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

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.

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.

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

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.

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.

 

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A BUSLOAD OF BUS DRIVERS INJURED WHEN THE WHEELS ON THE BUS DIDN’T GO ROUND N’ ROUND: INJURED WORKERS IN THE NEWS #49

A bus load of Bus Drivers were injured when a bus driven by a Bus Driver flipped and crashed. Dailymail.com

It is reported that “the bus had been carrying 37 adults – 36 passengers and the driver – police said. Police had said those on board were employees of the same company, but did not specify the origination. All 36 passengers were treated for injuries at the scene, police said Thursday, with three needing to be hospitalized.” Dailymail.com

This article will address of an issue that results from an industrial accident involving multiple workers.

Is There A Personal Injury Claim that Can Be Filed Against the Bus Driver?

No.  It is reported that all of the passengers worked for the same company. Thus, workers’ compensation is the appropriate venue.

Since Everyone Was in the Same Accident, Will They All Receive the Same Recovery?

No.  The fact that two individuals are in the same accident does not mean that they will receive the same recovery.

There are many factors that will create different results for disability awards.

Impairments:  The body parts injured and the nature and extent of the injuries will determine the disability percentage.

Apportionment: Applicants with pre-existing disabilities or prior work injury awards may have their injuries reduced based upon these factors.

Age:  Ratings are determined based upon age.  Younger Employers get less value that older workers.   This is based upon a table in the SCHEDULE FOR RATING PERMANENT DISABILITIES

Occupation:  Ratings are determined by Occupational Group.  In this instance, since all of the workers are bus drivers, they will all be assigned a bus driver group number.  Had there been other types of workers in the bus,  different group numbers would be assigned. Those group number could impact a rating percentage to go up, down or remain the same.

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.

MTA CLEANER SUSTAINS INJURIES IN AN UNPROVOKED ATTACK: INJURED WORKER IN THE NEWS # 48

It is reported that a New York City MTA Worker was slugged in the face.  She worked as a cleaner. It is also reported that she worked for a company contracted with the MTA.    Nypost.com

This article will discuss “unprovoked attacks.”

Are There Any Special Benefits For Individuals Who Sustain Work-Related “Unprovoked Attacks”?

Possibly.  In California, a number of companies and government agencies provide benefits beyond workers’ compensation for unprovoked attacks.  In other words, some employers, when there is an unprovoked attack, will pay the injured worker funds that exceed traditional workers’ compensation benefits.

The companies who have this benefit are likely to do so are government agencies.  Unprovoked Attack Benefits are usually are delineated in a Union Contract or the Memorandum of Understanding.

If an Injured Worker sustains an injury caused by an unprovoked attack, they may want to make an inquiry as to whether they are eligible.  The Human Resources Department should be able to provide the worker the answer to their eligibility.  Again, these benefits are not too common.  They usually involve occupations that have extensive contact with the public or individuals who are incarcerated. 

An example of these benefits come from the Los Angeles version of the MTA.   Some employees are provided the benefit per the contract as follows: “SECTION 2. PAYMENT FOR TIME LOST (a) It is further agreed that if the Operator is physically injured as a result of such robbery, or as a result of an unprovoked attack by another person, such injury resulting in a loss of time, he/she shall be paid 100% of the time lost during the first seven (7) days of disability and 80% of the time lost thereafter. If Workers’ Compensation Benefits are provided during this period, the basis of payment will be as shown above less the Workers’ Compensation Benefits. Operators sustaining injury shall be paid for all time lost as the result of an unprovoked attack when medical verification is provided. Payment will be limited to a maximum of one (1) year after the date of any one incident. (b) An Operator required to wear prescription glasses as a condition to his/her license to drive, whose prescription glasses are lost or damaged as a result of robbery or unprovoked attack, will be compensated up to a maximum of four (4) days’ pay for time lost until the glasses are repaired or replaced. (c) In the event an Operator loses time due to the loss of his/her regulation watch in a robbery or unprovoked attack, he/she will be compensated for the remainder of his/her assignment that day.”

Given the Present Fact Pattern, What Should This Worker Do?

With the reported facts, the Applicant worked for a company that was contracted with the MTA. Thus, it is more likely that her employer may not provide her for such a benefit. Again, she should check with her Human Resources Department to ascertain whether she is entitled to this additional benefit.

Are There Disputes Concerning Unprovoked Attacks? What Happens?

Yes. Over my years of representation, Employers can dispute an unprovoked attack claim.  If this happens, there is likely a dispute resolution process that occurs.  This would be addressed via the Union Contract or Memorandum of Understanding.  Whether there was an unprovoked attack is not something that the Workers’ Compensation Appeals Board would adjudicate.

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.

 

ZOO WORKER LITERALLY HAS A BAD HUMP DAY: INJURED WORKER IN THE NEWS, #47

Yes. On a Wednesday, aka Hump Day, it is reported that a Camel bit a Minnesotan Zoo Worker on the head.  The Zoo Worker was dragged about 15 feet. Foxnews.com  Another another co-worker was also bit in the head.  The Injured Worker, who was bit and dragged, was airlifted to a hospital for treatment.  The other Injured Worker declined medical treatment.  The camel reportedly was not injured.

The fact pattern raises many important issues within workers’ compensation.

Who Pays for the Worker’s Airlift to Get Medical Treatment?

In California, medical transportation is considered as part of medical treatment.  As such, if an ambulance or airlifting is medically necessary, the expense is to be paid for by the workers’ compensation carrier.

What Are the Concerns for the Injured Worker Who Was Dragged?

The Injured Worker who was bitten and dragged by the head has multiple medical concerns.  First, there is question as to whether a Camel bite can transmit any blood borne illnesses or infections. Second, there is the question as to whether there was a head injury or trauma.  Third, there is the concern as to whether there was an orthopedic neck injury. Finally, there is a concern that this injury caused an emotional injury.  As such, it is important for the Injured Worker  document with the medical providers all of their complaints.

Is There Any Concern for the Injured Worker Who Declined Medical Treatment?

Yes. Sometimes, at the time of the accident, an Injured Worker may feel that they were not injured.  Sometimes, the next day they start feeling aches and pains from the accident.  Therefore, it is important that the Injured Worker, even though they are not seeking medical attention, fill out a workers’ compensation claim form, a DWC-1,  and note the body parts affected.  In this instance, the Injured Worker should note that they were bitten on the head.

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.

 

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