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MCDONALD’S WORKER PEPPERED IN POSSIBLE ROBBERY ATTEMPT: INJURED WORKER IN THE NEWS, #51

Posted on August 3, 2022 by Edward Singer

A McDonald’s Worker was pepper sprayed in what was believed to be an attempted robbery. The employee’s injuries were reported to be minor. They were not taken to the hospital. nypost.com

This article will discuss the issues with respect to this incident.

If the Worker Wanted to Pursue a Claim of Emotional Injury, Does the Fact It Appeared to Be Attempted Robbery Matter?

No. From the facts, there were actual events of employment that occurred, the worker being pepper sprayed. Thus, there would be a basis for the Injured Worker to pursue a psychiatric claim if they wished to pursue such a case. The fact that a robbery was suspected would not matter.

At the Time of the Incident, Is There Anything the Injured Worker Should Do?

In this matter, while the injuries were minor, it would be advisable that the Injured Worker to attend at least one medical evaluation to be treated and to document their complaints. Additionally, the evaluation should be a physical examination so that blood pressure readings and other physical findings can be documented. Failure to document complaints can cast doubt as to disability if later claimed.

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.

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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RESTAURANT STAFF ASSAULTED IN SAUCE-Y DISPUTE: INJURED WORKERS IN THE NEWS # 46

Posted on July 14, 2022 by Edward Singer

Fast Food Workers are being subjected to unprecedented dangers. Minor disputes with Customers, such as over condiments, have led to both injury and tragedy. A recent assault of Fast Food Workers in New York is both disturbing and unique.

Fancy French Fry Establishment Workers were assaulted by a trio of unruly customers upset over the $1.75 extra sauce charge. Objects were thrown, a crowd of spectators watched and did nothing, and the incident was, in a large part, captured on video. It is reported that “[t]he women went ballistic, tearing down the plexiglass COVID guard along the counter, ripping out the cash register and hurling glass bottles and stools at the employees.” NyPost.com

The incident was so high profile that the worker were interviewed. One reported bleeding from their scalp. Another reported an aggravation of their blood pressure condition. A number of them reported being fearful and hesitant about returning to work.

Is The Video Sufficient to Win a Workers’ Compensation Case?

No. The video is not sufficient to win these workers’ cases. The video, however, is powerful evidence as to what happened. Workers’ Compensation claims require medical reporting to support claims and entitlement to benefits. Given the facts, the injuries from the incident include a head trauma, an aggravation of hypertension, and psychological complaints.

Can An Aggravation of Blood Pressure Be Claimed As A Work Injury?

Yes. An aggravation or acceleration of a pre-existing condition can constitute a work related injury in California. A medical specialist, either a treating doctor or an evaluator, will be required to offer an opinion.

Are The Injured Workers’ Feelings and Actions Sufficient For Them To Get Workers’ Compensation Benefits?

No. In the facts, some of the workers remained at home as a result of the injury. In order for them to get workers’ compensation benefits for missing time from work, they need to be placed off work by a medical professional. Workers who need to be off of work need to seek medical attention and have their providers determine their ability to work. A worker’s personal opinion is not sufficient.

Is There a Threshold To Prove A Psychiatric Injury In These Matters?

For each individual worker, they all must meet the threshold to prove a psychiatric injury. In this matter, is it possible that the Labor Code Section 3208.3 provision concerning violent acts may apply. The section indicates, “in the case of employees whose injuries resulted from being a victim of a violent act or from direct exposure to a significant violent act, the employee shall be required to demonstrate by a preponderance of the evidence that actual events of employment were a substantial cause of the injury.” In this matter, if the parties cannot agree that the incident was a violent act, then it would be the Workers’ Compensation Judge to make that determination.

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IWITN #45: A Tragic Shooting Death & Injury Of Subway Employees

Posted on July 1, 2022 by Edward Singer

It is reported that one Subway Sandwich Artist was tragically murdered and that another was shot at an Atlanta Subway Sandwich Store. A customer, upset over too much mayo being placed upon a sandwich, reportedly became violent and fired shots. The tragedy is made worse as the son of the deceased worker was present. Dailymail.com

The focus of this post will be with respect to the child who was present and their rights. This will discuss the matter in light of California Law.

Can The Child File a Workers’ Compensation Claim?

Yes. If the child’s mother was a worker and passed, it is likely that a dependency death claim can be pursued. This would be based upon the child’s age and whether their mother provided support.

Are There Any Other Benefits That The Child Could Obtain?

Yes. In the State of California, there is a Victim’s Crime Board (CalVCB) that can provide assistance. In order to qualify, a person “must be a victim of a qualifying crime involving physical injury, the threat of physical injury or death to qualify for compensation. For certain crimes, emotional injury alone is all that needs to be sustained. Certain family members or other loved ones may also qualify.” There are certain criteria that must be met as well.

One benefit that can be provided is mental health services. CalVCB can provide assistance in getting “An eligible victim may receive up to three mental health counseling sessions. Providers are required to complete a treatment plan and submit it to CalVCB before the client’s fourth session to obtain additional sessions.

There may be other benefits available. The Victim’s Crime Board website has the information.

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IWITN #44: Did Tossed Food At A Wendy’s Employee Cause A Work Injury?

Posted on June 23, 2022 by Edward Singer

Had a Wendy’s Frosty been involved, things could have been worse. It is reported that a Wendy’s Drive Thru Worker was assaulted by nuggets, fries, and a drink.

An unhappy customer contended that the bag the food came with a guarantee of hot and crispy food. She felt her order did not meet that standard. It is reported that “[s]he said that she got spicy nuggets instead of normal ones, saying they were burnt.” After profanity and outrage, it is reported she threw the bag of food at the worker. Fox10phoenix.com

Was There a Work Injury?

From the facts, it does not appear that a physical injury was sustained. A physical injury is a term used to describe orthopedic injuries or wounds. For example, if a glass bottle had been thrown and caused wounds, that would be considered as a physical injury. In this instance, the injury would be considered as a mental injury. From the facts, it is possible that the worker may have sustained a psyche injury. The news report indicated that the Worker was harassed, threatened, cursed at and had items thrown at her by an angry customer who overreacted. Such an injury would require the opinion of a mental health practitioner finding a psychiatric injury. A finding would require a diagnosis such as PTSD, Anxiety Disorder or Depression.

If The Worker Had Gotten The Food Order Wrong Which Triggered The Incident, Would That Effect the Validity of the Work Injury Claim?

In this instance, no. Workers’ Compensation is a “no fault” system. In this instance, even if the employee got food order was wrong, the resultant incident would still be covered within workers’ compensation. Labor Code Section 3600, lays out that “(a) Liability for the compensation provided by this division, in lieu of any other liability …shall, without regard to negligence.”

While workers’ compensation is no fault, good faith personnel actions may bar a psychiatric claim. Had there been no incident with the customer, a Worker being written up for improperly filling an order most likely would be considered a “good faith” personnel action.

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