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

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.

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.

 

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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