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How to Claim Workplace Bullying Compensation

Posted on July 23, 2023 by Edward Singer

To qualify for workers’ compensation benefits, Work Injuries must arise out of and be in the course and scope of employment (AOE/COE). In order to make such a determination, Medical Professionals are often asked to describe how the injury happened.

Workplace Bullying can be a mechanism of injury. Bullying can be a source of stress and can cause or aggravate both psychological and physical medical conditions. This article will discuss Workplace Bullying within the framework of workers’ compensation.

WHAT IS WORKPLACE BULLYING? HOW DOES IT BECOME WORKERS’ COMPENSATION RELATED?

“Workplace bullying refers to a systematic form of harassment where an employee persistently and over a period of time is exposed to negative actions from others at the workplace (e.g. colleague, superiors, or subordinates) and where the employee finds it difficult to defend themself against these actions due to a perceived power imbalance between target and perpetrator.” Nielsen MB, Rosander M, Einarsen SV. Witnessing workplace bullying – protocol for a systematic review and meta-analysis of individual health and well-being outcomes. Syst Rev. 2023 Jul 10;12(1):119. doi: 10.1186/s13643-023-02288-0. PMID: 37430318; PMCID: PMC10331970.

In order for Workplace Bullying to become workers’ compensation related, the bullying must cause or contribute to a workplace injury. In other words, either a mental or physical injury must have occurred. This is determined by expert medical professionals. One simply saying that they were bullied at work is not enough to make a valid work injury claim.

Further, in California, there are time limits that can bar a Workplace Bullying claim. In general, six months of employment is required to pursue a psychiatric claim of injury in certain circumstances. The nature and extent of the bullying, however, is not required to have been for a period of six months or greater. A shorter period can be shorter can suffice. Likewise, the sole cause of the stress need not be from bullying. Other workplace stressors can be included. Due to the complicated nature of these claims, legal consultation on this particular issue is strongly recommended.

HOW DOES BULLYING HAPPEN IN THE WORKPLACE?

“In a workplace context, bullying mainly involves repeated exposure to verbal hostility, being made the laughing stock of the department, having one’s work situation obstructed or being given unreasonable tasks, or being socially excluded.” Nielsen MB, Rosander M, Einarsen SV. Witnessing workplace bullying – protocol for a systematic review and meta-analysis of individual health and well-being outcomes. Syst Rev. 2023 Jul 10;12(1):119. doi: 10.1186/s13643-023-02288-0. PMID: 37430318; PMCID: PMC10331970.

Examples of these incidents include an individual being in a room to sit and do no work, an individual excluded from an office birthday celebration, and an individual assigned to perform tasks below their job descriptions or responsibilities.

HOW OFTEN DOES WORKPLACE BULLYING HAPPEN?

According to statistics, bullying occurs at a rate of about 15 percent. Nielsen MB, Rosander M, Einarsen SV. Witnessing workplace bullying – protocol for a systematic review and meta-analysis of individual health and well-being outcomes. Syst Rev. 2023 Jul 10;12(1):119. doi: 10.1186/s13643-023-02288-0. PMID: 37430318; PMCID: PMC10331970. Impliedly, this means that more than one in ten workplaces may have bullying issues.

WHAT ARE THE COMMON MEDICAL ISSUES ASSOCIATED WITH WORKPLACE BULLYING?

Bullying is associated with a range of outcomes for those exposed, including mental health problems, somatic complaints, sleep problems, and suicidal ideation, as well as with reduced job satisfaction and work ability. Nielsen MB, Rosander M, Einarsen SV. Witnessing workplace bullying – protocol for a systematic review and meta-analysis of individual health and well-being outcomes. Syst Rev. 2023 Jul 10;12(1):119. doi: 10.1186/s13643-023-02288-0. PMID: 37430318; PMCID: PMC10331970.

These reported outcomes generally fall within the emotional spectrum. Thus, in workers’ compensation, they would be addressed with a psychological claim. The other matters noted are somatic complains. Sleep, at times, can be an additional body part within workers’ compensation. Additionally, cardiovascular, gastrointestinal and some other internal medical diseases would fall within the reference. These conditions can be caused or aggravated by stress. Any assessment concerning these matters are done by expert medical opinion.

CAN THERE BE A RIPPLING EFFECT TO WORKPLACE BULLYING?

The study reported in this article advance the theory of a rippling effect. This is the theory that other individuals in the workplace can be victims of the bullying “by proxy”. In other words, bystanders may be dragged into the conflict. Nielsen MB, Rosander M, Einarsen SV. Witnessing workplace bullying – protocol for a systematic review and meta-analysis of individual health and well-being outcomes. Syst Rev. 2023 Jul 10;12(1):119. doi: 10.1186/s13643-023-02288-0. PMID: 37430318; PMCID: PMC10331970.

In workers compensation, actual events of employments can be used factors to be considered in determining a psych related injury. Thus, whether or not there is a significant rippling effect does not matter.

WHAT IS I NEED LEGAL 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.

WAS HOSPITAL WORKER INJURED AS A RESULT OF PLAYING THE ROLE OF AN ACTIVE GUNMAN? INJURED WORKER IN THE NEWS #84

Posted on May 26, 2023 by Edward Singer

A Hospital’s Active Shooter Drill apparently went amuck. Psychiatric Hospital Worker asked to play the role of an Active Shooter was arrested when the Police were not aware of the drill. As a result, he was handcuffed. According to a lawsuit filed, the Hospital Worker “heard the safeties come off the police officers’ weapons. [He] was scared for his life.”

It was further reported that he was traumatized and he “It’s really a struggle for me to come there every day,” he told the Free Press, adding that he returned to work the next day but left early because he felt uncomfortable.” It was also reported that “he’s only received a “half-assed” apology from his supervisor, adding that counseling he was provided wasn’t useful.” According to his lawyers, “he has suffered “anxiety, fear, depression and even suicidal ideation in the days, weeks and months since this incident.” It was reported that “his lawyer is helping to get him mental health treatment after his request was denied.” Detroit Free Press

What Was Applicant’s Occupation At The Time of the Injury?

Occupations, at the time of the injury, can determine the nature and extent of an Injured Worker’s permanent disability. In this fact pattern, the Injured Worker engaged in an activity far different from his job as a Psych Tech. Technically, one could indicate that he would be considered as an Actor.

In California, the type of employment allows for an occupational adjustment. Occupational adjustments take place in the rating formula. Bodily injuries are adjusted upwards and downwards based upon factors including arduousness. For example, a furniture mover would get an increased rating for the low back injury.

With respect to this individual, a legitimate inquiry into occupational group would be indicated. An actor’s mental capability might be considered more arduous or taxing versus a Psych Tech.

Are The Symptoms He Reported on Important for Permanent Disability?

Yes. In California, the Injured Worker not only spelled out symptoms, he also commented upon his ability to function. One serious symptom he indicated was suicidal ideation. For functioning, his difficulty being a work setting is worthy of consideration.

In California, Psychiatric impairment are evaluated by the physician using the Global Assessment of Function (GAF) scale. The resultant GAF score shall then be converted to a whole person impairment rating. To assess the GAF score both an individual’s symptom severity and level of functioning are considered.

What Are Injured Individual’s Treatment Rights?

The fact pattern indicates that the Injured Worker’s treatment was not helpful.

In California, an Injured Worker is able to choose their own doctor. Even if an Injured Worker is within a Medical Provider Network from the Insurance Company, they are allowed to choose their doctor. Thus, under Labor Code Section 4600, this Injured Worker, if they did not find the treatment helpful, could have changed to another doctor.

What if I Need Advice?

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.

What If I Need Advice?

NETFLIX AND ILL? INJURED WORKERS IN THE NEWS, #35

Posted on May 4, 2022 by Edward Singer

Netflix’s layoffs upset the staffers who are now being fired. Some of them have gone to the internet platform Twitter to complain. Dailymail.com Do these individuals have workers’ compensation claims? Are they allowed to file them if they were laid off?

This article will discuss workers’ compensation injuries in the face of lay-offs. The Workers’ Compensation System has two important Labor Code provisions concerning post-termination claims.

Can Terminations Impact Work Injury Claims?

Yes. In California Workers’ Compensation, there are restrictions with respect to terminations filed after a layoff. Claims filed after lay-offs are often referred to as “post term” cases.

Can Terminations Impact Psychiatric Work Injuries?

Yes. A specific provision was made to address post-term psychiatric injuries. Beyond the regular requirements of bring forward a psychiatric injury, post-term employees are also required to address additional provisions.

Labor Code Section 3208.3(e) provides

“[w]here the claim for compensation is filed after notice of termination of employment or layoff, including voluntary layoff, and the claim is for an injury occurring prior to the time of notice of termination or layoff, no compensation shall be paid unless the employee demonstrates by a preponderance of the evidence that actual events of employment were predominant as to all causes combined of the psychiatric injury and one or more of the following conditions exist:

(1) Sudden and extraordinary events of employment were the cause of the injury.

(2) The employer has notice of the psychiatric injury under Chapter 2 (commencing with Section 5400) prior to the notice of termination or layoff.

(3) The employee’s medical records existing prior to notice of termination or layoff contain evidence of treatment of the psychiatric injury.

(4) Upon a finding of sexual or racial harassment by any trier of fact, whether contractual, administrative, regulatory, or judicial.

(5) Evidence that the date of injury, as specified in Section 5411 or 5412, is subsequent to the date of the notice of termination or layoff, but prior to the effective date of the termination or layoff.

It is important to note that this section addresses injuries prior to the time of notice of termination or layoff. Therefore, something can happen post the notice that may give rise to a claim. For example, after the notice of termination, the employee physically assaulted by a co-worker.

What Happens If The Termination Never Happens?

The Labor Code 3208.3(g) provides “[a] notice of termination or layoff that is not followed within 60 days by that termination or layoff shall not be subject to the provisions of this subdivision, and this subdivision shall not apply until receipt of a later notice of termination or layoff. The issuance of frequent notices of termination or layoff to an employee shall be considered a bad faith personnel action and shall make this subdivision inapplicable to the employee.”

Thus, it is important that an employee understands and has documentation concerning the termination or layoff.

What Happens With If There Is A Physical Injury?

In the event of a non-psychiatric injury, i.e. orthopedic, Labor Code Section 3600(a)(10) applies.

(10) Except for psychiatric injuries governed by subdivision (e) of Section 3208.3, where the claim for compensation is filed after notice of termination or layoff, including voluntary layoff, and the claim is for an injury occurring prior to the time of notice of termination or layoff, no compensation shall be paid unless the employee demonstrates by a preponderance of the evidence that one or more of the following conditions apply:

(A) The employer has notice of the injury, as provided under Chapter 2 (commencing with Section 5400), prior to the notice of termination or layoff.

(B) The employee’s medical records, existing prior to the notice of termination or layoff, contain evidence of the injury.

(C) The date of injury, as specified in Section 5411, is subsequent to the date of the notice of termination or layoff, but prior to the effective date of the termination or layoff.

(D) The date of injury, as specified in Section 5412, is subsequent to the date of the notice of termination or layoff.

For purposes of this paragraph, an employee provided notice pursuant to Sections 44948.5, 44949, 44951, 44955, 72411, 87740, and 87743 of the Education Code shall be considered to have been provided a notice of termination or layoff only upon a district’s final decision not to reemploy that person.

A notice of termination or layoff that is not followed within 60 days by that termination or layoff shall not be subject to the provisions of this paragraph, and this paragraph shall not apply until receipt of a later notice of termination or layoff. The issuance of frequent notices of termination or layoff to an employee shall be considered a bad faith personnel action and shall make this paragraph inapplicable to the employee.”

Note: This section is one for which there is some debate concerning. Thus, cases involving cumulative exposure or trauma may not be subject to this section. Consultation with an attorney with respect to that issue is recommended. Likewise, in the case of Netflix employees, it is important that they review this section to see if they fall within any of the exceptions.

What If I Need Advice?

THE WORST WORK INJURY EVER? INJURED WORKER IN THE NEWS, #20

Posted on March 9, 2022 by Edward Singer

A Contract Worker was killed at a landfill in Florida in perhaps the most horrible way possible.

While he was using a Porta Potty, a bulldozer ran the portable bathroom and killed his co-worker.

The Bulldozer Operator and the Deceased Employee worked for the same company. It is reported that the driver ‘… immediately exited the bulldozer and ran towards the porta potty to see if anyone was inside of it,’ the sheriff’s office spokesperson said. ‘At that time, he observed Henderson unresponsive inside the porta potty.’ dailymail.com

This tragic fact pattern will be discussed within California Law. This fact pattern contains many issues as to whether a worker can sustain a work injury while using the facilities. Further, is it possible for someone to be “at fault” and pursue a claim.

If A Worker Is On A Restroom Break, Are They Protected Under Workers’ Compensation?

California Workers’ Compensation Law provides for the “personal comfort doctrine.” The “personal comfort doctrine” provides generally that compensation extends to injuries suffered while the employee is engaged briefly and during work hours in a personal act which is necessary or helpful to his comfort or convenience. (2 Hanna, op. cit., supra, § 9.03[2][a], pp. 9–3—9–31.) The personal comfort doctrine is not strictly limited to injuries suffered on the employer’s premises. ( Cf. State Comp. Ins. Fund v. Workmen’s Comp. App. Bd. (Cardoza) (1967) 67 Cal. 2d 925 [32 Cal. Comp. Cases 525, 64 Cal. Rptr. 323, 434 P.2d 619] Fremont Indemnity Co. v. Workers Comp. Appeals Bd. (1977) 69 Cal. App. 3d 170 [42 Cal. Comp. Cases 297, 137 Cal. Rptr. 847].) [**8] Its limit is reached when the acts “are found to be departures effecting a temporary abandonment of employment. …” ( Id., at p. 928.) Olson Farms, Inc. v. Workers Compensation Appeals Bd. of California & Suzanne Shawnego, 51 Cal. Comp. Cases 107 (Cal. App. 3d Dist. March 05, 1986)

Thus, the Contract Worker would be covered when he used the restroom since he was engaged in a personal act which was for his comfort. His family would be able to pursue a Death Benefit Dependency Claim.

What About The Bulldozer Operator Who Cause the Accident, Does He Have A Claim?

With this fact pattern and given the “no fault” nature of workers’ compensation, the Bulldozer Operator, if he sustained an emotional injury as a result of killing his co-worker, could file a claim. It would appear that the incident may have psychiatrically traumatizing,

What If I Need Advice?