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Course: Workers Compensation Fall 2004 (Michigan)
School: unknown
Year: 2004
Professor: unknown
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Worker’s Compensation Outline



  1. Arising Out of the Employment

  1. Compensability Requirements è

  1. Employee

  2. Personal Injury OR injury

  3. Arises out of Employment (HOW)

  4. In the Course of Employment (TIME & PLACE)


§ 6 è The 5 Lines of Interpretation of “Arising”


§ 6.30 è Increased-Risk Doctrine

  • Employment increased your exposure to the risk (e.g. taxi driver & auto accidents OR placing worker on particular height/metal, thus exposing him to lightning)

  • More than what other workers are exposed to


§ 6.40 è Actual-Risk Doctrine

  • So long as THIS employment exposed employee to the risk

  • Does NOT matter whether risk was common to the public too


§ 6.50 è Positional-Risk Doctrine

  • TEST – Injury would not have occurred BUT/FOR the fact that the employer put you there

  • Covers stray bullets, roving lunatics


§ 7 è The Categories of Risk


§ 7.10 è Employment Risk

  • Accidents linked to à Machinery, objects falling, explosions, etc…

  • Occupational Diseases from à substances or environment


§ 7.20 è Personal Risk

  • Injury OUTSIDE of employment is borne by the employee

  • E.g. à Internal weakness unrelated to job (heart attack), mortal enemy who seeks Ee out, or natural death.


§ 7.30 è Neutral Risks

  • Neither one or other

  • If risk is NOT known – then it is a neutral risk 4

  • Modern approach à Er bears risk more often than Ee

  • E.g. bit by a mad dog, stray bullet from nowhere, murdered by mistaken I.D., blinded by a flying beetle.


§ 7.40 è Mixed Risks

  • Personal & Employment risks combine to produce the harm

  • E.g. Ee with weak heart dies b/c of strain occasioned by employment

  • As long as employment is a contributing factor, the injury IS compensable 4


§ 10 è Positional & Neutral Risks

  • Claimant occupies a “place of danger” = sufficient causal connection (presumption of compensability)

  • Coomes – Injured by unknown cause at lumber yard – compensable

  • But/for TEST satisfies the arising requirement OR

  • Weigh each factor – Heavy in the course of element AND absence of personal risk

  • NOTE: Courts will NOT presume suicide – must be proved

  • Heart attacks presumed solely as personal risk unless proved otherwise


§ 11 è Assaults

  • General Rule è Will arise out of the employment IF the risk of assault is increased by the employment

  • Arising out of IS satisfied where à

  1. Risk of the assault is increased by the employment (nature of the job)

  • Bus drivers, bartenders, driver/delivery persons included

  • police NOT included

  1. Assault was a quarrel having its origin in the work

  • Get fired

  • Work with another person – fight over who is supposed to do what

  1. Assault was NEUTRAL

  • ASK – “Was the risk within the scope of employment ?”


  • Exceptions è

  • Minority of jurisdiction deny compensation if claimant was aggressor

  • Whether the passage of time converts a work related dispute into a personal one 4

    • Length of time may NOT be determinative

    • Time MUST alter the reason behind the attack/injury 44


    • Western Airlines à Intentional assault motivated purely by personal desires of an individual in no way connected with employment is NOT compensable

    • J. Lichtman & Sons à Assault compensable even if the subject of the dispute is unrelated where the work of the participants brought them together and created relations & conditions which resulted in the clash.


    § 12 è Risks Personal to the Employee

    • General Rule è Conditions personal to the claimant do NOT arise out of employment UNLESS the employment contributes to the risk OR aggravates the injury.

    • George à Idiopathic fall compensable where there is a slight work connection (work placed him on concrete surface).

    • Cause of fall = personal

    • Cause of injury = employment related

    • Pre-existing conditions aggravated by employment – compensable

    • Cause of injury is determinative 44

    • Fragale à Heart attack compensable where work-connected quarrel is a co-operating cause (additional work hazard)


    § 13 è Range of Compensable Consequences


    § 13.10 è Original Compensable Injury Causing Subsequent Injury

    • General Rule è When the primary injury is shown to have arisen out of and in the course of employment, every natural consequence that flows from the injury likewise arises out of the employment, UNLESS it is the result of an independent intervening cause attributable to the claimant’s own intentional conduct.


    • 2 Groups è Purely MEDICAL question 4

    • Original Injury worsens – No controversy here

    • Injury exacerbates effect of independent medical weakness Causal sequence is more complex here – if causal sequence is present – then injury IS compensable

      • E.g. – Primary compensable injury makes it impossible to treat the independent condition, the worsening of the independent condition due to lack of treatment IS compensable

      • Also, when the compensable injury produces a condition that interferes w/normal curative processes that might have alleviated the preexisting independent condition – progression of independent condition IS compensable

      • E.g. being confined to a hospital bed, or strain on back caused by shortened or weakened leg… final resulting injury is entirely compensable.





      • Quasi-Course of Employment è Activities outside the time & space of actual work

      • Activities undertaken by the employee following upon his injury which, although they take place outside the time & space limits of the employment,… are nevertheless related to the employment in the sense that they are necessary or reasonable activities that would NOT have been undertaken BUT-FOR the compensable injury.


      • Arising out of Quasi-Course of Employment Activity è E.g. trip to doctor’s office

      • Chain of causation is NOT broken by mere NEGLIGENCE

      • Chain of causation IS broken ONLY by intentional conduct expressly or impliedly prohibited by the employer

      • NOT Arising out of Quasi-Course of Employment Activity è E.g. claimant injures hand while engaged in a boxing match

      • Chain of causation broken by either intentional OR negligent conduct


      § 13.20 è Subsequent Aggrevation of Original Injury

      • General Rule è Aggravation of original injury by medical or surgical treatment IS compensable [Klosterman]

      • E.g. – Resulting from antibiotics, antitoxins, sedatives, anesthesia, electrical treatments, immobilization, use of crutches, corrective or exploratory surgery


      § 13.30 è Refusal of Reasonable Surgery

      • Refusal of Reasonable Surgery è [Couch]

      • RULE – Employee MUST submit to operation IF à

      1. NOT attended w/great danger AND

      2. Operation offers a reasonable prospect of relief from the incapacity

      • Refusal of reasonable surgery breaks the causal chain

      • Insurance company has the right to independent medical exams

      • Can cut your benefits off if you do not comply

      • At reasonable intervals

      • Doctor of their choice

      1. Course of Employment – Time & Place


      § 14 è Meaning of “Course of Employment”

      • General Rule è Injury arises in the course of employment when it takes place within the period of the employment, at a place where the employee reasonably may be, AND while he is fulfilling his duties or engaged in doing something incidental thereto. [not occur BUT arise]


      • Does NOT require the employee to be in the course of the employment, ONLY that the injury arise in the course of…

      § 15 è Going To & From Work

      • General Rule è Course of employment should extend to any injury which occurred at a point where the employee was within range of dangers associated with the employment

      • Going to & from work IS covered on the employers premises

      • Injury suffered during a local commute en route to a fixed place of business at fixed hours in the absence of special circumstances is NOT w/i the course of the employment

      • Fixed hours & place injuries are clear

      • Off-premises generally NOT compensable [w/exceptions]

      • Walking across the street from employer-owned parking lot – covered [Illinois Bell]

      • Walking from commuter type lot – NOT covered

      • Choosing route – did employer mandate certain route ???

      • Customary nature of the act is important

      • Courts look to the authority OR control over the behavior of the employee

      • Result is an extension of the premises of the employer

      • Acts of personal convenience are covered IF;

      • Reasonably contemplated by the employment


      • Going & Coming RULE è Exceptions

      • Special Errand – E.g. OT – you are injured going to your car

        • NO coverage UNLESS show OT contributed to the injury

        • E.g. tired b/c of OT or increased traffic hazard resulted

        1. You paid for the travel

        2. Reimbursement for expenses of the travel


        § 16 è Journey Itself Part of Service

        • General Rule è Rule excluding off-premises injuries does NOT apply where è

        • If making the journey, or the special degree of inconvenience or urgency under which it is made, whether or not separately compensated for, is in itself a substantial part of the service for which the worker is employed.

        • E.g. – Travelling workers


        § 17 è Employer’s Conveyance

        • General Rule è Journey made to or from work made in the employer’s conveyance is in the course of employment.

        • Reasoning à Risks of the employment continue throughout the journey

        • Employer himself has expanded the range of the employment and the attendant risks.


        § 18 è Dual-Purpose Trips

        • General Rule è Compensable where à The trip serves BOTH a business and a personal purpose IF the trip involves the performance of a service for the employer which would have caused the trip to be taken by someone even if it had NOT coincided with the personal journey.

        • If the work of the employee creates the necessity for travel, then he is in the course of employment. [Gray]

        • Small deviations/side trips are still COVERED as long as employment created the necessity for travel

        • May also qualify as a special errand

        • Person working at home at the knowledge & request of employer are COVERED

        • Look for à

        1. Regularity of the employment at alternate location

        2. Continuing presence of office equipment

        3. Encouragement of getting work done by employer

        4. Employer continues to pay employee for work at home

        5. Acquiescence by employer MAY qualify w/other factors too


        § 19 è Deviations

        • General Rule è Identifiable deviation from a business trip for personal reasons takes the employee out of the course of his employment UNTIL he returns to the route of the business trip UNLESS the deviation is so small as to be regarded as insubstantial


        • Deviation is from the main purpose

        • Mixed purpose rule – serves to label the over-all trip as business or personal

        • Look to see if the delay emphasized the personal nature of the identifiable deviation

        • Minor Deviations à scenic routes


        1. Course of Employment – Activity


        § 20 è General TEST of Work-Connection as to Activity

        • General Rule è Indirect Benefit Theory

        • An activity is related to the employment IF

        • It carries out the employer’s purpose OR

        • Advances his interests either directly or indirectly

        • Work connected activity goes beyond the direct services performed for the employer and includes at least some ministration to the personal comfort and human wants of the employee.

        • going to the bathroom – compensable

        • drink of water

        • breath of fresh air

        • smoking break

        • eating

        § 21 è Personal Comfort Doctrine

        • General Rule è Employees who, within the time & space limits of their employment, engage in acts which minister to personal comfort do NOT thereby leave the course of employment UNLESS

        • The extent of the departure is so great that an intent to abandon the job temporarily may be inferred OR

        • The method chosen is so unusual and unreasonable that the conduct cannot be considered an incident to the employment.

          • Highly abnormal/unreasonable activities are NOT covered

          • Implied or express authorization by employer – factors of coverage à

          1. Activity was for the benefit of the employer

          2. Activity was contemplated by the employer

          3. Risk was incidental to the employment

          4. Employee was being paid

          5. Employee is on the premises

          6. Employer acquiesced on the activity

          7. Employee is NOT on a personal mission

          • [Clark]


          § 22 è Recreational & Social Activities

          • General Rule è Recreational OR social activities are within the course of employment when:

          • They occur on the premises during a lunch or recreational period as regular incident of the employment, OR

          • The employer, by expressly or impliedly requiring participation, OR by making the activity part of the services of an employee, brings the activity within the orbit of the employment; OR

          • The employee derives substantial direct benefit from the activity beyond the intangible value of improvement in employee health and morale that is common to all kinds of recreation and social life.

            • E.g. company picnic, OR company sponsored x-mas party


            § 23 è Horseplay

            • General Rule è Injuries to non-participating victims of horseplay are compensable.

            • Where employee instigates OR participates… recovery allowed IF such activity becomes customary

            • Whether initiation of horseplay is a deviation from the course of employment depends on: FACTORS

            1. The extent and seriousness of the deviation

            2. The completeness of the deviation (i.e. whether it was commingled with the performance of duty OR involved an abandonment of duty)

            3. The extent to which the practice of horseplay had become and accepted part of the employment AND

            4. The extent to which the nature of the employment may be expected to include some such horseplay

            • Are instruments of the employment being used ? [Prows]


            § 24 è Resident Employees

            • General Rule è Generally compensable if 1 of the 2 factors is present è

            • The claimant was continuously on-call OR

            • The source of the injury was a risk distinctly associated with the conditions under which claimant lived b/c of the requirement of remaining on the premises.


              § 25 è Travelling Employees

              • General Rule è Within the course of the employment EXCEPT where è

              • Distinct departure on a personal errand is shown


              § 26 è Injuries After Quitting OR Before Formal Hiring

              • General Rule è Injuries incurred by an employee while leaving the premises, collecting pay, or getting his clothes or tools within a reasonable time after termination of the employment are within the course of employment, since they are normal incidents of the employee relation.

              • Employee may be compensated where customary to remove tools or other items after quitting or removal from employment [Nails]


              § 27 è Acts Outside Regular Duties

              • General Rule è Within the course of employment where è

              • Act is undertaken in good faith to advance the employer’s interests, whether or not the employee’s own assigned work is thereby furthered.

              4 ways this happens è

              1. Helping a co-employee (doing his job)

              2. Helping a customer – outside of what you were hired for

              3. Acts benefiting the employee (going to school)

              4. Acts benefiting the employer privately (dropping off clothes at launders)

              • E.g. – Employee who prevents purse snatching from employer’s parking lot


              § 28 è Acts in Emergency

              • General Rule è Within the course of employment IF è

              • Employer has an interest in the rescue OR

              • Rescue of stranger is compensable IF è

              • Conditions of employment place claimant in a position which requires him by ordinary standards of humanity to undertake to rescue.


              § 29 è CONCLUSION: Work Connection as a Merger of “Arising” & “Course”

              • Course of employment & arising out of TESTS are NOT independent à They are BOTH parts of a single TEST of work-connection and therefore deficiencies in the strength of one factor are sometimes allowed to be made up by strength in the other.

              § 29.20 è “Delayed-Action” Injuries

              • General Rule è Although this type of injury generally implies a weakness of the “in the course of” element… the injury IS compensable if there is a strong causal connection to make up for it.

              • E.g. – Foreman who fires employee and is assaulted by same 1 week later


              1. Personal Injury by Accident


              § 30 è Meaning of “Personal Injury”

              • General Rule è Includes any harmful change in the body

              • Need NOT be physical trauma, BUT

              • May include è

              1. Disease

              2. Sunstroke

              3. Nervous Collapse

              4. Traumatic Neurosis

              5. Hysterical Paralysis

              6. Neurasthenia

              • Artificial members may be included by STATUTE only


              § 31 è Mental & Nervous Injury

              • Majority Rule è Mental or nervous injury preceded or followed by a physical injury IS compensable

              • Minority Rule è Compensable when a mental stimulus produces a nervous injury


              • Cases fall into 3 Groups è

              • Mental Stimulus causing physical injury

                • Generally Compensable

                • Physical trauma causing nervous injury

                  • Generally Compensable

                  • Mental stimulus causing nervous injury ß PROBLEM HERE 444

                  • Look to local STATUTE

                    • A psychological injury resulting from a sudden or gradual emotional stimulus “arises out of” employment when it is causally related to the performance of job duties [Candelaria] notes pg. 19


                    • ACTUAL stress à traceable to real working conditions


                    • IMAGINED stress à worker honestly perceives that some event occurred during the course of his employment, when, in fact, NO SUCH EVENT OCCURRED.


                    § 32 è Meaning of “By Accident”

                    • General Rule è Elements

                    • Unexpectedness

                    • Traceable to a Definite Time & Place – Time, place, occasion or cause

                      • Problem è CAUSE or EFFECT ?



                      § 32. 30 è Accident & Disease

                      Major Categories è

                      1. Pre-existing Diseases è (chiefly heart disease) – precipitated by the exertions of the employment

                      2. Disease of Exposure è Brought on by employment conditions, such as cold, heat and dampness

                      3. Diseases Gradually Acquired è By repeated inhalations or impacts over periods ranging from a few hours to a number of years

                      4. Infectious or Contagious Diseases è Acquired sometimes suddenly and sometimes gradually

                      5. Occupational Diseases è Caused by exposure over a protracted period to the routine harmful conditions of the particular employment

                      6. Any other disease è (covered by statute or judicial decision) – which follows as a natural consequence of an injury which qualifies independently as accidental. [CONTROVERSIAL]


                      § 33 è Injury From Usual Exertion or Exposure

                      • General Rule è Compensable IF à

                      • The cause was of an accidental character OR

                      • If the effect was the unexpected result of routing performance of the claimant’s duties

                      • MINORITY Rule è

                      • MUST show that the exertion was unusual


                      § 34 è Definite Time Versus Gradual Injury: Cumulative Trauma

                      • General Rule è Time is sufficiently definite IF à

                      • Cause is reasonably limited in time OR

                      • Result materializes at an identifiable point [Effect]

                        • In the absence of definiteness in time of either cause or effect à

                        • Repeated impacts or inhalations which gradually produce disability are sufficient

                        • REASONING – each impact or inhalation is treated as a separate accident


                        1. Employment Status


                        § 38 è “Employee” Defined

                        • General Rule è Every person in the service of another under any K of hire, express or implied

                        • Right of Control TEST è 4 Factors

                          1. Direct evidence of right or exercise of control

                          • Look to the extent of control

                          • Method of payment

                            • By TIME or by the JOB

                            • Furnishing of equipment – who supplies the tools ?

                            • Right to fire

                              1. Nature of the Work TEST è [Ceradsky]

                              1. Character of the claimant’s work or business à

                              • How skilled it is

                              • How much of a separate calling or enterprise it is

                              • To what extent it may be expected to carry its own accident burden


                              1. Its relation to the employer’s business à

                              • How much it is a regular part of the employer’s regular work

                              • Whether it is continuous or intermittent

                              • Whether the duration is sufficient to amount to the hiring of continuing services as distinguished from contracting for the completion of a particular job


                              • Factors in Caicco è

                              • Decedent’s labor was a “cog” in the wheel of respondent’s operation as a sub… as the hauling being done by respondent’s regular employees

                              • Decedent was substantially dependent on respondent economically

                              • The fact that decedent sought work from others during slack periods does NOT derogate from this fact

                              • Nor does the circumstance that he maintained the superficial trappings of an independent businessman so long as substantial economic dependence on respondent & functional integration of operations existed.


                                § 39 è Contractor Distinction: Right to Control Details

                                • General Rule è If the right of control of details goes NO further than is necessary to ensure a satisfactory end result, it does NOT establish employment

                                • Hinges on right of control of the details

                                • Furnishing your body is NOT a tool in a personal service business [Hanson]


                                § 43 è Lent Employees & Dual Employment

                                • General Rule è When a general employer lends an employee to a special employer, the special employer becomes L IF à


                                1. the employee has made a K or hire, express or implied, with the special employer

                                2. the work being done is essentially that of the special employer; AND

                                3. the special employer has the right to control the details of the work

                                • BOTH employers are L where all 3 factors are met 444


                                § 51 è Disability: Wage Loss Versus Medical Incapacity

                                • General Rule è Degree of disability depends on impairment of earning capacity [compare pre-injury earnings with post-injury earning ability]

                                • Total disability è

                                • Claimant’s physical condition is such as to disqualify him for regular employment in the labor market

                                § 51.10 è Kinds & Elements of Disability

                                2 Categories è

                                1. Benefits for physical injury

                                1. Wage Loss

                                2. Medical Expenses

                                • Allowed for life of the claimant

                                • Benefits to dependents in case of death


                                  NOTE: Award under the compensation system are made NOT for injury BUT for “DISABILITY” PRODUCED BY SUCH INJURY


                                  § 51.12 è The Competing Theories of Disability Defined

                                  3 Theories è

                                  1. Actual wage loss

                                  • Compare actual post-injury and pre-injury earnings & pay appropriate compensation.

                                  • Earning capacity

                                  • Physical impairment


                                    1. Dependency & Death Benefits


                                    § 56 è Statutory Categories of Relationship

                                    • Weighing of 2 factors è

                                    • Claimant’s compliance with statutory requirements of relationship to deceased

                                    • Dependency in fact

                                      • Widows and children living with decedent have absolute rights

                                      • Others MUST prove dependency in fact


                                      § 56.20 è Establishment of Statutory Relationship to Deceased

                                      • Illegitimate child may collect death benefits where à

                                      • Children under a certain age are unable to meet statutory definition by no fault of their own [Heather]

                                      • Father would be obligated to pay support for the child up to a certain age anyway


                                      § 56.40 è What Constitutes “Living With” Deceased

                                      • Separate wife does NOT meet the definition of “living with” under MI law [McDonald]


                                      § 57 è Dependency In Fact

                                      • General Rule è Sufficient to show that deceased’s contributions were looked to by the claimant for the maintenance of claimant’s accustomed standard of living


                                      • Does NOT require a showing that claimant relied on the deceased for the bare necessities of life and without his contributions would have been reduced to destitution

                                      • Claimant may be dependent – even though receiving other income from work, property, or other persons also dependent


                                      § 58 è Death Benefits

                                      • Independent right from STATUTE, NOT from rights of decedent

                                      • Therefore, claim is NOT affected by releases executed by Decedent or other claim

                                      • Total Dependents – may share equally or in proportions fixed by statute

                                      • Partial Dependents – If there is anything left… may get a fraction or total death benefit corresponding to the fraction they received of deceased’s earnings

                                      • Widow who remarriescuts off benefits – unexpended balance may be awarded to other dependents who were lower in priority


                                      1. Misconduct of the Employee


                                      § 59 è General Irrelevance of Employee Fault

                                      • General Rule è Misconduct of the employee, whether negligent or willful, is immaterial in compensation law UNLESS è

                                      • It takes the form of a deviation from the course of employment OR

                                      • Kind specifically made a defense by STATUTE


                                        • Types of Statutes è

                                        • No affirmative defenses

                                        • Willful conduct is a defense

                                        • Certain types of misconduct are either total or partial defenses

                                          • E.g. reduction in amount of award


                                          § 60 è Misconduct Apart From Statutory Defenses

                                          • General Rule è Conduct IS outside the scope of the employment if è

                                          • It involves a prohibited overstepping of the boundaries defining the ultimate work to be done by the claimant

                                          • BUT conduct remains within the course of employment when è

                                          • When misconduct involves a violation of regulations or prohibitions relating to the method of accomplishing that ultimate work

                                          • Things which go to the method of accomplishing a task are generally covered

                                          • Violations of TIME, & PLACE are generally NOT covered


                                          § 61 è Statutory Defenses of Willful Misconduct

                                          • General Rule è Largely limited to è

                                          • Deliberate & intentional violation of known regulations designed to preserve the employee from serious bodily harm

                                          § 62 è Statutory Defense of Failure to Obey Safety Rules

                                          • General Rule è Successful defense only if è

                                          • Employee is given actual notice (as distinguished from constructive notice) of the rule and an understanding of the danger involved in its violation

                                          • Rule is kept alive by bona fide enforcement AND

                                          • Employee had no valid excuse for the violation

                                            • Can’t have a willful violation of something you don’t know about


                                            § 63 è Intoxication

                                            • General Rule è Defense if è

                                            • Intoxication is voluntary and renders employee incapable of performing his work

                                            • Employee is generally covered where claimant’s job included socializing where alcohol was served [Schumacker]


                                            § 64 èViolations of Statute or Commission of a Crime

                                            • General Rule è Generally does NOT remove employee from the course of employment

                                            • MUST find that it amounted to “willful” misconduct rule where è

                                            1. Employee knew & understood the statute

                                            2. Violation was intentional

                                            3. Injury was the kind the statute aimed to prevent


                                            § 64.20 èViolation of Statute in Absence of Statutory Defense

                                            • General Rule è NOT a defense b/c not in the statute

                                            • MAY constitute a deviation from the employment


                                            § 64.30 è Violation of Statute as Willful Misconduct

                                            • General Rule è Violation of a statute is NOT willful misconduct per se

                                            • MUST be è

                                            1. the intentional doing of something of a quasi-criminal nature

                                            2. either w/knowledge that is likely to result in serious injury OR

                                            3. with wanton disregard of probable consequences

                                            • High degree of N is NOT enough

                                            • MUST show extreme violation… may be “culpable negligence”

                                            • Actual & NOT constructive knowledge of the statute is demanded as a condition of a finding of willfulness


                                            § 64.40 è Statutory Defense of Violation of Statute or Commission of Crime

                                            • General Rule è Defense where è

                                            • Injury occurred in the course of commission of a crime

                                            • NO DEFENSE if è

                                            • Employer was aware of and condoned the conduct


                                            § 65 èSuicide or Intentional Self-Injury

                                            • General Rule è Suicide is compensable IF è

                                            • Injury produces mental derangement and the mental derangement produces suicide

                                            • Defense IF è

                                            1. Statute is silent on suicide

                                            2. Employer shows that source of the harm is personal

                                            3. Intentional misconduct – amounting to a departure from the course of employment


                                            • Majority Rule è “Chain-of-Causation” TEST

                                            • Injury is compensable IF:

                                            • Injury caused deranged mental condition which in turn caused the suicide


                                            • Minority Rule è “Voluntary Willful Choice” TEST

                                            • Injury NOT payable UNLESS:

                                            • There followed as the direct result of a physical injury an insanity of such violence as to cause the victim to take his own life through an uncontrollable impulse or in a delirium of frenzy w/o conscious volition to produce death

                                            • Medical Evidence is the key


                                            1. Misconduct of the Employer


                                            § 66 è Intentional Injury by Employer or His Agent

                                            • General Rule è Subjects the actor to common law action for damages on the theory that in such an action, the employer will NOT be heard to say this his intentional act was an “accidental” injury so under the exclusive provisions of the compensation act

                                            • Intentional act CANNOT be “accidental”

                                            • Act must be done by employer & NOT an employee

                                            • E.g. stripping safety devices from machine [Kittell]

                                            • Where employer also made the machine à

                                            • Dual capacity doctrine à Employee has the same right to recover damages as any other consumer or user [notes pg. 32]

                                            • Employee can recover TWICE – compensation & tort


                                            § 67 è Non-Physical Injury Torts

                                            • General Rule è Recovery depends upon whether the essence of the damage is non-physical rather than physical [Look for STATUTE]

                                            • E.g. defamation, false imprisonment, deceit

                                            • Second cause of action may arise where è

                                            • Employer deceives the employee about his legal rights or his physical condition under a compensable injury OR

                                            • Carrier or employee intentionally harasses a compensation claimant

                                            • E.g. retaliatory discharge – actionable in most states

                                            • Can get actual & punitive damages


                                            • Intentional Infliction of Emotional Distress è Outside the comp. Act

                                            • BUT if physical component – MERGER applies

                                            • Comp. would then be the exclusive remedy

                                            • Sexual Harassment & Age Discrimination è Actionable Outside Act

                                            • Reasoning – does NOT further the employer’s interests

                                            • Statutes è May increase recovery from 50-100%


                                            1. 3rd Party Actions


                                            § 72 è Theory of 3rd Party Actions

                                            • General Rule è When the compensable injury is the result of a 3rd person’s tortious conduct, the tortfeasor remains L in tort

                                            • Compensation system does NOT extend immunity to strangers

                                            • Statutes may avoid double recovery – By reimbursing employer for his compensation outlay & give employee excess damage recovery over the amount of compensation


                                            § 73 è Who Are 3rd Persons ?

                                            • General Rule è All persons other than the injured person’s own employer

                                            • Partners are employers


                                            § 73.10 è Employer Alone Immunity

                                            • General Rule è Where STATUTE – Injured employee can sue his own co-employee for N [minority rule]


                                            § 73.20 è Employer & Co-Employees Immune

                                            • General Rule è MAJORITY RULEBars all suits against co-employees by subrogated employers

                                            • Employer gives up his normal right of defenses & assumes automatic L

                                            • Extend same reasoning to employees – he too, is involved in the compromise of rights

                                            • Sub-contractors are NOT immune as co-employees 4


                                            NOTE: Immunity ONLY attaches to the co-employee who is acting in the course of employment


                                            § 73.50 è Physicians as 3rd Parties

                                            • General Rule è When a physician has no special status under the act conferring immunity, almost every jurisdiction dealing with the question has recognized in some form that a suit will lie against a physician who has aggravated a compensable injury by malpractice

                                            • Doctor IS subject to L for malpractice in absence of statutory immunity

                                            § 73.52 è Immunity of Physician as Co-employee

                                            • General Rule è Doctor who is employed by the same employer as plaintiff employee is sheltered by the exclusive remedy provisions of the ACT

                                            • Employer of physician CANNOT ordinarily be sued as a 3rd party for such an aggravation of the injury


                                            § 73.54 è Distribution of Malpractice Action Proceeds


                                            • General Rule è Malpractice injury is compensated for a PART of the injury [aggravation] – whereas a co-employee is L for the ENTIRE injury


                                            § 73.70 è Dual-Persona Doctrine

                                            • General Rule è Employer may become a 3rd party IF è

                                            • He poses as second persona so completely independent form & unrelated to his status as employer that by established standards the law recognizes it as a separate legal person



















































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