Professional Documents
Culture Documents
By Jacques Fowler
claim as defense counsel then you set your self up for a negligence
claim
d. Exclusivity also protects co-worker negligence if in AOE/COE
e. AOE/COE arising and in the course of employment- must be AOE/COE to
recover
B. Employer Misconduct and Intentional Injury by Employer/ uninsured employer
a. 2 exceptions to exclusivity of remedy
i. Uninsured employer is subject to lawsuit at common law
ii. Always can sue for intentional (Or. Case says supervision
punching employee company is not liable)
1. includes willful intent, failure to safety devices, or willful
misconduct
III.
c. If three elements are not present then an employee cant file against a
special-in other words special employer is only liable if:
i. Employee made contract w/ the special either express or implied
ii. Work is essentially that of the special employer
iii. Special has the right to control the details of the work
d. 656.850- Worker Leasing Company- for agency/placement services- says
leasing company has obligation to pay workers comp of leased employees
and leasing company becomes liable of all workers of the client, unless the
client has a guarantee contract for all of its workers and the leased
workers; either way one of the companies covers all of the workers- so
make sure that client has a guarantee contract to cover workers comp
i. in Or. acts like .029 say where a person is letting a contract and the
sub isnt covered, the lettor better be covered.
e. If an employer accepts a persons claim of workers comp then they cant
latter revoke the award because they found out they are not the actual
employer; In Or. There is a 2-year extension before they close the door on
employers. So need to make sure before you grant a claim that you are
actually the employer
f. Joint/ Concurrent employment
i. Joint employment- where worker has contract w/ both employers
and simultaneously is controlled and paid for by two people; Cop
acting as a security guard while on duty so both employers are
liable for apportionment of the benefits.
ii. Concurrent (dual employment)- duty to serve 1 employer is
independent of the other employer. Guy is janitor and security
guard at the same place. Company he is doing work for when he is
injured is liable- because it can be separated
1. Note for exam question- if workers comp is no fault and he
is walking down the hall and falls who is at fault- janitorial
or security company? Maybe there is no answer or maybe
they both share like in apportionment or he doesnt
recover?
G. Inclusions and Exemption
a. To determine if general contractor will pay if the sub is uninsured the
general rule of thumb is the statute covers employee when the work being
done by employee would normally be accomplished by the employer
through their own employees
b. Even w/ contract, remuneration, and control you may still have an
exclusion for workers comp. 656.027 describes who are non-subject
workers.
c. 6656.029- brings employees in- Statutory Employer law- a person may
have to provide workers comp even if not an employer of the employee; a
general maybe held liable for workers of subcontractor b/c sub is noncomplying employer (NCE).
i. When you have an NCE employee can still sue sub and get their
benefits; sole and exclusive remedy doesnt apply for NCE
ii. But all states say workers comp is mandatory, so presumption is all
employees are covered; Even charities b/c it doesnt matter if you
are in business for profit or not, it only matters if you are in
business
d. Persons excluded 656.027- all are allowed to have selective coverage
i. 2- excludes worker around the house b/c no consumer is paying
for the end good; the prime idea behind workers comp is to pass
the insurance premiums on to the consumer, but in a home there is
no consumer
1. Anfilofieff case- cuts hand on metal siding and he was
working at the instruction of his boss who had taken him
off another job to work at the bosses house that day the
result is 2 exceptions
a. Commercial use of the property- if the property has
a commercial use then it cant be 2
b. Or if services are commercial- scope of regular
employment is broadened as in Anfilofieff
ii. 1 excludes domestic servants- 50% of the states use this
exception, the rest allow for voluntary coverage; reason there is an
exclusion is b/c there is no consumer to pass the premiums on to
1. 2 tests to determine if a person is a domestic servant
a. location- in or around the house
b. nature of the duties test- what is the use to which
the employer is putting the employee too
2. if the labor is used in a commercial purpose for the master
then person is an employee, but if the person is merely
contributing to the personal benefit of the master and the
work is not in the normal trade of the master then the
worker is a domestic servant
iii. 3 excludes casual employment- brief, short- majority of states
include if work is casual and outside of the scope of employers
business
1. case with the pony riding girls- must be under a certain
dollar amount and outside of the scope of regular
employment
iv. number of employees- Or. Says one employee is enough to say that
you are an employer, other states have a critical number of
employees and cant sue the employer if you have less than 3
employees
v. Farm labor- once every state excluded- now 39 jurisdictions cover
farm workers to some degree; 14 states make no distinction b/t
farm and factory workers; 14 states have no coverage
vi. Executives and partners- execs are usually covered by .027 b/c
employer is the corp., unless they own the company; partners are
not b/c they are the business and you cant be your own employer
all states do allow elective coverage
IV.Defining Compensability
A. Arising Out of Employment (AOE) Generally
a. AOE focuses on nature of the risk of injury- distinguish b/t employment
risks and those risks that we are normally exposed too
b. COE focuses on the time, place, circumstances of the injury
c. Must be in COE or cant be AOE b/c employer didnt hire you to do that;
w/o COE then no AOE, that is why in real life you decide if COE then
determine AOE
d. AOE does not mean caused by employment- job can just put you around
harm (street-risk)
B. AOE Types of Risk
a. Peculiar Risk Doctrine (PRD)- risk had to be unique and peculiar to the
employment, this doctrine is dead
i. Door to door salesman slipping on ice isnt covered b/c everyone is
exposed to this type of risk
b. Increased Risk Doctrine (IRD) - increase of risk b/c work exposes the
workers to the danger more often or too a greater degree than the public is
exposed- majority rule
c. Actual risk doctrine (ARD) - if nature of job exposes employee to injury
dont care about public. First used in acts of god and street risk cases- next
most popular (pg. 43)
d. Positional risk doctrine (PoRD)- almost adopted in Or. And some states
use it when the have to; but for test would injury occur but for the jobbroader than ARD b/c you dont have to be working- bringing the
employee into peril b/c employee has to be there due to employment; COE
doesnt always need to be meet- this is the benefit over the ARD; PoRD is
the standard in Oregon
C. Categories of Risk
a. Employment risks- universally covered by 5 doctrines
b. Personal risks- only connection w/ job is b/c person was at work; nothing
to do w/ job
i. Heart attack at work- not compensable just b/c you are at worknever compensable under the 5 doctrines
c. Neutral risks- gray area b/t the other two risks; neither personal or
employment ex natural disasters, acts of god
i. Who is the employer that will pay for the diseases that occur over
time when you deal w/ cases that dont develop for a long period
of time
ii. Employer that exposure could have occurred while employee was
working there. If couldnt have caused the injury use the last
injurious exposure rule
1. ex. If employee has a disease which takes 5 yrs to discover
the effects of that disease, you go back to last employer
that potentially contributed to the disease
iii. Courts generally dont apportion awards between employers unless
state statute allows you to
1. Or. Case law allows apportionment in hearing loss cases if
you have 1 employer with 3 insurance carriers then you
determine damage done to hearing while each company
was serving as the carrier and you apportion accordingly
iv. If employee attacks the last employer, the employer can not use the
last injurious exposure to claim that they didnt do it. So if worker
can pinpoint which employer caused the harm then the last
employer can only say current employer only helped cause the
injury
e. Employee who works in a mill (cotton dust) and is a pack a day smoker
i. Last injurious exposure doesnt require significant exposure only
needs to a slight exposure then it is compensable
D. Special Proof Problems
a. Standard for proof is generally by a preponderance of the evidence ( Wash
is by clear and convincing)
b. Must prove case to a medical probability so if a witness says it is possible
then you will lose, if they say it is probable then worker gets compensation
c. Or. Case allows for worker to prove his prima facie case w/o the need of
medical testimony if;
i. The case is a simple case
ii. With immediate appearance of symptoms
iii. That is reported to a supervisor
iv. And later worker consults a physician
v. Employee had no prior history of that condition
d. Some cases w/ hard to prove or understand illness say you might need
expert testimony as to what needs to be done or to the cause and a doctor
offering a conclusion alone wouldnt work
E. Evidence
a. Worker comp is an administrative hearing so all of the evidence is let in
and the only question is with what weight will the evidence be given
i. You still need to object so that the court can not give the evidence
the greatest amount of weight when the time comes, but you will
not keep it out
ii. Residuum Rule- incompetent evidence let in and considered, but
need a residuum of competent evidence to make a finding
b.
c.
d.
e.
1. each time you move or get a new car the employer is liable
for remodeling if it is reasonable or necessary
2. the initial cost of the van might be the responsibility of the
employer, but after that it is the responsibility of the
employee
3. employee gets 1st car free and then has to use that to buy
further cars or workers comp may require price of regular
van less the price of a regular car to be paid
iii. vocational rehabilitation
1. is usually given by statute different ways of payment.
Oregon used to make the state pay it for vocational
training, but now Oregon is a cost boar by the employer
and private certified (by the state) vocational counselors
now do the job
2. some states do allow compensation for formal education
and training for an entirely new type of job, but it is state
specific
3. Refusal by employee to participate in rehab or to do light
duty work (if capable of performing the work) might be
grounds to terminate the award
B. Benefits paid to injured worker
a. Compensation is benefits, they are not damages, unlike in torts. The
design is to provide for the worker and to supplement the work wage loss
supplement. Also by contrast w/ the tort system awards are not given for
the physical injury, but instead for the resulting disability that is produced
b. Time loss benefits
i. TTD- temporary total disability
ii. TPD- temporary partial disability
iii. PPD- permanent partial disability
iv. PTD- permanent total disability
1. temporary- you pay until you are medically stationary
which is 1. no material improvement 2. where medical
treatment or the passage of time will help out; if this is the
case the claim will cease and become a permanent
c. TTD and TPD
i. TTD- means you can not earn wages temporarily- anticipation you
can go back if you can go back, but you are limited by what you
can do then you are TPD
ii. TTD is usually 66 2/3 % of wages but maybe not vacation or
benefits but includes overtime and bonuses; TPD is difference
between wages of TTD minus what you get at a modified wage
1. Ex TPD= what you make of TTD (or the ceiling or floor)
minus what your boss is now willing to pay you
2. Ceiling is set at state average weekly wage, so lawyers and
doctors get screwed by losing money
iii.
iv.
v.
vi.
vii.