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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.

DID FAST FOOD WORKER SUFFER A SAUCEY PSYCHE INJURY? 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.

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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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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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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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