WAS A UNITED AIRLINES WORKER BRAWL WITH A PASSENGER A WORK-RELATED INJURY? INJURED WORKER IN THE NEWS, #38

A viral video shows a United Airlines Luggage Check-In Worker engaged in a fist fight with a customer.  The video shows the UA Worker punching the customer.  The video then shows the customer beating up the worker.  Dailymail.com

For the purpose of this post, we will take the video as the totality of the interaction. Thus, we will analyze whether the UA Worker can claim a work injury for the blows that he sustained. Again, the facts, for this hypothetical, are that the UA Worker came up to the customer and struck the customer.  The customer, in turn, then struck the UA Worker.

It is reported that prior to the blows that there was some interaction between the UA Worker and the customer concerning the customer using a wheelchair to transport luggage as opposed to paying for a luggage cart.

Can the UA Worker Claim An Injury With Respect to the Exchange of Blows?

Labor Code Section 3600(a)(7) prohibits recovery under workers’ compensation law in California “[w]here the injury does not arise out of an altercation in which the injured employee is the initial physical aggressor.” This is often referred to as the “Initial Aggressor Rule.” Thus, the fist fight injuries would not be covered as a valid claim. The reason being is that the UA Worker threw the first blow and therefore was the initial aggressor.

Could the UA Worker File a Different Claim?

From the facts of the case, the UA Worker apparently became agitated to the point that he decided to attack the customer. There is the possibility that a psyche claim could be filed.  From the video, it would appear that the UA Worker was unhinged.  A determination on this matter would be deferred to a mental health practitioner.

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.

SCHOOL BUS DRIVER’S ACCIDENT YIELDS MULTIPLE WORK-RELATED INJURIES: INJURED WORKER IN THE NEWS, #36  

A horrific multi-vehicle crash occurred involving both a school bus and a dump truck. Many students were injured.    It is reported that the police investigated that matter and that it is likely that no charges that would be filed for negligent operation of a  vehicle.  It is reported that both the dump truck driver and the school bus driver were trapped in their vehicles for an extended period of time and that one of them required medical treatment.  There was no information in the article as to which driver, if any, was at fault.  Dailymail.com

This article will address whether fault would matter in this case with respect to workers’ compensation.

Can Either Driver Pursue a Workers’ Compensation Claim in This Circumstance?

Under California Law, both drivers would be able to pursue a work injury claim.  Workers’ Compensation is a “no fault” system for which the negligent operation of a vehicle causing an injury would not bar a claim.  Thus, if one of the operators had missed a stop sign and that caused the accident, if would not bar the claim.  In this instance, either operator could file a claim.  Labor Code Section 3600 provides “(a) [l]iability for the compensation provided by this division, in lieu of any other liability whatsover….shall, without regard to negligence, exist against an employer for any injury sustained by his or her employees arising out of and in the course and scope of employment.”

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.

 

 

CALFORNIA HIGHWAY PATROL OFFICERS SERIOUSLY INJURED: INJURED WORKERS IN THE NEWS, # 34

A horrendous accident happened when an alleged drunk driver struck a parked California Highway Patrol aka CHP Squad Vehicle on the freeway.  It is reported that the driver was traveling 95 miles per hour upon impact and that the cruiser. The police car erupted into flames.

The Officers were rushed to the hospital.  One is with major injuries and the two others with moderate.  One Officer was reported to have a neck brace on.  It was reported that one Officer was dragged out the burning vehicle.  Dailymail.com

Taking these facts, a hypothetical analysis of this incident will be done with an assumption that one of the Officers sustained burn injuries

Initially, What Benefits Will These Officers Receive?

California Highway Patrol Officers will initially receive a form of salary continuation benefits.  Once salary continuation benefits have been paid, total temporary disability benefits will be picked up and paid at the “state rate,” The “state rate” is a term used for the regular rate mandated for claims.

 Since The Officers Were In the Same Accident, Will Each Officer Get The Same Benefits?

 No. While the California Highway Patrol Officers were in the same accident, they will all receive different benefits.  Workers’ Compensation Benefits are based upon each individual’s injuries, their age, and their needs.

Assuming one of the Officers had severe burns, total temporary disability benefits can extended out to “240 compensable weeks within a period of five years from the date of the injury.” Labor Code Section 4656(a).   This is opposed to other Officers who most likely do not have other 4656 exceptions apply.  They would be eligible for a total of 104 weeks of temporary disability benefits.

What About Permanent Disability?

For permanent disability, each Officer will be assessed upon their body parts injured and their impairments.   Likewise, they will be assessed differently based upon their age.  Older officers will have a higher rating than younger officers irrespective that the injury happened on the same date. It is possible that the Officers may sustain the exact injury and impairment and get different ratings. This would be caused by the age adjustment in the rating.  The only item in the rating that the officers will share is that they will be assigned the same occupational group for their rating.

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.

DID JOURNALIST DEVELOP WORK- RELATED PTSD? INJURED WORKER IN THE NEWS # 32

A Washington Post Journalist on a MSNBC Meet the Press TV Broadcast revealed that“online harassment targeting her and her family caused her to experience “severe PTSD” and contemplate suicide in the recent past.”   “The MSNBC coverage aimed to detail brutal harassment faced by female journalists — noting data that showed 73% reported experiencing online attacks while doing their jobs.”It is reported that, after the broadcast, she has faced “even worse” treatment the segment.  She reported “If your segment or story on ‘online harassment’ leads to even worse online harassment for your subjects, you f—ed up royally and should learn how to cover these things properly before ever talking about them again.” nypost.comThis fact pattern is interesting with respect to the issue employer notification of injury.   Also, it is important with respect to issues of causation and apportionment.

Can This Journalist’s Television Interview Constitute Notice of Claim?

Possibly.  First, if the interview connected the PTSD to her job, it could constitute a connection of the PTSD to her work duties.   Second, her employer would have had watched the program.   If she had expressed connection, ie my job gave me PTSD, and her boss watched the program, there would be notice of a claimed injury for which her employer should notify their workers’ compensation carrier and provide the journalist a claim form.

This action is based upon Labor Code Section 5402, which provides “(a) Knowledge of an injury, obtained from any source, on the part of an employer, his or her managing agent, superintendent, foreman, or other person in authority, or knowledge of the assertion of a claim of injury sufficient to afford opportunity to the employer to make an investigation into the facts, is equivalent to service under Section 5400.”

Why Is Notice of Injury Important?

Under Labor Code Section 5402(b) “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.  The presumption of this subdivision is rebuttable only by evidence discovered subsequent to the 90-day period.”

If The Journalist Didn’t Really Have PTSD, Would It Matter?

No.  Notice of claimed injury is about a “claimed” injury.  It is not about an actual injury.  Thus, a “claimed injury” whether actual or not is the basis for which a claims’ file should be opened.  At that point, it is the Workers’ Compensation Carrier which must investigate.

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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