STATE OF MISSISSIPPI WORKERS COMPENSATION COMPENDIUM OF LAW

Transcription

1 STATE OF MISSISSIPPI WORKERS COMPENSATION COMPENDIUM OF LAW Part One: The Employment Relationship & Scope of Compensability Prepared By Copeland, Cook, Taylor and Bush, P.A 600 Concourse, Suite Highland Colony Parkway Ridgeland, MS (601) Version 2015

2 Definitions of Employer and Employee Employer is broadly defined in Mississippi. An employer is every person, firm and private corporation, including any public service corporation that have in service five (5) or more workmen or operatives regularly in the same business or in or about the same establishment under any contract of hire, express or implied. Miss. Code Ann This excludes all nonprofit charitable, fraternal, cultural, or religious corporations or associations. Miss. Code Ann A few employment classifications are exempt from coverage, including domestic servants, farmers and farm labor, some newspaper deliverers, and some students receiving supervision and practical training in an educational curriculum. Miss. Code Ann and (d). An exempt employer may forego the exemptions and elect to provide coverage. Miss. Code Ann The Act and cases protect against coverage loopholes to cover special arrangements which vary from traditional employment patterns, and which would otherwise leave workers without coverage. Under the statutory employer provision, workers compensation coverage extends past conventional employment in order to serve the statute s aim of coverage. A contractor may be responsible for providing coverage to certain workers with whom the contractor has no direct contract of hire. If the employer is a subcontractor, the contractor shall be liable for and shall secure the payment of such compensation to employees of the subcontractor, unless the subcontractor has secured such payment. Miss. Code Ann (6). An employee is any person, including a minor, whether lawfully or unlawfully employed, in the service of an employer under any contract of hire or apprenticeship, written or oral, express or implied. Miss. Code Ann (d). The statutory definition has been interpreted broadly to provide coverage, hence benefits, to a person performing services which are an integral part of the regular business of the employer. An employee may not waive the right to benefits. Miss. Code Ann An alien employee is treated the same as an employee who is a resident. Miss. Code Ann All independent contractors are specifically excluded from coverage. An independent contractor is defined as any individual, firm or corporation who contracts to do a piece of work according to his own methods without being subject to the control of his employer except as to the results of the work, and who has the right to employ and direct the outcome of the workers independent of the employer and free from any superior authority in the employer to say how the specified work shall be done or what the laborers shall do as the work progresses, one who undertakes to produce a given result without being in any way controlled as to the methods by which he attains the result. Miss. Code Ann (r). 2

3 Compensable Injuries An injury under the Mississippi Workers Compensation Act means accidental injury or death arising out of and in the course of employment without regard to fault which results from an untoward event or events, if contributed to or aggravated or accelerated by the employment in a significant manner. Miss. Code Ann (b). For an injury to be compensable in Mississippi, it must first arise out of and occur in the course of employment. Miss. Code Ann The phrases arising out of and in the course of have separate and distinct implications and both conditions must be met to establish compensability. Usually, the two conditions exist concurrently, however, under certain circumstances it is possible for one to be satisfied and not the other. Thus, it is important to recognize the distinction between the two phrases. The term arising out of calls for some causal connection between the employment and the injury. The mere fact that the injury occurs at work does not make the claim compensable. Malone & Hyde of Tupelo, Inc. v. Hall, 183 So. 2d 626 (Miss. 1966). On the other hand, so long as the employment rationally contributes to an injury, it does not need to be the sole cause of that injury, in order to make it compensable. Prince v. Nicholson, 91 So. 2d 734 (Miss. 1957). For an injury to occur in the course of employment, there must be a causal connection between the injury and the conditions of the employment. Persons v. Stokes, 76 So. 2d 517 (Miss. 1954); Breland & Whitten v. Breland, 139 So. 2d 365 (Miss. 1926). More specifically, the phrase in the course of is satisfied whenever the injury resulted from activity that is (1) in its overall the course of is satisfied whenever the injury resulted from activity that is (1) in its overall contours actuated at least in part by a duty to serve the employer, or (2) reasonably incidental to the employment. Incidental activities have been held to include such personal pursuits as playing basketball during breaks, smoking, and going to use the telephone. Cook Construction Co. v. Smith, 397 So. 2d 536 (Miss. 1981) (citing Dunn, Mississippi Workmen s Compensation Commission, 170 (2d ed. 1967)). Under Mississippi workers compensation law, an injury is considered accidental whether the injury occurred suddenly, from a single event at a precise time, or whether the injury developed gradually over time. Shivers v. Biloxi-Gulfport Daily Herald, 110 So. 2d 359 (Miss. 1959). [T]he injury meets the requirement of accidental injury if it is causally connected to the work activities or environment and the events are within a reasonably definite and not too remote period of time. KLLM, Inc. v. Fowler, 589 So. 2d 670, 675 (Miss. 1991). Injuries that develop over a period of time are often referred to as cumulative traumas and can include repetitive use claims such as carpel tunnel syndrome. Mississippi workers compensation law also covers injuries which are the result of an aggravation or acceleration of a pre-existing injury, disease, or lesion. If it is established that an individual s employment aggravated, accelerated or combined with a pre-existing condition so as to produce the disability or death, such claim will be found to be compensable. Recent legislative changes to 3

4 the Mississippi Workers Compensation Act, however, now allow for apportionment to apply in cases arising after July 1, 2012, where the pre-existing condition is found to be a material contributing factor to any permanent disability resulting from an injury. Miss. Code Ann (2). Occupational disease is excluded from the term injury as defined by Miss. Code Ann (b) but can be compensable if the medical proof supports a direct causal connection between the alleged disease and the work place. For purposes of a mental or psychological injury, the employee must prove by clear and convincing evidence that the mental injury resulted from something more than the ordinary incidents of employment. Fought v. Stuart C. Irby Co., 523 So. 2d 314 (Miss. 1988). A direct physical impact is not required so long as the mental injury is directly linked to an untoward event or unusual occurrence which is incident to employment. Smith & Sanders, Inc. v. Peery, 473 So. 2d 423 (Miss. 1985). These claims are commonly referred to as mental-mental injury claims. As a general rule, an injury that occurs while the employee is going to or coming from work is not compensable. King v. Norrell Services, Inc., 820 So. 2d 692 (Miss. Ct. App. 2000). Exceptions to that general rule include: (1) where the employer furnishes the means of transportation, or remunerates the employee; (2) where the employee performs some duty in connection with his employment at home; (3) where the employee is injured by some hazard or danger which is inherent in the conditions along the route necessarily used by the employee; (4) where the employer furnishes the hazardous route; (5) where the injury results from a hazardous parking lot furnished by the employer; (6) where the place of injury, although owned by one other than the employer, is in such close proximity to the premises owned by the employer as to be, in effect, a part of such premises; and (7) when the employee is on a special mission or errand for his employer, or where the employee is accommodating his employer with an emergency situation. Wallace v. Copiah County Lumber Co., 77 So. 2d 316, (Miss. 1955); Miller Transporters, Inc. v. Dependents of Seay, 350 So. 2d 689, 691 (Miss. 1977); Duke v. Parker Hannifin Corp., 925 So. 2d 893 (Miss. Ct. App. 2005). Generally, injuries sustained by an employee that result from assault by an employer or other superior are held to arise out of employment, provided that the employment or employment environment is a substantial contributing factor in setting the stage for the assault. Kerr-McGee Corp. v. Hutto, 401 So. 2d 1277 (Miss. 1981). Injuries resulting from an assault by a co-employee acting within the course and scope of employment, whether malicious and intentional or merely horseplay, are deemed compensable as arising out of employment unless it is found that the injured employee was the actual aggressor. Mutual Implement & Hardware Co. v. Pittman, 59 So. 2d 547 (Miss. 1952); Miles v. Myatt, 61 So. 2d 390 (Miss. 1952); Davis v. Pioneer, Inc. 834 So. 2d 739 (Miss. Ct. App. 2003). If, however, the assault was due to a personal issue between co-employees and was not over an employment related issue, the injury is not compensable even if it occurred on the job site. Sanderson Farms, Inc. v. Jackson, 911 So. 2d 958 (Miss. Ct. App. 2005) (employee struck follow employee over the head with a 2 x 4 due to an argument over a $10 loan). In cases where an employee is injured as the result of an 4

5 intentional act by a third party who is a stranger to the employment relationship, compensability will depend on whether there is a connection between the employment and the assault. Injuries in these type situations are compensable only if the assault was committed because of the employment. Miss. Code Ann (b). Excluded Injuries or Claims Under Mississippi workers compensation law, fault on the part of the employee is considered in only two instances: (1) when the employee s intoxication causes his or her injury; and (2) when the employee is injured because he willfully intended to injure himself or another person. Miss. Code Ann In Mississippi no compensation shall be payable if the use of drugs illegally, or the use of a valid prescription medication(s) taken contrary to the prescriber s instructions and/or contrary to label warnings, or intoxication due to the use of alcohol of the employee was the proximate cause of the injury. Miss. Code Ann (4). The law creates a rebuttable presumption that the accident was proximately caused by consumption of the drugs or alcohol found in the employee s system at the time of injury. The employee now has the burden to show that his or her intoxication was not a contributing cause of the accident. If an employee is injured as the result of his or her willful intent to injure himself or another person, the injury is not compensable. Miss. Code Ann (4). Such intention, however, is not lightly assumed, and there is a strong presumption against it. This Compendium outline contains a brief overview of certain laws concerning various litigation and legal topics. The compendium provides a simple synopsis of current law and is not intended to explore lengthy analysis of legal issues. This compendium is provided for general information and educational purposes only. It does not solicit, establish, or continue an attorney-client relationship with any attorney or law firm identified as an author, editor or contributor. The contents should not be construed as legal advice or opinion. While every effort has been made to be accurate, the contents should not be relied upon in any specific factual situation. These materials are not intended to provide legal advice or to cover all laws or regulations that may be applicable to a specific factual situation. If you have matters or questions to be resolved for which legal advice may be indicated, you are encouraged to contact a lawyer authorized to practice law in the state for which you are investigating and/or seeking legal advice. 5