| Contract of Hire |
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| For the workers' compensation obligation to be triggered, most state workers' compensation statutes require that the injured worker's employment be pursuant to a contract of hire. Such a contract, which can be either express or implied, is required because the workers' compensation system is based on reciprocal rights. The employee gains a measure of certainty in the recovery for his injury without resorting to litigation and the employer gains a cap on the amount that must be paid in the event an employee is injured. More... |
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| Third Party Defenses to Action |
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| When a third party is sued for his role in causing an employee's injury, he may present various defenses. One such defense is the contributory negligence of the employee or his employer. If the employee shared in causing his injury, the contributory negligence defense could be wielded by the third party and be just as viable as with any other negligence action. When the employer is the employee's subrogee, the defense is as powerful against the employer. Further, in those jurisdictions adhering to the comparative negligence rule, the employer's recovery would be reduced by the amount of fault allocated to the employee. When an employer negligently contributes to the employee's recovery, it is generally held that the contributory negligent defense is ineffectual; as the employer is stepping into the shoes of the employees, its own negligence has no bearing on the "employee's" cause of action. More... |
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| Consultative Examinations, Generally |
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| Consultative examinations (CE) of a social security claimant are used by the Social Security Administration (SSA) when the claimant's medical evidence is insufficient to determine the claimant's disability, or lack thereof. Although the claimant's treating physician is the preferred source of medical evidence, there are instances where a medical examination from an independent source is necessary. These include situations where the treating physician is unwilling to perform the examination, there are inconsistencies in the claimant's file that cannot be resolved by consulting with the treating physician, the claimant himself prefers an examination by a source other than his treating physician with good reason, or prior experience in dealing with the treating physician indicates that he may be unable to effectively provide the necessary service. More... |
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| Workers' Compensation Exemption re Number of Employees |
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| In some states, an employer is exempt from maintaining workers' compensation insurance if it regularly employs only a certain number of employees. For example, with certain exceptions, employers in Alabama, Arkansas, Georgia, Virginia, New Mexico, and North Carolina are exempt if they have less than three employees. Employers in Rhode Island and South Carolina are exempt if employing less than four employees while employers in Mississippi, Missouri, and Tennessee are exempt if employing less than five employees. If the employee is injured and the state has altered its exemption statute, the operative version of the statute on the date of the employee's injury will control. More... |
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| Violation of Law or Commission of Crime |
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| As a general rule, an employee is not necessarily withdrawn from workers' compensation eligibility if he is injured while violating a law or committing a crime in furtherance of his job duties. Most often, the violation of a law or commission of a crime will affect an employee's receipt of benefits if, in the applicable state, it constitutes "wilful misconduct" or is the subject of its very own statutory provision giving a defense to the employer. The violation of a statute does not ipso facto equal "wilful misconduct." Rather, flagrancy and knowledge on the part of the employee are generally required for an act to rise to the level of "wilful." More... |
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