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"Dual Persona" and the Attachment of Tort Liability for a Worker's Injury

Normally, given the nature of the workers' compensation system, employers are immune from an injured worker's tort action; his exclusive remedy is workers' compensation benefits. However, when the employer has such a distinct persona, separate and apart from its persona as the "employer," the employee may then pursue a tort action. The two personas of the employer are seen as separate legal entities, one of which (the employer persona) is immune from suit, and the other, distinct persona that is vulnerable to suit.

Workers' Compensation & SSDI

> Compensability

Intoxication

When an employee is injured outside the course of his employment, he is ineligible to receive workers' compensation benefits. When an employee becomes voluntarily intoxicated such that he cannot function or perform the tasks of his job, courts will consider him to have departed from the course of employment. Therefore, compensation for an injury incurred while the employee is so inebriated as to be incapable of performing his work will likely be denied.

Horseplay

Horseplay is not altogether uncommon in the workplace and basically consists of boisterous and playful roughhousing. When an injury arises in the workplace as a result of horseplay, the question of compensability comes into play. It is a relatively uniform principle throughout the states that if the injured party was not a participant in the horseplay, but only injured by the horseplay, compensation will not be denied. However, only some states will permit the recovery of workers' compensation benefits if the injured party instigated the horseplay or participated therein. Many jurisdictions outright deny compensation to instigating employees based on the principle of the employee as the "aggressor."

Asbestosis and Construction Workers

Asbestos is a naturally occurring fiber that was used quite extensively in the insulation of buildings and for fireproofing. Asbestosis is a form of lung disease that results in scarring of the lung tissue by the inhalation of asbestos, which is made up of microscopic glass-like particles. Those individuals suffering from the disease are at an increased risk for lung cancer and mesothelioma.