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Workers' Compensation

Larson’s Workers’ Compensation Glossary

Source: Larson's Workers' Compensation Law, the nation's leading authority on workers' compensation law.

Larson’s Workers’ Compensation Law

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AOE/COE: Acronym for “arising out of and in the course of the employment.” Of the two components of the almost-universal coverage formula,the "arising out of" test is primarily concerned with causal connection. Most courts in the past have interpreted "arising out of employment" to require a showing that the injury was caused by an increased risk to which claimant, as distinct from the general public, was subjected by his or her employment. A substantial number have now modified this to accept a showing merely that the risk, even if common to the public, was actually a risk of this employment. An injury is said to arise in the “course of the employment” when it takes place within the period of the employment, at a place where the employee reasonably may be, and while the employee is fulfilling work duties or engaged in doing something incidental thereto. For further discussion, see Larson’s Workers’ Compensation Law §§ 3.01, 12.01.

AWW: Acronym for “average weekly wage." The normal unit of measure by which workers’ compensation benefits are measured consists usually of a fixed statutory percentage, often two-thirds, of the injured employee’s “average weekly wage.” The computation of AWW is frequently based upon the employee’s actual earnings during the year preceding the injury, but may take other factors into consideration where such a rigid computation would not be equitable. For further discussion, see Larson’s Workers’ Compensation Law § 93.01.

Coming and going rule. See going and coming rule, below.

Contractor-under: Generally referring to statutes in place in virtually all jurisdictions that provide that the general contractor shall be liable for compensation to the employee of a subcontractor under it, usually when the subcontractor is uninsured, but sometimes without reference to the insured status of the subcontractor, doing work that is part of the business, trade or occupation of the principal contractor. Ordinarily, the contractor enjoys the regular immunity of an employer from third-party suit when the facts are such that it could be made liable for compensation. For further discussion, see Larson’s Workers’ Compensation Law § 111.04.

Disability: From a workers’ compensation standpoint, the preferred term would be “compensable disability,” is the inability, as the result of a work-connected injury, to perform or obtain work suitable to the claimant's qualifications and training. Its two key ingredients are (1) disability in the medical or physical sense, and (2) inability or lessened ability to earn wages. Two theories of compensation, one stressing medical disability and the other stressing earning impairment, have competed throughout the development of compensation law. For further discussion, see Larson’s Workers’ Compensation Law § 80.02.

Dual capacity/Dula persona: The doctrine holding that an employer may become a “third person,” subject to suit by the injured employee, if it possesses a second “capacity” or “persona” that is sufficiently independent from and unrelated to its status as the employer. For example, if an employee worked for a tire manufacturer and was injured in the course of the employment in an auto accident due to tire failure, a number of jurisdictions would allow a negligence action on a products liability basis. For further discussion, see Larson’s Workers’ Compensation Law § 113.01.

Dual purpose trips: Trips that serve both a business and a personal purpose are referred to as dual purpose. They are generally understood to be within the course of employment if the trip involves the performance of a service for the employer which would have caused the trip to be taken by someone even if it had not coincided with the personal journey. This principle applies to out-of-town trips, to trips to and from work, and to miscellaneous errands such as visits to bars or restaurants motivated in part by an intention to transact business there. For further discussion, see Larson’s Workers’ Compensation Law § 16.01.

Exclusivity defense: The defense holding that the compensation remedy is exclusive of all other remedies by the employee or the employee's dependents against the employer, co-employees, and the insurance carrier for the same injury, if the injury falls within the coverage formula of the act. For further discussion, see Larson’s Workers’ Compensation Law § 100.01.

Full-coverage statutes: Provisions in many state statutes expressly providing that compensation insurance contracts shall be construed to cover the entire liability of the assured. Some provide that coverage shall be complete as to the named business or named location, including all activities incident to that business; and some contain no specific treatment of the subject. Under these "full-coverage" statutes, while the majority rule appears to construe them to require coverage of all employees in all a given employer's businesses, there is some authority for limiting these statutes to full coverage of a particular business, location, or employment category. For further discussion, see Larson’s Workers’ Compensation Law § 151.02.

Going and coming rule: A rule applicable in the vast majority of jurisdictions, it holds that as to employees having fixed hours and place of work, injuries occurring on the premises while they are going to and from work before or after working hours or at lunchtime are compensable, but if the injury occurs off the premises, it is not compensable, subject to several exceptions. For further discussion, see Larson’s Workers’ Compensation Law § 13.01.

Idiopathic injuries: Generally understood within the workers’ compensation framework to mean “self-originated,” these injuries usually spring from a personal risk of the claimant, e.g., heart disease, epilepsy, and the like. Such injuries are to be contrasted with those that are truly “unexplained.” The latter generally are considered arising from a neutral risk, see below. Idiopathic injuries are said to have arisen from a personal risk. Idiopathic injuries, therefore, often are not compensable. For further discussion, see Larson’s Workers’ Compensation Law § 7.04.

Mental-mental: When mental or emotional stimulus results in a primarily “nervous” injury. Such injuries are compensable in a majority of jurisdictions, although some states require the initial mental or emotional stimulus to be sudden, or unusual, or both. Other states do not provide compensation where the mental injury is the result of bona fide personnel decisions by the employer or its management. Compare physical-mental, below. For further discussion, see Larson’s Workers’ Compensation Law § 56.04.

MMI: Acronym for “maximum medical improvement.” The point at which the injured employee’s medical condition has become “stationary,” or stabilized, and the extent of any permanent disability can be appraised. For further discussion, see Larson’s Workers’ Compensation Law § 80.03.

Neutral risk: Risks that are neither distinctly employment-related nor distinctly personal in character. Those struck by lightning, killed or injured by a terrorist attack, murdered at work as a result of mistaken identity are typically said to have encountered neutral risks. Compare idiopathic injuries, above. For further discussion, see Larson’s Workers’ Compensation Law § 4.03.

Odd-lot doctrine: The doctrine, applicable in the majority of jurisdictions in one form or another, holding that total disability may be found, in spite of sporadic earnings, if the claimant's physical condition is such as to disqualify him or her for regular employment in the labor market. One theme is the emphasis on irregularity and unpredictability as the distinguishing characteristic of odd-lot employment. Lack of mental capacity, inadequate education, age, and lack of experience in a broad range of employment may be important factors in determining whether an injured employee is considered an “odd-lot.” For further discussion, see Larson’s Workers’ Compensation Law § 83.01.

Personal comfort doctrine: The doctrine, applicable in the majority of jurisdictions, that employees who, within the time and space limits of their employment, engage in acts which minister to personal comfort do not thereby leave the course of employment, unless the extent of the departure is so great that an intent to abandon the job temporarily may be inferred, or unless, in some jurisdictions, the method chosen is so unusual and unreasonable that the conduct cannot be considered an incident of the employment. For further discussion, see Larson’s Workers’ Compensation Law § 21.01.

Physical-mental: When mental or nervous injury is preceded by a physical stimulus, rather than a mental stimulus, it is referred to as physical-mental. In such cases, the resulting disability is almost universally compensable. Compare mental-mental, above. For further discussion, see Larson’s Workers’ Compensation Law § 56.03.

Positional risk: The doctrine that allows courts to make awards whenever the injury occurred because the employment required the claimant to occupy what turned out to be a place of danger. The doctrine is becoming increasing more common in unexplained-fall and unexplained death claims. For further discussion, see Larson’s Workers’ Compensation Law § 7.01.

Retaliatory discharge claims: The tort, recognized by a great majority of jurisdictions, that gives an injured employee a cause of action, against the employer, where the employee is discharged for filing a workers’ compensation claim. In some states, such as California and Florida, the injured employee is protected under the workers’ compensation act against such discrimination. For further discussion, see Larson’s Workers’ Compensation Law § 104.07.

Scheduled injury: An injury that falls within a specific, statutory list (or schedule) of members/body parts for which a somewhat arbitrary number of weeks for which compensation is payable. For example, for the loss of an eye—a body part included in most statutory schedules—the injured employee would typically qualify for as many as 200 weeks of compensation (200 times the employee’s average weekly wage). Payments of benefits for scheduled injuries are made without proof of actual wage loss. For further discussion, see Larson’s Workers’ Compensation Law § 86.02.

Street-risk doctrine: The doctrine that holds that street or highway injuries to employees such as traveling salespeople, delivery persons, and solicitors, whose duties increase their exposure to the hazards of the street, arise out of the employment, although the nature of the risk, as distinguished from the degree, is not peculiar to the employment. In a few states, the concept of street risks has been broadened far beyond the original idea of traffic perils, and has been applied to almost any mishap whose locale is the street, including simple falls, stray bullets, falling trees, and foul balls. For further discussion, see Larson’s Workers’ Compensation Law § 6.01.

Substantially certain rule: A doctrine applicable to intentional torts by the employer that has been adopted in one or another in a minority of jurisdictions. The common-law liability of the employer cannot, under the almost unanimous rule, be stretched to include accidental injuries caused by the gross, wanton, willful, deliberate, intentional, reckless, or culpable misconduct of the employer short of a conscious and deliberate intent directed to the purpose of inflicting an injury. About a dozen states have adopted a broader definition of “intentional” that subjects the employer to tort liability if the employer’s conduct was “substantially certain” to cause injury or death. For further discussion, see Larson’s Workers’ Compensation Law § 103.04.

VSSR: Acronym for “violation of specific safety requirement.” Particularly applicable within Ohio because of a provision of Ohio's Administrative Code, the provision provides for additional awards of workers' compensation benefits up to 50 percent if the Industrial Commission determines that there has been one or more violations. For further discussion, see Larson’s Workers’ Compensation Law § 105.06.