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Comp Exam-SSE 822 Workers' Comp
Workers Comp questions for Comp exam
Terms in this set (23)
What are the 5 Lines of Interpretation?
1. Pecuiliar Risk: The worker must prove that the injury was in fact peculiar to the occupation.
2. Increased Risk: the employer increased the quantity of risk to the employee
3. Actual Risk: This test centers on the fact that a risk was related with the employee's current employment, regardless of whether the risk was also common to the public
4. Positional Risk: This test states that an injury arises out of the employment if it would not have occurred but for the fact that the conditions and obligations of the employment placed employee in the position where he was injured.
5. Street Doctrine Risk: This tests where the employment places the employee in a risk associated with or on the street (i.e. truck drivers, equipment operators, delivery drivers, and sales people). This doctrine contains components of both the actual and positional risk test.
What is the Cardozo Rule
This refers to a formula credited to the late Justice Cardozo known as the "dual purpose" doctrine and refers to the dual nature of travel associated with work. For example, an employee might be traveling to see family in another city but might also be conducting business in that city. If injured while en route, the employee would be entitled to workers' compensation benefits under the dual-purpose doctrine. In order for the doctrine to apply, however, the employment must be the factor that necessitates the travel, as opposed to the employee's personal agenda
What is meant by" arising out of" and "in the course of"
From the Larson text "arising out of": "All risks causing injury to a claimant can be brought within three categories: risks distinctly associated with the employment, risks personal to the claimant, and 'neutral, risks—i.e., risks having no particular employment or personal character. Harms from the first are universally compensable. Those from the second are universally noncompensable. It is within the third category that most controversy in modern compensation law occurs. The view that the injury should be deemed to arise out of employment if the conditions of employment put claimant in a position to be injured by the neutral risk is gaining increased acceptance. When employment and personal risks concur to produce injury, the injury arises out of the employment, since the employment need not be the primary cause, but need only contribute to the injury"
From the Larson text "In the course of" employment is when "an injury is said to arise in the course of the employment when it takes place within the period of the employment, at a place where the employee reasonably may be, and while the employee is fulfilling work duties or engaged in doing something incidental thereto."
What is the "2-prong compensability test"
In order for the injury to be compensable, the injury or illness must "arise out of" and "in the course of" work related activity. The "arise out of" establishes causation - a causal connection between the injury/illness and the employment. "In the course of" refers to the time, place, manner (activity). Takes place with a period of employment at a place where employees may reasonably be and while he/she is fufilling duties
What are the four categories of risk. Give examples (examples should be determined by the individual test taker).
1. Peculiar Risks -Risk distinctly associated with employment are compensable.
2.Personal Risks - Then we have risks that are personal to claimant which on the other hand are generally non-compensable
3. Neutral Risks- There are also neutral risks, these are risks not specifically related with the employment or specifically personal in general.
4. Lastly there is mixed risks, which is a mixed of risk that cause an incident. An example would be if a "employee with the weak heart having to work in very hot, stressful environment (or cold environment)." Is it compensable? "The compensability question then is was the employment a contributing factor and if so it is compensable."
Can work place assaults be compensated?
If the motivation came from a work related issue then it is compensated however if it is due to personal issues outside of work than it is not. Some courts have held personal motivation assault cases compensable because they view the "friction and strain arising between employees because of the enforced contact from employment and this can lead to an unjustified assault...the victim's injuries are compensable" (Larson, 2008). This happened in the Martin v. J. Lichtman& Sons case.
Aggressor Defense-If a worker who is injured from an assault that they instigated they will not be compensated. In the Stulginski v. Waterbury Rolling Mills Co. the court said "that if an injured employee was the aggressor he/she could not recover compensation, though the injury arose out of the conditions of employment" (Larson, 2008)
The decisive test is whether it is the employment or something else that sent the traveler forth upon the journey. If the journey would have gone forward though the business errand had been dropped, and would have been canceled upon failure of the private purpose, though the business errand was undone, the travel is then personal and personal the risk" First formulated in Marks' Dependents vs. Gray in 1929
In some states the instigator and participants are ineligible to receive workers compensation if they are injured. However in some states if the horseplay activity has become a normal part of work and supervisors know about it, than the injuries may be compensated. Usually the injury to a nonparticipating employee of the horseplay will be compensated.
generally are not compensated unless it is accompanied by a physical injury. B/c in CA a court allowed a mental illness case to stand. This opened the door to other mental illness claims which dramatically increased workers compensation stress claims.
What are the Common Law Defense?
Contributory Negligence, Fellow Sevant Doctrine, Assumption of risk. Before workers comp the employee had to prove the employer was at fault or helped create the condition that contributed to the injury.The employee could become destitute and a burden on society.
Discuss "Going to and Coming From Work"
not usually compensable. Exception is on the premeises then it is compensable, off the permises is not compensable. Is the employee doing anything to benefit the employer?
Are meal breaks compensable?
No not usually. However, if an employer requires the employee to work during the meal break, then it is compensable.
What is a Duel Purpose Trip?
A trip that is personal and business related. Compensability depends on the purpose of the trip. Judge Cadoza's rule - is it the employement or something else that sets the travler on the journey?
What are Deviations?
This can happen during a business trip - identifiable deviation from a business trip for personal reasons takes a worker out of the course of employment unless the deviation is so small it is insignificant
Personal Comfort Doctrine
work connected activity goes beyond the direct services performed for the employer (ex. the case where the employee put his lunch on the heater)
generally not compensable unless required by employer. Depends on a number of factors
Injury to non-participating employee is comphensable. When there is an insitgator involved its treated primarily as in the course of employment. Minor acts of horseplay do not automatically constitute departure from employment
Repetitve trauma injuries
BAck, Carpal tunnel, RSI (Repetitive strain injuries), WMSD (work related muskuloskeletal disorders) are overuse or misuse of connective soft tissues. Tendons, ligamemts, muscles- are compensable injuries.
What is the NLRB
National Labor Relations Board
NRLB employee rights include:
Forming, attempting to form a union, Joining a union whether it is recognized by the company or not, Assisting a union organizing your fellow employees, Refusing to do any or all of these things, fairly represented by a union
Protected activities include
Two or more employees addressing pay with their employer, talking to each other about work related issues like pay, and safety issues. Two or more employees addressing workplace conditions with their employer
Give a brief history of Workers Comp in the US.
Working conditions during the early 1900's were poor in the U.S. and there was little responsibility for the employee from the employer with regard to injury and illness suffered at work. Labor unions were beginning to form and began demanding better working conditions and concession from the employers. The first workers comp law in the US was passed in 1911 in Wisconsin with 9 other states also passing similar laws that year. 36 states followed before the decade was out. Mississippi was the last state to pass workers compensation legislation in 1948.
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