial of benefits constitutes a willful and intentional or malicious wrong

a. i.e., constitutes insurance bad faith, which is an intentional tort

Southern Farm Bureau Cas. Ins. Co. v. Holland (1984)Facts: Holland was injured while working at K & B. The WC carrier for K & B paid Holland benefits for a few years and then terminated them on medical advice. Holland brought an insurance bad faith claim against the carrier. The Court faced the question of whether the exclusive remedy provision barred an action by an injured worker

against the carrier, predicated on the carrier’s intentional refusal to pay WC benefits. If the failure to pay is based on negligence, then the provision bars recovery.

Holding: A claim against an insurance carrier for intentional refusal to pay WC benefits is not barred by the exclusive remedy provision of the WC Act. The injured employee may bring an independent tort against the carrier and seek punitive damages.

Rogers v. Hartford Accident & Indemnity Co. (1998)Facts: Rogers, a Quick Change employee, was asked to change Speedway’s sign and injured himself. The companies had an unwritten agreement to utilize Rogers to change the sign, a task which Speedway compensated Rogers for. Quick Change filed for WC with Hartford (it and Speedway’s carrier) and Hartford refused to pay or authorize medical treatment even though Hartford would inevitably have to pay since it insured both companies. Issue : whether Hartford had a legitimate or arguable reason for initially denying WC benefits to Rogers

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Holding: Hartford’s refusal constituted bad faith because it did not have a legitimate or arguable reason for denying compensation since they were indisputably the responsible party to pay benefits. Once the carrier has knowledge of the injury they have a duty to promptly make benefits available to the injured employee.

IX. MULTIPLE EMPLOYERS

Multiple Employers Special Employment: relationship that arises when an employer lends an employee to another employer and

relinquishes the right of control over the employee’s activities to the borrowing employer. o The borrowed employee is held to have 2 employers: his original and the “special” employer.

Wedeck v. Unocal Corp. (1997)Facts: Wedeck was an employee of Lab Support (temp agency). She was hired by Unocal through Lab Support and was injured. Unocal claimed immunity through the exclusive remedy provision stating that it was Wedeck’s special employer.

Holding: Unocal had tort immunity as the “special” employer. The court looks to whether the borrowing employer has the right to control the employee. The test is very similar to the right to control test.

Nat’l Auto. & Cas. Ins. Co. v. Indus. Acc. Comm. (1947)Facts: Pitt, the employee, worked as manager for both Warehouse and Cooperative when he was injured. Cooperative paid his entire salary. Cooperative argued that Pitt was working solely in the course of his employment by Warehouse (in which case Cooperative would wholly escape liability) or working in the course of a joint employment by Cooperative and Warehouse when the injury occurred (in which case Cooperative’s liability would be reduced proportionately).

Holding: Pitt was employed by both employers as they both had the right to control him. The fact that Pitt received his salary from Cooperative doesn’t prevent the existence of multiple employers. Thus, Cooperative’s liability was reduced proportionately.

X. EMPLOYEE PARTICIPATION IN EMPLOYER’S ENTERPRISE

MISS. CODE ANN. § 71-3-5: Employers Subject to Statute; Proof of Insurance

“Any employer may elect . . . to be exempt from the provisions of the Workers' Compensation Law . . . . Any sole proprietor, partner or employee owning fifteen percent (15%) or more of the stock of his/her corporate employer who becomes exempt from coverage under the Workers’ Compensation Law shall be excluded from the total number of workers or operatives toward reaching the mandatory coverage threshold level of five (5).”

So, if you are an owner you may opt out to drop the number below 5, thus making the company exempt from the statute.

Dual Capacity An officer is not precluded from recovering WC benefits merely b/c of his title, provided he is required to

perform some functions similar to ordinary employees, and he is injured in that capacity.

Harris v. Cas. Reciprocal Exchange (1982)Facts: Stone, the VP and Direct of Green House, was shot while working as the night manager, replacing another manager who had been fired. Issue : whether Stone’s status as an officer in the corporation precluded recovery of WC benefits.

Holding: Executives acting in a non-executive capacity at the time of an injury are covered by WC. Here, Stone was hired to serve in capacity as night manager and was injured while working in that capacity. Remember, in MS he could have opted out of WC coverage.

XI. RETALIATORY DISCHARGE EXCEPTION TO EMPLOYMENT AT WILL

Can an employer discharge an employee in retaliation for the employee’s having made a claim for WC benefits? o Most jurisdictions: No

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o Mississippi: Yes, in Kelly, the Court declined to recognize a public policy exception to the employment-at-will doctrine for alleged retaliatory firings; however, they suggested the legislature allow it to be actionable. Thus, currently, no cause of action exists in MS for retaliatory firings.

Frampton v. Cent. Ind. Gas Co. (1973)Facts: Frampton injured and received WC benefits. Months later she was discharged without explanation. She filed a suit based on retaliatory discharge.

Holding: Retaliatory discharge for filing a WC claim is actionable. The issue of retaliation is a jury question.

Touchard v. LA-Z-BOY Inc. (2006)Facts: Utah Supreme Court accepted questions from the district court to consider on WC claims.

Holding: (1) Constructive Termination: an employee has a retaliatory discharge action if he resigns under working conditions that a R employee would consider intolerable, (2) Harassment: the wrongful discharge tort does not apply when an employee alleges retaliatory harassment, (3) Co-employee Treatment: the wrongful discharge tort does not apply when an employee opposes her employer’s treatment of fellow employees entitled to WC benefits.

Chapter 4: Injuries Occurring Within the Course of Employment

I. THE CLASSIFICATION OF RISKS COVERED BY THE COMPENSATION ACT

Injury Arising Out of and Within the Course of Employment Injury = harm Arising out of = source of the risk (causal connection b/w work employment and injury) Within the course of employment = time and place

o The injury does not have to occur during employmento Time and place is the biggest problem with the injury’s connection w/ employment

Two Tests1. Binary – only considers “arising out of” (source of risk)2. Unitary – considers “arising out of” and “within the course of” employment (source of risk and time/place)

In MS, the risk of injury must arise out of the employment and in the course of employment

Categories of Risk1. Personal – Performing tasks for one’s own gain2. Mixed – Elements of personal and employment3. Employment – Performing task for benefit of employer4. Neutral – Neither personal nor employment

Risk Assessment Errands: majority hold that employees who leave premises for personal errands are outside course of employment

o Even if employer permits activity Lunch: majority hold that employees who eat off premises on unpaid lunch breaks are outside course of

employmento While eating and while driving to and from eating-place (similar to coming and going rule)

Eating: majority hold if eating on premises during lunch or break is compensable if the injury is attributable to a recognizable hazard in the employment environment and happened near the authorized break area.

Preparation: majority hold employees injured on premises before and after work while washing, changing clothes, warming themselves, or otherwise preparing for beginning or leaving work are in course of employment

Termination: majority hold employees leaving after quitting or being terminated are in course of employmento If a worker returns to collect unpaid wages he is in the course of employment in most jurisdictions

II. INJURIES SUFFERED DURING SOCIAL, RECREATIONAL, AND SIMILAR ACTIVITIES

Shunk v. Gulf Am. Land Corp. (1969)Facts: At 2:30 A.M. Shunk, a plane service saleswoman, fell from a window trying to elude a lustful client’s improper advances after having two cocktails.

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Holding: Injury was compensable b/c going to a hotel room early in the morning was part of her duties of employment.

Taylor v. Ewing (1950)Facts: Taylor was employed by ∆ car dealer as general utility man. ∆ instructed Taylor to cut his personal lawn after Taylor finished his work duties. Taylor was injured while cutting the grass.

Holding: Injury was compensable b/c Taylor was still working in the sphere of employment. This wasn’t his usual place of employment, but his employer assigned him to work there.

Other Issues Company-sponsored sports team – likely compensable if on the premises or during work hours; compensation is

less likely if the employee chooses to go and it’s after work Employer-sponsored outings – likely compensable if injury occurs during or on the premises of the event; less

likely if it occurs after the event On-call employee – likely compensable if engaged in work-related activity at the time of injury Employer-provided housing – likely compensable if employer implicitly or explicitly requires the employee to

live in the housing

III. INJURIES SUFFERED BY EMPLOYEES MINISTERING TO PERSONAL NEEDS OR PLEASURE

Leckie v. H.D. Foote Lumber Co. (1948)Facts: Leckie, a saw filer and scaler, was injured while cutting scrap wood for use as firewood as his home. Employment: π was being paid during the time he was injured; his employer allowed employees to cut scrap

while on duty for personal use; worker was on premises injured by apparatus used for work Personal: cutting wood for home use

Holding: Not compensable injury. Court focused on the source of the risk – personal benefit. Under Kern, he was engaged in personal activity while also satisfactorily performed work duties required by his employer. Kern Test :

1. Was employee then engaged about his employer’s business and not merely pursuing his own business or pleasure?

2. Did the necessity of the employer’s business reasonably require that the employee be at the place of the accident at the time it occurred?

Meo v. Commercial Can Corp. (1962)Facts: A mgmt employee, Meo, was battered by employees while entering his car at home preparing to go to work.

Holding: Compensable injury. The source of the risk was hostility from workers and the activity was not personal at all. The time/place weighed against the manager b/c he was at home and not being paid.

Pacheco’s Dependents v. Orchids of Haw. (1972)Facts: During her afternoon coffee break, Pacheo died in a car wreck leaving to cash her check.

Holding: Compensable injury. Court found that the source of risk was an employment risk b/c it benefited the employer by letting it extend work hours. Note: this is the minority view. Most jurisdictions say this is personal risk even if the employer allows it.

IV. INJURIES CAUSED BY HORSEPLAY AMONG CO-WORKERS

Incidents of Employment Activities that seem person b/c they don’t directly benefit the employer but are inevitable occurrences that occur

during the workday Examples: coffee breaks, bathroom breaks, snack breaks, and horseplay

Two Categories1. Innocent Victim: claimant is an innocent victim who did not participate in the horseplay

a. Almost always compensated2. Aggressor: the victim instigated the horseplay or actively participated in it

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a. Victim is the instigator so is usually not compensated b/c it’s willful (fault)

4-Part Horseplay Test1. Was the deviation from employment extensive or serious?2. Was the deviation intermingled concurrently with actual performance of duties?3. Is the practice customary in the employment?4. Does the employer anticipate some horseplay?

Burns v. Merritt Engineering (1951)Facts: One employee gave the other a bottle w/ clear liquid labeled gin; however, it had an acidic mixture which caused an injury. Injured employee claimed it arose out of and in the course of employment. Employer allowed employee to use acid for personal use In union contract, employees were not allowed to have alcohol on premises

Holding: Compensable injury b/c horseplay is also an incident of employment. People are like machines; put them together and there will inevitably be horseplay b/w them. This was a case where the claimant was an innocent victim Test : compensable injury if injurious horseplay may reasonably be regarded as an incident of the employment

Mathis v. Nelson’s Foodland (1992) Facts: Teenager worked at a grocery store. A salesman regularly visited the store and he would usually bring a gift. He brought some firecrackers and gave them to the meat manager who gave them to the teenager. While another worker was sitting at rest, the teenager lit the firecracker and it immediately blew up in his hand. He wasn’t intending to injure himself or another and he was not intoxicated.

Holding: Not compensable injury. Court found that teenager was the aggressor of the horseplay. Argument is that once you are committing horseplay then you are no longer in the course of employment.

V. INJURIES CAUSED BY EMPLOYEES’ WILLFUL MISCONDUCT AND VIOLATIONS OF RULES AND INSTRUCTIONS

Daniel v. Dept. of Corr. (2003) Facts: Probation officer (π) was accused of sexual harassment against female defense lawyer. Officer was suspended for 10 days w/o pay. Officer claimed he was harassed by his supervisor about the issue. He sought psychological help and Dr. diagnosed π with depression caused by the disciplinary investigation and suspension. Officer sought WC claiming his mental injury was a result of the disciplinary investigation.

Holding: Not compensable injury. Court found that π’s depression occurred as a result of his intentional misconduct (harassing the attorney).

More Issues: Safety Rule: a deliberate violation of a reasonable safety rule that causes injury of the type the rule was designed

to prevent is frequently held to be willful misconduct (not in MS). Also, some statutes deny compensation if employee willfully refuses to obey safety equipment furnished by the employer.

Misrepresentation: if a worker misrepresents their physical condition to secure employment and then later suffers a related injury, not compensable if (1) willfully misrepresented condition, (2) employer relied upon false information in hiring decision, and (3) causal connection b/w false representation and injury

Intoxication: if intoxication was the cause of the injury then not compensable

VI. INJURIES SUFFERED BY EMPLOYEES WHILE COMING AND GOING FROM WORK

Coming and Going Rule Generally, injuries suffered by employees while coming to and going from work are not covered by WC because

they do not arise out of and in the course of employment Reasoning

o Employer usually has incentive to provide safety training and has control over work site; however, when the employee is off the premises the employer can’t control the risk

o It is usually not paid time

Exceptions

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1. If the employer provides the vehicle/transportation2. Employer pays for travel or travel expenses 3. If the route to or from work exposes the employee to special dangers4. Once an employee enters one site, subsequent trips b/w sites are usually w/in course of employment5. If employer directs employee to perform errands while en route home6. If the person trip wouldn’t have been made if the business had not required a similar trip 7. If work creates necessity for travel, employee is in course of employment even though he’s serving a personal

purpose if the business purpose is the dominant purpose (dual-purpose doctrine) 8. If the injury happens in an employer-provided parking lot within a reasonable amount of time before/after work

Jumpp v. City of Ventnor (2003)Facts: City worker was injured while on a personal errand. He was retrieving his personal mail, as was allowed by his employer, while on his daily route and slipped and fell.

Holding: Not compensable. Generally, there must be a finding that the off-premises employee is performing his or her work responsibilities at the time of the injury in order for the injury to be compensable.

VII. TRAVELING EMPLOYEES

Traveling Employee – an employee whose work takes them away from home sometimes A traveling employee is generally considered to be in the course of employment continuously during the entire trip,

except during a distinct departure on a purely personal errand.

Ball-Foster Glass Container Co. v. Giovanelli (2008)Facts: An out-of-state mason, who was paid for travel to and from work locations, given a per diem and a rental car, but did not have benefits and was not reimbursed other than the per diem, was hit by a moving car on his off-day walking across the street from his hotel to a park.

Holding: Compensable injury. Giovanelli was a traveling employee and leaving his hotel to take a walk in the park was not a purely personal errand; rather, it was a risk of employment.

Fin. Inst. Ins. Serv. v. Hoy (Miss. 2000)Facts: Traveling employee fell on a wet floor when she arose from her motel bed to go to the bathroom.

Holding: Compensable injury.

VIII.SYNTHESIS: RELATIONSHIP OF “WITHIN THE COURSE” AND “ARISING OUT OF” TESTS

Strother v. Morrison Cafeteria (1980)Facts: A cashier at Morrison’s was assaulted and robbed on her way home from work by two men who had observed her days before depositing receipts at the bank.

Holding: Employment was the source of the risk (i.e., the injuries had their origin within the course of employment). Had she not worked there, this would not have occurred. The court merged “arising out of” and “in the course of” into one test

Chapter 5: Injuries Arising Out of the Employment

I. THE JOB AS THE SOURCE OF THE HARMFUL AGENCY

MISS. CODE ANN. § 71-3-3(b), “Injury” “Injury means accidental injury or accidental death arising out of and in the course of employment without regard

to fault which results from an untoward event or events, if contributed to or aggravated or accelerated by the employment in a significant manner”

Davis v. Houston General Ins. Co. (1977)Facts: A nurse injured her shoulder while on the premises when putting on her jacket on to leave work. She heard a pop and reported it to her supervisor, but did not feel any immediate pain.

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Holding: The causative danger must be peculiar to the work and incidental to the character of the business. The Court held that this risk was not peculiar to the work and thus the claim was not compensable.

II. EMERGENCE OF THE POSITIONAL RISK DOCTRINE—STREET RISKS

Street Risk A risk incurred by a worker whose duties require tem to be continually or frequently in or upon the street or

highway

Donahue v. Md. Cas. Co. (1917)Facts: Donahue, a traveling salesman, slipped on a patch of ice in the street injuring himself after leaving a client’s house.

Holding: Since the hazard of slipping on ice in the street was not a causative danger peculiar to Donahue’s employment, the injury did not arise out of the employment. Court held that this was a “street risk” not covered by WC

Katz v. A. Kadans. & Co. (1922)Facts: Katz, a milkman, was stabbed by an insane man after delivering some cheese.

Holding: The risk of being stabbed by an insane man is a risk incidental to the streets which Katz was exposed to by his employment. Therefore, the court held that a “street risk” is covered by WC.

United Service Ins. Co. v. Donaldson (1950)Holding: A worker whose duties require them to be continually or frequently in or upon the street or highway and who are injured as a result thereof, the injury is one arising out of their employment. Bradley doesn’t think “continually” or “frequently” are important

III. INJURIES CAUSED BY ACTS OF NATURE AND FORTUITOUS FORCES FROM OUTSIDE THE EMPLOYMENT

Positional Risk Doctrine (Neutral Risk) When a the risk of injury is created neither by employment nor the worker’s personal activity (neutral risk), the

“positional risk doctrine” concludes that the injury arises out of the course of employment so long as the worker is injured at a place reasonably placed by the work. o Acts of nature have “neutral” risko Ex: employee injured by a tornado while at work = compensated

Whetro v. Awkerman (1970)Facts: In a consolidated case, Whetro, who was injured by a tornado while working in a residence for his employer, and Emery, who was killed when the tornado destroyed the hotel he was staying in while on a business trip, both sought WC benefits.

Holding: Compensable injury. Acts of nature should be treated as a neutral risk. There is no requirement that the employment proximately caused the injury.

IV. INJURIES CAUSED BY IMPORTED AND PERSONAL RISKS

Hill-Luthy Co. v. Industrial Comm. (1952)Facts: While a worker was attempting to light a cigarette before driving to the next stop, the match head flew off and hit him directly in the eye.

Holding: The use of matches or the act of smoking is not incidental to employment; rather, it is a risk that the general public is equally exposed to. Therefore, the court concluded the risk was personal and not compensable. Note: even a personal risk such as smoking, eating, or drinking, may be compensable if causally enhanced in

some way by the duties of employment or the work environment.

Mitchell v. Clark County Sch. Dist. (2005)Facts: Mitchell, a teacher, inexplicably fell down a flight of stairs at work.

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Holding: The court rejected the positional-risk test an held that the injury was not caused by the work environment and thus not compensable.

Chapman v. Hanson Scale Co. (Miss. 1986)Facts: Chapman suffered a seizure, fell and hit his head on the concrete floor, which killed him. No evidence existed that the seizure was the sole cause of death.

Holding: The court found that the exposure to falls on a concrete floor was a sufficient risk associated with employment so that an injury caused in part was compensable.

Milledge v. The Oaks (2003)Facts: After closing the door to her car upon exiting for work, Milledge twisted her ankle. She later developed an infection and had her leg amputated below the knee.

Holding: Under the positional-risk doctrine, which finds an injury compensable if it would not have occurred but for the fact that the condition or obligation of the employment put the employee in the position at the time of injury, the Court found the injury compensable.

V. INJURIES CAUSED BY FIGHTS AND ASSAULTS AMONG CO-WORKERS

Where an assault arises out of a dispute among co-workers concerning the performance of the employer’s work, the working tools, the protection of the employer’s property, the collection of money owed the employer, or some other aspect of the employment, compensation is generally awarded.

Categories of Assaults By co-employee on premises By co-employee off premises By non-employee on premises By non-employee off premises

Hartford Accident & Indem. Co. v. Cardillo (1940)Facts: Bridges, a warehouse employee, was assaulted by a co-worker while loading his employer’s truck. Court faced the question of whether the assault “arose out of” employment.

Holding: Compensable injury. Placing humans in a working environment brings inevitable frictions between them. Therefore, the sequence of events arose out of the fact that the work brought them together which resulted in the assault. Note: an injury resulting from a non-employee due to a personal vendetta is in effect a personal risk imported to

the work environment

In re Martin Marietta Corp. (1988)Facts: An employee was raped by her co-worker on the work premises.

Holding: Under the positional-risk doctrine, the risk of rape is a neutral risk. Therefore, since the injury was sufficiently related to employment, the court held that the injury was compensable because it arose out of employment.

VI. INJURIES CAUSED BY ON THE JOB ASSAULTS BY NON CO-WORKERS

Categories of Compensation Personal – cases where the assailant was motivated by personal animosity toward the victim, arising from

circumstances wholly unconnected with the employment, are non-compensable. Employment – cases where the provocation or motivation for assault arises solely out of the activity of the victim as

an employee are compensable. Neutral – cases in the middle of employment and personal where the assault was directed against the victim neither

“as an employee” nor for “reasons personal to him” are usually compensable.

State Statutes

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Statutes of several states contain special “assault” provisions that common exclude injuries from 3rd parties or co-workers who intended to injure the employee for personal reasons.

Other states, the statutes include injuries caused by the willful act of 3rd parties against the employee b/c of his employment.

VII. INJURIES SUFFERED BY EMPLOYEES WHILE ATTEMPTING RESCUES

Blakeslee v. Platt Bros. & Co. (2006)Facts: Employee was injured when his co-worker restrained him after he suffered a non-compensable seizure.

Holding: Injuries “arose out of” employment and were compensable. Injuries suffered by an employee in attempting to rescue a fellow employee, customer, or passenger, or to preserve the employer’s property are compensable.

Chapter 6: Accident and Occupational Disease

I. THE CONCEPT OF “ACCIDENT”

Accidental injury – an unexpected result that results in an injury while doing the usual work in the usual way

Matthews v. R. T. Allen & Sons, Inc. (1970)Facts: A woodworker injured his back while doing usual work in the usual way. He could not point to a specific incident associated with the injury; rather, the pain began that morning and gradually increased throughout the day. Work claimant was doing was capable of causing his injury and probably did cause it

Holding: The worker sustained a personal injury by accident arising out of and in the course of his employment. There was a sufficient causal connection b/w the labor the day of the injury and the actual herniation which occurred later. A majority of jurisdictions in the US are in accord with the view expressed in this case and do NOT require an

unusual event in addition to the unexpected injury. The injury merely has to be neither intended nor expected – no definite occasion of the injury is necessary

Peoria County Belwood Nursing Home v. Indust. Comm’n (1985)Facts: Employee developed carpal tunnel syndrome from working in a laundry mat. Carpal tunnel syndrome gradually develops with no untoward (unexpected) event that caused or contributed to

the injury

Holding: The court found the injury compensable as an accident. As long as the claimant can show that work caused or contributed to the injury and an unexpected event OR unexpected result occurred, then the injury is compensable. Note: this is the majority view (that no specific occasion is required, only an unexpected result). The minority

view considers accidents “occupational hazards”

Jenkins v. Ogletree Farm Supply (Miss. 1974)Facts: Employee was exposed to fertilizer dust over a 6-year period which aggravated his asthma and eventually produced a disability.

Holding: Court held that if the ailment developed in a reasonably definite period of time it is compensable as an accidental injury. Gradually developing injuries are compensable as accidental injuries in MS

II. INFECTIOUS DISEASE AS AN ACCIDENTAL INJURY

Connelly v. Hunt Furniture Co. (1925)Facts: Connelly was employed as an embalmer’s helper and contracted an infection and died as a result of handling a corpse’s gangrene leg.

Holding: Infectious diseases resulting from an accidental injury is compensable.

III. MISSISSIPPI CASES: ARISING OUT OF AND IN THE COURSE OF EMPLOYMENT

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A. Connection Between the Work Activity and the Incident

Odom’s Dispensing Opticians v. Smith (Miss. 1972)Facts: Smith was a receptionist for Odom’s. She injured her back while helping a co-employee, despite her employer’s objection, move a table shortly after work had ended. She eventually had to quit due to the back pain.

Holding: Injury did not arise out of employment. Note: this case stands alone in MS precedent.

Brookhaven Steam Laundry v Watts (Miss. 1951)Facts: Laundry deliveryman was having an affair with a client. Her husband shot him while picking up laundry from the home.

Holding: The main purpose in going to the home was to deliver laundry, so time and place support a claim for compensation; however, the risk of injury was personal, therefore compensation was denied. π has the burden of proving that there was a causal connection between the willful act of the 3rd party and the

π’s employment Language of exclusion

Wiggins v. Knox Glass (Miss. 1969)Facts: An employee was injured while engaged in work on the premises by a tornado.

Holding: Compensable injury. The court held that the “act of God” rule, along with its exceptions, is not applicable in Mississippi. If the employee’s injury arises out of his employment it is compensable.

Big “2” Engine Rebuilders v. Freeman (Miss. 1980)Facts: While on his sales route, the claimant saw a stranded motorist and pulled over to help. The motorist pulled a gun on him and struck him in the head which caused permanent disability.

Holding: Compensable injury. The plaintiff must prove a rational connection between the injury and his employment. Employers of traveling employees may reasonably foresee that an employee will stop to aid a distressed

motorist. Employee did not engage in a personal frolic; this injury was incidental to the employment (in the course of) Also, employer was in the business of car repair parts and the motorist needed parts Language of inclusion

Johnson v. Dept. of Roundtree (Miss. 1979)Facts: Taxicab driver kept the cab 24 hours per day and was permitted to use it for personal business. He was shot after receiving a call from the dispatcher, but the murder was not solved.

Holding: Compensable injury. There was a reasonable inference that the driver was engaged in the ∆’s work at the time of his attack, and his employment exposed him to the hazard of assault. The evidence was sufficient to show a rational connection between his employment and his death.

Smith & Johnson, Inc. v. Eubanks (1979)Facts: Employee died in a car wreck leaving his hotel to eat dinner with his cousin. His employer provided his vehicle and paid all of his traveling expenses.

Holding: Compensable injury. Meals are reasonably incidental to work when the employee’s work entails travel away from the employer’s premises. If, however, the worker steps aside from his employment for personal reasons then the injury is not compensable. RULE: the activity must be reasonably incidental OR rationally connected to employment.

Stepney v. Ingalls (Miss. 1986)Facts: Stepney, a pipefitter, was injured in a car wreck on the sole access road to the shipyard while driving his personal vehicle on his way back to work from an employer-allowed lunch break.

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Court faced decision of allowing compensation under the “special hazards” exception to the going and coming rule

Holding: Compensable injury under the special hazards exception. Special Hazards Exception

1. The presence of a special hazard at the particular off-premises point; and2. The close association of the access route with the premises, so far as going and coming are concerned

Ingalls Shipbuilding v. Dep’t of Sloane (Miss. 1986)Holding: Under the special hazards exception to the going and coming rule, there was no practical alternate route to avoid the inherent danger of the access road. Therefore the court awarded compensation.

B. Medical Evidence of Connection Between the Work and the Injury

Insurance Dept. of MS v. Dinsmore (Miss. 1958)Facts: Claimant, Dinsmore, was a deputy commissioner at the Dept. of Insurance for the state. Her job included supervising others. She was a perfectionist, high strung, and did not delegate duties well. She had a stroke while at work, which caused a disability. Is a stroke an ailment of life or of work? Medical Evidence: treated for high blood pressure Lay Evidence: high strung, perfectionist who took her job very seriously.

Holding: Compensable injury. The aggravation of hypertension was enough to show a causal connection b/w the injury and work. Even though a stroke case, it is thought to have a reach far beyond that RULE: it is not essential that the work is the sole or primary cause; it is enough if the work just contributes to

the injury. This is a low threshold.

Riverside of Marks v. Russell (Miss. 1975)Facts: Employee had stroke and was not subject to emotional stress, but physical exertion

Holding: Compensable injury. There was sufficient medical evidence that the work contributed to the stroke.

Charles N. Clark Assoc. v. Robinson (Miss. 1978)Facts: Employee was injured at work, went to doctor about injury and died in crash on way back from the doctor’s office.

Holding: Compensable injury since the employee could show that the reason for the ailment that sent him to the doctor was work-related. RULE: if an employee goes to the doctor for a work-related injury and has a wreck, then the injury is

reasonably incidental to employment. The employee must show that he injury he was seeking treatment for was a compensable injury.

Gradual disease

Segar v. Garan, Inc. (Miss. 1980)Facts: A seamstress developed Carpal Tunnel Syndrome

Holding: Compensable injury even though the employee claimed the injury was caused by one incident and CTS could not be caused by a specific incident.

Sperry-Vickers, Inc. v. Honea (Miss. 1981)Facts: Claimant was exposed to fumes and developed pulmonary fibrosis. The expert stated that the cause of pulmonary fibrosis is unknown, but he could assume—but not prove—a relationship to work b/c the claimant was exposed to chemicals that are known to cause pulmonary fibrosis.

Holding: Compensable injury even though there was no medical evidence of a causal connection.

C. Heart Cases and Rebuttable Presumption in Death Cases

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MISS. CODE ANN. § 71-3-3: Injury “. . . An untoward event or events shall not be presumed to have arisen out of and in the course of employment,

except in the case of an employee found dead in the course of employment. . . .”

General Rules If an employee is found dead on work premises during work hours, there is a presumption that his death arose

out of and in the course of employment. Do NOT have to prove causal connection This does not apply if someone dies while others are around

Presumption can be rebutted by showing The actual cause of death AND Work activities of decedent must be FULLY developed to show that activities did not contribute

WC law and Heart Attacks Many courts award compensation for heart attacks caused by ordinary job stress A substantial number of courts require a showing of “unusual” physical exertion or emotional stress to

support an award for a job-related heart attack Some jurisdictions compare the occupational emotional or physical strain that triggered the heart

attack with that encountered by other employees in similar jobs Occasionally the comparison is made b/w the claimant’s job stress and that of workers generally Other courts look to whether the heart attack was caused by stress that was unusual for that

particular employee

Two Forms of Causation Legal: work activities/stress must be greater than the ordinary wear and tear of life Medical: evidence showing that activities linked to injury

Washington v. Greenville Mfg. (Miss. 1968)Facts: Decedent who opened up the shop each morning was found dead at work. Doctors testified that there was no connection b/w the work and his death

Holding: Compensable injury. The court found that the employer did not rebut the presumption that the worker’s death arose out of and in the course of employment.

Univ. of MS Medical Center v. Dep. of Stewart (Miss. 1975)Facts: Stewart died of a heart attack while at work.

Holding: Not compensable injury. The employer was able to rebut the presumption b/c (1) Stewart was not a supervisor, (2) his job was not physically demanding, (3) his work was not demanding of his time, and (4) Stewart was a “laid back” person.

Union Producing Co. v. Dep. of Simpson (Miss. 1964)Facts: Simpson, an office employee, had a heart attack at work and died on the way to the hospital. His job was not physically stressful. The medical opinion was divided as to whether there was a causal connection.

Holding: Not compensable injury. The claimant met medical causation, but did not meet legal causation. If there was any contributing factor to the attack other than the progress of the disease, it was not the work

employer was doing but the ordinary wear and tear of life to which every person is subjected RULE: to be successful in heart attack cases, the claimant must put on evidence greater than the ordinary wear

and tear of life in order to prove legal causation

MS Ass’n of Ins. Agents v. Dept. of Seay (Miss. 1969)Facts: Claimant died of a heart attack in his hotel room after a convention in which he had a heated debate. He was a perfectionist, easily upset, and high strung. He worked late and had not taken a vacation in 4 years. He had high blood pressure and was an alcoholic.

Holding: Compensable injury. The court held that the heated debate earlier in the day and some weeks before was substantial enough to award compensation. The compensation would be reduced according to the preexisting ailments.

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IV. OCCUPATIONAL DISEASE

Occupational diseases are covered in MS under § 71-3-7: “An occupational disease shall be deemed to arise out of and in the course of employment when there is

evidence that there is a direct causal connection between the work performed and the occupational disease.”

If the incidence of disease/injury is higher in the particular occupation, then the injury usually qualifies as an occupational disease. In other words, courts compare the level of risk created by the work environment with that existing outside of the job.

Burden of Proof As a threshold matter, the employee bears the burden of proving that he contracted the disease on the job. Medical Evidence: must sufficiently convincing to persuade the finder of fact; often, the medical evidence is

conflicting

Cases Involving Both Occupational and Nonoccupational Causal Factors: Deny compensation (social security will typically provide disability benefits) Compensate and then SS provides less benefits Apportion b/w worker and employer

o Ex: black longue disease and worker is also a long-time smoker.

Boliver County Gravel Co. v. Dial (Miss. 1994)Facts: Claimant smoked b/w 1.5 to 2 packs of cigarettes per day for 25-28 years and was exposed to welding fumes on the job.

Holding: Permanent disability benefits were reduced by 90% to account for preexisting obstructive lung disease

Last Injurious Exposure Rule If an employee is exposed to injurious agents with multiple employers, then the employer he last worked for

will be liable for benefits

Time Limitations Note some statutes may have time limitations for minimum exposure as a condition of coverage.

V. HEART CONDITIONS, MENTAL AND NERVOUS INJURY, AND OTHER SPECIAL CASES

3 Kinds of Cases1. Physical/mental

o The mental injury develops secondary to a physical work-related injury. Likely compensable. Ex: mental distress following a work-related stabbing

2. Mental/physicalo Mental stress occurs which brings about a disabling physical reaction.

Ex: heart attack following a heated argument with a supervisor 3. Mental/mental

o Workers who suffer psychological disabilities as a result of some work-related nervous shock or protracted stress.

o For a mental/mental injury to be compensable, there must have been more than ordinary stress Ex: employee suffers emotional disorder after rescuing fellow worker whose hand was

amputated by punch press. Ex: office worker who suffered posttraumatic stress disorder after a 3 ton steel beam

crashed through he office wall. o “Untoward” is important languageo Worried about people faking it

Lancaster v. Gilbert Development (1987)Facts: The claimant suffered a heart attack while operating a backhoe.

Holding: Not compensable injury. The court found that there was no causal connection b/w the injury and work.

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Causation has two parts: (1) legal and (2) medical The claimant failed to prove medical causation A heart attack is a disease of living and not a disease of working

Sparks v. Tulane Med. Center Hosp. & Clinic (1989)Facts: Employee initiated program to eliminate drug use. Co-workers urinated in her coffee mug, committed theft, vandalized her property, etc. She also suspended 2 employees and was informed that workers wanted to hurt her. She was diagnosed with depression and had headaches related to work stress.

Holding: Compensable injury. Mental disability was serious enough to render the employee unable to work which in effect did violence to the physical structure of the body.

Smith & Sanders, Inc. v. Perry (Miss. 1985)Facts: Workaholic employee was told he would be laid off in 2 weeks. He had a nervous breakdown and had been previously treated for emotional distress.

Holding: Not compensable injury. Must be an “untoward” event causing an unexpected result and the evidence must be “clear and

convincing” This raises the bar for employees: must show unexpected result w/ clear and convincing evidence Court was concerned with possibility of a flood of claims from employees claiming emotional injury due

to being fired Routine stress is not enough; must be unusual stress.

Chapter 8: Compensation for Non-Fatal Injury

Four Categories of Benefits Medical § 71-3-15

o For as long as recovery process requireso Very broado Employee can select doctor, but employee cannot change doctors without employer’s permission unless it is

a referral to a specialist Rehabilitation § 71-3-1

o Section mentions rehabilitation as goal of WC systemo Very small benefits in MS—only $500o Some employers will pay for rehab because it may be cheaper if employee can get back to work

Disability Four Types

o Temporary Total: § 71-3-17bo Temporary Partial: § 71-3-17c(25)o Permanent Total: § 71-3-17ao Permanent Partial: § 71-3-21

Death § 71-3-25o Parents must put on evidence of dependency to get WC death benefits

Must show that decedent contributed to cost of running house, etc.o § 71-3-3 provides definitions of surviving spouse, parent, child, etc.o § 71-3-37(10) for payout options

A. MEDICAL & REHABILITATION BENEFITS

Because the most immediate need of an injured worker is medical attention, all WC statutes require medical aid to be furnished to injured employees.

Medical benefits cover the reasonable cost of physicians, hospitalization, medication and other necessary treatment.

A variety of incidental care is covered as well: wheelchair-accessible housing, nursing services, wheelchair-accessible van, etc.

B. DISABILITY BENEFITS

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Four Types1. Temporary Total Disability2. Temporary Partial Disability3. Permanent Total Disability4. Permanent Partial Disability

Elements of Disability Impairment Effect on ability to earn

Odd-Lot Doctrine If a worker, due to impairment from a work injury, is unable to hold or obtain reasonably stable employment in an

open and competitive market, but can and does occasionally and irregularly perform job activities for pay, the employment is known as “odd-lot employment” and does NOT show wage-earning capacity. Thus, earnings from the occasional and irregular work are not counted.

MISS. CODE ANN. § 71-3-11 – Commencement of Compensation No compensation except medical benefits shall be allowed for the first five (5) days of the disability. In case the

injury results in disability of fourteen (14) days or more, the compensation shall be allowed from the date of disability.

A. Temporary Total

The injury renders the employee unable to work for the time being. The worker is expected to fully recover and thus disability benefits are payable until the worker has recovered and

returned to work. Max benefit is 66 2/3% of the average weekly wage for the state times 450 weeks; minimum is $25 per week.

o The average weekly wage for the state was $546.83 in December 2005. o If the worker’s average weekly wage is below the state’s average, then the state’s average weekly

wage does not effect the determination

B. Temporary Partial

If the worker continues working after the injury, but is expected to recover, then the worker gets the benefits for the decrease in wage earning capacity until he recovers.

The compensation is 66 2/3% of the difference b/w his average weekly wages and his wage-earning capacity thereafter.

o Ex: weekly wage = $1,000, future wage-earning capacity = $700; comp = ($1,000 - $700)(.666), or $200

Benefits can go below $25 for temporary partial

C. Permanent Total

Workers are not able to do any substantial work and are not expected ever to do so. The compensation is 66 2/3% times the average weekly wage of the employee with a max of 450 weeks. Loss of both hands, feet, arms, legs, eyes, or any two thereof constitutes permanent total; everything else is

determined in court.

MISS. CODE ANN. § 71-3-17(a) – Permanent Total Disability In case of total disability adjudged to be permanent, sixty-six and two-thirds percent (66 ⅔ %) of the average

weekly wages of the injured employee, subject to the maximum limitations as to weekly benefits as set up in this chapter, shall be paid to the employee not to exceed four hundred fifty (450) weeks or an amount greater than the multiple of four hundred fifty (450) weeks times sixty-six and two-thirds percent (66 ⅔ %) of the average weekly wage for the state. Loss of both hands, or both arms, or both feet, or both legs, or both eyes, or of any two (2) thereof shall constitute permanent total disability. In all other cases permanent total disability shall be determined in accordance with the facts.

D. Permanent Partial

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MISS. CODE ANN. § 71-3-17(c)(25) – Other Cases In all other cases in this class of disability, the compensation shall be sixty-six and two-thirds percent (66 ⅔ %) of

the difference between his average weekly wages, subject to the maximum limitations as to weekly benefits as set up in this chapter, and his wage-earning capacity thereafter in the same employment or otherwise, payable during the continuance of such partial disability, but subject to reconsideration of the degree of such impairment by the commission on its own motion or upon application of any party in interest. Such payments shall in no case be made for a longer period than four hundred fifty (450) weeks.

When the disability is partial in character but permanent in quality The compensation is 66 2/3% of the average weekly wages of the injured employee in addition to temporary total

benefits already received. o So, once the worker has reached maximum medical recovery, but still has effects of the injury that are

considered “permanent,” they receive permanent partial after temporary total. Types:

1. Body-as-a-whole Allows physicians to express the claimant’s non-specific residual physical limitations as a percentage

loss of the “body as a whole.” Benefit is 66 2/3% of the difference between average weekly wage and wage earning capacity thereafter Ex: $600 avg weekly wage; $300 w/e thereafter; max medical after 10 wks

o (2/3)($600)(10 wks) = $4k in temporary totalo $200(450 wks) = $90k in permanent partialo Benefits can exceed 450 total wks, but are subject to the overall state maximum ($179, 518.50)o Here, $94,000 would be the benefit. o Look at MSPRAC-ENC §76:55 for examples of all benefits

2. Scheduled member injuries Benefit is 66 2/3% of average weekly wage

Benefits are based on the percentage of disability, which is the percentage used to reduce the number of weeks Ex: 50% loss of use of arm; benefit is payable for 100 weeks rather than 200.

Temporary Total Followed by Permanent Partial

Hale v. Gen’l Box Mfg. (Miss. 1959)Facts: Employee injured as a result of a fall and his employer’s carrier ceased payments. His average weekly wages were $35 at the time of the injury and after the temporary total disability his wages were $6 per week. The court faced the issue of whether the loss of wage earning capacity was a result of the injury.

Holding: The court found that the employee suffered a loss of wage earning capacity of 50% of total as a result of the work injury

Karr v. Armstrong Tire & Rubber Co. (Miss. 1953)Facts: Welder inhaled gas which caused irritation in chest. He filed a claim for wages for the 4 weeks he was unable to work as well as permanent partial loss of use of his voice (80% impairment). Employee made $45 per week working 6 days at the time of the injury and $60 per week working 5 days at the time of the hearing.

Holding: A determination of earning capacity involves more than a comparison of post and pre-injury earnings. Actual post-injury earnings serve as a rebuttable presumption of earning capacity, but the presumption may be

rebutted by evidence independently showing incapacity or explaining away the post-injury earnings. A worker may be considered disabled if the higher pay can be explained by other factors Evidence of lower post-accident earnings does not conclusively establish impaired earning capacity.

Russell v. Southeastern Utils. Serv. Co. (Miss. 1957)Facts: Lineman received severe burns on his arms, back, and torso. He was promoted to foreman after the injury and went from making $2.25 to $2.75 even though he did not have the training.

Holding: Proving that a worker received a job out of “sympathy” rebuts the presumption of wage earning capacity.

King v. Westinghouse Elec. (Miss. 1957)

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Facts: Employee returned to work after a non-work related injury and hurt herself. She earned $42 per week but then after her temporary total disability she earned $40 per week as a secretary.

Holding: Permanent does not mean forever, merely that the required period for recovery from the injury is not considered temporary. The claimant was entitled to recover for permanent partial disability.

Coulter v. Harvey (Miss. 1966)Facts: A long-time cement worker contract cement poisoning. He was advised that he could no longer work as a cement finisher. The issue before the court was whether an illiterate person who had engaged in the same trade over many years, but had developed an allergy that prevented him from performing that trade should receive permanent benefits.

Holding: No permanent benefits. The worker must make reasonable efforts to secure “other employment.” That means looking for employment in other trades.

Thompson v. Wells-Lamont Corp. (Miss. 1978)Facts: Factory worker was advised to discontinue factory employment by doctors. She tried to find employment at other factories, but suffered allergic reactions immediately. She also applied for a secretarial training program but was denied. She also applied at two public schools and was denied.

Holding: Making reasonable efforts to secure other employment yet failing can prove that the employee suffered a permanent disability. RULE: Claimant has BOP to make out a prima facie case for disability, the burden then shifts to the employer

to rebut the evidence, by showing that employment is available to the claimant. o Prima facie evidence:

Economic aspects of the local community Jobs available in the community and surrounding area Claimant’s general educational background and work skills The particular nature of the disability for which compensation is sought

Pontotoc Wire Prods. Co. v. Ferguson (Miss. 1980)Facts: Worker received a respiratory ailment as a result of employment. He applied for 2 jobs and was offered one that was 100 miles away.

Holding: The employer failed to rebut the evidence that there was not suitable employment, thus the court concluded that there was none available. So, even if there is available employment, a claimant can still prove permanent disability. An employee does not have to relocate in order to prove loss in wage-earning capacity. If the employee has a high salary then the geographic area is larger b/c low wage-earners would spend too

much money on their commute.

Marshall Durbin, Inc. v. Hall (Miss. 1986)Facts: Worker with 6th grade education was injured. He attempted to return to work many times but was denied by his employer.

Holding: Even though the worker only had a 30% impairment, he was still permanently disabled since he could not find employment. The WC Act focuses on the impact of the injury on wage-earning capacity. The term “disability” refers to an

occupational disability, rather than to a medical disability. A preexisting medical condition is not the same as a pre-accident occupational disability.

Georgia Pacific Corp. v. Taplan (Miss. 1991)Facts: Employee injured his neck and missed work for 3 days. He had surgery and tried to return to work several times but was denied because he had not fully recovered. He was fired based on a pre-existing back injury which had been identified 10 years earlier. The employer argued that while the disability to not affect his ability to perform his work, it disqualified him from working for them. Employee claimed that his inability to find employment after termination was due to the lack of job openings.

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Holding: Local economic conditions may be considered in evaluating the reasonableness of a claimant’s search for employment. So, even if a worker cannot find employment due to bad job market instead of a disability, he may still be entitled to WC benefits.

Jordan v. Hercules, Inc. (Miss. 1992)Facts: Injured employee had temporary total and 21% permanent partial disability to the body as a whole, as well as 40% permanent disability. He asked to return to work for the employer and was denied.

Holding: When the claimant, having reached maximum medical recovery, reports back to his employer for work, and the employer refuses to reinstate or rehire him, then it is prima facie evidence that the claimant has met his burden of showing total disability. The burden then shifts to the employer to prove a partial disability or that the employee has suffered no loss of wage-earning capacity.

Schedule Benefits for Permanent Impairment (Scheduled Member Injury)

Scheduled benefits are payable w/o proof of actual wage loss or impairment of earning capacity. In effect, the schedule provides a conclusive presumption that a worker will sustain wage loss that justifies compensation in the prescribed amount.

MISS. CODE ANN. § 71-3-17(c) provides for scheduled member injuries. MISS. CODE ANN. § 71-3-17(c)(22) – Total Loss of Use

Compensation for permanent total loss of use of a member shall be the same as for loss of the member.

M.T. Reed Constr. Co. v. Martin (Miss. 1952)Facts: 60-year-old skilled carpenter broke his femur and ended up with a shortened leg and 10% permanent functional disability. Commission held that he had permanent and total loss of the use of his leg. Contractors would not hire him because of his limp.

Holding: Despite being totally and permanently occupationally disabled, the claimant was not entitled to 450 weeks compensation under § 71-3-17(a), but only for 175 weeks—the maximum period for loss of the use of a leg.

Richey v. City of Tupelo (Miss. 1978)Facts: Fireman injured his shoulder. Circuit court found that he was temporarily totally disabled for 1 year and that he sustained a permanent partial disability of 50% in his right upper extremity which entitled him to compensation for a period of 100 weeks at $56 per week. Court faced the issue of deciding whether the shoulder was a non-scheduled member and thus the disability

should have been related to the body as a whole.

Holding: The injury only affected the right arm; therefore, the injury was limited to the schedule that includes the arm even though the employee was totally occupationally incapacitated. Thus, claimant was entitled to permanent partial compensation for 200 weeks, the max for the right arm.

Rivers Const. Co. v. Dubose (Miss. 1961)Facts: Worker had hernia, which was repaired, but he claimed the injury also caused an injured nerve.

Holding: The pain was from the hernia and had not spread to other parts of the body, so as to cause multiple injuries. The law provides no compensation for pain and none for physical impairment, except when it is of such character as to raise a presumption of incapacity to earn. RULE: Pain alone will not be sufficient to establish additional or multiple injury. RULE: When an employee has received a specific injury which spreads to other parts of the body and produces

a greater incapacity than that which naturally results from the specific injury, the employee may recover under the Act for more than injury of a specific member.

Walker Mfg. Co. v. Cantrell (Miss. 1991)Facts: Worker had a scheduled member injury. Employer offered the worker a different position with no change in pay. He refused and the employer terminated him and ceased paying temporary total benefits. The court faced the issue of deciding the extent of the employee’s permanent partial loss of wage-earning capacity following the injury.

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Holding: If there is a percentage of impairment but the employee is still able to perform substantial acts of employment, then he gets benefits for that percentage of weeks. The only benefits that are reduced are permanent partial and permanent total Temporary benefits are NOT subject to apportionment

Smith v. Jackson Constr. Co. (Miss. 1992)Holding: Section 71-3-17(a) covers all cases of permanent total occupational disability, to the exclusion of § 71-3-17(c) which by its terms covers only permanent partial occupational disability. Where an employee suffers an injury covered by the schedule in § 71-3-17(c) and where that injury results in a permanent loss of wage-earning capacity w/in § 71-3-17(a), the latter section controls exclusively and the employee is not limited to the number of weeks of compensation prescribed in § 71-3-17(c)’s schedule. This case modified/overruled M.T. Reed.

Nowlin v. Miss. Chem. Co. (Miss. 1954)Facts: Worker had permanent disability to his right leg of 35% and Commission directed payment of $25 for 35% of 175 weeks. In other words, $25 per week for 61.25 weeks.

Holding: The Commission’s formula was affirmed.

Bill Williams Feed Serv. v. Mangum (Miss. 1966)Facts: Worker injured his leg and Dr. testified he had a 40% permanent partial disability of his right leg which prohibited claimant from doing the substantial acts of his employment and thus the court awarded him compensation for total loss of use of his leg.

Holding: Since claimant was unable to do the substantial acts of the employment in which he was engaged when injured, his partial disability was considered a total loss of scheduled member.

Gen’l Elec. Co. v. McKinnon (Miss. 1987)Holding: A worker can have a scheduled-member injury and an injury to the body-as-a-whole. The Court computed both benefits for the claimant and applied them end-to-end, NOT concurrently.

Apportionment: Reduction of Benefits for Pre-existing Diseases

MISS. CODE ANN. § 71-3-7 – Payment of Compensation by Employer Where a pre-existing disease is shown to be a material, contributing factor to the results following an injury, the

compensation that would be awarded is reduced by the proportion the pre-existing disease contributed to the results.

(a) Apportionment shall not be applied until the claimant has reached maximum medical recovery.

(b) The employer or carrier does not have the power to determine the date of maximum medical recovery or percentage of apportionment. This must be done by the attorney-referee, subject to review by the commission as the ultimate finder of fact.

(c) After the date the claimant reaches maximum medical recovery, weekly compensation benefits and maximum recovery shall be reduced by that proportion which the preexisting disease contributes to the results following injury.

(d) If maximum medical recovery has occurred before the hearing and order of the attorney-referee, credit for excess payments shall be allowed in future payments. However, no actual repayment of such excess shall be made to the employer or carrier.

Apportionment Only compensation is reduced by apportionment—medical benefits are NOT reduced by apportionment

M.D. Hayles Lumber Co. v. Hamilton (Miss. 1978)Facts: Employee injured his back and employer provided temporary total disability of $40/wk from the date of the injury, Apr. 23, 1970, to Dec. 31, 1972. Claimant reached max medical recovery on Apr. 1, 1975. The Commission found that his injury was total and permanent, but 70% of his injury was attributable to a pre-existing disease. Therefore, the Commission directed payment of $40/wk from the date of the injury to max medical recovery without apportionment, and 30% of $40/wk—or, $12—for the period thereafter provided by statute.

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So, worker received $40/wk until max medical recovery and then $12/wk thereafter.

Holding: Under § 71-3-7(a), apportionment is not applied until after max medical recovery. Thus, the Commission held correctly.

Marshall Durbin, Inc. v. Hall (Miss. 1986)Holding: In order to trigger the apportionment provision of the statute, the pre-existing disease must be supported by medical evidence

Stuart’s Inc. v. Nellie Brown (Miss. 1989)Facts: Brown injured her back in 1976 while lifting boxes. While recovering, she received temporary total disability. She fully returned to work and was subsequently beaten while at work in 1981. The beating resulted in back trauma and severe depression. The Commission found that she was 100% permanently disabled as a result of her depression and declined to apportion her recovery b/c of the 1976 back injury.

Holding: Affirmed. The pre-existing disability must have been “occupationally disabling” before the current work injury. Here, Brown returned to work for 4 years after the initial injury and performed her work satisfactorily. The pre-existing injury must have previously caused reduction in wage-earning capacity to trigger the

apportionment statute.

Hardin’s Bakery v. Harrell (Miss. 1990)Facts: Worker died of heart attack. The Commission apportioned his award based on a pre-existing health condition.

Holding: Affirmed. There is inherent difficulty in assigning specific percentages in cases such as this.

Stuart Mfg. Co. v. Walker (Miss. 1975)Facts: Walker was injured and received temporary total disability payments from the date of injury to max medical recovery. The Commission found that Walker had a 20% permanent partial disability, 10% of which resulted from a previous injury. Thus, after max medical recovery Walker was awarded $40/wk for 12.5 wks (10% of the statutory 125).

Holding: Apportionment should reduce the number of week’s recovery rather than the dollar amount. So, $40/wk for 12.5 wks; NOT $4/wk for 125 wks.

Cross Mfg. Inc. v. Lowery (Miss. 1975)Facts: Lowery injured her back and was awarded permanent partial benefits of $25/wk for 450 wks. Medical evidence suggested that 50% of her disability was due to a pre-existing injury. Her employer tried to reduce the payments to $12.50/wk, which was below the statutory minimum.

Holding: The apportionment statute will not allow minimum benefits to be reduced to fall below the minimum statutory requirements. Therefore, $25/wk was proper. This is no longer good law. RULE: In 1992, § 71-3-13(1) was amended to allow partial disability benefits to fall below the $25 statutory

minimum.

Procedure in WC – Time Limitations

MISS. CODE ANN. § 71-3-37 – Compensation Payments The first installment is due 14 days after the employer receives notice of an injury and then every 14 days thereafter. The claimant does not have to make a claim in order to get paid.

MISS. CODE ANN. § 71-3-11 – Waiting Period No compensation except medical benefits shall be allowed for the first 5 days of the disability. In case the injury

results in disability of 14 days or more, the compensation shall be allowed from the date of disability.o Incentive for worker to get back to work as soon as possibleo Examples:

If worker misses 5 days, then he gets no compensation If worker misses 13 days, then he gets paid for days #6-#13 If worker misses 14 days, then he gets paid for days #1-#14

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Forms B-52 – Employer’s Notice of Controversion

o Puts employer on record stating that they have an arguable reason not to pay; important in BF claims B-51 – Employee to Asserting Claim

o Filed if no benefits are paido Allows employee to get a hearingo Stops the running of the SOL

B-31 – Employer’s Notice of Final Paymento Acts as employer’s notice to the employee of their final payment; must be properly filed to be effectiveo Notice is not proper unless given after the B-31 is properly filed. The SOL won’t begin to run until notice of

the filed B-31 is given. o The employee has 2 options:

Sign it; or Don’t sign it—then another notice must be sent to the employee after the B-31 has been filed. There is

no reason an employee should sign the B-31 unless they want to stay in good graces w/ the employer

A. One-year Statute of Limitations

MISS. CODE ANN. § 71-3-53 Provides for a one-year limitation period for seeking a commission order for a change in the status quo of a matter

whether or not an order has been issued previously. The statute allows for a matter to be reopened at the commission’s initiative or on motion of any party in interest

during the one-year period. The statute gives the commission the authority, during the one-year limitation period, to issue an order affecting

the amount or status of benefits whether or not a compensation order has been issued previously. O The Commissions action is discretionary.

Change in Condition Employee gets benefits reaches maximum medical recovery gets § 71-3-17(c)(25) employer learns

the employee is working again The employer can file a motion seeking a reduction or elimination of benefits b/c of a change in condition.

What starts the running of the one-year SOL?1. Rejection of a Claim

Rejection of a claim by the court starts the running of the one-year SOL The employee has 1 year to file another claim

2. Last Payment SOL starts running after the last voluntary payment, order approving a lump sum, order approving a

compromise, OR the last payment of medical benefits once a B-31 is properly filed. 3. Filing B-31

A properly filed B-31 following the most recent payment for disability income benefits or medical services is necessary to start the running of the one-year SOL.

Form B-31’s purpose is to provide notice required by § 71-3-37(7) before a workers’ rights to benefits can be terminated.

Notice filed w/ the Commission by the employer is notice of final payment § 71-3-37(7) – must file notice w/in 30 days after final payment No case is closed unless notice and an opportunity to be heard is given to all parties

H.C. Moody & Sons v. Dedeaux (Miss. 1955)Facts: Dedeaux injured his foot on March 6, 1950. The employer did not controvert Dedeaux’s right to compensation, and began voluntary payments. On April 15, 1950, the employer filed a report with the Commission of the initial payment to Dedeaux—$25/wk. The Dr. cleared Dedeaux as cured on April 28 and could return to work on April 29. Thereafter, employer filed B-31and gave notice of final payment on May 23. On June 8, 1953 he filed an application for compensation.

Holding: Filing of a B-31 gives the employee notice and an opportunity to be heard This was the first case where the court barred a claimant’s benefits b/c of SOL The one-year SOL does not begin to run until the minor employee becomes 21.

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Trehern v. Grafe Auto Co. (Miss. 1958)Facts: The court was faced to decide if medical benefits were never barred under the Act.

Holding: The same period of limitation that applies to compensation also applies to medical benefits.

Gibbs v. Bass (Miss. 1959)Holding: The one-year SOL does not begin to run until the employer is in default in furnishing medical benefits. This is an unusual/bogus case, b/c 2 previous cases say the SOL starts running when the employer files a B-31.

Barr v. Conoco Chemicals Inc. (Miss. 1982)Holding: The court barred a claim b/c it was over 1 year after filing a B-31 and the employer was not in default. Theme: If there is a one-year period of dormancy, then the claim is barred.

International Paper Co. v. Evans (Miss. 1962)Holding: SOL does not begin running until the employee receives proper notice of B-31. Here, it did not begin until the Commission sent notice that it was filed.

McLemore v. Jackson Tile (Miss. 1971)Holding: Employee must be given an opportunity to sign a B-31; if the employee neglects to do so then the employer may file the unsigned form. After—not simultaneously—the unsigned form is filed the employer must give notice to the employee that the B-31 has been filed.

Claims After Lump Sum & Compromise Payments

MISS. CODE ANN. § 71-3-41 – Agreements Requiring Employee Payments Invalid An employee cannot waive his right to compensation—any agreements are invalid.

MISS. CODE ANN. § 71-3-37(10) – Lump Sum Payments Authorizes lump sum payments if the Commission deems it to be in the best interest of the claimant and his

dependents. Insurance carriers prefer lump sum payments b/c they provide closure.

Armstrong Tire & Rubber Co. v. Franks (Miss. 1962)Facts: Employer paid lump sum benefits to claimant. The issue was whether the claimant still had 1 year to seek additional benefits.

Holding: Section 71-3-37(10)—also known as 13(j)—is not contractual and does not bar a claim for additional benefits; rather, the employer receives credit for the weeks included in the payment.

Lawrin Co. v. Frazier (Miss. 1968)Facts: The Commission awarded the claimant compensation for permanent total disability; a surgery would have greatly increased the claimant’s chances of wage-earning capacity but the employee refused the surgery. Later, she wanted additional medical services.

Holding: 13(j) does not include future medical benefits in computing lump sum payments; a case may be reopened for additional medical services after a lump sum payment.

Bailey Lumber Co. v. Mason (Miss. 1981)Facts: Claimant, w/o an attorney, entered into a compromise settlement for $6,500. He later requested that the matter be reopened b/c an assistant of the commission—not the commissioner—approved the settlement.

Holding: Commission can reopen a 9(i) compromise settlement case w/in 1 year after settlement. Reopening should be allowed if it’s the Commission’s mistake in approving the settlement, not the claimant’s

mistake in agreeing to the compromise. If a claimant is unrepresented, the carrier must bring the employee before the Commission to explain the

consequences and finality of a 9(i) agreement.

Metal Trims Industries v. Stovall (Miss. 1990)

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Holding: Commission may reopen 9(i) within one year after its approval in unusual factual circumstances. Here, the claimant’s attorney was not fully candid with the Commission and therefore the Commission’s decision to approve the compromise was induced by inaccurate medical information.

B. Two-year Statute of Limitations

MISS. CODE ANN. § 71-3-35 The two-year limitation comes into effect only upon two conditions:

1. No payment of compensation (other than medical treatment or burial expense) is made; AND2. No application for benefits has been filed w/ the Commission w/in 2 years from the date or injury or death,

then the claim is barred. In other words, if a claim has not been filed within 2 years after the disabling injury (or death claim w/in 2 years

after death), the claim is barred unless there has been a payment of disability income benefits or non-burial death benefits.o If the employer pays disability benefits or non-burial death benefits, then the SOL begins to run on the date

of last payment.

Failure of a worker to provide notice of injury to his employer w/in 30 days of injury does not bar the claim if the employer had knowledge of the injury and was not prejudiced by the employee’s failure to give noticeo The employer has the burden of proving it was prejudicedo Even if employer receives proper notice, must file a claim w/in 2 years unless there has been payment of

disability benefits or non-burial death benefits. o Time of “injury” begins the SOL, not the time of the accident.

Martin v. L & A Constr. Co. (Miss. 1964)Facts: Employee was injured on March 17, 1959. He received temporary total disability for 45 weeks at $35/wk from the date of the injury to Feb. 1, 1960. He was then paid 25% of 350 wks (87.5 wks) at $35/wk as permanent partial disability benefits. The last payment was on Oct. 15, 1961. He filed a claim for compensation on Dec. 27, 1962—over 1 year after payments ended, but over 2 years after the injury. The issue the court faced was how § 71-3-35 operates if benefits have been paid to the claimant.

Holding: If disability benefits have been paid, then the SOL does not begin to run until the last payment is made. This rule applies in cases where no B-31 has been filed; if B-31 is filed then SOL ends 2 years after the date of

injury

Speed Mechanical Inc. v. Taylor (Miss. 1977)Facts: Employee injured his teeth. He did not miss more than 5 days work so no disability benefits were paid, just lump sum medical benefits. He did not file a claim until over 2 years later for additional medical benefits. He argued that his failure to file a claim for additional benefits w/in 2 years only barred him from “lost time subsidy” compensation and did not bar additional medical benefits since he received no disability benefits and made no application for benefits.

Holding: When only medical benefits are paid, the two-year SOL begins to run at the date of the injury Bradley thinks this ruling is wrong.

Pepsi Cola v. Long (Miss. 1978)Facts: Employee was injured on March 9, 1972. He reported it to his employer but did not receive compensation benefits. He filed a motion to controvert over 2 years later after he suffered severe pain.

Holding: The two-year SOL does not begin to run until “by reasonable care and diligence it is discoverable and apparent to the worker as a reasonable person, from the nature, seriousness, and probable consequences of the injury, that a work-related disabling injury has been sustained.” Rule: In latent injury cases, the “date of injury” means the date of the resultant disabling injury and not the date

of the accident. Note: This also covers misdiagnosed injuries

Ingalls Shipbuilding v. Harris (Miss. 1966)Holding: In death claim cases that have not previously been heard on its merits, the two-year SOL begins to run at death rather than the date of injury.

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C. The Two-year & One-year Statues Compared

Both statutes run consecutively—the later expiration is the one that bars the claim One view is that the filing of a B-31 starts the 1-year SOL running and also nullifies the 2-year SOL, but the court

has never applied this rule

When Does the SOL Begin to Run? One-year: when a B-31 is properly filed Two-year: date of “injury” not accident

o When it is discoverable to a reasonable person that a work-related injury has been sustained Remember: the employer must receive notice w/in 30 days of injury unless the employer has

knowledge; even if no notice is given and employer does not have knowledge, the employer must show it suffered actual prejudice for the claim to be barred.

D. Penalties

MISS. CODE ANN. § 71-3-37(5) – Before Award is Adjudicated If an employer does not pay compensation w/in 14 days after they have notice, they must pay an additional 10%

unless the employer files a motion to controvert w/in 14 days of notice. o Obligation of a claimant’s lawyer to attempt to get the 10% penalty

MISS. CODE ANN. § 71-3-37(6) – After Award is Adjudicated If an employer fails to pay w/in 14 days after payment becomes due, they must pay an additional 20% Note: Additional fees can take benefits above the statutory cap. Note: The penalties do not apply to medical benefits.

MISS. CODE ANN. § 71-3-51 – Right of Appeal Appeal does not supersede benefit—there is still an obligation to pay award even if you appeal; the ct may award

supersedeas if the carrier seeks one.

Chapter 11: The Exclusive Remedy Doctrine and the Third Party Suit

I. THE RIGHTS OF EMPLOYER AND EMPLOYEE IN THIRD PARTY ACTIONS

All states recognize an employer’s right to be reimbursed for compensation benefits from the proceeds of an employee’s tort claim against a third party.

Note, this section assumes that the third party does not have tort immunity

MISS. CODE ANN. § 71-3-71 – Action by Employee Against Other Parties The claimant is not precluded from filing a civil action against a third party for damages resulting from the work

injury, i.e., a worker who is entitled to WC benefits does NOT lose his claim against the third party. The employee must give the employer and carrier notice w/in 15 days of filing so the employer/carrier may

intervene The employer/carrier also has an independent right to file a civil action against a third party in the name of the

injured worker. From the proceeds of the action, the employer/carrier are entitled to repayment of WC benefits (including medical

benefits) paid to or owing to or on behalf of the worker, after deducting the worker’s atty fees and expenses. The claimant is entitled to the remainder of the proceeds. o Order of benefits: (1) attys fees, (2) repay employer, (3) claimant gets the rest.

Settlement of third party actions must be approved by the Commission and all parties must sign a petition of approval

Note: a third party may allocate fault to the employer, which is bad for the employee.

If a carrier has NOT paid benefits yet, but wants to preserve its right to reimbursement, can it use § 71-3-71? Some courts say no, but the statute does not mention this situation.

If a carrier has paid, but not intervened, do they have a right to reimbursement? Yes, but carriers usually don’t risk this, they intervene.

MISS. CODE ANN. § 71-3-15(4) – Medical Services for Injured Employee

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The employer/carrier may recover the full amount paid for medical services from the third party

Richardson v. United States Fidelity (Miss. 1958)Issue: Whether the remaining balance given to the employee after taking out attys fees and the benefits already paid by employer can be used to discharge future compensation benefits. In other words, after the employee receives his share, can the employee continue to draw compensation benefits w/o them being credited from the employee’s share?

Holding: Employer/carriers are authorized to suspend payment of benefits to collect possible future legal liability.

Owen & Galloway v. Travelers Ins. Co. (Miss. 1986)Facts: Carrier intervened in a third party suit, but did not assist the claimant in any manner and did not assist in payment of expert witness fees. The attorneys took a lower fee so the claimant could recover funds, but the carrier received its full recovery. The attorneys for claimant filed an action against the carrier to recover the cost of legal fees performed on the carrier’s behalf.

Holding: The attorneys could not recover from the carrier. The statute clearly allows the carrier to recover their full amount and they do not share the employee’s costs of recovery (i.e., carrier does not have to pay attys fees out of their share).

Sawyer v. Head (Miss. 1987)Holding: The statutory right of the carrier to obtain credit against its liability for compensation benefits cannot be invalidated by a settlement and release agreement negotiated by the employer and its insurer.

Lorenzen v. South Central Bell (5th Cir. 1982) Facts: Employee of a cable company was injured. The K b/w phone and cable company contained an indemnity clause holding phone company not liable. Phone company filed third party complaint against the cable company.

Holding: The indemnity clause was valid b/c there was a K—must have a written K.

Intervention If a carrier knows about the suit, why would they not intervene?

o Most lawyers say to interveneo Some lawyers say a carrier that pays has a lien on the suit funds

Once a carrier intervenes, it must attend all of the events (i.e., depositions, hearings, etc.), which is expensive for carrierso Carriers often use the procedure of ratification

Ratification MISS. R. CIV. P. 17 allows a carrier or employer to use ratification as a means of satisfying the requirement of

joinder of parties in interest. In federal court, ratification protects the right to be reimbursed from funds arising from the action; however, in state

court, there is a question of whether ratification is available for these purposes.

Missed notes from Nov 29

Notes – Dec 1

Credits – two provisions: (1) worker can’t K away right for WC benefits (exception if commission approves); (2) worker can’t be req’d to pay premium for WC

Were benefits provided in lieu of WC? If there was an intent to do that, then the employer can get credit (not many of these cases) – must be evidence of intent to pay as a substitute for WC. Insurance policy may say pay 2/3 of pay while hurt, but also say that if WC is paid it will be reduced. Cannot normally reduce the statutory obligation by K; however, can reduce the insurance contractual obligation by amount of WC (this doesn’t offend the statute)

Many employers have personnel policies that say “once you’ve been here for 6 months you begin then earning sick leave and for every month you are employed (after 6 months) you earn ½ day sick leave” i.e., in 12 month period a person would’ve

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earned 6 days of sick leave. So, if person is injured and can’t work for 3 weeks and employer says I really don’t have to pay 3 weeks worth of WC b/c the worker already has 6 days of sick leave (credit). Sick leave reduces WC benefit. Sick leave is something a worker has earned as part of employment K so that belongs to the worker and can’t be taken away – so to reduce the statutory benefit would be to take away the worker’s sick leave – this is not allowed. This doesn’t reduce the statutory obligation.

85-5-7 – allocating fault – allow allocating fault to otherwise immune employer; employer doesn’t have to pay anything, but it cuts down the recovery on the injured employee and reduces the liability of the 3rd party.

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