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Workers' Compensation Workers’ Compensation Law larson workers comp final pages.indb 1 1/22/18 10:52 AM larson workers comp final pages.indb 2 1/22/18 10:52 AM Workers’ Compensation Law Cases, Materials, and Text sixth edition Lex K. Larson Thomas A. Robinson Arthur Larson (1910–1993) Carolina Academic Press Durham, North Carolina larson workers comp final pages.indb 3 1/22/18 10:52 AM Copyright © 2018 Carolina Academic Press, LLC All Rights Reserved LCCN 2017957022 ISBN 978-1-5310-0808-6 eISBN 978-1-53100-809-3 Carolina Academic Press, LLC 700 Kent Street Durham, North Carolina 27701 Telephone (919) 489-7486 Fax (919) 493-5668 www.cap-press.com Printed in the United States of America larson workers comp final pages.indb 4 1/22/18 10:52 AM Contents Preface to the Sixth Edition xxi Acknowledgments xxiii Biography xxv Table of Cases xxvii Part 1 The Nature and History of Workers’ Compensation Chapter 1 · Basic Features of Compensation 3 § 1.01 Introduction 3 § 1.02 Typical Compensation Act Summarized 3 § 1.03 Unique Character of the American System 4 § 1.04 Compensation Contrasted with Tort 5 [1] Introduction 5 [2] The Test of Liability: Work Connection Versus Fault 5 [3] Under lying Social Philosophy 6 [4] Significance of Difference in Defenses 7 [5] Nature of Injuries and Ele ments of Damage Compensated 8 [6] Amount of Compensation 9 [7] Owner ship of the Award 9 [8] Significance of Insurance 9 Prob lems 10 § 1.05 American System Distinguished from Social Insurance 10 [1] Introduction 10 [2] Private Character of the System 11 [3] Allocation of Burden, and Relation of Hazard to Liability 12 [4] Qualification for and Mea sure of Benefits 13 [5] Retroactive Unilateral Employer Liability 13 Prob lems 14 Chapter 2 · Historical Development of Workers’ Compensation 15 § 2.01 Common- Law Background 15 [1] Introduction 15 [2] Primitive Law 15 [3] 1000–1837 16 [4] 1837–1880: Contraction of Workers’ Remedies 17 v larson workers comp final pages.indb 5 1/22/18 10:52 AM vi Contents [5] Judicial Efforts to Cut Down Common- Law Defenses 18 [6] Precompensation Legislation 19 § 2.02 Origins of Workers’ Compensation in Eu rope 21 § 2.03 Origins of Workers’ Compensation in the United States 24 New York Central Railroad Com pany v. White 26 § 2.04 Growth of Workers’ Compensation in the United States 27 [1] 1910–1969 27 [2] 1970–1985 27 [3] 1986– Pres ent 28 Part 2 “Arising Out of the Employment” Chapter 3 · General Princi ples and Doctrines 33 § 3.01 Summary of Statutory Provisions 33 § 3.02 The Five Lines of Interpretation of “Arising” 34 [1] Introduction 34 [2] Peculiar- Risk Doctrine 35 [3] Increased- Risk Doctrine 35 [4] Actual- Risk Doctrine 36 [5] Positional- Risk Doctrine 36 § 3.03 The Categories of Risk 37 [1] Introduction 37 [2] Risks Distinctly Associated with the Employment 37 [3] Risks Personal to the Claimant 37 [4] Neutral Risks 38 [5] Mixed Risks 38 § 3.04 Acts of God and Exposure 39 [1] Introduction 39 [2] Lightning, Tornadoes, Windstorms, etc. 39 Whetro v. Awkerman 39 Prob lems 42 [3] Exposure to Heat and Cold 43 Hughes v. Trustees of St. Patrick’s Cathedral 43 Hanson v. Reichelt 43 § 3.05 The Street- Risk Doctrine 47 Katz v. A. Kadans & Co. 47 Prob lems 49 § 3.06 Positional and Neutral Risks 49 [1] Introduction 49 [2] Bombs and Terrorist Attacks 50 Prob lem 51 [3] Unexplained Accidents 52 Coomes v. Robertson Lumber Co. 52 larson workers comp final pages.indb 6 1/22/18 10:52 AM Contents vii Prob lems 54 [4] Current Ac cep tance of Positional Risk Doctrine 54 Chapter 4 · Assaults 57 § 4.01 Introduction 57 § 4.02 Workplace Assaults: Personal Motivation 57 Martin v. J. Lichtman & Sons 57 Dodson v. Dubose Steel, Inc. 60 Dodson v. Dubose Steel, Inc. 69 Prob lems 69 § 4.03 The Aggressor Defense 71 Stewart v. Chrysler Corp. 71 Prob lems 74 § 4.04 Assaults by Strangers 74 White v. Atlantic City Press 74 Prob lems 78 Jordan v. Farmers State Bank 78 Prob lems 80 § 4.05 Assaults Stemming from Labor Dispute 81 Meo v. Commercial Can Corp. 81 Chapter 5 · Risks Personal to the Employee 87 § 5.01 Introduction 87 § 5.02 Internal Weakness Causing Fall 88 George v. Great Eastern Food Products, Inc. 88 Prob lems 90 Leon County School Board v. Grimes 90 § 5.03 Preexisting Weakness Aggravated by Employment 92 Fragale v. Armory Maintenance 92 Prob lems 94 Cowart v. Pearl River Tung Co. 94 Prob lem 95 § 5.04 Imported Danger Cases 96 Kendrick v. Peel, Eddy & Gibbons Law Firm 96 Note on Imported Danger 98 Prob lems 99 Chapter 6 · Range of Compensable Consequences 101 § 6.01 Introduction 101 § 6.02 Original Compensable Injury Causing Subsequent Injury 101 State Compensation Insurance Fund v. Industrial Accident Commission 104 Prob lems 106 § 6.03 Subsequent Aggravation of Original Injury 108 Klosterman v. Industrial Commission of Arizona 108 larson workers comp final pages.indb 7 1/22/18 10:52 AM viii Contents § 6.04 Refusal of Reasonable Surgery 111 Couch v. Saginaw Malleable Iron Plant 111 Wilcut v. Innovative Warehousing 112 Prob lems 115 Part 3 Course of Employment Chapter 7 · Time and Place 119 § 7.01 Meaning of “Course of Employment” 119 § 7.02 ­Going to and from Work 120 [1] Introduction 120 [2] Going to Work 121 Price v. Workers’ Compensation Appeals Board 121 Prob lems 126 [3] Leaving Work 127 Harris v. Sears, Roebuck & Com pany 127 Illinois Bell Telephone Com pany v. Industrial Commission 129 Prob lems 133 [4] Meal Breaks and the Like 133 Pallotta v. Foxon Packaging Corporation 133 Prob lem 134 Western Greyhound Lines v. Industrial Accident Commission 135 Prob lem 137 Gibberd v. Control Data Corporation 137 Prob lems 142 § 7.03 Journey Itself Part of Ser vice 142 Winn- Dixie Stores v. Smallwood 143 Prob lems 146 § 7.04 Employer’s Conveyance 146 [1] Introduction 146 [2] General Rule Covering Trips in Employer’s Conveyance 146 [3] Employers in the Transportation Business 147 Prob lems 147 § 7.05 Dual- Purpose Trips 148 Marks’ Dependents v. Gray 149 Powers v. Lady’s Funeral Home 150 § 7.06 Working at Home 153 Joe Ready’s Shell Station & Cafe v. Ready 153 Wythe County Community Hospital v. Turpin 156 Sandberg v. JC Penney Co. Inc. 158 Prob lems 164 § 7.07 Deviations 165 Bush v. Parmenter, Forsythe, Rude & Dethmers 166 Prob lems 170 larson workers comp final pages.indb 8 1/22/18 10:52 AM Contents ix Chapter 8 · Activity 171 § 8.01 General Test of Work- Connection as to Activity 171 § 8.02 Personal Comfort Doctrine 172 Clark v. U.S. Plywood 173 Prob lems 176 B & B Cash Grocery Stores v. Wortman 177 Prob lems 179 § 8.03 Recreational and Social Activities 180 Fidelity & Guaranty Insurance Underwriters, Inc. v. La Rochelle 180 Beauchesne v. David London & Co. 182 Prob lem 185 § 8.04 Horse play 186 Prows v. Industrial Commission of Utah 186 Prob lems 190 § 8.05 Resident Employees 191 Doe v. St. Michael’s Medical Center of Newark 192 § 8.06 Traveling Employees 194 Cauble v. Soft- Play, Inc. 195 Silver Engineering Works, Inc. v. Simmons 197 Prob lems 199 § 8.07 Injuries after Quitting or Before Formal Hiring 199 Nails v. Market Tire Com pany, Inc. 199 § 8.08 Acts Outside Regular Duties 203 Howell v. Kash & Karry 204 Prob lems 205 § 8.09 Acts in Emergency 206 Boggan v. Abby Finishing Com pany 207 O’Leary v. Brown- Pacific- Maxon, Inc. 207 Prob lems 210 § 8.10 “Delayed- Action” Injuries 210 Graybeal v. Board of Supervisors of Montgomery County 210 Prob lem 212 Thornton v. Chamberlain Manufacturing Corp. 213 Prob lem 216 Part 4 Accidental Injury and Disease Chapter 9 · “Personal Injury by Accident” 219 § 9.01 Meaning of “Personal Injury” 219 § 9.02 Meaning of “by Accident” 220 [1] Introduction 220 [2] Summary of Statutory “By Accident” Provisions 220 [3] Component Ele ments of the “by Accident” Concept 221 [4] Accident and Disease 223 larson workers comp final pages.indb 9 1/22/18 10:52 AM x Contents Winn v. Hormel & Co. 224 § 9.03 Injury from Usual Exertion or Exposure 229 Guidry v. Sline Industrial Paint ers, Inc. 231 Prob lems 233 § 9.04 Definite Time Versus Gradual Injury: Cumulative Trauma 234 [1] Introduction 234 [2] Repeated Exposure to Harmful Substances 234 Marquez v. Industrial Commission 234 [3] Carpal Tunnel Syndrome and Other Repetitive Motion Injuries 237 Peoria County Belwood Nursing Home v. The Industrial Commission of Illinois 237 Prob lems 242 Chapter 10 · Disease 243 § 10.01 Infectious Disease as an “Accident” 243 Connelly v. Hunt Furniture Co. 244 Prob lem 247 § 10.02 Occupational Disease 247 [1] Introduction 247 [2] Summary of Occupational Disease Statutes 247 [3] Background of Occupational Disease Legislation 248 [4] Definition of “Occupational Disease” 249 Wildermuth v. B. P. O. Elks Club (Lodge 621) 250 Booker v. Duke Medical Center 251 [5] Individual Allergy and Occupational Disease 259 Schober v. Mountain Bell Tel. 259 Prob lems 261 § 10.03 Special Prob lems of Certain Respiratory Diseases 262 [1] Introduction 262 [2] The Black Lung Act 262 [3] Asbestos- Related Diseases 263 Halverson v. Larrivy Plumbing & Heating Co. 263 [4] Byssinosis 266 Rutledge v. Tultex Corp./Kings Yarn 266 Prob lem 272 Chapter 11 · ­Mental and Ner vous Injury 273 § 11.01 Introduction 273 § 11.02 The California Experience 273 § 11.03 Statutory Developments in Other States 274 § 11.04 Physical Trauma Producing Mental Injury 276 Watson v.
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