n Defense Of The Increased-Risk Doctrine In Workers Compensation

Abstract

Thirty-five years ago, the late Arthur Larson of Duke University, the pre-eminent workers’ compensation scholar in the United States, argued that states should adopt a new compensability regime. In place of the widely-adopted increased-risk doctrine, Larson lobbied for the positional-risk doctrine, under which virtually all injuries occurring “in the course of” the employment are deemed compensable. Despite Larson’s stature and eloquence, however, states have not heeded his call for change, and with good reason. First, the positional-risk doctrine ignores the “arising out of” component of the statutory language. Additionally, the positional-risk doctrine inefficiently allocates liability for industrial accidents. Finally, the exceptions to the increased risk doctrine are not significant enough to warrant a new rule. Courts should recognize that newer is not always better and continue to apply the increased-risk doctrine.