CHAPTER 30: EMPLOYEE INJURIES

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1 CHAPTER 30: EMPLOYEE INJURIES INTRODUCTION TO JOB SAFETY Our legal system has developed three ways of handling employee injuries: A. NEGLIGENCE SUITS Was developed under common-law where the injured employee sues the employer for negligence. If the employee can prove in court that the employer s negligence caused the injury, the employer must pay damages. It attempts to make the party at fault bear the financial loss associated with the injury. 1. Reasonably Safe Working Conditions The law forces on employers the general duty to provide reasonably safe working conditions for employees. This duty may be violated in several ways: not providing a safe working space, safe tools, or safe machinery when there are not a sufficient number of co-workers to do a job safely if employees were given inadequate safety instructions When the employer violates the duty to provide safe working conditions and it causes injury to workers, then the employer has committed the tort of negligence. 2. Difficulties For Employee In Negligence Suits The common-law system had many problems. An injured worker had several reasons for not suing the employer: hiring a lawyer, the risk of being fired, not collecting anything if the employer proved any one of the common-law defense. Page 1 Law for Business & Personal Use

2 a. Common-law defenses The employer can avoid all liability or responsibility by proving any one of the following defenses: (a) the employee had assumed the risk involved, (b) the employee was negligent, OR (c) the negligence of a co-worker caused the injury. b. Assumption of risk The employee is aware of the danger before it causes injury but he/she voluntarily remains in the dangerous situation. c. Contributory negligence The employee carelessly did something which contributed to his/her injury or death. This defense can be effective even when the employee s negligence is very slight in relation to the employer s. d. Co-worker negligence B. WORKERS COMPENSATION A co-worker is the cause of the injury. It prevents recovery from an employer under the common-law defenses. However, until the early 1900 s, the negligence suit was the only recourse for workers injured on the job. Before the 1890 s, employees had a difficult time in winning negligence suits. Around state legislatures enacted laws to help injured employees with workers compensation statutes. Page 2 Law for Business & Personal Use

3 These statutes require most employers to obtain insurance to pay benefits to injured employees. Benefits are paid without regard to fault, so the insurance pays even when the employer is not a cause of the injury. Workers comp was created as a substitute for negligence suits. If an employee is covered by workers comp, then the employee can t file a negligence suit against the employer. If an employee is NOT COVERED by workers comp, then the employee can file a negligence suit. Because the amount an employer must pay for workers comp insurance is somewhat related to the firm s safety record, employers still have an incentive to maintain a safe workplace. C. OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION {OSHA} Enacts safety regulations and inspects workplaces enforced by federal and state administrative agencies. It can impose fines and shut down plants when it finds violations of its laws. OSHA seeks to make the workplace safer by trying to prevent injury. An injury might lead to an OSHA investigation. If OSHA finds any safety regulations that have been violated, they would require the unsafe condition to be eliminated. An employer may also be fined. RECOVERING FROM THE EMPLOYER FOR NEGLIGENCE general rule the employee cannot sue the employer for on-the-job injuries if the employee is covered by workers compensation. There are some exceptions to the general rule. Page 3 Law for Business & Personal Use

4 A. EMPLOYER FAILS TO PROVIDE WORKERS COMP INSURANCE If state law requires that an employee be covered by workers compensation insurance and the employer didn t purchase the insurance, then the injured employee can sue the employer and claim negligence. In this type of situation, the employer cannot use the three common-law defenses of assumption of the risk, contributory negligence, or co-worker negligence. The employee has the possibility of recovering large amounts of money. Because of this fact, most employers buy Workers Compensation Insurance even when they are not required to do so by law. B. EMPLOYEE COVERAGE NOT REQUIRED When employee workers comp coverage is not required and the employee is injured because of the employer s negligence, the employee may sue the employer. When this happens, the employer CAN use all of the common-law defenses of assumption of the risk, contributory negligence, or coworker negligence. C. INJURY NOT COVERED BY WORKERS COMPENSATION In some cases, the employee is injured because of the negligence of the employer but workers comp does not cover the injury. The employee could sue the employer, but the law would allow the employer to use the common-law defenses. D. EMPLOYER COMMITS AN INTENTIONAL TORT In some states, even when an employee is covered by workers comp, the employee may sue the employer for intentional actions that the employer knows will cause injury. This happens when the conduct of the employer is criminal, is an intentional tort, or is an intentional violation of a safety regulation. Page 4 Law for Business & Personal Use

5 OPERATION OF WORKERS COMPENSATION Negligence suits under the common law were risky for both employers and employees. Most employees collected nothing due to the common-law defenses. When employees did win, the amounts might bankrupt the employer. With workers comp today, the common-law defenses are not available to the employer. A. GENERAL COVERAGE Employees are generally protected if they are injured: (1) by accident or disease, including job-stress related illness, (2) in the scope of their employment, and (3) from the risks of that employment. The above requirements are satisfied if a worker is injured on the job and the injury is caused by the work. B. WINNING A WORKERS COMPENSATION AWARD A hearing is conducted by a state administrative agency to determine if a person is entitled to benefits. The state administrative agency is called the Workers Compensation Board or the Industrial Accident Commission. The hearing procedures are not as complicated as a trial. For small claims, the injured worker does not need a lawyer, but if the injury is significant the worker should hire a lawyer. For significant injury, there are lawyers who specialize in workers compensation cases. Page 5 Law for Business & Personal Use

6 C. WHAT DOES THE INJURED EMPLOYEE RECEIVE? Workers who are covered by workers compensation sometimes receive a small, lump-sum payment to cover such things as pain and suffering. Example: a loss of a hand, or a loss of a life The payment is less than if the injured party had won a negligence suit. All medical expenses are usually covered. Most states will also pay a percentage of lost wages 80% is common vocational rehabilitation most states also pay for job retraining if an accident makes it impossible for a worker to continue in the former job. D. PAYING FOR THE INSURANCE Workers compensation benefits are paid from one of three sources. Employers may purchase a workers comp insurance policy from a private insurance company, participated in a state-administrated workers comp fund, or be self insured. A. SCOPE OF EMPLOYMENT INJURIES COVERED To recover from workers compensation, the injured employee must have been acting within the scope of employment when the injury takes place. Example: a car accident while driving to or from work is not within the scope of employment Example: an employee doing an errand for the employer on the way home from work is within the scope of employment Page 6 Law for Business & Personal Use

7 B. RISK OF EMPLOYMENT Example: a person assembling heavy fire hydrants could recover for a hernia, while a clerical person who suffered a hernia while picking up a piece of paper off the floor might not collect benefits because the job may have not caused the injury. Example: one who suffers a heart attack while at work may or may not collect benefits depending on whether the risks of the employment caused the attack. C. WORKERS COMPENSATION OR NEGLIGENCE Injured employees sometimes choose to sue for employer negligence than accept the small payments offered by workers comp. This is true when there are major injuries. The employee may argue that an injury was caused by the employer s negligence but that it was not a risk of the job or was outside the scope of employment. WHO IS NOT COVERED? A. FEW WORKERS OR CASUAL WORKERS Companies with three or fewer employees are not required to provide workers compensation insurance. casual workers those who do not work for an employer regularly. Others not required to be covered by workers compensation include casual workers, servants, housekeepers, and agricultural workers. B. INDEPENDENT CONTRACTORS They don t need to be covered by workers comp. C. OTHER SYSTEMS OF COVERAGE Instead of being covered by state workers compensation laws, employees of railroads, airlines, trucking firms, and other common carriers engaged in interstate commerce are governed by special federal laws. Page 7 Law for Business & Personal Use

8 Longshore and harbor workers operate under a different federal law. A special statute governs the crew on seagoing vessels. Federal and state employees are covered by a separate system. HOW DOES OSHA PROTECT EMPLOYEES? The Occupational Safety and Health Act was enacted by Congress in This law created the Occupational Safety and Health Administration and empowered it to enact rules and regulations designed to achieve safety in the workplace. basic policy to directly prevent injuries by requiring that workplaces be safe. This law applies to firms with 11 or more employees engaged in interstate commerce. A. THE GENERAL DUTY CLAUSE First type of OSHA law. It requires employers to provide a place of employment that is free from hazards which are likely to cause death or serious physical harm. If violated, OSHA can fine the company and/or shut down the plant. B. SPECIFIC REGULATIONS Second type of OSHA law. Includes specific workplace safety regulations. They are rules that cover most aspects of work. They explain safety training requirements; safety clothing and equipment to be worn by workers; and the construction, maintenance, and shielding of equipment. There are minimum standards are for lighting, ventilation, and sanitation. Page 8 Law for Business & Personal Use

9 Example: spray painting booths must be vented to the outside of the building and must be made of metal rather than wood Minor violations are resolved by bringing the workplace into compliance although employers can be fined. C. WORKPLACE INSPECTION OSHA does workplace inspections to make sure the employer and the company are in compliance with the general duty law and specific regulations. An employer may deny OSHA inspectors access to the workplace, inspectors can easily get a search warrant to inspect the place. Employers are required to file periodic safety reports which describe work-related injuries. If there is an injury requiring hospitalization of 3 or more employees or resulting in a death, the Department of Labor must be notified within 8 hours. These reports often prompt OSHA inspections. Employees can anonymously call OSHA and report safety violations. When this happens, OSHA will send inspectors to the workplace. Employers may not discriminate against a worker who has called OSHA. D. DEALING WITH OSHA VIOLATIONS In most simple cases employers deal with OSHA officials without a lawyer. Example: problems involving technical engineering and safety issues Sometimes OSHA violations are so serious that companies can be pushed into bankruptcy by the costs of compliance requirements. A lawyer would be needed at this time. Page 9 Law for Business & Personal Use