Arising out of and in the course and scope of employment

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Man Threatens Wendy’s Employee With A Gun: Injured Workers in the News #70

Posted on November 23, 2022 by Edward Singer

A Wendy’s Fast Food Worker reportedly had a bad drive thru incident. A customer pulled a gun. Apparently, there was a missing sauce packet! It was reported that the man “was driving around the parking lot brandishing a gun and refusing to leave.” foxnews.com

There is no report of any physical injury. Thus, we will discuss whether this fact pattern can give rise to a workers’ compensation claim.

Can This Fact Pattern Give Rise to A Work Injury?

In California, there is no need to have a physical altercation in order to have a work injury claim. In this instance, there was an actual incident. We have a customer acting in a hostile fashion. He was reportedly brandishing a weapon and acting in a menacing fashion. If the Worker experienced a physical reaction to this event, it would be considered as a work-related event. In this matter, if the Worker had accidently not provided the customer the sauce packet, it would not be relevant. Workers’ compensation is a “no fault” system. This event would not be considered as a “good faith personnel action.” It was merely an exchange between an employee and a customer.

What Type of injury Can Be Claimed?

In California, it is possible to have both physical and psychological injuries arise from such an incident. Injuries, however, must be documented by medical specialists. In this instance, there could be a physical injury, i.e. an aggravation of a blood pressure condition. Likewise, a psychiatric disorder could be found as well, i.e. a diagnosis of post-traumatic stress disorder. It should be emphasized that the incident alone does not make a claim. There must also be an injury.

What if I Need 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 27 years. Contact us today for more information.

Did Office Custodian Cause a STD Work Injury? Injured Workers In The News #66

Posted on October 19, 2022 by Edward Singer

An Office Custodian has been accused of the unthinkable. He has been arrested under allegations that he urinated in a woman’s water and transmitted her a sexually transmitted disease.

The woman suspected something wrong with her water bottles that she had at work. She set up a hidden camera and caught the Custodian rubbing his genitals on her bottle. It is reported that he confessed. Nypost.com

Eleven others may believe they are victims as well.

It is reported that the worker contracted an STD and that the accused tested positive for the same disease. It is not clear where other workers have tested positive.

Can Sexually Transmitted Diseases Be Work-Related?

Yes. In California, Sexually Transmitted Diseases can be work-related. In this circumstance, a Psychiatric Injury claim is most likely indicated as well.

Do They Other Workers have claims?

In California, even if the individuals do not test positive for the STD, they too may have a valid psychiatric claim. This, of course, would depend upon the opinion of a mental health specialist. Their emotional upset was the result of an actual event of employment. The event being the tampering of water bottles and their knowledge of it. Developing the STD is not required to pursue this type of action.

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WAS A MCDONALD’S WORKER BEING SHOT IN THE FACE A WORK INJURY? INJURED WORKERS IN THE NEWS, #50

Posted on August 2, 2022 by Edward Singer

In Brooklyn, a McDonald’s Worker was shot in the face. After the incident, the worker was reportedly in critical care as a result of the incident.

The facts of the case are that there was this Worker was in a dispute with a customer inside the restaurant. After the incident, the Worker, for reasons not clear, went outside of the store. There, the dispute continued. It is reported that the customer’s son shot the McDonald’s Worker in the face. Nypost.com

UPDATE: Since this post, there is additional information from a Nypost.com article. It appears that there was an initial dispute concerning cold fries. The customer’s son and the McDonald’s Worker exchanged words in the store and there was a conversation apparently about taking the matter outside. It is reported that the Worker may have gone outside to search for the customer’s son and an incident occurred.

This case will be discussed along the lines of California Law with respect to the issues.

Was This an Industrial Injury for the Purposes of Workers’ Compensation?

While a case may look like it is work-related, in order to get workers’ compensation benefits, an injury must arise out of and be in the course and scope of employment. This requires some analysis.

In this particular case, there are questions that need to be answered. Two matters of important is whether the Worker was the Initial physical aggressor and whether the Applicant deviated from employment.

Given this fact pattern, the reason why the McDonald’s Worker left the store is important. Did the Worker want to get in a fight with the customer? Did the worker initiate physical contact?

The other aspect to consider is whether there was a deviation. Did the employee’s actions remove him from being considered to be in the workplace? With this analysis, the location of the outside incident is of importance. Was it on the McDonald’s premises or off? Was it a mile away from the store? Further, was he on a break, or was he working on the clock when he went outside?

Can A Claim Like This Be Delayed?

Yes. Labor Code Section 5402(b) affords an insurance company 90 days to investigate. In this matter, given the analysis provided above, an insurance company should send an investigator out to obtain witness statements, obtain the video from the store if any, and obtain a copy of the police report. My personal impression is that the additional facts would likely support a finding of industrial injury. Without knowing more, I would think that the incident happened while on premises. The fact that the incident was on the premises would play a large factor in the analysis. [update: If the worker left the work site to have a confrontation, more facts are needed concerning what happened. The location of the confrontation and its nature are important. Further, the reason for the confrontation is important as well.

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IWITN #37: The Famous Slap Incident Proves That Hearing Loss Is No Joke

Posted on May 20, 2022 by Edward Singer

Comedian Chris Rock was famously slapped at the Academy Awards Ceremony when he was a presenter. He reported that he still suffers from hearing loss as a result of the incident. thestart.com

This article will discuss whether Mr. Rock’s injury would be considered as a workers’ compensation claim.

Did Mr. Rock Suffer a Work-Related Injury Eligible For Workers’ Compensation Benefits?

Most likely yes. A requirement for there to be a workers’ compensation claim is that there is an employment relationship. The questio to be asked in a case such as Mr. Rock’s is “who did he work for?” Whoever hired him to be the presenter would be considered his employer. It could have been the broadcast company. It would have been the production company. It could have been a casting company. To determine who was Mr. Rock’s employer, the first place would be to do would be to look at his paycheck.

If Hearing Loss Is Mr. Rock’s Injury, How Would It Be Addressed Under Workers’ Compensation?

Workers’ Compensation Law provides for permanent disability and future medical care for hearing loss injuries. Mr. Rock would most likely be referred to an Ear Nose and Throat or ENT doctor to evaluate him. The other name for these type of doctors is otolaryngologist. He may also be sent to an audiologist to have his hearing tested. Mr. Rock would also be evaluated with respect to whether his hearing loss could be corrected with hearing aids. The medical evaluations will determine whether Mr. Rock had any permanent injury with respect to hearing loss. Likewise, they will determine if he will need ongoing and future medical care.

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INJURED WORKERS, CHART NOTES, AND WORKERS’ COMPENSATION: WHAT YOU NEED TO KNOW

Posted on April 19, 2022 by Edward Singer

Injured Workers prove up their workers’ compensation claims with evidence. Within workers’ compensation, medical evidence gathered and to be persuasive must be within the evidentiary burden of “reasonable medical probability.” “Reasonable medical probability” is a more likely than not burden, or beyond 50 percent likelihood.

Medical Records are evidence which can assist in proving a claim. They can contain X-Rays, MRI Studies and Blood Tests. Medical Records also contain “Chart Notes.”

This article will article will discuss the section of “Chart Notes” which is called SOAP notes and how they can impact a workers’ compensation claim. This discussion is based upon my experience of discussing these records with Injured Workers as opposed to that of a medical professional.

Medical Professionals can use a SOAP format within Medical Charts. SOAP stands for Subjective Data, Objective Data, Assessment Data, and Plan.

Subjective Data: This is information taken from patient. Subjective Data, in other words, is what the “patient” says.

A big issue for Injured Workers is “what did they tell the medical professional?” and “what did the medical professional take down?” Does the Subjective Date match up with the Injured Worker’s interaction with the Medical Professional? Clinical Medical situations can vary. Some medical professionals take the time to write down or notate everything the patient says. Other professionals do not do so. They may be focused on the reason that the patient was sent there. For example, “you were sent here for your right shoulder, I don’t want to hear about your left hand” is something that a medical professional might say to a patient. In my practice, I have been told by clients that medical professionals often want to limit what they notate to what they were authorized to see. Thus, if an Injured Worker has an opportunity to write down their complaints on a form, it is important that they record everything.

Objective Data: Objective Data is recording the healthcare provider’s observation and testing. Provider’s observations can be items such as observing the patient “in no distress.” Testing can be physical testing from the provider using provocative tests such as a straight leg raise or the results of x-rays or blood tests.

Assessment Data: This is the Medical Provider’s opinion based upon the subjective and objective data. This assessment data can include such items as the patient’s diagnosis. If this is an initial evaluation, the assessment can have a “r/o” or “rule out.” For example, there might need to rule out a “herniated disk.”

Plan: This is strategy for address the patient’s problems. Within this section, recommended treatments, diagnostics, and other items may be listed. This can include such items as requested physical therapy, x-rays or time off of work.

Why Should An Injured Worker Be Concerned About Chart Notes?

An Injured Worker needs to be concerned that Medical Providers accurately note the information and document the SOAP note accordingly. Notes that either intentionally or inadvertently accurate may become an issue that can impact such issues as which body parts were injured in the accident.

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