Workers’ Compensation

Workers’ compensation is an employer-provided benefit that exists to aid an employee or his dependents in the event that the employee is injured or killed on the job. Workers’ compensation is governed by each state’s laws, but the general consensus is that eligibility for such benefits turns on whether the employee suffered an accidental injury that arose out of and in the course of his employment or an occupational disease.


Workers’ compensation benefits fall into three main categories: disability benefits, medical benefits, and death benefits.

  • Disability Benefits: Compensation to the injured employee is based on his “disability” and the concomitant effect on his earning power; it does not emanate from actual need. Rather, the employee is entitled to benefits based on his lack of earning capacity and the amount needed for his support as designated in the particular state’s Workers’ Compensation Act. Generally, cash benefits represent a percentage of the employee’s wages at the time of the injury — oftentimes, between a half and two-thirds — with a weekly maximum benefit mandated. The amount of benefits recoverable correlates to whether the employee is temporarily or permanently disabled.
  • Medical Benefits: Workers’ compensation extends to benefits for the employee’s medical care. An employee’s medical expenses related to his injury are covered and such benefit is usually unlimited given that it aids the employee’s recovery.
  • Death Benefits: The dependents of an employee, who is fatally injured on the job, are entitled to death benefits. Such benefits generally compensate for the costs associated with the employee’s burial. Additionally, benefits are paid to the employee’s surviving spouse and children based on their status. A surviving spouse is entitled to benefits until re-marriage in many jurisdictions; other jurisdictions pay a fixed amount upon the spouse’s re-marriage. As for children, benefits are paid until age 18. This time-frame is extended indefinitely if the child is disabled.

Right to Sue

To obtain workers’ compensation, an employee does not have to prove the fault of his employer in causing or contributing to his injury. In exchange, an employee and his dependents are generally precluded from bringing a common law action for damages against the employer for an injury that is covered by the applicable Workers’ Compensation Act. However, the right to sue others whose negligence caused or contributed to the employee’s injury still stands.

Injured Employee’s Recovery Election

Historically, when an employee was injured in the course of his employment, but at the hands of a negligent third party, he was technically able to pursue relief through both the workers’ compensation system and a third-party action. Though not able to receive a double recovery, the employee was technically eligible to recover under either theory. However, strict election rules required that he choose which theory of recovery he would pursue, even if his “choice” ultimately left him with no compensation at all. For example, the injured employee elects to proceed with a third-party action, thereby foregoing workers’ compensation, but ends up losing the third-party action.

Such a harsh result has been tempered over time in most states. Now, employees who elect to pursue a third-party action, but who are less than successful in such enterprise, are not barred from workers’ compensation. Further, even though an employee applies for workers’ compensation benefits, he is not completely prohibited from attempting to gain a recovery from a third party. Of note, Minnesota retains the doctrine of strict election with respect to situations where the employer and the third party are operating in furtherance of a common enterprise or, at the time that the employee was injured, are operating to accomplish the same purpose, or a related purpose, at the location where the employee was injured.

Dual-Purpose Travel by Employee

“Dual-purpose” travel by an employee occurs when the employee embarks on a trip on behalf of the employer that coincides with travel for the employee’s benefit. In other words, the journey serves both the business purpose of the employer and the personal purpose of the employee. Characterization of the trip as business, personal, or both does not have to be made at the outset of the trip. A trip can start out as purely personal but then transform into a business endeavor.

If the employee is injured during the course of the dual-purpose travel, he will be allowed workers’ compensation benefits if the service on behalf of the employer would have necessitated the trip even if the personal nature of the trip was not present. On the other hand, compensation would be denied if his employment did not necessitate the need for the trip and if the trip would not be made at all should the personal nature of the excursion evaporate.

Compensation for injuries occurring during dual-purpose travel can often be discerned from a quantitative standpoint. Basically, whether the measure of the trip is one that would justify an independent excursion on behalf of the employer. For example, an employee, who is a chef, plans a trip to Mexico for vacation. His employer, a catering business, asks him to bring back a case of salsa for serving at a Cinco de Mayo party it will be catering. The cost of the salsa equaled about $ 50. The fact that the sole employment connection with the trip was a mere $50 is a good indicator that the trip was a personal venture with the benefit to the employer being incidental. The employee would still take his vacation trip to Mexico even if the employer decided that the salsa was not needed. On the other hand, the employer would not spend the substantial amount of money necessary to fly to Mexico just for $ 50 worth of salsa. As a result, if the employee is injured while in Mexico, the fact that he purchased salsa for his employer would not re-characterize the trip such that workers’ compensation for the injury would be warranted.

Fault of Employee

A core principle within the area of workers’ compensation is that the question of “fault” is largely irrelevant. It is only when the employee’s “fault” in connection with the injury is occasioned by him leaving the course of employment or is a statutory defense in a jurisdiction will the inquiry come into play. The test for workers’ compensation is generally not personal such that an employee’s misconduct, whether negligent or intentional, will affect the receipt of benefits. Rather, the test is merely whether the injury arose out of and in the course of employment.

When an employee engages in misconduct that causes him injury, an examination of the relevant state’s statute is a foremost consideration because that is usually the only way for an employer to use the employee’s “fault” as a defense. Failing this, “fault” inquiries in relation to employee misconduct is generally limited to an employee’s fraud in obtaining workers’ compensation benefits.

When an injury is not incurred in the course of employment, the employee is not entitled to compensation. Therefore, a “fault” inquiry may be crucial when the employee is injured as a result of a deviation from the course of employment. A key example is where an employee engages in prohibited conduct and is then injured. The employee’s “fault” in leaving the course of employment to engage in such conduct may take him out of the protective realm of workers’ compensation.

Act of God and the Concept of “Arising Out of the Employment”

An act of God includes natural occurrences over which man generally has no control such as tornadoes, hurricanes, earthquakes, and lightening. Though an employee is injured due to an act of God, he may still recover workers’ compensation benefits if he can show that the nature of his employment placed him at a greater risk for injury due to such an act of God. For example, consider the repairman who is required to work on downed power lines during a storm. He performs his work while a thunderstorm rages by standing in a bucket raised high into the air from the back of his repair truck. This situation would appear to elevate the employee’s chances of being struck by lightening over the average individual. As such, it is likely that the employee would be compensated for an injury by lightening.

Compensation may be harder to obtain for injuries from some acts of God as opposed to others. Whereas lightening is a more localized phenomenon, a hurricane is widespread and can affect hundreds, if not thousands, of individuals. As a result, it can be harder to obtain compensation in the face of the argument that the employee would not have been any safer had he been in a location that was not occasioned by his employment.

Instead of applying the increased-risk test, some courts determine compensability based on the position of the employee when the injury occurred. Basically, if the employee is directed by his employer to be at a certain place at a given time, and is subsequently injured due to the unfortunate location and timing, compensation will be allowed. This is so even though any other individual, not a part of the employer’s workforce, would have suffered the same injury as the employee.

Tort Law – Procedural Law

Apart from legislation granting a right to sue for a specific harm, personal injury law generally consists of tort law and the civil procedure for enforcing it. This article discusses the civil procedure for enforcing tort law.

Filing a Lawsuit

The general method provided by civil procedure to enforce the rights and duties provided by tort law is for persons and organizations who believe that any of their rights have been violated to “sue” the persons and organizations whom they allege have failed to do their duty as provided by tort law. To “sue” refers to the initial act required to formally enforce the law, which is to file with a court a group of documents that notify the court and the alleged violators of the alleged violation or violations of tort law. The group of documents is known as a suit, and so the whole process is known as a lawsuit. The lawsuit asks the court to declare that the filers have been harmed under tort law and that they are entitled to satisfaction — usually money — from the persons or organizations against whom the group of documents were filed. The court declaration is important because anyone who fails to obey the court’s declaration ordering satisfaction is potentially subject to punishment by the court for their failure to obey the court’s declaration.

The Threat of a Lawsuit

Sometimes it is not actually necessary to file a lawsuit to enforce tort law. Sometimes the threat of the successful use of civil procedure encourages and prompts persons and organizations who have failed to obey tort law to settle the substantive law matter out of court.

Words Used in a Lawsuit

A person or organization who has had one or more of its rights under tort law violated may be known as a victim. The victim is said to have suffered a wrong. The person or organization who has failed to obey one or more of its duties under tort law may be known as a perpetrator, tortfeasor, violator, or wrongdoer.

As a general rule, a person or organization that files a lawsuit is known as a plaintiff. As a general rule, a person or organization that responds to a lawsuit is known as a defendant. A victim or alleged victim is usually known as a plaintiff or potential plaintiff. A perpetrator, tortfeasor, violator, or wrongdoer, or an alleged perpetrator, tortfeasor, violator, or wrongdoer, is usually known as a defendant or potential defendant.

It is also possible for a person or organization that is sued, a defendant, to counter-sue the plaintiff or plaintiffs. For the sake of clarity, the parties to a lawsuit retain their initial designations as plaintiff or defendant, even though the result of the lawsuit may be a finding that the real victim, if any, is a defendant on the defendant’s counter-suit and not a plaintiff on the plaintiff’s initial suit.

The Military Claims Act

When a person has died, has sustained injuries, or has sustained property damage as a result of the activities of military personnel or civilians who are employed by the military, the person or his or her representative may be entitled to recover damages from the federal government under the Military Claims Act (MCA). The MCA covers claims for damages that are caused by military personnel or civilians who are acting within the scope of their employment or that are caused by military activities.

The MCA covers claims for damages that are not covered by the Federal Tort Claims Act (FTCA). Unlike the FTCA, the MCA pays for damages that occur worldwide. Also, unlike the FTCA, the MCA only pays damages for circumstances that are specifically included in a military department’s regulations.

The MCA is limited to claims that arise from military personnel or civilians who are acting within the scope of their employment or that are incident to military activities that are noncombatant. Examples of claims regarding noncombatant military activities include claims that result from maneuvers, from bombing exercises, or from aircraft operations. For such type of claims, a person does not need to show that the activities were conducted in a belligerent manner. The person also does not need to show that his or her losses were the result of the conduct of a specific employee.

Certain types of activities are specifically excluded from coverage under the MCA. Those activities include combat activities, enemy actions, certain postal activities, or property damage claims that are based on contract violations. If a claim can be pursued under another federal claims statute, the claim will be exempt under the MCA. Such claims include claims under the FTCA, the Military Personnel and Civilian Employees’ Claims Act, the Foreign Claims Act, and certain admiralty claims.

Certain types of claimants are specifically excluded from coverage under the MCA. Military personnel and civilian employees are not entitled to file an action under the MCA for personal injury or death if the personal injury or death occurred as a result of that person’s military service or employment. Military personnel and civilian employees may be entitled to file claims under the MCA for property damage as long as their claims are not covered by another statute, such as the Military Personnel and Civilian Employees’ Claims Act.

Military personnel and civilian employees are prohibited from filing a claim under the MCA if their claim arose as a result of that person’s own negligence or wrongful acts. If the claim arose in a contributory negligence state, the claim is barred under the MCA. If the claim arose in a comparative negligence state, the claim may not be totally barred. However, the person’s damages will be reduced in accordance with his or her proportionate share of negligence.

Damages for personal injury or death under the MCA include damages for pain and suffering, permanent disability, medical expenses, lost wages, and a loss of earning capacity. Property damages are based on the cost of repairing the property. If the property cannot be repaired, damages are based on the replacement cost of the property less the salvage value of the property.

Under the MCA, a claimant is not entitled to recover attorney’s fees, interest, the cost of preparing his or her claim, or damages for the claimant’s inconvenience.

A claim under the MCA must be filed within two years after a cause of action accrues. However, the two-year statute of limitations may be tolled or suspended during periods of armed conflict.

Personal Injury Actions Between Spouses

When spouses commit torts against each other, a cause of action may or may not be available to the injured spouse. It depends upon the jurisdiction and the type of injury.

Inter-spousal Immunity

Historically, spouses could not bring actions against each other to recover damages for personal injuries while they were married because of the doctrine of interspousal immunity. The denial of a cause of action was based on the principles of preserving marital harmony, avoiding fraud or collusion if the tort was covered by insurance, and preventing the spouse who was liable for the tort from benefiting from a judgment in favor of his injured spouse. Interspousal immunity still survives intact in some jurisdictions, although some jurisdictions have the following exceptions.

Pre-marital Torts

In some jurisdictions that apply interspousal immunity, a spouse who is injured prior to marriage may bring an action against the other spouse during the marriage. However, other immunity jurisdictions hold that the marriage extinguishes the right to bring an action for a premarital tort.

Action After Spouse Dies

Some immunity jurisdictions permit an injured spouse to sue a deceased spouse’s estate for a tort that was committed by the deceased spouse during the marriage because the principles of preserving marital harmony and preventing collusion between spouses do not apply after one spouse’s death. Other immunity jurisdictions, however, do not recognize this exception.

Action After Divorce

As is the case when a spouse dies, the principles supporting interspousal immunity do not apply after a married couple divorces. Thus, some immunity jurisdictions allow an injured spouse to sue a former spouse for a tort that was committed during the marriage. Other jurisdictions strictly adhere to the interspousal immunity rule if the tort occurred during the marriage.

Willful, Wanton or Intentional Torts

Some immunity jurisdictions permit interspousal actions if the tort was intentional rather than negligent because it would be the conduct causing the tort that disrupts the marital harmony rather than the filing of a subsequent lawsuit. Spouses who commit such acts against each other are also unlikely to be in collusion with one another.

Motor Vehicle Torts

Some courts that uphold interspousal immunity allow an exception for actions between spouses arising from motor vehicle accidents because the real defendant is usually an insurer.

Cause of Action Permitted

Most jurisdictions have abrogated the doctrine of interspousal immunity and allow spouses to sue each other. The abrogation is based on the inadequacy of divorce or criminal law as alternatives to a lawsuit, the court’s ability to detect collusion between spouses, and the belief that a wronged party should be able to recover for his injuries.

Aviation Litigation

Aviation litigation may involve commercial or private airline accidents. When a flight crosses state lines or when an aircraft contains passengers from several different states, an accident will often result in large multi-party lawsuits and litigation in several states or in several federal district courts. When several states are involved, it must be determined whether the state courts or the federal courts are entitled to exercise subject-matter jurisdiction over the accident and which state’s laws will apply to the accident.

Although an accident that occurs within a state will generally entitle a court within the state to have subject-matter jurisdiction over the accident, the court must also have personal jurisdiction over the parties who are involved in the litigation. Each defendant must have sufficient minimum contacts with the state in order to be sued in the state court. Therefore, aviation litigation is often brought in federal courts based on the diversity of citizenship of the parties.

Although the general law of torts applies to airline accidents, federal law may be applied because the federal government is responsible for regulating aviation safety standards. Such federal laws include the Federal Aviation Act and the Federal Tort Claims Act. The Death on the High Seas Act or the Jones Act may apply if the accident occurred at sea or in navigable waters. The Foreign Sovereign Immunity Act, the Warsaw Convention, or the Hague Convention may apply if the accident involved a foreign airline or foreign passengers.

The Federal Aviation Administration (FAA) is the agency of the federal government that is responsible for prescribing minimum safety standards for the design and construction of aircraft and their components. The FAA is involved in the inspection of aircraft. The FAA is responsible for certifying pilots, crew members, and mechanics. The FAA promulgates air traffic rules and regulations regarding the flight of aircraft and the protection of persons and property on the ground. The FAA also licenses air traffic controllers.

State law may be considered to be inapplicable to an airline accident because of the Federal Airline Deregulation Act of 1978 (ADA). The ADA prohibits a state from enforcing its laws or regulations with regard to the price, route, or service of an air carrier. Although the ADA will generally preclude claims against air carriers under state consumer protection laws, the ADA does not preclude state negligence actions against air carriers for personal injuries.

Because airline accidents often result in serious personal injury and death, a state’s wrongful death and survival laws may apply to an accident. A wrongful death action may be brought by a decedent’s surviving spouse, children, or parents. A survival action may be brought by a decedent’s heirs, legal representatives, or estate. Damages in a wrongful death action may include monetary losses, mental anguish, and loss of companionship. Damages in a survival action may include medical and hospital expenses, funeral expenses, and the pain and suffering of the decedent.

A state’s tort and negligence laws may also apply to an airline accident. Negligence principles are based on a breach of a duty, which breach was the proximate cause of an accident. The airline, the pilot, or the people who are responsible for maintaining and repairing the aircraft may be sued for negligence. If aircraft malfunction was the cause of the accident, the manufacturer of the aircraft may also be sued for negligence. Airport owners and air traffic controllers may further be sued for negligence.

Attorney Liability for Another Attorney’s Malpractice

An attorney may be held liable for committing legal malpractice while representing a client. Legal malpractice occurs when an attorney fails to use such skill, prudence, and diligence as lawyers of ordinary skill and capacity possess and exercise. In addition, other parties may be held liable for that attorney’s misbehavior.

Liability of a Partnership

Under the Uniform Partnership Act, a partnership is liable for loss caused by a partner who acts in the ordinary course of the partnership’s business or with the authority of the copartners. Thus, copartners of an attorney who commits malpractice while handling a client’s funds may be liable for that attorney’s malpractice. However, if the attorney acts for his own benefit and interest in a matter that is beyond the scope of employment, the partnership will not be liable for the attorney’s conduct. For example, a partnership may not be liable for an attorney’s intentional and malicious torts.

Liability of Associates

In some cases, especially complex ones, an attorney may hire other attorneys to assist him in rendering legal services. If the initial attorney commits legal malpractice, the client may recover against him in addition to the attorneys who are associated with the case. Liability may be based on the associates coming together with the initial attorney to form a type of joint venture.

Local counsel retained by an out-of-state lead attorney to assist with litigation may be held liable for malpractice the lead attorney commits against a client. However, local counsel’s duty to the client is usually limited to exercising reasonable care in the work assigned by the lead attorney and does not extend to reviewing all matters handled by the lead attorney.