Friday, February 15, 2019

Teaching Workers’ Compensation Causation in Law School

I’m fortunate to have had all my workers’ compensation students as torts students in their first year of law school. I’m in a good position to explain to them that references in workers’ compensation statutes and cases to legal phrases like “proximate” causation and “foreseeability” can muddy the distinction between negligence and workers’ compensation causation analyses.

Most students of workers’ compensation quickly become aware of the “no fault” nature of workers’ compensation. What one really means by “no fault” is that workers’ compensation “liability” is not predicated on an employer’s breach of a “reasonably prudent person” standard of care. One of the problems with importing the concept of foreseeability into workers’ compensation is that it suggests that a breach analysis is being carried out: having foreseen a risk of harm did the defendant unreasonably fail to avoid the harm? Such a breach analysis is foreign to compensation law, of course. But foreseeability, in addition to suggesting the existence of a fault-based, breach analysis, also implies that proximate cause is relevant to workers’ compensation analysis.

Leaving to one side the problem that tort lawyers frequently debate the propriety and imprecision of the term “proximate cause”— many preferring in its stead the phrase “legal” cause — proximate cause also is analyzed in terms of foreseeability. In short, it is often concluded that, under principles of proximate cause, a defendant should not be held liable for what she could not have foreseen. In workers’ compensation, on the other hand, liability in most jurisdictions turns either on whether the workplace has increased the risk of the injury suffered (increased risk test); or whether the employee, even if injured by a “neutral” risk, would not have suffered injury but for her presence in the workplace (positional risk test).  Notice the complete absence of considerations of foreseeability in the analysis. (Unhelpfully, in Wyoming one of the required factors for compensation of “injuries which occur over a period of time” is that “the injury can fairly be traced to the employment as a proximate cause . . .”)

In a recent class we discussed “Good Samaritan” doctrine. I pointed out that in some jurisdictions whether an employee has left the course of employment to assist a third-party who is in danger (danger invites rescue!), thereby potentially rendering a resulting injury non-compensable, depends on whether the employer could foresee the attempt. It did my heart good to see the entire first row cringe. I dislike the use of the phrases proximate cause and foreseeability in workers' compensation law almost as much as I disapprove of major legal disputes being referred to in leading electronic legal news services as “rows.” 

Michael C. Duff  

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