Worker’s Compensation
INTRO
-MS - get 351.14 max/week for lost earning capacity + medical benefits
-med bens
-provides as long as needed(rest of life if needed) - no cap or deductible
-(e’er has provided handicapped w/ vans, etc)
-50 states have 50 diff WC systems - MS has low cap
-2 Features WC
-(1)limits
-Exclusive remedy - if covered by WC, then it is the exclusive remedy
-Tort Immunity - TI for e’er if injury is covered by WC
-can work to detriment of worker if serious injury
-protects e’er by offering limited liability
-hypo - Gen has 2 subs, sub1 and sub2 - sub1 laying bricks, brick falls, hits worker of sub2
-sub2 e’ee will get WC form sub2 e’er - exclusive remedy for sub2 e’ee against sub2,and Gen
-but if proof negligence by sub2 e’ee, then can sue sub2 e’er - NO TI
Rule - if injured by someone who is not e’er or fellow e’ee, then sue like hell for tort
-hypo - Gen has sub who has e’ee
-sub required to get WC ins by statute but doesn’t - Gen required and does
-sub negligent, e’ee killed - Gen pays benefits
-whether sub can be sued in this situation is before the MS CA right now
-Question - how is sub entitled to TI when did not fulfill statutory obligation?
-Rule - Gen has statutory obligation to get WC if has sub
(2)liability w/o fault
-does not matter if e’er or e’ee was negligent or used reasonable care, still compensated
-departure from tort law
-people felt tort system was inadequate in addressing needs or workers
-too many defenses available to e’ers
-fellow servant rule - respondeat superior acted to hold e’er’s liable for
torts committed by e’ees in course of e’ment - fellow servant rule did
not allow respondeat superior if one e’ee negligently hurt another e’ee
-so, e’er and e’ee1 and e’ee2 - e’ee1 neg hurts e’ee2, then e’er was not
liable
-assumption of risk - defense that e’ee voluntarily assumed risks when
took the job
-contrib neg - if e’ee was at fault at all, then total bar to recovery
-ms has comp neg - which wasn’t as bad
-judges made these laws(above) and were usually upper class so not in tune w/
working people
-tort law system inefficient b/c draining funds through litigation expenses
-industrial revolution - more people getting injured - and w/ more people
moving into cites, less likely that had family w/ crops/cows, etc, so if there was
an interruption in wages, the adverse economic affect was magnified compared
to earlier times
Constitutionality of WC System
-Ives v. South Buffalo Ry. Co (NY 1911)
-ct ruled that compulsory WC system was uncon b/c denied substantive due process
-following this decision, states changed law so that the WC system was optional for e’ers
-New York Central R.R. Co. v. White (1917)
-e’er argues - to take my property w/o fault on my part is denial of due process
-e’ee argues - to take away my tort remedy and put cap on my damages is denial of due process
-SC says - States, using their general police power, can regulate e’ment system if want to
-legislature had the power to decide if compulsory system
-also, balance - e’er getting defenses taken away but getting limited liability
-property not taken w/o due process b/c due process is the political process here
WC in General
-political decision system brings e’ment out of tort law(for the most part) and into the WC system
-main reason - political dissatisfaction about eco stress suffered by worker and family
-goal - to recognize that e’ment injures were a way of life w/ serious consequences
-achieve goal by having no fault system w/ limited recovery and expenses
-relieving economic stress by having expedient process b/c do not want prolonged period
w/o income b/c has serious adverse impact on worker
-takes out of Cts and puts into hands of Executive/administrative agency
-WC designed to operate w/o contest, shall pay - but of course, that is not how it works
-contesting work injury, not e’ee, SOL, amount of payment
WC Process
-administrative judge hears the case initially
-then, in MS, WC Commission(3 people) can review and make its own decision if wants to
-if appeal, then Circuit Ct hears - Cannot decide facts, rather questions of law
-if appeal, then to MS Court of Appeals
-if appeal, then to MS SC
-PROBLEM - not expedient - one of early goals was to have expedient process - criticism that not speedy
thus leads to more expense
WC As Cost of Doing Business
-proposition that when a company is doing business, company has overhead such as light and water bills
that are cost of doing business -WC is predicated on the notion that it is a cost of doing business
-for every car built, etc., there is going to be a certain # of e’ment injuries
-part of cost of doing business is injuries so must recognize that another cost of business, aside
from paying lights, is the cost of paying for e’ment injuries
-also, way of lowering cost of doing business
-if can lights at cheaper price then lower costs of doing business
-if can reduce costs of e’ment injuries then lower costs of doing business
-Best way to achieve - operate safe workplace, have safety training programs
-another way - chisel every cent out of injured e’ee that can - be stingy, don’t pay until have to,
and bargain to reduce payments
THE E’EE/E’ER RELATIONSHIP
1. The Contract of E’ment
§ 71-3-5
-def of e’er
-if have in service 5 or more workers regularly in the same business or in or about the same
establishment under any K for hire, express or implied
Johnson v. City of Albia (Iowa 1927)
-e’ee worked until 11/15 - left tools and milk cow - went back to get on 11/16 - replacement having trouble
w/ system - decides to help - gets arm cut off - wants WC benefits
-on premises, injured by apparatus of e’er
-P says - implicit provision in K for hire that trains replacement - or replacement hired in
emergency
-maj rules that no longer e’ee so no benefits
-B thinks diff outcome today
-B says - Can make K for hire in case of emergency - but ct rejects -
Rule - if not e’ee, then not covered
-may be able to argue K for hire if used to overcome emergency situation
Aspen Highlands Skiing Corp. v Apostolou (Colo. 1994)
-e’er says no WC b/c volunteer, not K for hire - not getting paid/no consideration - rather receiving free ski
lift tickets - ct says compensation does not have to be wages - B says BIG PICTURE is that person on
premises doing regular work that is beneficial for e’er but must jump through technical hoops - statute says
K for hire
-Rule - compensation does not have to be wages - if getting some kind of benefit in return for services, then
most likely going to be enough for K for hire
-can come in many forms
-opportunity to earn tips -student in nursing program - (not in MS- see below)must work at hospital as part of
training - not paid -BIG PICTURE - regular activity that is beneficial
-technical - compensation - opportunity to earn degree
§ 71-3-3(d) - def of e’ee
-any person in service of e’er under K for hire or apprenticeship, express or implied, written or
oral, except NO independent K’ors
-other exclusions - newspaper boy or student in training if not getting wages
-excluded by legislature after Ct ruled in their favor
2. E’ee vs. Independent K’or
§ 71-3-3(r) - def of IC
-Ks to do a piece of work according to own methods w/o being subject to the control of his e’er
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 e’er And free from any superior authority in the e’er 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
w/o being in any way controlled as to the methods by which he attains the result.
-Control test in MS statute
-essentially, if use own methods, w/ subject to e’er except for results
-(d) excludes IC and (r) defines IC
Rule - e’er not liable for torts of IC and does not have to pay WC benefits to IC
Marcum v. State Accident Ins. Fund (Oregon 1977)
-P pruning tress for golf club and injured - on premises, doing beneficial work for e’er
-control test here - indicators - if have own tools, paid by hr or job, can hire own help, if e’er tells how to do
it(may depend on expertise of sub,) - ct holds IC under control test
-Rule or Argument - When hire IC to do business activity, not an added cost of business b/c cost of IC
-so added cost of business for IC, not e’er
-maybe argue that IC has factored cost of injuries into his price
-question - control test comes from tort law/respondeat superior
-WC different - worried about coverage rather if can sue
-do not have to follow tort rules - Should look to policies of WC to determine test
-relative nature of work test - whether and how much the worker’s occupation is a separate
calling/profession(does it offer a service to the public separate from the relationship w/ the business in
question) and what relationship it bears to the regular business of the e’er(is it a regular and recurring part
of the e’ers business) - (WC doctrine, NOT Tort doctrine)
-in Marcum, still unlikely under RNWT b/c not regular recurring - if cutting grass, then diff
-has own equipment, pruning requires some expertise, etc. -if cut grass only on greens/fairway, then maybe work here
-typical scenario
-owner/e’er--------------------IC or e’ee----------------e’ee who gets hurt
-or - owner------------------------------IC or e’ee
-and man in middle never has WC
-other side - TI
-e’er embracing IC as e’ee so to have TI
-if e’er’s e’ee hurt the IC, then embraces IC as e’ee so IC won’t sue
-if Marcum on ladder pruning, and golf club e’ee backs into his ladder w/ a truck
-So, sometimes e’er arguing that is an IC so don’t have to pay benefits, but sometimes arguing is an e’ee so
doesn’t get sued for tort***
-also works if- Gen-----------sub---------------e’ee - if e’ee injured, sub has no WC ins, then if negligence
involved, Gen will be embracing sub as e’ee to get TI
3. Statutory Treatment of Particular E’ments
-MS case - Donald v. Whatley - 346 So. 2d 898(look at)
-man has guys renovating house - controlling aspects so IC is not good argument
-5 or more but argues that not business activity under 71-3-5, rather personal activity
-Ct rules WC applies - dude had no ins Rule - WC statute applies to business and personal activities
-another thing - Don had WC ins w/ separate activity, pulpwood bus - ins co. does not want to pay
for the renovation injury b/c WC K is for coverage of pulpwood e’ees
-only been paying premiums w/ respect to pulpwood e’ees
-Rule - Ins Co has obligation to pay for ALL liability of insured under WC system
-not just for pulpwood workers, regardless of what policy says
-but must go back and pay premiums for the renovators too*
Rule - 5 in statute not limited to e’ees - includes partners, etc.
-administative law in MS holding this
Rule - 5 includes all workers under multiple subs for gen - 5 total on project working for sub or gen
-if gen has 2 subs w/ more than 5 total then must carry - if sub has 2 crews, as long as 5 working
on project then must insure(I think)
-counting - if have 5 e’ees but only 4 working on at time - doesn’t matter, expansive counting
Rule - in MS, owners of small business/CHC can opt out of coverage
-2 purposes
-to bring below 5 so don’t have to have WC
-so do not have to pay premium for coverage of your own income
-not worried about suing yourself
-only work for small business b/c still must have less than 5 to opt out
-may be able to self insure
Rule - in MS, if illegal e’ment(child labor, illegal alien), then covered by WC and entitled to double
benefits
-(must be designed to discourage this)
Rule - 71-3-5 - farmers not e’er and farm labor are not e’ees -exempt from system
-domestic e’ment(house cleaning) are exempt
-non-profit e’ment - exempt
-all of these can opt-in if want to
4. Statutory E’ments
no K for hire, rather statutory e’ment
§ 71-3-7 - in the case of an e’er who is a sub, the contractor(gen) shall be liable for and shall secure the
payment of such compensation to e’ees of the sub, unless the sub has secured such payment
-in MS, for sub to fall under the statute, their must be a prime K b/t gen and someone else
-sub must K w/ gen to do part of the work of the prime K
-then Gen has obligation to carry WC for sub’s e’ees
-trumps IC - regardless if IC, fall under statutory e’er, then must carry WC
-Oakwood Hebrew Cemetery Ass. v. Spurlock (VA 1992)
-Oakwood------------------Lineberry----------------Spurlock
-owner----------------------sub-------------------------e’ee
-Rule - Owner/Oakwood must have WC for sub/Lineberry’s e’ees when doing work related to the K b/t
owner/sub
-Oakwood did not hire Spurlock, but doesn’t matter, must have WC
-policy - closing loopholes - making sure owner cannot dodge liability by hiring sub
MS case - no name -FedEx--------------------local--------------------driver
-driver wrecks, injured - local comp uninsured - fedex says local is IC, so don’t owe
(note - epiphany - diff b/t these cases and unresolved case - no tort by sub)
-driver sues fedex and local - doesn’t work out - so sues for bad faith saying knew were supposed to
provide benefits and did not under 71-3-7
-prime K - b/t fedex and customers - local agreeing to perform part of K b/t fedex and customers***
-customers------------------FedEX--------------------local---------------------driver = stat e’ment**
Jackson v. Fly - old MS case
-Whites----------------Jackson---------------------Beach-------------------------Fly
-W Ks w/ J(gen) to build house(prime K) - J k’s w/ B(sub) to build - F works for B
-B to do part of the work called for by the Prime K - B = local = lineberry = uninsured
-NOTE - if J built house and planned to sell, then no obligation to carry WC for B b/c no prime K
-B is probably IC, but doesn’t matter - Stat e’er trumps so J must carry ins
Boyd v. Crosby Lumber & Mfg., Co. (1964) - MS
-Crosby--------------------Durham------------------Boyd
-K b/t C and D to haul logs to C’s mill - B works for D and is injured
-no prime K - stretch to say C and eventual buyers of lumber products is prime K here
-diff than Fedex b/c must do lot of processing w/ lumber to get it ready for customers - more indirect**
-case turns to whether D is IC or e’ee
-**Cts know that company’s like Crosby try to hire lawyers to write K b/t C and D to look like IC
-Ct holds for B
Rule - if sub is e’ee rather then IC, then e’ees of sub are covered by owner/gen’s WC - or owner/gen has
obligation to provide coverage
TORT IMMUNITY - WC AS EXCLUSIVE REMEDY
Rule - Statutory E’er gets TI*
Rule - if e’ee recovers in tort suit from anyone, then must reimburse e’er who has paid WC benefits
-no double recovery
1. Nontraditional “E’ment” as a test for tort immunity
Clark v. Luther McGill (1961) - MS(2nd case on chart)
Hurst-------------------McGill & Hurst-----------------------Clark
-H drills oil wells - K’d w/ McGill who moves equipment from location to location
-Clark is e’ee of Hurst - gets injured by McGill
-gets WC from H - but sues McGill for negligence
-lent-servant doctrine - no K for hire, but lent e’ee who had control over
-M says C is lent servant so TI
-Ct rejects - must be actual e’er - C just doing what H told him to do, help M
Index Drilling Co. v. Williams (1962) - MS(3rd case on chart)
-Martin in partnership - oil field work w/ various divisions - turn into 5 separate corps
-Corp1 is e’er of Anderson - Corp2 is e’er of Williams
-W loading truck for A, A is neg, and W is injured
Rule - 3rd Party action - can sue any 3rd party, not e’er, for tort damages
-W sues Corp1 for A’s neg
-M argues that one big entity so can’t sue corp1
-ct holds no TI for corp1
-NOT e’er
Ray v. Babcok & Wilcox Co. Inc. (1980) - MS(10th on chart)
Constructing plant -Bechtel is e’er of Ray - loaned to Babcock, another comp on job
-e’ee of Bech is neg and R is injured - sues Bab in third party action
-factors here;
-R reported to Bab supervisor for extended time -Bech still paid R but billed Bab
-Ct holds- both have TI - Bab and Bech
Rule - Dual employment - usually involves e’ee actually having 2 e’ers and dispute over which one has to
provide benefits
-usually depends on which e’ers work is being done at a certain time
-if overlap, and not divisible, then may divide up into pro rata share of benefits
-B says pro rata share should be based on % of time e’ee has worked for each e’er over past period
-difference from McGill - work occurred over extended period of time so now basis for saying that had
agreed to work for Bab********
2. Defendant’s Relationship to actual e’er as a test for tort immunity
Stubbs v. Green Bros. Gravel Co., Inc. (1968) - MS(5th on list)
-B says VERY IMPORTANT CASE
-in Crosby, C had obligation to provide benefits to Boyd b/c Durham was e’ee not IC
-McDonald e’er of Stubbs - Stubbs hauling gravel(like Boyd)
-M has K w/ Green Bros
-Green---------------M----------------S
-M has ins(unlike Durham)
-Brown, driver for G, negligently has accident w/ S - S injured
-Rule - in stat. e’er, contractor must provide benefits for sub e’ees if sub does not have ins
-K /b/t M and G required that M have ins and does - also requires that M give cert of insurance to G and
notify before canceling
-G does not have WC coverage - but if M is e’ee and not IC and M did not have coverage, then under
Crosby, G would have to provide coverage for M’s e’ees - Ct must be saying that M is not IC
Rule - if potential for coverage by contractor, then TI - even if doesn’t actually have coverage
-also works for Stat. e’er even if sub has ins, and Stat. e’er doesn’t (I think)
-B says - could have argued that Green had prime K w/ customers, but didn’t - no evidence of where gravel
was going
Robertson v. Stroup (1965) - MS(4th on list)
-pre-Green
-Stroup has rental car business - James runs for him - Stroup e’er of James
-Stroup--------------------James--------------------Robertson
-Stokes - e’ee of Stroup/James - Rob takes car to Stokes, Stokes drives Rob back, wrecks, Rob injured
-J WC ins pays benefits to R - R sues Stroup for Stokes neg
-Ct holds Stroup TI
-B thinks enterprise immunity - since James had WC, immunized Stroup
-Ct saying that Rob is e’ee of James and Stroup
-B thinks Does NOT make any sense(I agree)
-Ct really saying enterprise immunity - Stokes e’ee of Stroup - all e’ers on job have TI
Biggart v. Texas Eastern Transmission Corp (1970) - MS(6th on list)
-post Green
-TE---------------River---------------------Biggart
-TE-----------------B&B
-e’ee of TE ordered B into ditch - ditch caves in a kills B
-R pays WC bens to B’s widow -widow sues TE and B&B
-TI for both - River is e’ee of TE rather than IC b/c of right to control
-B&B also apparently has some right to control but no K b/t River and B&B so who knows
-ct says b/c B&B had right to control River - no K w/ River, did not pay River
-B thinks argument doesn’t hold water - bunch of crap
-B thinks enterprise immunity - All E’ers on Job are given immunity***
-ct doesn’t say but B thinks
Pitts v. Shell Oil Co. (5th Cir. 1972) (7th on chart)
-shell--------------------pruett-----------------------pitts
-pitts injured by inhalation of bad gas - sues shell for neg
-pruett provided benefits and is TI
-S says pruett is e’ee, not IC, so had obligation for coverage if Pruett didn’t have
-just like Green - Shell over Pruett - Green over McDonald
-Shell loses - Ct rules that Pruett is an IC so no potential obligation for coverage so no TI
-Cts reasoning
-indemnity claim in K said Pruett was ind K
-Shell does this so will not be liable for Pruett or Pruett’s e’ees torts
-Shell also knows that just b/c in K doesn’t make it so, so can still argue for TI
-Green Bros, Biggart expanding circle of TI
-Shell - doesn’t allow
Doubleday v. Boyd (1982) - MS(12th on list)
-MHD--------------------Boyd-------------------Ratliff----------------------Doublday
-Prime K - MHD K’s w/ Boyd - Boyd gen on highway job
-subs w/ R to do part of work -Rule - §71-3-9 - if e’er fails to get WC, then can sue in tort or for WC benefits out of pocket*
-B says can’t plead comparative negligence here either
-so if Ratliff didn’t have ins, then can sue if have tort claim or make R pay WC out of pocket
-R insured though - B had ins and required R to have it in K - D injured, sues Boyd for neg
-Rule - Gen who is stat. e’er has potential obligation and is TI regardless of “unless sub has ins” language
in 71-3-7
-so, cannot sue B in tort
- and can’t raise that R is an IC b/c stat e’er trumps IC
Nash v. Damson Oil Corp (1985) - MS(15th on list)
-3 yrs after Doubleday
-Damson-------------------Trigger------------------Nash
-nash injured - Trigger pay benefits - nash sues Damson
-no prime K - Damson had K w/ owners of well, but Damson was operator and paid mineral rights % to
owner - D says prime K so get TI -**Difference b/t Nash and Doubleday
- Damson also owned part of the Mineral rights and just lease***
-but Ct says Doubldeday is crap - but doesn’t overrule
-Ct says that since didn’t have ACTUAL stat. e’er obligation, then no TI - Trigger had Insurance
-question after this case: Will Doubleday hold up? Answer in Brown
(2 justices had changed b/t Doubleday and Nash)
Rule - owner/Operator does not have TI -Falls v MP&L - (1985) - MS 14th on list - Mentioned in Damson
-MP&L claimed had TI - said was gen and US park service was owner - prime K
-like Damson, where had lease, MP&L has easement
-so no TI, just for the Gen who has prime K
-and not for the one who Gen has prime K with
-Doubleday variant hypo discussion
-R is sub - if B had equipment on site and K’d w/ oil company to deliver diesel to equipment
-oil comp runs over Doublday’s best buddy - is oil immune?(enterprise immunity??)Boyd?
-or oil comp small operation(less than 5) - not insured and not required to be
-oil comp driver is injured on B’s job site -if Rat uninsured, then know B would be liable for WC ben of D’s buddy
-driver of oil comp - if agreed to carry out part of work under prime, then sub, if not, then not sub
Rule - For sub to be consider a subcontractor within the meaning of the statute, it must be carrying out part
of the work under the prime K
Rule - §71-3-5 - WC not applicable to a mere direct buyer-seller, or vendor-vendee relationship where there
is no e’er-e’ee relationship under § 71-3-3
-so if oil comp is just selling diesel, then may not be covered by Boyd’s WC
-B thinks wouldn’t be covred, BUT if Boyd’s e’ees were negligent in causing injury to driver of
Oil com, then Boyd would embrace Oil as its e’ee to avoid Tort Liablity
Brown v. Williams(1987) - MS(17th on list)
Byrne---------------Williams--------------------Jones------------Brown
-Byrne is operator of oil well - B K’s w/ Williams to drill oil well -W K’s w/ Jones to do part of work
under the prime - Brown is e’ee of Jones - B injured by Pevey’s neg, W’s e’ee - J has WC - B sues W and P
-ct says - Williams is NOT Damson
-Williams had royalty interest in Oil
-but ct says not enough to make owner like Damson - did not own mineral rights*
-more like Boyd in Doubleday - gen
-Doubleday controlling in this case - still good law after Damson Oil
-First case to say potential to be Stat. e’er is potential obligation and TI - Green did not explain this
-W is TI -Pevey is also immune even though no potential obligation
-Rule - E’ees of one who has potential obligation are TI as well***
-expands circle of TI
Morris v. W.E. Blain & Sons, Inc. (1987) - MS (18th on list)
-MHD------------Blain----------------------A&B-----------------------Morris
-MHD-----------------Blain---------------------Traffic
-prime K, MHD and Blain - Blain K’s w/ A&B to do part of work under prime(K required A to have WC) Morris is e’ee of A&B
-B has another sub, Traffic - M hit by car, killed - A and T have WC- Mommy sues B and T
-B is TI b/c potential obligation b/c Stat. e’er - Affirms Doubleday again
-T is not TI - no potential obligation
-and diff from TI e’ee in Brown - while T may be a subcontractor under Stat. E’er, really an IC
when it comes to whether he is an e’ee for these circumstances
-Policy for why e’ee in Brown gets off(B didn’t point out but what case says)
-would allow Gen to recover loss from own e’ee - purpose of WC is too spread loss to
one that is best able to distribute cost as part of business expense - defeating this if
allowing Gen to recover from e’ee
-w/ sub, not same worries - better position to distribute cost of potential liability -also, would encourage subs to use less care
Rule - Under Stat. E’er, only E’ers w/ potential obligation are immediate e’er and prime/gen contractor
-parallel sub of prime K’or does not have obligation
Rule - E’ees fo prime K’or are TI, but not subcontractors b/c subcontractor is really an IC
(what about enterprise immunity? - see Biggart and Stroup supra)
(sidenote - conflict of laws - recent federal case - K for e’ment made in Ala - work and injury occurred in
MS - Ala WC system does not have the Stat. E’er TI - Ct holds MS law applies b/c everything happened in
MS)
McCluskey v. Thompson (1978) - MS - (8th on list)
-Bechtel--------------------McCluskey/Thompson
-M injured by T who is a co-e’ee - M sues T for neg
-Rule - If e’er is immune, then e’ees of e’er are also immune
-unless co-e’ee intentional caused the harm
-policy - indemnity(diff from policy stated in Morris)
-e’ee would sue e’er for indemnification thus eradicating e’ers TI
-so, T is TI
Brown v. Estess (1979) - MS (9th on list)
-Brown in grain elevator - grain rushes in and suffocates him
-family sues
-Board of Directors of MCC
-General Manager of MCC
-Rule - same as above - WC is exclusive remedy of the e’ee where his injured by the e’er or any of its e’ees
-Brown expands McCluskey to corporate officers - GM is TI
-I think he can sue the BOD though b/c not regarded as e’ees under corporate law
3. Limits to immunity of e’er and WC insurer
a. Intentional Acts
-usually involves the e’ee claiming that the e’er or e’ee engaged in a willful or malicious act
(Lockheed - arguing that Lockheed was substantially certain, which under tort law is the equivalent of an
intentional act, that Williams would go crazy and start killing co-e’ees - so saying Lockheed is the actual
tortfeasor and intentionally caused injuries to e’ees)
Miller v. McRae’s, Inc. (1984) (13th on list)
-e’ee questioned about stealing money by security officer
-wouldn’t let her leave - sues McRae’s for false imprisonment
-ct says WC does not bar e’ee from pursuing tort suit for an injury that is the result of a willful and
malicious act
-B says this is an overstatement of the law
-***body of caselaw in Ms, that says when put man and machine together sometimes machine
gets hurt and sometime people get hurt, and similarly when put people together, going to be
instances when tempers flare and one person may hurt another
-these intentional acts ARE covered if arise out of within course of e’ment
-if personal grudge that materializes outside of work, then not but if work related grudge, then yes
-ex - Pittman - e’ee1 and e’ee2 doing shovel work - 1 hits 2 w/ empty cig pack - 2 hits 1 w/
pebble - 1 hits 2 w/ shovel - or if knifed/shot by co’ee - then covered if dispute is work-related and
not personal
-(Lockheed - ct ruled that although racist motive, arose out of and in course of e’ment - and not
just racist motive b/c shot one white guy - shooting e’ees and no evidence that grudge w/ the
particular e’ees was personal that arose outside of work - rather, pissed off b/c had to work w/
blacks - intentional act of Williams covered by WC so TI for Lockheed)
-so, McRae’s wrong when say intentional act is never covered, but important b/c shows limit on TI
-handout
-MS cases holding that e’ers not TI for intentional acts of e’ees
-premise - cause of action in tort was stated when an intentional tort was charged as being committed by or
on behalf of the e’er, i.e., by a co-e’ee acting within the scope of e’ment so as to engage the respondeat
superior doctrine and place vicarious liability in tort on the e’er
-reasons cited by MS cts
-1)WC was never intended to provide TI for a class of intentional torts
-2)Injury/death from an intentional act was not “accidental” within the meaning of the statute, thus
it was not covered by WC, so the exclusive remedy provision is not an applicable defense
-3)the harm for which tort damages are sought is for specific elements which are not compensable
by WC, and so the exclusive remedy defense is not an applicable defense to such a claim
-McRae’s contains all 3 reasons - Royal Oil mentions 1/3 - another mentions 2/3 -
POINT - Scope of e’ment is important issue b/c if not within scope of e’ment, then e’er not vicariously
liable
Rule - In MS, TI for gross negligence or reckless conduct
-if intent to injure then no TI if e’er is VL
-see handout for more cases
b. Bad Faith
-cases against insurance company that provides WC benefits for not paying
-claim for not paying claim and having no arguable reason for not paying claim
Southern Farm Bureau Casualty Ins. Co. v. Holland (1984) - MS (not on list)
Rogers v. Hartford Accident & Indemnity Co.(5th cir. 1998)
-Rogers works for Quick Change - Speedway next door
-R climbs up ladder to put up sign for Speedway, falls, and is hurt
-Hartford provides WC for both
-R tries to assert WC claim against actual e’er
-H refuses to pay saying loaned to service station so their e’ee - ALJ found that this was correct
-R then asserts claim against Speedway
-a year and a day after initially injured, H admits e’ee of Speedway and pays
-MS ct reverses ALJ and says H should have paid to begin w/
-**JRB testifies as expert witness*** - but said there was an arguable reason
-Ct says - no arguable reason - statute says “shall pay” and when learn of injury, time to do some paying
-GETS PUNITIVE damages if no arguable reason
-ct say - when e’er learns of injury, carrier knows, and better start paying unless has arguable reason
-Rule - if just neg, then TI - Taylor(MS 1982)
c. dual capacity
Trotter v. Litton Systems Inc. (1979) - MS
-Trotter works at chipyared - Litton e’er - cuts thumb - went to Litton’s first aid station where a nurse
cleans and sews it up - got infected and screwed him up bad
-Rule - E’ee get WC for injury and for any ill effects of treatment for the injury
-dual capacity doctrine - if e’er operating in two different capacities - chipyard and nurse station
-argument that WC covers accidents that occur on chipyard, but does not cover injuries that result
b/c of e’ees at the nurse station -MS rejects this doctrine - E’er has TI in both capacities
-hypo - scenario1 - E’ee get hurt by machine that is not manufactured by e’er - can have products liability
suit against manufacturer
- scenario2 - E’ee gets hurt by machine that is manufactured by e’er - in MS, e’er probably TI
d. multiple e’ers
Northern Electric (20th on list)
-NE--------------------Kelly -----------------Philips
-NE K’s w/ Kelly to provide janitorial services - Kelly sends P to NE plant to fulfill K
-P injured - gets benefits from Kelly - sues NE as any other party
-question - why did NE hire Kelly to provide janitorial services
-not temporary work - P will work there over long period
-why hire janitorial work through an intermediary
-NE will reimburse Kelly for all outlays to Philips
-really K for hire - especially if for extended period of time***
-so NE is TI
dual e’ment doctrine - see supra p6- e’ee has e’ment K w/ 2 e’ers -issue - who must pay benefits when injured
-depends - ct may apportion if can’t distinguish - see supra
-for case, see casebook p131 - ct apportions
e. e’ee participation in e’ers enterprise
- §71-3-5 - back of stat handout - ’92 amendment
-owner of business can elect to opt out of coverage for 2 reasons
-1)so not counted as in 5 or more
-2)not pay WC premium w/ respect to own earnings
-in MS, if carrier has been accepting premiums for owner, then must pay
f. retaliatory discharge exception to e’ment at will
- if get fired after making claim, still get benefits
- WC does not bar claim for wrongful discharge b/c not because of accident - no TI
-rather b/c filed claim
-inference drawn from timing of firing -if long time after file claim, company may come up w/ valid reasons
-employment at will - e’er can fire at any time
-but from public policy standpoint, want to prevent retaliation
-would undermine purpose of WC b/c would take away statutory right to receive benefits b/c
would not file b/c of fear of retaliation
-e’ee cannot K away right to WC
-IN MS, E’ment is will is dominant law and everything above is NOT APPLICABLE
-long time precedent and legislature has not put anything to contrary in MS Statute
-in MS, new bills introduced yearly regarding retaliatory firing - 3 diff proposals
- e’ee friendly - illegal and can get actual and punitive damages
-middle ground - illegal but remedy is reinstatement and backpay
-e’er friendly - illegal but remedy is double benefits
ARISING OUT OF AND IN THE COURSE OF EMPLOYMENT
-unitary test vs binary test
-unitary - did the source of risk occur w/in course of e’ment
-binary - MS - look at time/place and source -in course of - time and place
-factors - paid time/on premises
-arising out of - source of the risk
-personal
-performing task for self
-mixed
-employment
-apparatus of e’er
-performing task for benefit of e’er
-neutral
A. Non MS Cases
1. injuries suffered by e’ees ministering to personal needs or pleasures
Leckie v. H.D. Foote Lumber Co. (La. 1948)
-sawmill injury - injured by saw while cutting wood for self
-time/place - during work time, being paid - on the premises
-source - e’ment - apparatus of e’ment caused injury
-personal - cutting wood for personal use
-but activity is allowed by e’er
-argue saving e’er task of disposing of wood
-but - e’ee saw it as personal benefit
-point - not principally performing task for benefit of e’er
-initially wins b/c of time/place - on rehearing, loses b/c source was personal
-unitary test - focuses on source of risk and it was personal
Meo v. Commercial Can Corp (N.J. 1962)
-management, so not same clock hours as regular worker
-at home, injured while getting in car b/c people pissed about work
-time/place - at home - not paid time
-source - e’ment - hostility from work
-personal - none
-bens awarded
-unlike MS, applying as single test Pacheco’s Dependents v. Orchids of Hawaii (Haw. 1972)
-work break - died on way to cash check during work break
-source of risk w/I course b/c benefited e’er by letting him extend work hours
-most cts hold the opposite if e’ee leaves premises to run errand*
hypo - works forming metal - gets home, takes off shirt, shavings fall in eye, injured
-time/place - must the source of risk come from work or when actual harm occurs
-gray area - argue it
2. Injuries suffered during social, recreational, and similar activities
Shunk v. Gulf American Land Corp - (Fla. 1969)
-injury suffered during social, recreational activities, etc.
-salesperson ended up at apt of potential client but is injured while trying to leave b/c he wants some lovin’
-ct says going to apt part of her job
-time/place not controlling here - job didn’t require her to go to apt
-questionable case, so uphold trier of fact - compensation
-time/place is sometimes elastic, i.e., flexible
-company sponsored athletic teams
-more likely if occurs during work hours/lunch hour/time designated by e’er and on premises
-less likely if place of e’ees choosing outside of work hours
-company sponsored outings, dinners, social events
-more likely if happens at the dinner
-less likely if after
Taylor v. Ewing (Penn. 1950)
-mechanic told to go home and mow e’ers lawn
-time/place - paid time - not usual place of work
-argue that premises b/c where e’er assigned you to work
-comp
3. Injuries caused by horseplay among co-workers
-incidents of e’ment - activities that seem personal b/c do not directly benefit e’er, but are inevitable
occurrences that occur during the workday
-ex’s - coffee break, b’room, getting some chips, horseplay
-must be reasonably incidental to e’ment
-4 part test
-was the deviation from e’ment extensive or serious
-was it intermingled concurrently w/ actual performance of duties
-is the practice customary in the e’ment
-does the e’ment anticipate some horseplay
-(JRB pts out test but not sure if we need to know)
-as far as second factors -e’er testifies that prank not allowed - but testimony that commonplace
regardless - even if does not condone, if commonplace, then prob enough
-link to e’ment(toxin given by e’ee to co as gin was given to e’ee by supervisor - firecracker given to e’ee
by supervisor)(if bring thing to work that hurts target, then personal and not covered***)
-injury to target of prank
-2 categories
-when innocent victim did not participate - covered
-instigator - when victim participated or was active in the horseplay - not covered
Mathis - ms case - firecracker case - not covered b/c not victim of prank rather the prankster
Burns - book case - ee1 give ee2 the gin that is really toxin - covered b/c injury to target and link to e’ment
and b/c horseplay is reasonably incidental to work
4. Injuries caused by e’ees willful misconduct and violations of rules and instructions
Carey v. Bryan & Rollins (Del. 1955)
-driving too fast(breaking speed limt) while trying to light cigarette, wrecks, injured
-ct compensates
-JRB says
-if disallow WC b/c of violating statutory rule, then putting fault back into system - e’ees deviate
from standards of care, but WC is no fault system
§ 71-3-7 - no WC if intoxication of e’ee was proximate cause of the injury, or of it was a willful intention
of the e’ee to injure or kill himself or another
-(not sure about second part b/c of Lockheed - need to ask JRB - shovel case)
-intox must be prox cause - guy gets drunk and steps into hole - no evidence that intox was prox
cause though
-deliberate violation of safety rule
-in ms, no exclusion in statute for this
-ms caselaw does not have cases that allow this defense
-JRB says most likely to lose if violate a rule that was meant to protect you from the injury that
occurred - ex, machine has safety device so don’t get cut, take safety device off, get cut
5. Injuries suffered by e’ees while coming to and going from work
gen rule - injuries suffered by e’ees while coming to and going from work are NOT covered
-usually when in transit to work or going home
-reasons not covered
-off the premises
-usually not paid time
-no CONTROL by e’er
policy - e’er usually has incentive to provide safety training, safe work environment- and has control over
what goes on at work site to a certain extent - no control when e’ee is on highway, etc.
(maybe argue should have sent bus around to pick up - bogus)
-WC regarded as social insurance, but not social ins that covers regardless of what happens
-tort system for non-work injuries, WC for work injuries - diff systems setup to address
-Hammond(N.J. 1970)
-walking to parking lot
-not on paid time Rule - Parking lot that is PROVIDED by the e’er is generally regarded as the premises
-so is the direct route to the parking lot
-e’er can control what happens in parking lot
Rule - injury occurring in e’er provided parking lot is compensable if occurs within a reasonable amount of
time before or after work
-in Hammond, e’ee doesn’t take direct route to parking lot b/c not well maintained and has trouble walking
-hit by car
-covered
Rule - if direct route not well maintained and need to take alternate route, then as long as going to the
parking lot rather then taking alternate route for some personal reason, then covered
-still must be within reas timeframe though
-riding in vehicle supplied by e’er -MS case - driving from La. to MS in e’er provide vehicle - stops to take piss, drunk, falls in hole
and injured - (no intox prox cause, see supra) Rule - if going home in e’er provided vehicle, then arising out of in course of e’ment
Rule - if e’er pays makes any payment w/ respect to travel, e.g., mileage, pays for trip, etc, then w/in course
-ms case - woman works out of town - leaves at 4pm - but e’er allows payment for to 4:30 in
respect of her traveling expenses - covered b/c paid for travel
6. Synthesis: Relationship of “within the course” and “arising out of” tests
-Strother (Fla. 1980) woman robbed on way home b/c robbers thought she had money from e’ment
-time/place - not on premises, not paid(but risk originated at workplace)
-source - work, b/c robbed her b/c thought she has work money
- covered
-Graybeal(N.J. 1972) city prosecutor injured by bomb explosion when gets home from work
-NOTE**person engaged in profession occupation - may leave work but not always through
working b/c often bring work home - man still had briefcase and planned to work when got home
-covered
-these 2 cases, time/place does not stand in way of finding for worker - b/c source was overwhelming
-looks more like unitary test - don’t know what would happen in ms - argue it
ARISING OUT OF
-source of risk - personal/mixed/e’ment/neutral
-neutral - street risks, acts of god
1. the job as the source of the harmful agency
Davis(Ga. 1977)
-putting on coat at work to leave and go home- back pops, injured
-not covered
-ct uses rougher test than MS
§ 71-3-3(b) - def of injury
-acc injury or acc death arising out of and in the course of e’ment w/o regard to fault which results
from an untoward event or events, if contributed to or aggravated or accelerated by the e’ment in a
significant manner
- in Davis, prob same result b/c e’ment did not contribute in significant manner
- argument is - whether putting on coat is personal or e’ment
-if putting on to run errand for e’er rather than go home? - B thinks might be diff if engaged in e’ment
activity
2. Emergence of positional risk doctrine - street risks
-Neutral - B says neutral
generally, modern courts allow coverage of street risks
-lots of people travel while engaged in e’ment activities
arguments
-not covered - b/c every person on street is susceptible to same occurrence - not peculiar to work
-berserk person stabbed /lighting struck- same -for covered - work placed person there, exposes them to the risk
-2 ways to argue/analyze
-work exposes to risk - most modern cts use this
-work increased risk
3. Acts of Nature
-neutral
-keep in mind, that no fault system to deliver benefits promptly and inexpensively
-positional risk doctrine - if at a place where work reasonably places the e’ee, and is injured, then arises out
of and w/in course of e’ment
-argument
-increased risk - work increased risk of being hurt act of nature
-problem
-must satisfy burden of proof - in MS, substantial evidence
-may be hard or expensive to show substantial evidence that increased risk
-B says only use positional risk doctrine when neutral
-some cts use actual risk - see p271 note 5
-(don’t think JRB cares about this)
]44. Injuries Caused by Imported and Personal Risks
-strikes match, head comes off and hits in eye
-personal risk - happened at work but personal risk
-but argue that it is incident to work - smoking, going to restroom, chips, etc.
personal comfort doctrine - if going to the restroom, etc, then injuries while happening are reas incidental
and compensable - argue it
MS Case - mouse case - get coke out of vending machine w/ mouse in it
-one factor - whose vending machine -e’er usually gets cut, if doesn’t then diff
-pers comfort- getting coke on paid time, so reas inc to work
-Ct says - getting refreshments are PART OF WORK
-injuries doing paid work breaks are compensable - if not paid then, ????? argue
MS case
-guy has epileptic seizure, falls, busts head on concrete floor of e’er
-covers
-Rule - e’er takes e’ee as is, w/ strengths and weaknesses - if clumsy, etc., and falls when another
worker would not have, AND if e’ment premises in some CONTRIBUTES to the injury then arises out of
-doesn’t matter that wasn’t machine- floor is enough
-if fell into machine and got gobbled up, then easier case b/c apparatus of e’er was source of risk
and actually caused the injury
-*not the fall, but what happens after the fall 5. Injuries caused by fights and assaults among co-workers
-MS case - shovels - see supra
- when put machines and people together, going to be injuries, when put people together, going to be
friction
-2 types of fights/assaults
-1 - personal - distinctly person friction
-if feuding over non-work reasons, even if happens at work
-2 - e’ment - friction b/c of e’ment
-feud over work reasons - bickering over a wrench, etc.
-other e’ee as apparatus of e’ment just like machine
-Lockheed
-e’ee raped on premises by coworker- sues in tort - e’er gets TI - says neutral and use positional risk - non
ms
6. Injuries caused by on the job assaults by non-coworkers
-woman harassed by old boyfriend - had moved and changed number - company violates comp policy by
giving number to boyfriend -harassment, even at own house, arise out of b/c e’ment contributed to or facilitated the
attack/harassment
-ms case- woman raped at work by former boyfriend - ct rules no TI b/c personal
7. Injuries suffered by e’ees while attempting rescues
-rule - attempted rescue, especially of coworkers, arises out of and w/in course of e’ment
ACCIDENT AND OCCUPATIONAL DISEASE
-1. Concept of Accident
-MS - def of injury is “accidental injury”
-accidental injury is supposed to be more inclusive than the earlier “injury by accident”
-JRB term - usual work in the usual way
-Larson - injury means any harmful change in the human
-tries to do away w/ “accidental injury” dispute
-man tugs on wrench doing the usual work in the usual way - back injured -nothing smashed him or gobbled him up
-is this an accident?
-source - e’ment -time/place - paid time, on premises
-activity that serves interest of the e’er***
-definite point in time that can put finger on
-problem if can’t put finger on specific occurrence when injury actually manifested
-next test
-unexpected result(result unexpected, not the act that caused the injury)
-specific occurrence
-time - usually covered if manifests w/in time frame - one case, 4 hour time frame
Rule - An unexpected result that results in an injury while doing the usual work in the usual way is an
accidental injury
Ms statute - def of injury
-untoward event
-event - if would have been just “event” then would have narrowed def of accidental
Injury b/c suggest that would have to finger on time and place of occurrence - but statute
also says that Untoward events include events that cause unexpected results
-MS - Unexpected injury
-means unexpected result or event
-b/c when looking at through eyes of worker, accidental
carpel tunnel syndrome problem
-didn’t use to have this problem
-happens often today, especially w/ women
-*develops gradually over a period of time - so NO untoward event/no specific event that caused
or contributed to the injury
-rule - do not have to track to specific time/place that event occurred
-as long as can show that work caused or contributed to the injury and an unexpected
result then can show that accidental injury
cumulative stress
-many states regard as accidental injury
-most that don’t will cover as an occupational disease
-when gradually occurs
2 probs
-time and event
-problem of trusting evidence connecting result to work - B says w/ carpal tunnel,
medical field has gotten good enough to make the connection (argue it w/ other gradual
inuires)
-case - dr. says exposure to dusty/fumy conditions contributed to injury
-time not driving these cases
-causal connection will drive these gradual cases
case -truck driver develops cyst on tailbone
-gradual
-but obvious causal connection
-result is unexpected
-accidental injury* - qualifies
-evidence of causal connection - if cans show this, then most states will broaden concept of accidental
injury to include this ailment that Dr;’s call an occupational disease
2. Infectious Disease as an accidental injury
- worked in funeral home - embalming bodies -cut on finger gets infected w/ gangrene
-covered
-time/place - have specific occurrence when handling body
-prob - origin of cut
-some - doesn’t matter where cut occurred
-some - must come from work
MS cases - have compensated gradual diseases
-one case - origin of cut - cutting meat
-time place - while handling meat gets infection - covered
Jenkins- (1974 ms)- occupational exposure to fertilizer dust over a six year period aggravated J’s
asthma and eventually produced a total disability - accidental injury
-Gradual cases
-time/place -time can be spread out over time - no specific event required
-causal connection - need med evidence
§ 71-3-7 - compensation shall be payable for disability or death of an e’ee from inury or Occupational
disease
MS cases - Arising out of and in the course of e’ment
A. Connection b/t the Work and the Incident
Odom’s Dispensing Opticians v. Smith (1972) - MS-secretary hurt while helping move desk after (arguable whether paid time or not)
-time/place - on premises
-activity that is useful to e’er - source?
-B Includes as oddity b/c does not know why wasn’t covered
-(must have been prob w/ med evidence or evidence of preexisting condition, etc.)
(sidenote - WC commission can take additional evidence on appeal from admin judge - still trier of fact)
-usually doesn’t see witnesses though
-but can reverse findings of fact of hearing officer
1. intentional act by 3rd party
-Brookhaven Steam Laundry v Watts (1951) - MS
-e’ee shot at house where picked up laundry by husband b/c having affair w/ wife
-source - personal - romance - not like berserk person b/c not just street risk
§ 71-3-3 - def of injury
-includes injury caused by willful act of a third person directed against e’ee b/c of his e’ment
while so employed and working on the job
-in Watts, ct says if intentional act by 3rd party, the e’ee has 2 burdens of proof
-1)must show arising out of and within course, i.e., not personal
-2)intentional act was directed against e’ee b/c of his e’ment(omitted in Big “2” infra)
-which also seems like the personal question to me
Big “2” Engine Rebuilders v. Freeman (1980) - MS
-salesman/e’ee delivers products and takes order
-driving along on customary route, sees man broke down, stops to help, hijacker, gets injured
-argument
-e’ment does not require driver to stop and help stranded person
-good will of e’er- by stopping and helping, good advertisement and promoting good will
-problem - unmarked van that e’ee is driving so argument is minimized
-ct - Def of arising and course********
-arising out of - requires some causal connection b/t e’ment and injury
-need not be sole cause, sufficient that rationally contributes to the injury
-(low amount of causation must be shown)
-in the course of -activity must be one that
-in its overall contours actuated at least in part by a duty to serve the e’er
OR
-reasonably incidental to the e’ment
-low causal connection - reas inc
JRB says - could have said risk was neutral and used positional risk doctrine but didn’t
-CT rejects add’l burden of proof - b/c of e’ment -INCLUSIVE language in statute
-do not have to show b/c of e’ment, rather that source of intentional act was not personal
-(Freeman couldn’t have proved this b/c no evidence of why guy robbed)
Big 2 - important case
-inclusive definition of injury - no add’l burden of proof
Test Phrase - doubtful cases should be resolved in favor of compensation
-w/ regard to facts or causal connection
-remedial statute - should be interpreted broadly to achieve remedial goals
(side note - substantial evidence rule - if substantial evidence to support commission’s decision, then ct will
uphold - if not sub evidence, then arbitrary/capricious decision)
2. Going and Coming (see supra)
-if e’er pays for travel, then exception to rule
-staying in hotel
-lawyer case - in hotel, e’er pays for, slips in show before hearing
-ct holds taking shower personal - not covered - OLD CASE
-ins co worker - goes to convention, stays in hotel, e’er pays for, falls in bedroom
-CA compensates - doesn’t stick to precedent of older case
B. Medical Evidence of Connection b/t the Work and the Injury
1. Occupational Disease - covered in MS - 71-3-7(see supra)
-rule - if incidence of disease/injury is higher in particular occupation, then usually enough to qualify as
occupational disease
-last injurious exposure - if exposed to injurious agents, etc. w/ multiple e’ers, then the e’er last worked for
will be liable for benefits
-emotional health
-3 kinds
-physical/mental
-mental/physical
-mental/mental(greatest tension here)
-mental/mental
-mental stress of job caused to be depressed and b/c of, unable to work
-need evidence that job was stressful
-concern - potential for fraud
Smith & Sanders, Inc. v. Perry (1985) - MS
-man told will be laid off in 2 weeks
-has nervous breakdown
-had been previously treated for emotional problems
-not covered
-concern - e’ees claiming emotional injury b/c was fired - possibility of flood of these claims
-note - ct suspicious when had preexisting emotional problems
-evidence - help to show medical evidence of causal connection
-Rule - in mental/mental cases, e’ee must show unusual occurrence greater than the usual incidents of
e’ment - showing reasonably incidental not enough
-show activities were unusually stressful - if routine stress then not enough
-legal causation - unusual occurrence med causation - link unusual occurrence to injury w/ med
evidence
-Clear and convincing evidence - to prove causal connection in mental/mental cases
-in Perry, layoff notice was not unusual occurrence
-mental mental - accidental injury and causal connection dealt w/ together - if show unusually stressful
(similar to other gradual cases)
-mental/physical
Ins. Dept of Miss. v. Dinsmore (1958)
-Dinsmore suffered from hypertension, has stroke on job - claims stressful job
-aggravation of hypertension enough to show causal connection
-med evidence that work could have aggravated hypertension which was contrib. factor in stroke
-Rule - no requirement that show unusual occurrence greater than the usual incidents of e’ment in
mental/physical cases
-Rule - trend in MS, is that testimony of Dr that has treated worker is given more weight than that of Dr.s
that are posed hypothetical questions
-point - need medical evidence to show causal connection b/t work and injury
-aggravation of hypertension enough
-physical stress causes stroke
-Riverside of Marks v. Russel (1975) - MS
-med evidence that work contributed enough
-Rule - if going to doctor to have doctor examine a work-related injury, then if wreck, etc. on the way, then
reasonably incidental to e’ment(Charles N. Clark Assocs., Ltd. v. Dep of Robinson
-must show
-compensable injury
- going to Dr. to see about that compensable injury
Rule -Need factual evidence of stressful situation
-need med evidence showing causal connection b/t stress and injury
-if previous evidence of hypertension, etc., then Dr more likely to testify to causal connection than if no
record of hypertension
-gradual disease
Sperry Vickers, Inc. v. Honea -exposure to fumes and develops lung disease-must show accelerated, contributed, etc.
-Dr. says does not know what causes disease, but more likely than not contributed
-ct allows - even though no med evidence of causal connection
-JRB says - case important b/c shows when med evidence uncertain, but Dr. thinks more likely than not
contributed, then ct loosens burden of proof
-compensates
-Bates v. Merchants Co.(1964) - ms
-Rule - med evidence necessary where there is serious question resolvable only by skilled determination
and which is not within the knowledge of lay witnesses or member of the fact-finding tribunal
-need med evidence unless readily observable causal connection
-if fall and break arm, then don’t need med evidence
-for heart attack, stroke, back injury, aneurysm, etc. - need med evidenc
C. Heart Cases and the Rebuttable Presumption in Death Case
Rule - if found dead on work premises, the presumption that arises out of and in course of e’ment and that
accidental injury - do not have to prove causal connection
-not if fall dead - b/c know what was doing when fell dead
-Rule - 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
-JRB says - e’er cannot show such evidence if nobody around
University of Miss. Medical Center v. Dep of Stewart
- has heart attack dies - nobody sees - evidence that non-stressed, and no physically exertion in work
-conflicting med opinion about causal conn
-no compensation - rebuts pres
In heart attack cases need 2 forms of causation (similar to mental/mental)
-legal causation - work activities/stress must be greater than the ordinary wear and tear of life
-med causation - med evidence showing that activities linked to injury
-so if work activities are not greater than ord wear and tear of life, then no causation
-case above - no strenuous, stressful work
-similar, union producing co. v dep. of simpson - C8
-preexisting conditions may make it more likely that Dr. will testify to med causation, but does nothing to
show legal causation
time problem - MS Assn. of Ins. Agent’s v. Dep of Seay
-ct held that has stressful event earlier in day and some weeks before was enough
-JRB says - modern ct requires closer connection b/t stressful event and injury
-weeks not going to cut it
THE CONCEPTS OF DISABILITY AND THE FORMULAS FOR BENEFITS
A. Intro
-4 categories of benefits
-medical - § 71-3-15
-for as long as recovery process requires
-very broad
-seen as progressive - no cap or time limit(SOL can become issue though - see infra)
-drs - e’ee can select dr - can refer to specialist - but cannot change Dr. w/o e’ers
permission unless it is a referral to a specialist/another Dr.
-for schedule member injuries, schedule that sets out how much WC will pay for medical
benefits
-rehabilitation - § 71-3-1 - mentions rehab as goal of WC system
-JRB says rehab benefits are a joke in MS
-500 bucks for rehab - joke
-some e’ers will pay for b/c may be cheaper if e’ee can get back to work
-death benefits- § 71-3-25
-for parents, must put on evidence of dependency to get WC death benefits
-must show that decedent contributed to cost of running house, etc
-definitions - surviving spouse, child, parents, etc - see statute 71-3-3 - notes 918
-disability - bunch of crap
4 categories of disability benefits
1)Temporary Total disability - § 71-3-17(b)
-benefits that e’ee receives up until maximum medical recovery(MMR)
-if fully recovered, and return to work then benefits end here - if still have perm disability after
MMR, then see below
-weekly benefits - 2/3 of AWW or 351.14, whichever is lower
-max - 450 x 351.14 - 158, 013
2)Temporary Partial Disability - § 71-3-21
-if still working after injury, but expected to recover, then get benefits for decrease in wage
earning capacity(WEC) until recover
-2/3 of the difference b/t
-average weekly wage(AWW) before the accident
-WEC after the injury in the same or other e’ment
-Max - cannot exceed:
- 450 x the diff b/t AWW and WEC - or 158,013
3)Permanent Total Disability - § 71-3-17(a)
-does not mean that will never return to work, rather that not temporary impairment
-WEC after injury = 0
-Max
-weekly - 351.14 or 2/3 of AWW - whichever is smaller
-450 x 351.14 max
-loss of 2 hands, arms, feet, legs, eyes or combo of 2 = perm total disability
4)Permanent Partial Disability - § 71-3-17(c)25 and 1-23
-25 - body as a whole injury
-1-23 - schedule member injury
-disability and some Temp Total issues
-§71-3-3(s) - AWW to be determined by the State
-§31 - determination of wages - see if want, but I don’t think it matters
-fringe benefits - add these in? - no caselaw, but last sent of §31 sounds like possible
-not going to matter in temp total b/c of 351.14 max, but could make difference in death benefits
where can get 35% of AWW
-benefits of WC NOT subject to Income Tax
-low cap - no taxes + incentive to get back to work
NOTE - 450 WEEKS IS NOT LIMIT in ITSELF
-if getting less than 351.14 a week, then can go for more than 450 weeks
-or if put 2 categories together - temp total + perm partial
-what matters is the Max Amount - 158k
-§ 71-3-3 - defs
-disability - incapacity b/c of injury
-JRB - injury means some kind of impairment
-so, 2 elements of disability
-must have an injury/impairment
-impairment must negatively affect capacity to earn
-MMR - when medical treatment has done all it can do to restore worker’s WEC
-temporary disability ends when Dr. says have reached MMR
-terminology problem
-Dr will say has 30% disability in arm - disability in statute means loss in WEC - Dr. has no idea
about WEC - Dr. thoughts on % of disability mean nothing - really saying has 30% impairment disability will be judged by loss in WEC
Odd lot doctrine - when person has reached MMR, but cannot hold job in competitive labor market, then
deemed permanently disable
-maybe able to do odd jobs, but if can’t hold job in comp market, then WEC is 0 and perm total
A. Temp Total Followed by Perm Partial: Concepts and Formulas
- temp total
-get 2/3 of AWW or 351.14 until MMR
-Perm partial after MMR
-schedule - if injury listed on schedule in 17(c)1-23
-whole body - if not listed on schedule, then 17(c)25
-diff - # of weeks - 450 if whole, varies if schedule
-Perm Partial/Whole body Calculation
-AWW less WEC x 2/3 = benefits
-if AWW = 600 - WEC = 300 - diff = 300 - x 2/3 = weekly benefit until WEC is restored to = to AWW but
for no more than 450 weeks
-if AWW = 800 - WEC = 200 - diff = 600 - x 2/3 = 400 - but exceeds 351.14 so only get 351.14
-NOTE - 450 x. 351.14 = 158,013 max
-w/ Perm Partial/Whole Body, Temp Total benefits must be subtracted from cap
-so if had 20 weeks of temp total for total of 10k then must subtract from cap
-new cap = 148,013 - and will not be able to get more than this for perm partial/whole
body - the Governing Max
-Fight is going to be about what the WEC is
-lower = more benefits - higher = less benefits
-Calculating WEC
-if person earns the same or more as AWW after MMR, then PRESUMPTION that has no loss in
WEC
-rebuttable presumption -factors
-wage levels in general have increased
-claimant’s own greater maturity or training
-working longer hours
-wages based on sympathy for claimant
-temporary or unpredictable character of job
-ultimate objective of the disability test is, by discounting these variables, to determine the wage
that would have been paid in the open labor market under normal e’ment condition to claimant as
injured, taking wage levels, hours of work, and claimant age and state of training as of exactly the
same period use for calculating AWW pre injury(Karr ms1953)
-compare apples and apples
Russel - sympathy - had job making more b/c e’er sympathetic and labor union putting pressure on e’er
-ct - depends on what could in competitive labor market
King - - fact that doing good business at time allowed e’er to hire her, but if downturn, then would have to
fire - so not clear that would earn present amount in competitive labor market
-Search for e’ment
-important for 17c and 17a
-for 17a, perm total - must show reasonable and diligent job search in same and other e’ment
- not limited to profession was in
-burden on P to show incapacity
-if Unsuccessful, then WEC is 0, and 17a
-if WEC is lower than AWW, then diff, and 17c
-reasonable search limited to locale - do not have to go out of town
-do not have to search for e’ment if any job that can get would go against Dr. orders
(case where Dr. said woman could perform job that had to sit, stand, stoop, etc.)-problem - when e’er gets letter from Dr. that MMR, benefits stop - must do reas search then try to get
perm
-in longshore act, benefits continue after MMR until either find a job, or it is shown that not doing
reasonable search
-issue b/c funds stop - no income - maybe incentive for e’ee to find job in MS?
-MS law - after reach MMR, and original e’er will not hire, the prima facie case of permanent disability
-burden then shifts to the e’er to prove a partial disability(rather than total) or that e’ee suffered no
loss of WE
-presumption that disability has not ended if e’er will not rehire
-consistent w/ Longshore act cases
-ins company - lawyer advises - to start paying minimum, $25 after MMR, so will not be accused of bad
faith for not paying w/o arguable reason
-no search required if competent medical evidence shows that cannot work
Stewart v. Singing River Hospital - Court of appeals case - argue not final Taplan - e’er puts on evidence from other e’ers that wouldn’t hire b/c bum, not b/c disabled
-concern - e’ers joining forces - circling the wagons
Rule - e’ee does not have to show reason that was not hired
-doesn’t matter that was not b/c of injury
-if have injury impairment, use reas efforts to find job, and unsuccessful, then enough
-problem - convincing factfinder that used reas efforts
-go getter vs. slacker - may depend on how person appears, acts - factfinder may think half hearted
-advise client - to fill out forms, keep record of where went, etc.
B. Schedule Benefits for Permanent impairment(schedule member injury)
§17(c)1-23
- see schedule for weeks and injuries
-calculation
-2/3 of AWW = weekly - max of 351.14
-do NOT subtract WEC from AWW
-weeks are in schedule - max 200 weeks - 61,449
loss of member - not that got chopped off, but just that can’t use
-Smith rule - if e’ee has schedule member injury, and cannot get job, WEC = 0, then 17a case, not 17c
-earlier cases had not allowed this - martin
-2 instances when def of disability does not apply
-17a - loss of both, etc. - see supra
-17c schedule - do not have to show incapacity to earn
-proof - impairment, loss of use
-if lose eye, even if eye was already sightless, get schedule benefits
-temp total---------MMR, then Schedule member
-do not subtract from total cap b/c of temp total -get full temp total + full schedule member
17(c)22 - loss of use = loss of member
17(c)19 - if amputation above ankle or wrist, then loss of arm/leg
-Rule - if e’ee has partial loss of use of member, but can’t perform substantial acts of usual work, then
considered total loss of member
-if can, then may only get proportionate amount pursuant to 17(c)23
usual work
-baseball player - also did other work w/ some college education - hurt arm, couldn’t use to play
-baseball not usual e’ment - hadn’t played bb that long
-did not apply doctrine when factory worker gets carpal tunnel, then gets job driving trucks for
more money
usual - not restricted to job where working, but that type of e’ment - namely, unskilled work
problem - giving total loss when only 10% impairment
-streamlined, not tailored
-no evidence of WEC required
-trying to deliver benefits quickly and inexpensively
-max is under 70k regardless
-recognizing that will have to transfer to new work if can’t perform sub act of usual e’ment
-if suffer 50% loss of use medically - and can still perform sub acts of e’ment
-then reduce weeks by 50% - not weekly dollars
Cantrell - if e’ee has 5% impairment, can still perform sub acts of e’ment, and has suffered no loss in WEC
-then can still take the 5% impairment - reduce # of weeks to 5%
-Cantrell Rule - if % impairment, but still able to perform sub acts of work, then take can take 5%
of weeks, and still get benefits
-Rule - if can show injury has spread beyond schedule, then may be able to get into whole body category
-no MS cases where this has succeeded though
-except on Ct of appeals case - foot crushed - causes to walk funny which leads to back injury - SC
reversed on other grounds
-similar case- Achilles tendon torn from bone - tries jobs but can’t go - Dr. says injury causes
changed in his walking gate which results in backs spasms - Dr. says no job he can do
-limited ed - evidence that had 3rd grade ed so couldn’t even be cashier - only thing has
ever done was manual labor -§15 - allows e’ee to pick own Dr. - this is Dr. that will not release to work
-IME - ind med exam - commission orders - must take or benefits cut off
-EME - e’er order med exam -IME and EME Drs. say not much wrong - e’ee Dr. said totally disable - conflict
-(so far, cts have held 17a case - Ct of appeals hasn’t decided - if not total then could
have been 17c25 case too)
Rule - if suffer 2 injuries, one whole body and one schedule, then cannot exceed 315.14 a week but may
have weeks run consecutively - 450 then 200
-does this combine max too- JRB thinks probably does
C. Reduction of Benefits for Preexisting disease (Apportionment)
-injury not so bad if not for preexisting condition
-but preexisting condition + work injury = seriously disabled
-must apportion % of disability to preexisting condition
§71-3-73 - Second Injury Fund
-many states:
-e’er pays % of disability attributable to work injury
-% above work injury is paid by second injury fund
-MS:
-if e’ee has previously lost use of schedule member, and loses the other, e’er pays for schedule
benefits and second injury fund pays the rest - perm total
-incentive to hire one armed man b/c know will not be liable for perm total if loses other arm
-second injury fund in MS ONLY applies to this situation
-§ 71-3-7 - apportionment
-the compensation
-temp benefits are NOT reduced
-med benefits are NOT reduced
-death and permanent disability benefits ARE reduced
-so, if 100 bucks weekly benefit from 17(a)(c), but 25% attributable to preexisting condition, then only get
75 bucks a week
-highest amount on which apportionment can be applied is 351.14
-perm total/partial whole - apportionment kicks in after MMR - the benefits paid out during for temp total
must be reduced from the max -max must be reduced by in the same proportion as the weekly benefit - NEW Governing Max
-will still run 450 weeks unless hits max
-perm partial/schedule - reduce # of weeks rather than - if 50% to preexisting, then cut weeks in half
-amendment - says reduce weekly benefits and max not weeks
-not clear which way is proper today
-usually, doesn’t matter
-matters when -25 dollar statutory floor on weekly benefits - if weekly dollars get reduced, still
cannot go below the 25 - so if close to 25, then wouldn’t lose much or anything week reduction, then would still lose weeks -MS - can below $25 floor unless perm total*
-if pay past MMR, then credited to future amount
-old times - w/ perm total, went back and apportioned payments that had already received through temp
total - consider all payments as perm total, just didn’t know it at time -new times - w/ pert total, apportion after reach mmr - do not apportion temp total
-preexisting condition
-natural effects of aging are not preexisting conditions that will trigger apportionment
-Hall - where no prior occupational disability, a preexisting back condition that had never
stopped from working did not trigger app
-Nellie* - apportionment provision not triggered merely by evidence of a preexisting con
-only if if preexisting cond has caused previous reduction in earning ability
-back cases - now, must show that condition manifested itself and caused previous reduction in
WEC
-same w/ arthritis
-special rules DO NOT APPLY to
-heart attacks or occupational disease(Stuart’s Inc- fn13 - does not address ha or occ)
-heart attacks - do not have to show previous manifestation or loss in WEC
-Hardin’s Bakeries
-just show that preexisting condition that contributed to disability
-fight - w/ Nellie, the fight will be over whether it was a heart attack
-recent commission case - e’ee found dead - but no evidence that heart attack killed -dr said arrhythmic - not heart attack so Nellie applies - must be evidence previous loss in
WEC - no evidence of this, so NO REDUCTION
-if no heart attack or occupational disease, then Nellie - if heart attack, then no Nellie - not sure if
it has been a similar ruling on occ disease but excluded in footnote 13 of Stuart’s Inc.
-IMPORTANT -whether heart attack or not -every yr - bill intro into legis trying nullify affect of Nellie - heart attack cases tend to be ones where
reduction - usually 50/50 - or 75/25
PROCEDURE
a. basic framework
-71-3-37 - basic provision procedure in WC
-things can go down 2 ways
-benefits paid voluntarily and no hearing
-e’ee hurt, e’er knows, pays benefits
-e’er controverts
-not voluntary - must be hearing by admin. Judge
-forms
-B-52 - e’ers notice of controversion
-important in bad faith cases -e’er says - I know about injury/death, but not covered for this reason
-put on record saying that has an arguable reason not to pay
-statute says, if know about injury, then must pay unless controverts - so on record saying reason
-B-5, 11 - filed by e’ee to assert claim
-files if no bens paid - or if B-52 filed by e’er
-caselaw says that a letter will suffice for a B-5, 11
-allows e’ee to get hearing -STOPS THE RUNNING OF THE SOL
-B-5, 22 - e’ers answer to claim
-71-3-37(2) -first installment due on 14th day after e’er has notice of injury
-formal notice not required, just that have knowledge
-71-3-35 - absence of notice does not bar recovery if it is found that e’er had knowledge
and was not prejudiced by e’ees failure to give notice - only one case in ms where claim
was barred b/c of no notice - suspect opinion - # of cases that have said, this statute
requiring notice w/in 30 days, which could be a tiger, is a kitty cat b/c cases say, as long
as have knowledge - No requirement of formal notice -71-3-11 - no compensation except for medical benefits for first 5 days
hypo 1-5 days - 7/1/injury/notice------7/6 - just med
1-14 days - 7/1/injury/notice------7/6-------------------7/14/ - meds until 7/6, disability and meds until 7/14
14 or more - 7/1/injury/notice----------------------7/14 - get meds and disability from beginning
-so 3 circumstances
-if worker misses 1-5 days - no disability bens - just med
-if worker misses 1-14 - gets disability for days 6-14- just med 1-5
-if missed 14 days or more -then disability bens go back to day one -usually, controversy will be about 3rd scenario, i.e., if prolonged disability
b. one year SOL
-**NO provision in statute that says e’ee must file claim
-e’er SHALL pay unless controverts
-file when -to get hearing
-so SOL will not bar claim
-SOL - potent item - if acts to bar claim, then does not get hear on merits -71-3-53 - one year SOL
-what starts running
-1-rejection of a claim - if e’ee files claim, it get turned down, then have another year to file
-rejection of claim by court starts the SOL period
-if case goes all the way to the SC, then SOL begins to run once SC issues mandate
-2-one year after last payment
-after last voluntary payment/after order approving lump sum/after order approving
compromise/after providing med bens only
-3-after filing B-31 properly
-notice filed with commission by e’er that is notice of final payment
-71-3-37(7) - must file notice w/in 30 days after final payment - no case shall be closed w/o notice
to all parties interested and opportunity to be heard
-change in condition
-e’ee getting bens - reaches MMR - gets 17(c)25 -e’er learns working again - e’er can file motion
seeking reduction or elimination of benefits b/c of a change in condition
-while benefits are being paid, e’er can require that reopen case if change in condition
-H.C. Moody & Sons (1995) - filing of B-31 is notice to e’ee of final payment
-first case where Ct bars right to disability benefits b/c of SOL
-Trehern (1958) - extends one year SOL to medical benefits
-e’er files B31 - e’ee want med bens 4yrs later - barred
-Gibbs - (1959) -G getting 17(a)benefits - ct says SOL does not begin to run until default by e’er - that is,
e’ee gets services until files claim and e’er does not pay - BOGUS b/c 2 previous cases ct says starts when
e’er files B-31
-after B-31 is filed, Gibbs seeks court to say that claim to benefits will not be barred after 1yr -ct
will not give advisory opinion, but assures Gibbs he has nothing to worry about until default
-Barr (1982) - B has amputation - gets lump sum settlement - e’er files B-31
-over 1 year later - needs to leg b/c old one wore out - seeks more med bens
-Ct bars b/c over one yr after B-31
-Ct seems to forget that Gibbs ever happened
-problem - if no claim then what to do -had no claim b/c leg only needs to be replaced every two years
-how to deal w/ B-31 -claimant’s lawyer -once know B-31 is filed, file motion to nullify/strike on the grounds that it was not filed in good faith then argue that form will not be recognized if not in good faith - must be factual basis for filing B-31 - have
statement saying that artificial leg is going to wear out - no way could be filed in good faith b/c know that
going to have to replace it
-one way to do it - not much diff from asking to give order that will not run
-gibbs - says do not do this - (JRB says never been done - motion to strike - try it)
-if dormant for one yr - then school’s out - if actual need med in one yr, then bill must be paid by e’er, and
once paid by e’er, e’er must file new b31 for sol to start running
*-statute never runs out if file every yr - worker not going to figure this out though
-purpose of statute - to weed out claims for benefits that actually are not the result of earlier accident
-not in Barr, though b/c obvious that new leg is related to work injury
-if 12 months of dormancy after B-31 filed, then all future claims are barred
-Things that STOP the SOL from running
-1- if claim filed w/in year period
-2- if disability or medical benefits are actually paid - then e’er must file new B-31 to run again
-if no B-31 filed, then never runs***
-3- if expenses incurred, but bill not actually paid
-2 commission cases say incurring of expenses stop Sol - no SC case
-advice - if incur expenses, attach bill to motion and file w/ commission seeking order for e’er to
pay - this way have your ass covered by filing a claim b/c no SC case saying this
-*Can keep yr from running by filing yearly, but DO NOT encourage clients to fabricate - just let them
know*
-defective B-31
procedure - get claimant to sign and give copy, then file w/ commission
-often, claimant does not want to sign - why sign it? - not beneficial to claimant - just to carrier - no
compulsion for claimant to sign
-must give opportunity to sign - and if don’t must file w/ commission - 2 copies - once it has been filed*,
then send copy to claimant - not enough that claimant was given copy that was going to be filed - must
given copy once it has been filed - send letter saying this has been filed w/ the commission -reason - not just technicality - formal statement by e’er that regards obligation as being at end - serious
once file w/ commission - function is to put claimant on notice - * -do not have to send by mail anymore - preferred method - helps to have evidence that received - b/c if
denied having received, then factifinder may find that haven’t given notice
c. claims after lump sum and compromise payment
-71-3-41 - says no agreement by an e’ee to waive his right to compensation under WC shall valid
-71-3-37(10) - lump sum provision
-allowed when commission determines that it is in best interest of the worker
-commission must approve - but does not waive rights to future benefits if filed w/in SOL
-can be partial or whole payment
-A.K.A. - 13(j)
-Franks (1962) - ct approves 13(j) - e’er pays lump sum for partial - later, worker says owe be more
benefits - disability greater than thought - need total, not partial -Ct - says pay up
-Rule - 13(j) is not contractual and does not bar a claim more benefits, rather e’er just gets credit
for however many weeks are included in the payment
-Frazier (1968) - F has back injury - refuses surgery that probably would have cured - gets 17(a) benefits files for lump sum and it is approved - e’er files B-31 - F files claim w/in year and asks for more medical
benefits in the form of the back surgery that had refused
-SC - 13(j) does not cut off entitlement to future medical*
-*lump sum payment is attractive to ins. co. b/c can file B-31 immediately after payment
-71-3-29 - compromise provision
-if parties come to an agreement, and commission approves, then e’ee GIVES UP rights of future
medical benefits
-A.K.A. - 9(i)
-9(i) petition usually includes a 13(j) for lump sum payment
-compromise attractive to ins. co. b/c written so that satisfies all medical and disability benefits
-can possibly avoid paying extensive medical for life, etc.
-Medicaid/Medicare must agree to 9(i) as well - sux b/c takes forever
-Bailey Lumber Co. (1981) - worker - agrees to compromise - then wants more benefits
-did not have a lawyer so rule required him to talk to commission and be advised
-uneducated man - commission approves by some dunce though, not a commissioner
-man needs more bennies
-commission says we don’t have the power to reopen a 9(i)
-SC says - not only does commission have power, but it abused its discretion by not reopening
-Rule - Comm. can reopen a 9(i)
-unusual case for 3 reasons
-not represented and only staff person to explain consequences
-barely literate
-2 med reports about status that were not in file at time 9i was approved
-73-3-53 allows reopen for change in condition or mistake in determination in fact
-here, mistake in fact b/c 2 med reports were missing
-(usually, will be lawyer, commissioner will be present, and med report will be in there)
Metal Trims Industries, Inc. (1990) - Ct reopens (9i) b/c mistake in determination of fact b/c claimant’s
attorney was not candid w/ commission
-generally, reopening based on a mistake in determination of fact is based on the commission’s mistake b/c
did not get all of the evidence - not b/c the claimant’s choice to agree was based on mistake**see JRB note,
pF27 of JRB Text
-B says - Bailey and Metal are unusual - compromise is usually binding
d. the 2-year SOL
71-3-35(1) - 2 yr provision
-regardless of whether notice received by e’er, if no payment of compensation(other than medical
treatment or burial expenses) is made and no application for benefits filed w/ the commission w/in 2 yrs
from the date of injury or death, the right to compensation shall be barred
-statute says - if do not file claim or no benefits paid w/in 2yrs, then bar
-does not says what happens if benefits are paid
Martin (1964) - Ct rules that when disability benefits are being paid, then 2yr period does not start until end
- cannot take position that you were providing benefits, and all this time while providing, you
were using up the 2 yr limitations - no claim to file b/c vol payment
Speed Mechanical, Inc. (1977) - injured teeth - did not miss more than 5 days of work so no disability
benefits paid - med benefits ONLY -injury on 5/5/71
-e’er paid med benefits voluntarily, no claim filed
-last payment on 4/25/73
-did not ever file a B-31
-11/73 - e’ee files for more medical benefits - 7 months since last vol med payment
-Ct holds - since never filed claim, in med. only cases, e’er had no obligation to pay
medical benefits after 2yrs, i.e., 5/5/73, even though e’ee did not need to file claim b/c of
voluntary med ben payments
-JRB HATES THIS OPINION
-thinks this is an aberration
Rule - on death claim, 2yr statute begins running at death
Rule - when injury, 2yr period starts when know or should have know that have disabling injury***
-will have to look at the facts
-not necessarily the date of accident - especially injury gradually develops into a disability
-