Business Law Discussion Question

Question Description

Needing completion of a Business Law – Discussion Question:Part 1:  

Background/Facts:  During a meeting with Winnie, Ralph, the Clean-N-Shine (“Clean”) owners, and you, the owners asked several questions about their potential liability for on-the-job accidents resulting in injuries to employees.  They particularly need an explanation about Maryland’s workers’ compensation law.

Winnie and Ralph asked you to respond to the following question.  

Dave, a Clean employee, accidentally fell off a ladder during a Clean training exercise and injured himself.  Dave was taken to the hospital ER, treated, and released.  He missed one week of work because of this injury. 

Questions:

1.  Analyze whether Dave could recover for his medical expenses under Maryland’s workers’ compensation law and why/how. 2.   Analyze and explain what, if anything, Dave could recover for loss of wages 

All About Workers’ Compensation Claims, Benefits and Processes https://www.wcc.state.md.us/Gen_Info/WCC_Benefits.html FAQ & Contact Information Site Index Maryland.gov Phone Directory State Agencies Online Services Search Home Please note that the U.S. Department of Labor Office of Workers’ Compensation Programs OWCP administers four major programs including: the Energy Employees Occupational Illness Compensation Program, the Federal Employees’ Compensation Program, the Longshore and Harbor Workers’ Compensation Program and the Black Lung Benefits Program.

The OWCP provides wage replacement benefits, medical treatment, vocational rehabilitation and other benefits to federal workers or their dependents who are injured at work or acquire an occupational disease. Go to their web site for information if your are covered under these programs. CLICK HERE http://www.dol.gov/owcp This page is intended only to provide a brief, general description of the Maryland Workers’ Compensation Law and benefits. It is not a comprehensive review of the law nor is it intended as a replacement for Legal guidance and advice from a competent lawyer. The Maryland Workers’ Compensation Act may be found in the Labor and Employment Article, Title 9, Annotated Code of Maryland.

Available Benefits: Types Payment of Benefits How to File a Claim & Contact the WCC See a detailed WCC Claim Process Diagram – Adobe Reader required Introduction Since the early 1900’s, every State has had some form of protection for employees who are hurt while working. The old system requiring lawsuits against employers just wasn’t effective. Negligence by the employer was often difficult if not impossible to prove and the legal process was very time consuming and expensive, with no benefits paid to injured workers during the process. This is why the States passed workers’ compensation laws, providing a statutory solution to the problem. Workers’ compensation was a new kind of insurance which all employers were required to obtain to protect their employees. Covered Injuries Not all injuries are covered by the Workers’ Compensation Law even if the injury happened “on the job.” In Maryland, in order for an injury to be covered, the harm suffered by the employee must have been caused by an “accidental personal injury arising out of and in the course of employment.” Those words from the Maryland statute are VERY important.

Just because a person is hurt “while working,” “on the job” or “at work” may not be enough for the insurance to apply. Additionally, if you can prove that you have an occupational disease you may be entitled to Workers’ Compensation benefits. Employees Only In determining whether an injury falls under the coverage of workers’ compensation the first thing to understand is that this law protects only employees. The Workers’ Compensation statute provides legal guidance on who is a covered employee and employer. A genuine employer-employee relationship must exist. Some businesses are set up in such a way that some persons don’t actually work for the business but work with it as independent contractors. Other businesses don’t have any employees because they are a sole-proprietorship or partnership. Persons in these categories, if they want workers’ compensation insurance, may elect to be covered and can obtain the necessary insurance.

There is a statutory procedure for electing coverage. Accidental Personal Injury & Occupational Diseases If there is an employer-employee relationship between the worker and their company, the next factor considered is if the injury was an accident. An accidental injury is one that happens ‘by chance or without design, taking place unexpectedly or unintentionally.” Exceptions to the accident requirement are occupational diseases. These are illnesses caused by the nature of the circumstances surrounding the worker’s job. For example, asbestosis is a disease that may have been caused by a worker’s job of removing asbestos from buildings. Some forms of skin, eye or lung disease may have been caused by long term exposure to chemical solvents or other solutions used on the job. Conditions such as these may result in the employee’s being covered by workers’ compensation even though there was no specific “accident;” they are covered as occupational diseases.

Arising Out of Employment For a compensable accidental injury claim, the injury must “arise out of the employment”. If the conditions under which the work is required to be performed by the employer causes the worker’s injury, it is said to “arise out of” the employment. The focus of this factor is on the exposure of the employee to risk or danger because of the job requirements. For example, if a person must work in an environment that is usually wet and slippery–for instance, a car wash facility or a water amusement ride at an entertainment park–then a slip-and-fall injury experienced by that worker could be said to arise out of the person’s employment. Arising in the Course of Employment For a compensable accidental injury claim, the injury must also “be in the course of employment.” “In the course of employment” is a slightly different factor. Here the attention centers on the time, place and circumstances of the injury.

If the injury occurs during the period of time when an employee was at work, the employer’s place of business or such other location as may have been designated by the employer, and while the employee was performing their job duties or something related to them when the injury took place, the injury is said to have arisen in the course of that person’s employment. If all of the above factors are satisfied -and that’s not always easy to determine initially- a worker’s injury will generally be covered by workers’ compensation insurance. Frequently, an investigation of the claim is necessary. If a worker believes they have sustained a compensable injury, an Employee Claim may be filed with the Workers’ Compensation Commission to receive a determination regarding the type and amount of any benefits to which the worker may be entitled. Initial determinations that may have been made by insurance carriers are not binding on the Commission.

The legislature of each State determines the type and amount of benefits which are payable under workers’ compensation insurance, just as the various States differ in determining what kinds of injuries are compensable and which are not. Based upon the laws enacted in each State the insurance companies who provide this type of insurance coverage consider the probabilities of injury for different occupational categories and set their premium rates accordingly. This is the amount charged to employers for their workers’ compensation insurance. The Workers’ Compensation Commission does not establish rates of premiums, nor does the Commission itself provide insurance coverage.

Workers’ compensation payments are not taxable to the employee as income. The Maryland Workers’ Compensation Act provides for the following benefits in appropriate cases: Temporary Total Disability Benefits This is the period of time frequently referred to as the “healing period”. If an employee’s injury has resulted in a disability that prevents the person from returning to work at all -that is, the person is completely disabled for all work purposes- then the employee may receive temporary total disability payments. If the period of disability is fourteen (14) days or less then the compensation benefit payments may not be allowed for the first three (3) days of https://www.wcc.state.md.us/Gen_Info/WCC_Benefits.html 1/3 6/18/2021 All About Workers’ Compensation Claims, Benefits and Processes disablement except for payments for hospital, nursing or other medical services, funeral expenses or medicine. If the period of temporary disability lasts for more than fourteen (14) days, then the compensation is allowed from the date of disability.

BACK TO THE TOP OF THIS PAGE Temporary Partial Disability Benefits These are benefits to which an injured employee may be entitled during the process of recovery when the worker during a temporary period is NOT totally disabled. They are intended to be temporary and generally apply when the worker can only perform limited or part-time duties at a reduced income level. That is, when their wage earning capacity is lower. The employer or its insurer pays the covered employee compensation that equals 50% of the difference between the average weekly wage of the covered employee and the wage earning capacity of the covered employee in the same or other employment while temporarily partially disabled, subject to a maximum payment of 50% of the State average weekly wage.

Generally, if a covered employee is temporarily totally disabled due to an accidental injury or an occupational disease the employer or its insurer shall pay to the covered employee compensation that equals two-thirds of the average weekly wage on the covered employee, up to a maximum of the average Maryland weekly wage. The “average Maryland weekly wage” is calculated every year by the Department of Labor, Licensing and Regulation (DLLR) and provided to the Commission for use in its calculations. In no case are the benefits to covered employees less than $50.00 (fifty dollars) per week, regardless of the individual’s average weekly wage. Temporary total disability benefits are intended to replace the income being lost, at least in part, during the interval when the injured employee can’t work at all.

The benefit is terminated when, during the process of treatment and recovery, the point is reached where the worker is no longer totally disabled -that is, they can return to work in some capacity- or if a medical determination is made that the injured worker has reached maximum medical improvement, even if the person has not fully recovered to their pre-injury condition. Permanent Total Disability Benefits Some injuries are so serious that a worker is permanently, totally disabled. Absent conclusive proof to the contrary, in Maryland the loss or loss of use of any of the following constitutes a permanent total disability: both arms, both eyes, both feet, both hands, both legs; or a combination of any two of the following: an arm, eye, foot, hand or leg. Permanent Partial Disability Benefits Injuries that are not so serious as to leave a worker permanently, totally disabled may nonetheless result in some permanent impairment.

This is called permanent partial disability. Generally, a covered employee who is entitled to compensation under the Workers’ Compensation Act shall receive a minimum weekly compensation of $50.00 for permanent partial disability unless that employee’s average weekly wage was less than $50.00. If the worker’s average weekly wage was less than $50.00, they will receive compensation that equals their average weekly wage at the time of the accidental injury or the last injurious exposure to the hazards of their occupational disease. Benefit payments for permanent partial disability continue for a period of weeks established by the statute; a period that varies according to the body part injured and the severity of the injury. For example, the total loss of a thumb or the use of the thumb results in payments for 100 weeks.

The total loss or loss of use of the 4th finger (also called the little finger) results in payments for 25 weeks. When the period allowed by a Workers’ Compensation Commission finding and prescribed by the law has run, the compensation payments cease. If a covered employee has an accidental injury or an occupational disease that results is a permanent total disability, the employer or its insurer shall pay to the covered employee compensation that equals to two-thirds of the average weekly wage of the covered employee, subject to a maximum payment equal to the State average weekly wage.

No payment for permanent disability shall be less than $25.00. Benefits paid for permanent total disability are subject to an annual cost of living adjustment not to exceed 5% as determined by the Department of Labor, Licensing and Regulation. These benefits are reduced in the case of workers who are also entitled to Federal Social Security Disability Benefits to the extent necessary to avoid a diminution of the Federal benefits. BACK TO THE TOP OF THIS PAGE Medical/Hospitalization Benefits In addition to the various types of disability benefits to which an injured worker may be entitled, if a covered employee has suffered an accidental injury, compensable hernia or occupational disease, the employer or its insurer promptly shall provide to the covered employee, as the Commission may requireMedical, surgical or other attendance or treatment.

Hospital and Nursing Services Medicine Crutches and other apparatus Artificial arms, feet, hands, legs and other prosthetic appliances The entitlement to these services may continue indefinitely or for whatever period is required by the nature of the accidental injury, compensable hernia or occupational disease if there is evidence to establish that the need for these services is reasonable, necessary and causally related to the accidental injury or occupational disease. Wage Reimbursement Benefits In addition to any other compensation paid to a covered employee entitled to compensation under the Workers’ Compensation Act, the employer or its insurer is required to reimburse the covered employee for lost wages due to time spent being examined by a physician or other examiner at the request of the employer or its insurer and time spent attending and traveling to and from a Commission hearing scheduled as a result of a continuance caused by action of the employer or its insurer, if the claimant is otherwise entitled to compensation benefits.

Vocational Rehabilitation Benefits When a covered employee is disabled from performing work for which they were previously qualified as the result of an accidental injury or an occupational disease, the covered employee is entitled to vocational rehabilitation services. Training may last up to 24 (twenty four) months and other services may include: Coordination of medical services, vocational assessment, vocational evaluation, vocational counseling, vocational rehabilitation plan development, vocational rehabilitation plan monitoring, vocational rehabilitation training, job development, job placement. Individuals having questions relating to vocational rehabilitation may call the Commission’s Vocational Rehabilitation Office at (410) 864-5320. Death and Funeral Benefits Page (Updated October 2011) BACK TO THE TOP OF THIS PAGE Payment of Benefits The Workers’ Compensation Commission does not itself make benefit payments to injured workers. The Commission’s role is to process and adjudicate claims.

Once appropriate determinations have been made in specific cases, it is the responsibility of the insurance carriers and self-insured employers to make timely benefit payments to injured workers as required by the Commission’s awards and orders. https://www.wcc.state.md.us/Gen_Info/WCC_Benefits.html 2/3 6/18/2021 All About Workers’ Compensation Claims, Benefits and Processes Filing a Claim Any worker who believes that they have suffered an injury covered under the Workers’ Compensation Act may file an Employee’s Claim with the Workers’ Compensation Commission.

Certain time limits on filing apply. The WCC Employee Claim Form can be completed and submitted online. Click Here for more information. Printed Employee Claim forms may be obtained from your employer or by contacting us: Maryland Workers’ Compensation Commission 10 East Baltimore Street Baltimore, Maryland 21202-1641 (410) 864-5100 Outside Baltimore Metro Area Toll Free 1 (800) 492-0479 Maryland Relay for the hearing impaired Dial 711 in Maryland or 1-800-735-2258 https://www.wcc.state.md.us/Gen_Info/WCC_Benefits.html 3/3 6/18/2021

Introduction to Tort Law Previous Chapter Table of Contents Next Chapter Chapter 7 Introduction to Tort Law LEARNING OBJECTIVES After reading this chapter, you should be able to do the following:

1. Know why most legal systems have tort law.

2. Identify the three kinds of torts.

3. Show how tort law relates to criminal law and contract law.

4. Understand negligent torts and defenses to claims of negligence.

5. Understand strict liability torts and the reasons for them in the US legal system. In civil litigation, contract and tort claims are by far the most numerous.

The law attempts to adjust for harms done by awarding damages to a successful plaintiff who demonstrates that the defendant was the cause of the plaintiff’s losses. Torts can be intentional torts, negligent torts, or strict liability torts. Employers must be aware that in many circumstances, their employees may create liability in tort. This chapter explains the different kind of torts, as well as available defenses to tort claims. 7.1 Purpose of Tort Laws LEARNING OBJECTIVES

1. Explain why a sound market system requires tort law.

2. Define a tort and give two examples.

3. Explain the moral basis of tort liability.

4. Understand the purposes of damage awards in tort. Definition of Tort The term tort is the French equivalent of the English word wrong.

The word tort is also derived from the Latin word tortum, which means twisted or crooked or wrong, in contrast to the word rectum, https://saylordotorg.github.io/text_advanced-business-law-and-the-legal-environment/s10-introduction-to-tort-law.html 1/39 6/18/2021 Introduction to Tort Law which means straight (rectitude uses that Latin root). Thus conduct that is twisted or crooked and not straight is a tort. The term was introduced into the English law by the Norman jurists. Long ago, tort was used in everyday speech; today it is left to the legal system. A judge will instruct a jury that a tort is usually defined as a wrong for which the law will provide a remedy, most often in the form of money damages.

The law does not remedy all “wrongs.” The preceding definition of tort does not reveal the underlying principles that divide wrongs in the legal sphere from those in the moral sphere. Hurting someone’s feelings may be more devastating than saying something untrue about him behind his back; yet the law will not provide a remedy for saying something cruel to someone directly, while it may provide a remedy for “defaming” someone, orally or in writing, to others. Although the word is no longer in general use, tort suits are the stuff of everyday headlines. More and more people injured by exposure to a variety of risks now seek redress (some sort of remedy through the courts). Headlines boast of multimillion-dollar jury awards against doctors who bungled operations, against newspapers that libeled subjects of stories, and against oil companies that devastate entire ecosystems.

All are examples of tort suits. The law of torts developed almost entirely in the common-law courts; that is, statutes passed by legislatures were not the source of law that plaintiffs usually relied on. Usually, plaintiffs would rely on the common law (judicial decisions). Through thousands of cases, the courts have fashioned a series of rules that govern the conduct of individuals in their noncontractual dealings with each other. Through contracts, individuals can craft their own rights and responsibilities toward each other. In the absence of contracts, tort law holds individuals legally accountable for the consequences of their actions. Those who suffer losses at the hands of others can be compensated. Many acts (like homicide) are both criminal and tortious. But torts and crimes are different, and the difference is worth noting. A crime is an act against the people as a whole. Society punishes the murderer; it does not usually compensate the family of the victim. Tort law, on the other hand, views the death as a private wrong for which damages are owed. …

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