Compensation for Mental Injury - University of Florida精神损害赔偿-佛罗里达大学.ppt

Forensic Neuropsychology in Personal Injury Cases I Russell M. Bauer, Ph.D. July 3,2008 Compensation for Mental Injury law in this area is called “tort” law in the case of civil proceedings governs compensation of individuals whose interests have been violated recognizes potential fault or negligence of injured party personal injury vs. worker’s compensation Tort Law vs. Worker’s Compensation WC handled administratively; tort law handled judicially WC regulated by legislature; tort law by the courts WC compensates according to fixed injury schedule according to earning capacity; tort law is theoretically limitless (e.g., pain and suffering, loss of consort, etc.) Worker’s Compensation designed to compensate injured workers for losses, incurred during the course of employment, in their wage-earning power actually the result of a different set of guidelines than “tort” law designed to allow workers to circumvent frequently used employer defenses: contributory negligence you assumed the risk another employee (who can’t pay you salary and benefits) was responsible Worker’s Compensation Criteria an injury or disability affecting wage-earning capacity facial disfigurement, loss of sexual potency doesn’t count arising out of or in the course of, employment assumes causal relationship positional risk (injury would not have occurred “but for employment”) which is “accidental” some nonaccidents are compensable Procedures for WC Claims Employee serves notice Medical examination Proceeding for Adjustment and Compensation administrative hearing before hearing officer once settled, claimant can’t take case to court for further action Mental Injury Physical Trauma Causing Mental Injury Mental Stimulus Causing Physical Injury Mental Stimulus Causing Mental Injury Elements of Tort Law act or omission + causation + fault + protected interest + damage = liability existence of duty owed the plaintiff by the defendant Violation of duty by the defendant an injury “proximately caused” by