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FOOTBALL STAR DOCUMENTS HIS LONG- STANDING WORK INJURY IMPAIRMENT: INJURED WORKERS IN THE NEWS #104

Posted on November 28, 2023 by Edward Singer

Super Bowl-winning quarterback Drew Brees recently discussed his long-standing correct shoulder problems. In 2005, he dislocated his shoulder while playing for the San Diego Chargers. In 2023, he can no longer throw with his right hand. Brees was told that the dislocated shoulder placed him on the “fast track to a degenerative shoulder and all kinds of arthritic changes. I don’t throw with my right arm anymore. If I could, I would still be playing.'” Nola.com. Besides tossing a football, he reported problems using his arm above his shoulder.

What Is Impairment and Why Does It Matter?

In California, Permanent Impairment is assigned to work injuries. This impairment is used to determine an Injured Worker’s Permanent Disability Percentage. The AMA Guides for Rating Permanent Impairment, 5th Edition, is employed to do so. Per the guides, impairment is “a loss, loss of use, or derangement of any body part, organ system, or organ function.” Per the Guides, “[a]n impairment can be manifested objectively, for example, by a fracture, and subjectively, through fatigue and pain. Although the Guides emphasize objective assessment, subjective symptoms are included within the diagnostic criteria. According to the Guides, determining whether an injury or illness results in a permanent impairment requires a medical assessment performed by a physician. An impairment may lead to functional limitations or the inability to perform activities of daily living.”

In Mr. Brees’ workers’ compensation case, throwing a football would not be considered an impairment. Tossing a ball is not an Activity of Daily Living. (ADL) ADLs are as follows: “Self-care, urinating, defecating, brushing teeth, personal hygiene combing hair, bathing, dressing oneself, eating Communication writing, typing, seeing, hearing, speaking Physical activity standing, sitting, reclining, walking, climbing stairs Sensory function hearing, seeing, tactile feeling, tasting, smelling Nonspecialized grasping, lifting, tactile hand activities discrimination Travel riding, driving, flying Sexual function orgasm, ejaculation, lubrication, erection Sleep restful, nocturnal sleep pattern.”

While Mr. Brees’s main complaint does not fall within the AMA guidelines as an activity of daily living, he did describe an impairment of the inability to use the arm above the shoulder. Therefore, his ADL impairment would be related to putting on clothes or doing laundry. His impairment would also be due to his lack of range of motion and other conditions.

Workers’ Compensation law also allows doctors to describe the impairment most accurately should there be some difficulty in doing so. Per case law, a physician can deviate from the strict rating by doing the following: “(1) provide a strict rating per the AMA Guides; (2) explain why the strict rating does not accurately reflect the employee’s disability; (3) provide an alternative rating within the four corners of the AMA Guides; and (4) explain why the alternative rating most accurately reflects the employee’s level of disability.”

What If I Need Legal Advice?

If you want a free consultation regarding workers’ compensation, please get in touch with 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.

DID THE WORKERS’ COMPENSATION SYSTEM LET A BATTERED TEACHER DOWN? INJURED WORKER IN THE NEWS, #103

Posted on November 22, 2023 by Edward Singer

The Workers’ Compensation System is not without controversy or flaws.

A Florida Instructor’s highly publicized work injury illustrates a benefit payment kerfuffle. How the workers’ compensation works has made a Teacher/Paraeducator struggle post-injury to make ends meet. A student had criminally assaulted her and, as a result, suffered severe injuries.

This article analyzes how a Seriously Injured Worker’s benefits can be terminated. The article’s analysis is under California Worker’s Compensation Law.

Despite suffering five broken ribs, receiving a severe concussion, sustaining a hearing loss, and having slowed speech, this brave Educator returned to the workplace. In the news account, she stated, “Unfortunately, a lot of my injuries that are not visible I’m going to have for the rest of my life.”. According to Dailymail.com, “[t]he educator said she has been struggling to resolve her workers’ compensation case.” She returned to work in a different job title. Since then, she has gone on unpaid leave. Nypost.com

How Do Temporary Disability Benefits Operate?

In the Workers’ Compensation System, temporary disability(TTD) benefits are paid when an individual cannot work their usual and customary occupation. The determination is made through a physician. There are times when an Injured Worker is determined to be able to perform limited work, i.e., light duty. In those instances, if the employer cannot accommodate the temporary work restrictions, the Injured Worker will continue receiving temporary disability benefits. With temporary disability benefits, there is a cap. For many injuries, the cap is at 104 weeks.

Did The Teacher’s Return To Work Impact Her Benefits?

Yes. In California Workers’ Compensation Law, an Injured Worker’s right to receive temporary disability benefits terminates when they return to work. This termination can occur when one returns to an alternative or modified work position. Thus, to receive renewed temporary disability benefits, the Injured Worker must re-establish their medical status via a medical provider. In the fact pattern presented, it would appear that the Teacher did not get medically certified despite going off of work again. Thus, no obligation was triggered to obligate the carrier to resume the payment of TTD benefits.

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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.

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