Workers’ Compensation
Fall 2011
Professor Bradley
Michael 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 then
o 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 workers
o 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 fault
o 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.
1
o
II.
This erases: (1) master/servant rule; (2) assumption of risk; (3) contributory N; and (4) proof of N
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 liability
o 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.
2
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.
3
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” test
o 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 job
o 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 contractor
2. "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
4

o

Extent to which the work is of sufficient duration to constitute continuing services
rather than a particular assignment
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 legislation
2. 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 legislation
3. Right to control test more directly advances the remedial purposes of social legislation
4. 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 cases
Facts: 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)
5
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 employment
o 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, or
2. 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
6
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 remedy
o 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
7
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 time
o 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)
8
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 § 71-371 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.
9

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
= Subcontractor B NOT immune
Subcontractor B
2.
Owner  Contractor  Subcontractor A  Sub-subcontractor  Employee
= Sub-subcontractor NOT immune
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
10
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 tort
o 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; and
3. 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
11
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.
EMPLOYEE PARTICIPATION IN EMPLOYER’S ENTERPRISE
X.
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
12
o
Mississippi: Yes, in Kelly, the Court declined to recognize a public policy exception to the employment-atwill 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 employment
o Time and place is the biggest problem with the injury’s connection w/ employment
Two Tests
1. 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 Risk
1. Personal – Performing tasks for one’s own gain
2. Mixed – Elements of personal and employment
3. Employment – Performing task for benefit of employer
4. 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
employment
o 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 employment
o 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.
13
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 Categories
1. Innocent Victim: claimant is an innocent victim who did not participate in the horseplay
a. Almost always compensated
2. Aggressor: the victim instigated the horseplay or actively participated in it
14
a.
Victim is the instigator so is usually not compensated b/c it’s willful (fault)
4-Part Horseplay Test
1. 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
15
1.
2.
3.
4.
5.
6.
7.
8.
If the employer provides the vehicle/transportation
Employer pays for travel or travel expenses
If the route to or from work exposes the employee to special dangers
Once an employee enters one site, subsequent trips b/w sites are usually w/in course of employment
If employer directs employee to perform errands while en route home
If the person trip wouldn’t have been made if the business had not required a similar trip
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)
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.
16
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” risk
o 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.
17
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
18


Statutes of several states contain special “assault” provisions that common exclude injuries from 3rd parties or coworkers 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
THE CONCEPT OF “ACCIDENT”
I.

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
19
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.
20

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; and
2. 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
21
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.
22
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 Cases
1. 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/physical
o 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 language
o 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.
23



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 requires
o Very broad
o 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 system
o Very small benefits in MS—only $500
o Some employers will pay for rehab because it may be cheaper if employee can get back to work
 Disability
 Four Types
o Temporary Total: § 71-3-17b
o Temporary Partial: § 71-3-17c(25)
o Permanent Total: § 71-3-17a
o Permanent Partial: § 71-3-21
 Death § 71-3-25
o 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, wheelchairaccessible van, etc.
B. DISABILITY BENEFITS
24
Four Types
1. Temporary Total Disability
2. Temporary Partial Disability
3. Permanent Total Disability
4. 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
25
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 total
o $200(450 wks) = $90k in permanent partial
o 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)
26
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.
27
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.
28
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 § 71-317(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.
29

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 possible
o 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
30
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 paid
o Allows employee to get a hearing
o Stops the running of the SOL
 B-31 – Employer’s Notice of Final Payment
o Acts as employer’s notice to the employee of their final payment; must be properly filed to be effective
o 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.
31
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)
32
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; AND
2. 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 notice
o The employer has the burden of proving it was prejudiced
o 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.
33
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.
34
MISS. CODE ANN. § 71-3-15(4) – Medical Services for Injured Employee
 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 intervene
o 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
carriers
o 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)
35
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
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.
36