RE: Energy Dept. Nuke Contractors Fined

[Paul Lavely <lavelyp@uclink4.berkeley.edu>]

It was pointed out that I gave the impression that an exceptionally 
rare instance was really part of the workers comp system. The 
following is a basic discussion. The most important thing is that 
workers trade the ability to sue for workplace injury (in most cases) 
in exchange for the very liberal workers comp system.

Note. California MAXIMUM payment is $490 a week and a limit of 
$34,947 a year for non federal employees. The max for federal 
employees is $1,401 a week under the Federal Employee's Compensation 
Act. Yes, the compensation could be almost three times more for the 
same type of injury. Also, the rates for each state are set by the 
state.

Once I saw how much these non-federal employees get for totally 
debilitating accidents, I changed my mind about the concept that 
anyone wanted to be on workers comp as the way to make a living.

The following is an edited version of a small part of a Notre Dame 
Law Review Note.

WORKERS' COMPENSATION: EXPANDING THE INTENTIONAL TORT EXCEPTION TO 
INCLUDE WILLFUL, WANTON, AND RECKLESS EMPLOYER MISCONDUCT by Thomas 
D. Schroeder

States began to enact workers' compensation statutes in the early 
1900's. These statutes were subject to constitutional attack as an 
unconstitutional taking of property without due process, and many 
lived a short life. As a result, many states proposed "elective"' 
statutes, granting the employer the option to be bound by the 
compensation or subject to common law tort liability without the 
three common law defenses of contributory negligence, 
assumption-of-the-risk, and the fellow servant rule.

The Workers' Compensation Act sets forth a compensation scheme that 
is based on a three-party agreement entered into by the employer, the 
employee, and the compensation carrier. As between the compensation 
carrier and the employee, there is a promise for a promise:  the 
carrier agrees to compensate the employee for injuries sustained in 
the course of employment, and the employee agrees to relinquish his 
common law rights against his employer.

For almost a hundred years, workers' compensation has provided the 
exclusive remedy for job-related injuries arising from employer 
negligence. The courts, however, have recognized an exception for an 
employer's intentional torts. These do not conform with the 
philosophy underlying workers' compensation and are therefore 
remedied through common law recovery. Courts and legislatures have 
almost uniformly limited an employee to exclusive recovery under 
workers' compensation for any employer misconduct lacking a specific 
intent to injure. Consequently, the present system permits employers 
to impose obviously dangerous working conditions on employees--at 
workers' compensation's relatively reduced level of recovery--because 
the employee frequently cannot prove an employer's specific intent to 
cause harm. This result offends the dual policy of the workers' 
compensation system--to encourage a safe workplace while providing 
adequate compensation for certain injuries. Furthermore, workers' 
compensation was never intended to cover such employer misconduct. 
But for almost a hundred years, courts and legislatures have placed 
willful employer misconduct within the system's exclusive coverage.

   The system's indifference to fault allows for a virtually 
guaranteed employee recovery but necessarily precludes an amount 
comparable to any common law recovery. That is, you will never get 
rich on workers' comp. It does not nor was it ever intended to 
supplant the common law tort system. The workers' compensation system 
compensates an injured employee for his employer's negligence, but 
does so according to the system's original design of merely providing 
benefits sufficient to avoid economic and social degradation. This 
"duty"' to provide is not a penalty imposed to deter wrongful 
employer misconduct; penalties are appropriate only where fault is in 
issue.
   The inquiry in a workers' compensation claim is focused not upon a 
person's fault in relation to an event; rather, it is upon the 
relationship of the event to the employment. The injury must be shown 
to "arise out of"' and occur "'in the course of"' the employment. 
Additionally, statutes and judicial interpretation commonly provide 
that coverage extends to all workplace "'accidents."'  Thus, the 
scheme is meant to provide compensation for those "accidents"' that 
are thought to be naturally associated with the business operation. 
The workers' compensation theory provides that the employer should 
compensate the injured employee and then "cost-out"' the injuries in 
the sale of the product. Ultimately, then, the consumer provides for 
the compensation coverage (for the DOE by taxes).

Paul Lavely <lavelyp@uclink4.berkeley.edu>
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