Workers’ compensation law developed as a compromise between employers and employees. Under the system, employees benefit because they do not have to prove that the employer was negligent to recover compensation for an on-the-job injury. This is referred to as a no-fault system. Employers benefit by limiting their liability for workplace accidents since employees can only recover a finite amount of benefits under workers’ compensation and they are barred from suing under regular tort law.
Although an injured worker does not need to prove that the employer was at fault, he does have to prove that: 1) an employer-employee relationship existed when he 2) had an injury by accident 3) arising out of and occurring within the course of employment.[1] This module will address the first two elements of a workers’ compensation. The next module will address the third element – causation.
Employer-Employee Relationship
For workers’ compensation law to apply, the worker must have been engaged in an employer-employee relationship at the time the injury occurred. This means that the worker must have been considered an “employee” and the one who hired the worker must have been considered a “employer” at the time of the injury.
Employee
An “employee” is any person who works for an “employer,” under an express or implied contract whereby the employer controls the employee’s work.[2] An express contract is one where the terms are explicitly set out, whether in writing or in words. An implied contract exists where the parties intended to agree, though they did not communicate the agreement explicitly. For example, if an employer’s actions led a worker to reasonably believe, in good faith that he was employed, then an employment relationship exists.[3]
Independent contractors are not considered “employees.” Therefore, they cannot recover benefits under workers’ compensation law. Independent contractors are distinct from employees because they are hired to complete a specific job and are allowed to accomplish their work by any reasonable means they choose. Since they work with a degree of independence, the injuries that happen during their work do not create liability for the individual who hired them.[4] The courts consider several factors to determine whether a worker was an employee or an independent contractor, including:
- Who controlled the details of the work
- Whether the worker had any unique or specialized skills or training
- Whether the worker’s occupation, skill, or business was distinct from the employer’s
- How the worker was paid – by fixed sum, hourly wage or salary
- Who provided the tools that the worker used
- Whether the employer deducted taxes from the worker’s wages
- Whether the employment was at-will or the worker had the right to finish the project[5]
State laws often exclude certain types of employees from workers’ compensation, including volunteers, federal employees, state elected officials, agricultural employees, railroad workers, and prisoners.[6] Instead, these workers are often covered by other programs under state or federal law, for instance Longshoreman laws, the Federal Employers Liability Act, or state-based funds specific to the excluded professions such as for firefighters and police.
Casual employees are generally not considered “employees.” They are defined as employees whose work is casual and not within the same trade, business or profession as the employer. Their work is irregular or occasional, or for a temporary purpose or limited time.[7] An example would be an HVAC worker who is hired by an accounting firm to repair the office HVAC system.
Just as state law can exclude certain workers from workers’ compensation, it can also impose workers’ compensation upon other workers. For instance, borrowed employees are generally covered by workers’ compensation. They are employees whose services are lent to another employer who then temporarily controls the employee’s work.[8] Workers’ compensation law often imposes liability upon the borrowing employer if the borrowed employee suffers any on-the-job injury while working under the direction and control of the borrowing employer.
Another category of workers specifically included under workers’ compensation are “statutory employees.”[9] These often include contractors and subcontractors who perform work that is part of the same business, occupation or trade as their employer.[10]
It is uncertain how illegal immigrants will be treated under the workers’ compensation system. In 2011, the United States Supreme Court declined to intervene in the matter. Therefore, the states remain divided, with Georgia, Louisiana, Minnesota, and Pennsylvania, among others holding that illegal immigrant workers are covered by workers’ compensation. [11] You should check your own state case law and legislation to learn how your state treats illegal immigrants regarding workplace injuries.
Employer
An “employer” is a person or entity that directs or controls a worker under an implied or express contract and pays that worker a wage or salary for his service.[12] An employer can be a public or private entity, an individual or corporation, or a state government and its subdivisions.[13] Some states only consider employers to be “employers” for workers’ compensation purposes if they have a certain number of employees. For example, South Carolina only subjects employers to workers’ compensation law if they have at least four employees. California applies workers’ compensation law even where there is only one employee, and Texas generally does not mandate that employers carry workers’ compensation coverage at all. [14] Check the law in your own state to determine the number of employees that an employer must have before workers’ compensation law applies.
The purpose of statutes that require an employer to employ a certain number of workers is to minimize the administrative burden upon smaller employers. Some states, including South Carolina and Kansas also attempt to minimize the burden by only applying workers’ compensation law if the employer surpasses a minimum payroll amount.[15]
As with employees, state laws often either explicitly include or exclude certain categories of employers from workers’ compensation coverage. Furthermore, the groups of employers that are either included or excluded generally mirror the included or excluded groups of employees. For instance, if state law excludes volunteers, federal employees, agricultural workers, and prisoners from the definition of “employees” under workers’ compensation law, then it follows that those who hire or supervise volunteers, federal employees, agricultural workers and prisoners will not be considered “employers” under workers’ compensation either. Just as these excluded employees are covered under Longshoreman laws, the Federal Employers Liability Act, or specific state-based funds, employers in these professions are also covered under these special provisions.
Although volunteers and their employers are often excluded from workers’ compensation, some states extend that exclusion to charitable entity employers even as to their paid employees. States that exclude charitable organizations as “employers” are the states that still recognize the concept of charitable immunity. Charitable immunity is a fading concept by which charitable organizations cannot be sued in tort. The rationale is that if charitable organizations cannot be sued in tort, then they should also be immune from suit under workers’ compensation law, as workers’ compensation cases are often simply a limited replacement for regular tort claims.[16]
Along the same lines, where state law expressly includes a category of employees under workers’ compensation, those who employ the included workers will also be covered by workers’ compensation. For instance, where state law imposes an employer-employee relationship between a borrowed employee and the borrowing employer. In these circumstances, the borrowing employer can sometimes be referred to as the special employer, one who borrows an employee for a finite period and who exercises only temporary control and responsibility over the employee’s work. The lending employer is sometimes referred to as the general employer. [17]
Another example where state law includes certain employers is where there are statutory employees. As discussed previously, a statutory employee is simply one who state law requires to be covered by workers’ compensation, regardless of the circumstances surrounding the employer-employee relationship. This means that the statutory employer cannot be sued by statutory employees in regular tort law if the statutory employee suffers an on-the-job injury. The statutory employee-employer relationship is often imposed by states via contractor-under statutes. These statutes apply in complicated employment situations such as construction projects, where there are often several parties involved – a project owner, a general contractor, sub-contractors, and sub-sub contractors – and each of these parties likely has employees of its own.
Contractor-under statutes apply, imposing workers’ compensation liability where a higher-level employer is not the immediate employer of the injured worker, but where the injured worker was undertaking a task that was part of the higher-level statutory employer’s business.[18] To determine where liability lies, look to whether the worker was working in his own area of expertise (as an individual contractor), or whether he was working within the specialty of a higher-up contractor (as an employee would).
The purpose of contractor-under statutes is to both ensure that workers are covered by workers’ compensation, and to place the burden of that coverage on the higher level statutory employer who is responsible for organizing the project.[19]
Was There an Injury By Accident?
An employer-employee relationship alone is not enough to impose workers’ compensation law. Instead, there must also be an injury by accident. “Injury by accident” has been defined as an untoward and unlooked for event that is not designed or expected by the person who is injured. The injury is not foreseeable, and it may be due to purely accidental causes, negligence, oversight, fatigue, carelessness, or miscalculation.[20] Despite this definition, it can still be difficult to determine when an injury by accident has occurred. Therefore, there are some general principles that apply to the analysis, as well as injury-specific rules.
General principles
General illnesses are not considered injuries by accident. For example, if an employee becomes sick at work from natural causes, the illness is a natural result or consequence and might be considered normal or foreseeable. By contrast, if an employee has an illness that is caused, increased, or accelerated by a chance event or act at the workplace – e.g. a scientist drops a vial in the lab that contains a loathsome disease – then the illness could be considered an injury by accident.[21]
The courts have also distinguished between injuries that are caused by accident, and injuries that are themselves an accidental, unexpected result.[22] This includes injuries that occur unexpectedly from subjective or internal conditions even without the occurrence of some external event.[23] In most jurisdictions no slip, fall, or other accident or chance event is necessary to cause a compensable injury by accident, though that would be sufficient. Instead, even where the injury itself is unexpected, it is compensable.[24] Since the definition of “injury by accident” has been expanded to include unexpected injuries, workers can now recover in many instances when they previously would not have.
For example, a worker may be able to recover for an injury resulting from routine, continuous exposure to environmental conditions at work; for a nervous breakdown that resulted from an exponentially increased workload; or for a hernia that resulted from the everyday lifting requirements of the job.[25] None of these injuries could be said to result from a specific accidental event. However, the results themselves were unexpected and accidental. Therefore, they too are compensable.
There is some evidence however that if the worker knew himself to be particularly prone to the otherwise unexpected injury, then the injury may not be compensable after all. For example, a dishwasher who develops contact dermatitis would generally be able to recover workers’ compensation benefits. However, if the worker knew that he was susceptible to contact dermatitis because he had developed it in other, similar jobs, then the court has found that the worker would not be entitled to benefits. There was neither an accidental event that caused the dermatitis, nor was the dermatitis unexpected.[26]
Injury-specific rules
It is difficult to determine whether some types of injuries are compensable. Therefore, some state laws address specific injuries to clarify whether they qualify as “accidental.” For instance, North Carolina specifically addresses back injuries, prosthetics, hernias, and occupational diseases. Back injuries are covered by workers’ compensation where they are the direct result of a specific incident of the assigned work. “Injury” is also defined to include damage to or breakage of hearing aids, eyeglasses, dentures, and any other prosthetic device intended to work as part of the body.[27]
Hernias can be considered injuries by accident. However, there are special elements that the claimant must prove to recover for a hernia, including that it appeared suddenly, immediately following a specific accident, and that it did not exist prior to the accident. Furthermore, the claimant is required to have a surgical repair of the hernia, when possible, or else he will receive no compensation.[28]
The North Carolina code generally excludes diseases from the definition of “injury” unless they result unavoidably and naturally from the work-related accident.[29] However, certain occupational diseases come under workers’ compensation nonetheless. An “occupational disease” is one that is acquired or develops due to exposure to a debilitating substance or condition of the workplace.[30] To clarify, state statutes often list the specific diseases that count as “occupational” in their jurisdiction. Only those diseases will be compensable under workers’ compensation. Some common examples include: asbestosis, silicosis, loss of hearing, complications with employer-required vaccinations, and chemical exposures.[31] Some state statutes may also provide a catch-all statement that “occupational disease” may include any disease caused by conditions that are peculiar to and characteristic of the workers’ particular occupation, trade or employment. “Occupational disease” excludes any “ordinary diseases of life,” which the general public would be equally exposed to outside of the worker’s employment.[32] This ensures that the disease is actually related to the workers’ employment, rather than an injury that anyone else is equally likely to incur.
[1]Black’s Law Dictionary, 7th Ed. (Bryan A. Garner, Editor), Definitions: workers’ compensation and workers’ compensation board, pp. 1599-1600.
[2] Black’s, Definition:employee, p. 543.
[3] Beard et. al., (2012).The law of workers’ compensation insurance in South Carolina sixth edition (p.4 n.21).
[4] Black’s, Definition:independent contractor, p. 774.
[5] Spencer v. Johnson & Johnson, Seafood, Inc., 393 S.E.2d 291 (1990)
[6] http://www.wcb.ny.gov/content/main/Employers/Coverage_wc/empWhoNotCovered.jsp
[7] Beard at 7; Black’s,Definition: casual employment, p. 545.
[8] Black’s, Definition: borrowed employee, p. 543.
[9] Black’s, Definition:statutory employee, p. 543.
[10] Beard at 518.
[11] www.safetynewsalert.com/u-s-supreme-court-passes-on-illegal-immigrant-workers-comp-case/
[12] Black’s, Definition:employer, p. 544.
[13] Beard, at 32.
[14] Beard, at 32, 34; https://www.dir.ca.gov/dwc/faqs.html ; www.tdi.texas.gov/wc/employer/employerresources.html#q1
[15] Beard, at 36; www.nfib.com/content/legal-compliance/legal/workers-compensation-laws-state-by-state-comparison-57181
[16] Beard, at 37.
[17] Black’s, p. 544.
[18] Beard at 40-41.
[19] Id.
[20] Id. At 73.
[21] Id.
[22] Id. At 74-77.
[23] Id. At 73.
[24] Id. At 74-77.
[25] Id. At 74-76.
[26] Id.
[27] N.C. Workers’ Comp.Law Ann., (2011 Edition), Sect. 97-2(6), p. 19-20, LexisNexis: Charlottesville, VA
[28] Id. At 97-2(18).
[29] Id. At 97-2(6)
[30] Black’s, Definition:occupational disease, disease, pp. 1106, 480.
[31] NC Code 97-53(24), (25), (28), (29).
[32] Id. at 97-53(13).