Initial aggressor

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MTA BUS DRIVER STABBED: INJURED WORKERS IN THE NEWS #85

Posted on May 28, 2023 by Edward Singer

An Irate Passenger stabbed a MTA Bus Driver’s left hand. It was reported that the two had gotten into an argument. As a result of the injury, the driver was taken to the hospital and was reportedly in stable condition. Nypost.com

This article will discuss how this matter will be assessed as a work injury and how the permanent disability will be assessed.

If The Assault Was Brought On By A Worker-Customer Argument, Would The Stabbing Be Considered Work-Related?

Most likely yes. If the argument was only verbal, then the matter would remain as a work-related injury and the MTA Bus Driver would receive workers’ compensation benefits. Had there been an argument and the MTA Bus Driver initiated the physical violence upon the Passenger, then the “initial physical aggressor” rule which bars compensation would have to be addressed. If the Driver was found to be the “initial physical aggressor”, then benefits would be barred. This factual determination is the purview of Workers’ Compensation Judge. As such, it would be likely that a Trial with testimony would occur.

What Types Of Injuries Occurred In This Incident?

Given this fact pattern, a stabbing injury is likely to cause an orthopedic hand injury, a possible transmission of a blood borne illness, and perhaps a psychiatric injury.

How Does One Assess A Hand Impairment Injury?

In Cailfornia, Permanent Disability Percentage is calculated by using the AMA Guides for the evaluation of permanent impairment. According to the AMA, the ”AMA Guides provide a reliable, repeatable measurement framework for permanent impairment in patients who have suffered an injury or illness resulting in long-term loss of a body part or reduction of body function.” With respect to a Hand Impairment, loss of range of motion and possibly grip loss will be assessed. Likewise, since it was a stabbing injury, ia skin disorder or a nerve disorder may also be evaluated concerning impairment.

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 30 years. Contact us today for more information.

COULD A SPIRITED FIGHT AT THE AIRPORT BE A WORK INJURY? INJURED WORKER IN THE NEWS, #56

Posted on August 23, 2022 by Edward Singer

A Texas airline agent was suspended after being caught in a wild viral video trading blows with a woman. Reportedly, the customer yelled racial and homophobic slurs at him. The video of the incident is available on the internet. Nypost.com

The video was remarkable. At one point, agent and the customer were separated by an individual. At one point, it appears that the customer reached over and initiated contact with the agent. This contact appears to infuriate the agent. The video shows a number of interactions.

Hypothetically, we are going to assume that the agent sustained an injury during the encounter and that it occurred after the alleged touching by the customer. Which actions on the video was physical contact? Who make the first aggressive physical contact? Note: this hypothetical will not address the possibility of a psyche claim. The incident involved racial and homophobic slurs by the customer which could provide a basis for such a claim.

If so, could the agent have a legitimate valid physical injury workers’ compensation case? This article will discuss how this question would be addressed within the California Workers’ Compensation System.

What Is the Defense Against This Claim?

In California, there is an initial aggressor defense. A claim can be barred “[w]here the injury does not arise out of an altercation in which the injured employee is the initial physical aggressor.” This is per Labor Code Section 3600. In this matter, determining whether the agent was the initial physical aggressor is quite confusing. It is possible that not all of the interactions were caught on tape. Likewise, whether certain actions constituted physical aggression is a matter of interpretation.

With this said, the interaction in this matter was quite complex. An insurance carrier may deny the claim based upon the fact that there was contact that arguably was initiated by the agent.

Since There May Be A Dispute On A Matter Like This, How Would It Be Handled In The Workers’ Compensation System?

In California, there is the Workers’ Compensation Appeals Board. The Board has local offices. These offices have Judges that are able to adjudicate claims. These Judges are called Administrative Law Judges or ALJs. Not only do ALJs try cases, they also act as the “finder of fact.” Since the Judge is the “finder of fact,” there is no need for a jury. Jud Thus, there are no jury trial in workers’ compensation. All decision as made by the Judge.

In a case like this hypothetical, the Judge would likely receive testimony from the Injured Worker and other witnesses. Also, the video of the event most likely would be taken into evidence as well. The Judge would examine all of the evidence to make a determination as to whether the employee was the the initial physical aggressor.

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A MTA WORKER IS BOTH A HERO….AND AN INJURED WORKER: INJURED WORKER IN THE NEWS, #55

Posted on August 18, 2022 by Edward Singer

Mr. Anthony Wilson, an MTA Worker, is both a hero and an Injured Worker. It was reported that “[l]ast week, Nelson was cleaning the Pelham Bay subway station in the Bronx when police allege 49-year-old Alexander Wright began to harass customers. Nelson stepped in to protect them, but the suspect quickly turned his rage toward Nelson, breaking his collarbone and nose.” KESQ.COM

This fact pattern may involve many unique issues. This article will discuss two important issues that come up with these type of events; the injury investigation and the Injured Worker’s high profile work injury celebrity status.

Why Would High Profile Claim Like This Be Investigated?

In California, any assault claim has the possibility of an insurance company defense of initial physical aggressor. The initial physical aggressor rule could bar an Injured Worker’s claim. Therefore, it is worthy of inquiry by the insurance company. In other words, there will be an investigation as to whether the Injured Worker made the first physical contact.

Labor Code Section 5402, allows insurance companies 90 days to investigate claims. “If liability is not rejected within 90 days after the date the claim form is filed under Section 5401, the injury shall be presumed compensable under this division.” Thus, the Insurance Company will got out and get witness statements and see if the incident was caught on tape before accepting the claim.

Why Is The Injured Worker’s Celebrity Status A Problem?

An Injured Worker who becomes a celebrity as a result of their injury creates a problem.

When an Injured Worker is in a high profile worker’ compensation case, they may be on television or interviewed for news articles. These television reports or interviews may reveal information concerning the Injured Worker’s injuries and their physical activity level. Additionally, in interviews, Injured Workers may try to make a positive and uplifting impression rather than be accurate concerning their complaints. This information can be used to impeach the Injured Worker. Also, it could be sent to examining or evaluating physicians.

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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 #38: Was A United Airlines Worker Brawl With A Passenger A Work-related Injury?

Posted on May 23, 2022 by Edward Singer

A viral video shows a United Airlines Luggage Check-In Worker engaged in a fist fight with a customer. The video shows the UA Worker punching the customer. The video then shows the customer beating up the worker. Dailymail.com

For the purpose of this post, we will take the video as the totality of the interaction. Thus, we will analyze whether the UA Worker can claim a work injury for the blows that he sustained. Again, the facts, for this hypothetical, are that the UA Worker came up to the customer and struck the customer. The customer, in turn, then struck the UA Worker.

It is reported that prior to the blows that there was some interaction between the UA Worker and the customer concerning the customer using a wheelchair to transport luggage as opposed to paying for a luggage cart.

Can the UA Worker Claim An Injury With Respect to the Exchange of Blows?

Labor Code Section 3600(a)(7) prohibits recovery under workers’ compensation law in California “[w]here the injury does not arise out of an altercation in which the injured employee is the initial physical aggressor.” This is often referred to as the “Initial Aggressor Rule.” Thus, the fist fight injuries would not be covered as a valid claim. The reason being is that the UA Worker threw the first blow and therefore was the initial aggressor.

Could the UA Worker File a Different Claim?

From the facts of the case, the UA Worker apparently became agitated to the point that he decided to attack the customer. There is the possibility that a psyche claim could be filed. From the video, it would appear that the UA Worker was unhinged. A determination on this matter would be deferred to a mental health practitioner.

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