IWITN #44: Did Tossed Food At A Wendy’s Employee Cause A Work Injury?

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?

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.

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

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?

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.

 

 

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

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?

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.

BURGER INSANITY: INJURED WORKER IN THE NEWS #17

It is reported that a Fast-Food Worker was assaulted and shot in the face by twin sisters. This assault was apparently triggered over a dispute over a $3.00 hamburger that was missing from an order.  According to the police, the sisters “proceeded to attack (Mr.)Rodriguez and one of them shot him in the face while he was down.” dailymail.com 

Videotape showed that the worker was punched in the face, wrestled to the group and shot in the face.  The injury was described as “'[t]he bullet went through [his] upper lip and took out [his] upper teeth and cracked [his] bottom teeth, so those will have to be replaced,’ Rodriguez said.  He also had to use a neck brace to stabilize a part of his spine which was fractured by the bullet. “ dailymail.com

Can Dental Problems Be Work-Related?

In California, dental injuries are included in workers’ compensation.  Therefore, dental care is also included within medical care.  So, if the Injured Worker needed to have teeth replaced, it will be done.  Likewise, the medical care includes future medical care.  So, if any dental repair needs to be done to the repaired teeth, the additional dental care will be provided.

What Type of Workers’ Compensation Injuries May Be Claimed Given These Facts?

From the facts, it would appear that the Injured Worker may have sustained dental injuries, orthopedic injures, possible cosmetic injuries,  a head injury and a psychiatric injury.  Reporting of medical professionals are necessary to determine the nature and extent of the Injured Worker’s problems.

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 Walgreen’s Worker Punched in the Face: Injured Worker in the News # 14

In New York, in a Walgreens aka Duane Reade Store, a Pharmacy Worker was punched in the face by a shoplifter. It is reported that the shoplifter “approached by a 21-year-old woman store employee who directed him to put the items back, the man allegedly punched the worker in the face, grabbed her hair and threw her to the ground, according to the NYPD.” nypost.com

This article will discuss the various injuries that Pharmacy Worker may have sustained.

Can There Be Physical and Mental Injuries in Workers’ Compensation?

Workers’ Compensation in California allows for both physical and mental injuries.  In this instance, there may have been injury to her head, her scalp and other musculoskeletal injuries.  The mental injury can be a psychological injury such as post-traumatic stress disorder.

Are There Any Unique Injuries In This Matter?

Yes.  The punch to the face could have caused a facial injury.  This could have resulted in a cosmetic disfigurement.  Likewise, there may be a neurological injury.  The Worker may have sustained a concussion.

In sum, this Worker’s injury claim may involve multiple body parts and multiple medical concerns.

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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