Death claim

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HOME DEPOT WORKER DIES AFTER INJURY: INJURED WORKER IN THE NEWS #72

Posted on December 6, 2022 by Edward Singer

An 83-year-old Home Depot Worker died six weeks after sustaining a work injury. He had been shoved to the ground by a serial shoplifter while apparently trying to stop a theft. The Home Depot Worker sustained injuries as a result of the shove and he lived for 5 weeks before passing. The medical examiner has ruled the death to be a homicide. Dailymail.com

This article will discuss how the Injured Worker’s death was work-related for the purposes of obtaining death benefits.

Does A Time Delay Between The Work Injury and The Death Matter for the Purposes of Pursuing a Death Claim?

Yes and No. California Workers’ Compensation Law provides for 240 weeks from the date of the injury to the date of death for the period of the delay. Deaths happening beyond this period are likely barred by the statute of limitations. Thus, a five week delay in the passing would be within the statute of limitation. The claim would be timely and dependency death benefits are warranted.

Does the Medical Examiner’s Opinion of Homicide Determine Industrial Causation?

No. The Medical Examiner’s opinion that the death was a homicide is a medical determination within the area of criminal law. In California, workers’ compensation and criminal law have different burdens of proof. California Workers’ Compensation Law has a reasonable medical probability standard. Likewise, the work injury’s relation to the death has a specific standard as well. The South Coast Framing case standard that applies: It is well established that for the purpose of meeting the causation requirement in a workers’ compensation injury claim, it is sufficient if the work is a contributing cause of the injury. (South Coast Framing, Inc. v. Workers’ Comp. Appeals Bd. (2015) 61 Cal. 4th 291, [188 Cal. Rptr. 3d 46, 349 P.3d 141, 80 Cal. Comp. Cases 489].) “

Thus,Workers’ Compensation medical examiners will have to express an opinion whether, within reasonable medical probability, that the work injury was a contributing factor in the Injured Worker’s death. Arguably, the Medical Examiner’s opinion, which most likely is criminal law based, expresses that it a higher standard than workers’ compensation law requires.

While one could argue that the Medical Examiner’s opinion should be binding, there argument is arguing apples and oranges. Even with such an opinion, it is likely that a carrier would also seek an opinion within the workers’ compensation system. This could be a QME, a Treating Doctor or an Agreed Medical Examiner on the issue.

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.

A SHOCKING ELECTION RELATED WORK INJURY: INJURED WORKERS IN THE NEWS # 69

Posted on November 18, 2022 by Edward Singer

A sad story comes out of Houston, Texas. During election season, a Parks and Recreation Department Worker suffered a work-related injury- electrocution- and died. Foxnews.com

News reports offer sparse information. Thus, we will create a hypothetical and assume that the electronic voting system was the source of the electrocution. The death, in an of itself, would likely trigger an OSHA investigation to determine the cause of the death.

Assuming the hypothetical fact pattern that the Parks Worker was working on election issues and that the voting machine caused their death, we will discuss the issues that would arise.

What Type of Claims Can Be Brought in This Circumstance?

Under California Law, since the employee passed away, his or her dependents would be eligible to claim dependency death benefits. Likewise, they would be eligible to received up to $10,000.00 relating to burial expenses. The dependency analysis involves marital status, the age and health of children, and the amount of support that the deceased provided to any claimed dependent. Also, for spouses earning less than a certain amount and for minor children, there are presumptions that may be employed to claim dependency may be employed.

For the Purposes of Workers’ Compensation, Who Was The Deceased Worker’s Employer?

Elections can involve multiple government agencies. Employees from one government agency could be placed on loan to others. Thus, a question can be raised as to “who was this person’s employer at the time of death? ”

Why Is The Employer Determination Important?

In this matter, the determination of the employer is important. First, this knowledge will inform the dependents to place in a claim, Likewise, the determination may establish the possibility of a third party case. Hypothetically, if the electrocution occurred as a result of defective election equipment, it is possible that the owners of the equipment and the manufacturers of the equipment may have some liability. Also, if the employee was considered to work for the City of Houston, they could potentially sue the County which was responsible for the running the election and for the election machines.

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AMAZON WORKER DOG ATTACK TRAGEDY: INJURED WORKERS IN THE NEWS #67

Posted on October 28, 2022 by Edward Singer

An Amazon Delivery Driver was tragically found dead. Two dogs are suspected to have attacked the Driver. A news reports has a quote from an authority that “[d]ue to the fact of the nature of some of the injuries to the male driver, we can’t confirm or deny if (the dogs) were the cause of the death of the driver, however we wanted to be safe,” … said. It was noted that “[a] preliminary investigation indicates that animal bites played a role in the Amazon worker’s death, but a medical examiner will make the final determination.” nypost.com

This article will discuss how the workers death will be analyzed as far as an industrial injury.

How Will The Death Causation Be Analyzed for Workers’ Compensation Purposes?

In California, the death need not be solely related to a work incident. The California Supreme Court in South Coast Framing, Inc. v. Workers’ Comp. Appeals Bd., 61 Cal. 4th 291, noted that “ contributing proximate cause within the meaning of Kimbol has been applied more broadly in the workers’ compensation context than in tort law. HN7 Death attributable to both industrial and nonindustrial causes may support a death claim, and industrial causation has been shown in an array of scenarios where a work injury contributes to a subsequent nonindustrial injury. An employee is entitled to compensation if a new or aggravated [15] injury results from medical or surgical treatment for an industrial injury.”

Who Will Determine Whether The Death Was Industrial?

In California, an Injured Worker is entitled to have a medical evaluation to prove up their claim of industrial medical causation. In a death case, it can be an examiner who will review the medical records and coroner reports to address. Usually, there is no need for them to examine the body. This can be in the form of a Panel Doctor from the State of California who is a Qualified Medical Evaluator. Otherwise, it can be a neutral doctor agreed upon; an Agreed Medical Examiner.

In accordance with South Coast Framing, the doctor will address the cause of death and whether the dog bites contributed to the death. If the bites excited the worker and he had a heart attack and died, the bites would be found as a contributory cause of injury.

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WAS WORKER TRAGICALLY COOKED A WORK-RELATED EVENT? INJURED WORKER IN THE NEWS, #63

Posted on September 29, 2022 by Edward Singer

A horrible incident happened at a Food Processing Company. A Processing Worker was found dead inside a kettle cooker. The police investigation found nothing suspicious. An ongoing investigation with OSHA is continuing. The Deceased Worker leaves behind a wife and two daughters. dailymail.co

This article will discuss as to whether, given the facts, this injury would be considered work-related for the purposes of workers’ compensation benefits. If found work-related, the Deceased’s spouse and daughters may be eligible for benefits. Further, he would be entitled to burial expenses. From the facts, however, it is unclear as to how he ended up on the kettle. Based upon the current investigations there is no explanation.

If There Was No Explanation As To How The Injured Worker Died, Would It Be Considered An Industrial Death?

In California, there is the doctrine of mysterious death. In the event of a mysterious death, the accident will be considered as work-related. As a result, the Deceased Dependents could claim benefits. As per case law, it is noted in County of Contra Costa County vs. WCAB 67 C.C.C. 1614, (writ denied), “In addition to the medical evidence supporting a finding of injury on its own, the facts of this case are those of an unexplained death, in that it is not known what decedent was doing while working when the injury which caused his death occurred. Defendant is in agreement with applicant’s position that it is unknown what decedent was doing at the time the aortal dissection occurred. The situation is similar to the facts in Clemmens v. Workers’ Comp. App. Bd. (1968) 261 Cal. App. 2d 1 [68 Cal. Rptr. 804] [33 Cal. Comp. Cases 186], wherein it was determined that in a case where an employee is found dead in the course of his employment in the absence of any evidence of what… caused the death, the employee is entitled to “a presumption or inference that the death arose out of the employment, since it is undisputed that this employment brought him to the place where his occurred.” Clemmens, supra 33 Cal. Comp. Cases at page 189. In the instant case, the death was caused by a dissection of the aorta, which occurred while applicant was at work. Accordingly, this creates a presumption or inference that decedent’s death [**8] arose out of his employment.”

In the existing facts, it is likely that this claim would be found as work-related.

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DID HOSPITAL WORKER’S GROIN INJURY RESULT IN AN INDUSTRIAL DEATH CLAIM? INJURED WORKER IN THE NEWS, #52

Posted on August 8, 2022 by Edward Singer

A Hospital Worker tragically died. Law enforcement considers the death to be a homicide. The alleged cause for the homicide was a kick in the groin. Do the facts give rise to legitimate workers’ compensation work-related death claim?

It is reported as follows: a Hospital Worker had an altercation with a patient. A mental health evaluation patient was trying to leave the hospital when the staff tried to prevent her from leaving. The incident got physical. The patient began to “swing her arms and pull away from security when (an employee) attempted to grab her arms. The Mental Health Unit eventually had to step in.” The patient allegedly started to kick and then struck a Hospital Worker with her knee in the groin. The Hospital Worker, after the injury, was in the ICU for three days. Tragically, he died. katv.com

The article reporting on the matter indicated that “[a]uthorities say after a review of medical records and investigation, the cause of death is physiological stress associated with a physical altercation in the setting of cardiomegaly and obesity.” katv.com

The coroner commented that “[t]here’s a lot of people walking around with the same medical conditions he had, that might live for another 15-20 or 25 years, had it not been for the kick to the groin.” katv.com

This article will discuss the hurdles required to prove a death claim in this matter. This article will discuss issues of causation and medical legal reporting.

Is The Coroner’s Opinion Enough to Prove the Death Is Work-Related?

The answer is “no.” In California, Workers’ Compensation Law has standards of causation. The doctors must express their opinion within the workers’ compensation framework. With respect to a death claim, the medical evaluator should express their opinion within reasonable medical probability. Further, with respect to a death case, the issue is whether the industrial injury was a “contributing” cause. The South Coast Framing case established the “contributing cause” standard for death cases. (South Coast Framing, Inc. v. Workers’ Comp. Appeals Bd. (2015) 61 Cal.4th 291 [188 Cal.Rptr.3d 46, 349 P.3d 141].) As we don’t know whether the Coroner’s opinion was within reasonable medical probability or whether it addressed causation as a contributing cause, on it’s face, it could not be used as evidence.

Thus, a medical opinion must have the correct language. It should also be noted that criminal law has a different burden of proof. Therefore, clarification is needed within a workers’ compensation framework. It is possible that what might not be considered criminal causation can still be valid for the purposes of industrial causation.

What Medical Evidence Is Needed To Proof the Death Was Work-Related?

In this matter, either the treating physician or a medical evaluator, QME or AME, should be employed to render an opinion on industrial causation of the death. The question would be whether the attack “contributed” to the injured worker’s death. The worker’s involvement, i.e. physical activities, in the altercation can be viewed as a whole as opposed to the mere kick. In other words, the stress, mental or physical, from the incident can be considered with respect to industrial causation for the death. As noted, workers’ compensation should look at the totality of the incident and not the mere kick to the groin to make the assessment.

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