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Tow Truck Driver in Downtown LA, Slamming into Parked Cars: Injured Workers in the News, #102

Posted on November 20, 2023 by Edward Singer

In Los Angeles, a Tow Truck Driver made news when he crashed into number of cars. Both he, and another driver, were injured and taken to the hospital. The Dailymail reports that the Truck Driver was detained on suspicion of driving under the influence of alcohol. The Police, at the time of the reporting, were still investigating the accident.

This article will discuss where intoxication can impact a work injury.

What Impact Can Intoxication Have On A Workers’ Compensation Claim?

In this instance, if the Tow Truck Driver was on-the-clock, this injury would be considered as AOE/COE, arising out of and in the course and scope of employment.

The Labor Code, however, provides an intoxication defense for Insurance Companies. Labor Code Section 5705, provides that “[t]he burden of proof rests upon the party or lien claimant holding the affirmative of the issue. The following are affirmative defenses, and the burden of proof rests upon the employer to establish them: (b) Intoxication of an employee causing his or her injury.”

In Smith vs. WCAB (1981) 46 C.C.C. 1053, the court indicated. We conclude that the California employer is required to establish that intoxication is a proximate cause or substantial factor in bringing about an accident resulting in death, and further, that this record supports the board’s determination that such causation was shown. Causation is a question of fact unless the issue is so clear that reasonable minds could not differ. (See Prosser, op. cit. supra, at p. 240 see also, Industrial Indem. Co. v. Ind. Acc. Com. (1952) 108 Cal. App. 2d 632, 637 [17 Cal. Comp. Cases 17, 239 P.2d 477] and International Cementers, Inc. v. Industrial Acc. Com. (1950) 15 Cal. Comp. Cases 33, in which there were conflicting inferences and evidence regarding both intoxication and cause of the accidents.)

Essentially, an employer must prove two elements. First, the intoxication and second that the intoxication was a proximate cause of the injury. In this instance, the Tow Truck Driver’s blood alcohol content taken close to the time of the accident is a very important piece of evidence to prove intoxication. This blood alcohol test would have to be interpreted by a medical professional as to whether that would constitute intoxication. Further, additional medical opinion addressing the cause of the injury/accident would be needed. Further, accident reports and police reports may also provide data to allow for a conclusion as to proximate cause.

What If I Need Legal Advice?

If you would like a free consultation regarding workers’ compensation, please contact the Law Offices of Edward J. Singer, a Professional Law Corporation. We have been helping people in Central and Southern California deal with their workers’ compensation cases for 30 years. Contact us today for more information.

At SpaceX, Worker Injuries Soar Amidst Elon Musk’s Race to Mars: Injured Workers in the News, #101

Posted on November 14, 2023 by Edward Singer

Elon Musk’s SpaceX Company has been beset with work injuries. According to the DailyMail.com, the injuries have included cuts or lacerations, broken bones, dislocations,, hands or fingers were ‘crushed,’ head injuries, skull fractures, concussions and a traumatic brain injury. Further, there have been burns and eye injuries.

There are allegations of safety failures.

Specifically, in California, the article reports that “[s]enior managers at the Hawthorne, California site had been repeatedly warned about the dangers of rushing the engine’s development, along with inadequate training of staff and testing of components.”

This article will discuss the nature of these work accidents and the special benefits that may apply.

What Special Benefits Can Be Received For Amputations, Burns or Eye Injuries?

In California, there are special extended total temporary disability benefits in the case of amputations, burns and eye injuries. With respect to burns or eye injuries, there are special criteria which apply. Labor Code 4656(c)(3), provides: (c)(3) Notwithstanding paragraphs (1) and (2), for an employee who suffers from the following injuries or conditions, aggregate disability payments for a single injury occurring on or after April 19, 2004, causing temporary disability shall not extend for more than 240 compensable weeks within a period of five years from the date of the injury: (A) Acute and chronic hepatitis B. (B) Acute and chronic hepatitis C. (C) Amputations. (D) Severe burns. (E) Human immunodeficiency virus (HIV). (F) High-velocity eye injuries. (G) Chemical burns to the eyes. (H) Pulmonary fibrosis. (I) Chronic lung disease.”

Thus, for burn injury claims, an analysis must be made as to whether it could be considered as “severe”. With respect to eye injuries, there must be a causation analysis. Was the accident caused by a fast-moving object? Did chemicals cause burns to the eyes?

If There Had Been Repeated Warnings of Dangers, Can This Trigger Additional Compensation?

Labor Code Section 4553 provides for increased compensation if there is serious and willful misconduct. This requires a separate filing and has a different statute of limitation applicable. Serious and Willful Claims usually requires a finding from the Workers’ Compensation Appeals Board. Labor Code Section 4553 indicated “The amount of compensation otherwise recoverable shall be increased one-half, together with costs and expenses not to exceed two hundred fifty dollars ($250), where the employee is injured by reason of the serious and willful misconduct of any of the following: (a) The employer, or his managing representative. (b) If the employer is a partnership, on the part of one of the partners or a managing representative or general superintendent thereof.(c) If the employer is a corporation, on the part of an executive, managing officer, or general superintendent thereof.”

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Tragic Accident: Industrial Robot Crushes Worker in South Korea: Injured Workers in the News, #99

Posted on November 10, 2023 by Edward Singer

A robot may not injure a human being or, through inaction, allow a human being to come to harm.

A robot must obey orders given it by human beings except where such orders would conflict with the First Law.

A robot must protect its own existence as long as such protection does not conflict with the First or Second Law.

Isaac Asimov

A South Korean Worker was reportedly killed by a robot. The employee, who worked for the robotics company, died while he was at a plant for which he was servicing a robotic system which had been installed. Mistaken for a box of bell peppers, the Worker was lifted up and slammed onto a conveyor belt by the robot. rt.com

This article will address this fact pattern within the framework of California Law.

What recourse does the Worker’s family have in this circumstance?

In death caes, the Workers’ Compensation system provides for death claims for dependents of the deceased worker. Burial expenses are also to be provided. Generally, no civil suit could be filed against his employer civilly for this accident under the “exclusive remedy” doctrine. In this circumstance, his employer is the robotic company which had installed the system most likely would only be subject to a workers’ compensation claim.

Are There Any Other Claims That Can Be Filed?

In this circumstance, an investigation should be done with respect to the nature and extent that the worker’s manufactured the robot. If another company was involved in the manufacturing or installation process, it is possible action that an action could be brought against them in the form of a civil suit. Likewise, if the Plant where the system had been installed were somehow responsible for the robot error, they too could be subject to a civil suit.

What If I Need Legal Advice?

MRI Machine Malfunction Leaves Nurse with Crushing Injuries: Injured Workers in the News, #99

Posted on November 2, 2023 by Edward Singer

A Kaiser Nurse from Redwood City California sustained a work-related injury when she was pinned between an MRI machine and a between a bed. She received “deep lacerations requiring surgery after two screws became embedded in her body.” Dailymail.com

It is reported that a probe found that the medical facility ‘failed to provide radiologic services in a safe manner’. Kaiser is now subject to an $18,000.00, fine. Supra. It was noted that the “report found there were several breaches of protocol around the use of the machine, a diagnostic tool used to scan the body using magnetic fields and radio waves.” Supra.

This article will address claims for Serious and Willful Misconduct and how Safety Violations may matter with respect to a workers’ compensation claims.

Are Serious & Willful Misconduct Treated Different From Regular Work Injury Claims?

Yes. Serious & Willful Misconduct claims are secondary matters with respect to a workers’ compensation claim. They require a court filing within one year of the date of the injury. There is a definite statute of limitations that must be complied with in order to pursue such an action. A Petition must be filed timely!

What Labor Code Sections Apply To Serious and Willful Misconduct ( S & W) Claims?

There are two Labor Code Sections which apply to S & Ws.. First, there is California Labor Code § 4553 which provides that: “[t]he amount of compensation otherwise recoverable shall be increased one-half, together with costs and expenses not to exceed two hundred fifty dollars ($250), where the employee is injured by reason of the serious and willful misconduct of any of the following: (a) The employer, or his managing representative. (b) If the employer is a partnership, on the part of one of the partners or a managing representative or general superintendent thereof. (c) If the employer is a corporation, on the part of an executive, managing officer, or general superintendent thereof.

Further, Labor Code § 4553.1 which provides that “[i]n order to support a holding of serious and willful misconduct by an employer based upon violation of a safety order, the appeals board must specifically find all of the following: (1) The specific manner in which the order was violated. (2) That the violation of the safety order did proximately cause the injury or death, and the specific manner in which the violation constituted the proximate cause. (3) That the safety order, and the conditions making the safety order applicable, were known to, and violated by, a particular named person, either the employer, or a representative designated by Section 4553, or that the condition making the safety order applicable was obvious, created a probability of serious injury, and that the failure of the employer, or a representative designated by Section 4553, to correct the condition constituted a reckless disregard for the probable consequences.

How Can This Worker Prevail In Her Serious and Willful Misconduct Claim?

For an Injured Worker to prevail and receive the additional compensation, they must prove their case before the WCAB. Therefore, a finding must be made based upon evidence. There must be evidence presented showing both the safety order and the violation of the safety order. Alternatively, a Serious and Willful Claim can be proven under a different theory. As per case law, “[u]nder Mercer-Fraser, willful misconduct occurs when the employer knowingly places the employee in a situation of obvious danger and takes no precautions to protect the employee. Employers must “refrain from such deliberate, knowing and intentional failure to take safety precautions, whereby its employes [sic] were intentionally subjected to known, serious, unnecessary and unreasonable hazards.” [emphasis added]

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Fentanyl and Methamphetamine Overdose Claims Life of Washington Police Officer: Injured Workers in the News, #98

Posted on October 30, 2023 by Edward Singer

While working, a Police Officer- while at his precinct- collapsed and died from fentanyl and meth poisoning. In the news reports, it is reported that the incident may not have been by accident. According to the Dailymail, “Police in Vancouver, Washington, investigated Kelly’s death and concluded that it was ‘more likely than not caused by an intentional act and not an incidental workplace exposure,’”

This article will discuss the issue within the framework of California Workers’ Compensation Law with respect to this workplace death and whether it was work-related.

If Someone Dies At the Workplace, Is It Automatically Considered As A Work-Related Death?

No. Injuries in the workplace must be AOE/COE- arising out of employment and in the course and scope of employment. While a death may occur during the course and scope of employment, i.e. while at the place of employment, there may be uncertainty as to whether it was caused by work. In this instance, illicit drug use has been implicated as to the cause of death.

What Is The Standard For Proving a Death Is Work-Related?

The Cailfornia Supreme Court in South Coast Framing, Inc. v. Workers’ Comp. Appeals Bd. (2015) 61 Cal.4th 291 [188 Cal.Rptr.3d 46, 349 P.3d 141], noted that “[w]e have recognized the contributing cause standard …Under this test, if the injury can be seen to have followed as a natural incident of the work and to have been contemplated by a reasonable person familiar with the whole situation as a result of the exposure occasioned by the nature of the employment, then it arises “out of” the employment. But it excludes an injury which cannot fairly be traced to the employment as a contributing proximate cause and which comes from a hazard to which the workman would be equally exposed apart from the employment.’””

In the instant matter, it is possible that an industrial contributing cause could be found. It is possible that, as a law enforcement officer, there may be presumptions that could apply and assist in proving an industrial injury. Thus, this fact pattern is worthy of exploring whether there was a valid industrial death claim. Thus, despite the allegation of illicit drug use and a statement from the department concerning it, there still may be a way of proving it as work-related. For instance, the officer may have been suffering from an industrial orthopedic injury and decided to self-medicate by using an illegal drug.

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