workers compensation

Store Clerk Set On Fire by Shoplifter: Injured Workers in the News, #91

In California. a Bay Area Clerk suffered a horrendous work injury.  He was set on fire by a homeless serial shoplifter. Dailymail.com  It is reported that the Clerk suffered second and third degree burns to his face, neck, chest and shoulder.

This article will discuss the special benefit that an Injured Workers are entitled to receive when they suffer from a burn injury.  This article will also how this special benefit can be a source of controversy.

What is the Special Benefit that Injured Workers Who Have Burn Injuries Can Receive?

California Workers’ Compensation Law provides for extended total temporary disability benefits for certain injuries.  Burn injuries fall within this eligibility for extended benefit.

Labor Code Section 4656,   under section (c) (1) provides that the “Aggregate disability payments for a single injury occurring on or after April 19, 2004, causing temporary disability shall not extend for more than 104 compensable weeks within a period of two years from the date of commencement of temporary disability payment. (2) Aggregate disability payments for a single injury occurring on or after January 1, 2008, causing temporary disability shall not extend for more than 104 compensable weeks within a period of five years from the date of injury. (3) Notwithstanding paragraphs (1) and (2), for an employee who suffers from the following injuries or conditions, aggregate disability payments for a single injury occurring on or after April 19, 2004, causing temporary disability shall not extend for more than 240 compensable weeks within a period of five years from the date of the injury: (A) Acute and chronic hepatitis B. (B) Acute and chronic hepatitis C. (C) Amputations. (D) Severe burns. (E) Human immunodeficiency virus (HIV). (F) High-velocity eye injuries. (G) Chemical burns to the eyes. (H) Pulmonary fibrosis. (I) Chronic lung disease.

Based upon the statute, the Injured Worker must suffer from a “severe”  burn injury in order to obtain the extended total temporary disability.  The question is “what is a severe burn injury?”  Due to the vagueness within the statute, one must look at case law.

What Does Case Law Indicate About Severe Burns?

In the case of Parco vs. WCAB 83 C.C.C. 1288 (writ denied), it was found that “Applicant claimed that he suffered industrial injury to his left thumb, left hand, and the skin on his left thumb while employed by Defendant Parco, Inc., as a machinist on 8/30/2013. The medical treatment records indicated that Applicant suffered second and third degree burns to his left hand and also underwent three surgeries on his left thumb. Qualified medical evaluator David Doty, M.D., testified in his deposition that, as a result of Applicant’s crush injury, tendon damage, and the fracture of the bone and subsequent surgery with bone removal, Applicant had a 7mm shortening of his left thumb.”

“At trial, the WCAB found “Based on the medical evidence, the WCJ found, in pertinent part, that the 104-week limit for TD benefits did not apply to Applicant, and that Applicant was entitled to additional TD payments through 1/5/2016 based on the exceptions to the TD limitation for amputations and severe burns set forth in Labor Code § 4565(c)(3)(C) and (D).”

“The WCJ recommended that reconsideration be denied. In her report, the WCJ pointed to medical evidence that Applicant suffered second and third degree burns on his hand. The WCJ explained that the Labor Code does not require the “most severe burns to constitute an exception to the cap on TD, but merely “severe burns,” and that second and third-degree burns were sufficiently severe to meet the exception.”

While the case addressed the amputation exception, the court also noted that “it appears that applicant suffered “severe burns” in the course of his injury. Either of these factors is an appropriate basis for implementing the exception to the 104 week limitation on temporary disability benefits. (Lab. Code § 4656 (3) (C) and (D).)”   Defendant’s petition for writ of review was denied.

In sum, the matter of what constitutes a “severe burn” is still a source of controversy.  With respect to the facts of the present case, it would appear that the substantial nature of the burns would likely tip the scale in favor of the exception.   Specifically, the facial burn would be something that would likely sway a court as to the severity of the burn.   In the present matter, it would appear that the nature and extent of the burns as well as the extent of  the medical treatment most likely would be determinative.

What If 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.

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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.

CAN THEY FILM ME?  SUBROSA FILM, INJURED WORKERS, AND WORKERS’ COMPENSATION: WHAT YOU NEED TO KNOW

A recent Workers’ Compensation Appeals Board Panel Decision, Juan Licea vs. Screwmatic  ADJ10568300, provides many insights to Injured Workers as to how they may be videotaped by private investigators.

The WCAB Licea Opinion contained interesting facts about filming.  Film, in the legal world, is referred to as “Sub Rosa.”

What Does The Licea Case Tell Us About Investigators?

The case had testimony indicated that “Defense witness David Lopez testified that he was the investigator who personally captured the sub rosa video of applicant. Mr. Lopez described the circumstances surrounding his filming: His procedure is to drive to the residence and conduct surveillance from his vehicle. Once he sees the person, he turns his camera on. He then follows that person until they return to the home. …He noted that the Witness never obtained the consent from Applicant.”

In sum, they often take the video at the Injured Worker’s residence.  Also, the Investigator make no attempt  to obtain consent.

What did the Licea Video Show?

The summary from the Court noted “On November 2, 2020, applicant in front of his home, moving trash cans, carrying trash cans from the street to the driveway, picking some fruit, and entering his home through the front door. On November 4, 2020, applicant driving from his driveway to the street, parking the car and walking to his front door, and three passengers exiting the vehicle. (Id. at 5:7.) On November 5, 2020, applicant parking his SUV and washing it, retrieving a stool from within the home, and later returning it, returning to the vehicle and driving the vehicle. (Id. at 5:21.) On the same day, applicant exiting a mini-market and driving from the mini-market. Applicant with a woman in front of his house near the vehicle, the woman entering the vehicle on the driver’s side, applicant entering on the passenger-side. Applicant getting out of the vehicle and returning with a cane, and getting back into the vehicle. Applicant walking with the woman, in what appears to be a parking lot, and returning to the vehicle. (Id. at 6:3.) Finally, applicant near the citrus tree in his front yard near the front door. (Id. at 6:5.) Mr. Lopez also testified that he used a camera with a zoom feature, and that the films captured persons in addition to applicant. (March 17, 2021 MOH, at 7:1.)”

In sum, Investigators will capture day to day activities.  They will also capture other individuals on the film.  Further, they will employ the zoom camera feature to get better shots.

How Close Can an Investigator Come to the Injured Workers’ Property?

In the Licea case, it is noted that “when asked whether the investigator came on to his property he said yes. He then clarifies that the investigator was walking in front of his house not on his property. He was about 15 steps away from the witness. He agrees with the Defense Attorney that this was 15 feet. … The investigator was close to his house. He knows it was the investigator because [the investigator] was looking at the witness’ house and looked very suspicious. This was the same Mr. Lopez who testified at the last trial. (MOH, at 4:21-23; 5:3-5.)”

In sum, Investigators may come up to the property line to obtain video.

What About Privacy Rights?

The Court Opinion acknowledged that the Injured Worker had privacy rights.  It noted “we further conclude that although applicant retains a fundamental right to privacy under the California Constitution, applicant has not established a reasonable expectation of privacy for conduct in the front yard of a home that is plainly visible from the street and sidewalk or in the publically accessible parking lots where he was surveilled.”

The Appeal Board noted, however, that “ there is no reasonable expectation of privacy in the front yard of a residence that is plainly visible from the street, absent additional indicia such as a high wall or a doorbell at the front gate. In the present matter, the investigator confirmed that his procedure involved capturing 10 surveillance from his vehicle on the street, and following the subject until they returned home. (March 17, 2021 MOH at 4:14.) Applicant testified that although the investigator walked in front of the house, he never came onto applicant’s property.”

In sum, privacy is a judgment call issue.  Hypothetically, a camera was placed over a high fence might be considered an invasion of privacy.

What About the Injured Worker’s Family’s Right to Privacy?

The WCAB Opinion addressed this issue:  “we also address applicant’s contention that the members of his family depicted in the video did not provide authorization to be included in the surveillance films. Applicant testified that his grandchildren were minors at the time of the filming, and that neither he nor his family members gave defendant “permission to film and use.” (April 22, 2021 Minutes at 2:13; Applicant’s Trial Brief, at 4:19.) However, to the extent that applicant avers his spouse and grandchildren are subject to an alternative privacy-related standard, applicant puts forth no authority for this contention. We observe that for the family members incidentally captured in the sub rosa films, just as with applicant himself, there is no reasonable expectation of privacy for conduct in the front yard of a home that is plainly visible from the street and sidewalk.”

In sum, they have the same privacy rights as the Injured Worker.  There must be a reasonable expectation of privacy.  A sidewalk in front of a house most likely does not constitute an expectation of privacy.  In a gated community, perhaps it would.

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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Application for Adjudication of Claims & Workers’ Compensation | Law Offices of Edward J. Singer

In California, the Application for Adjudication of Claim is an important form for Injured Workers. Application form is used by Injured Workers to initiate a claim before the California Workers’ Compensation Appeals Board (WCAB.)

The Application is the first step for an injured Worker to have their claim litigated before a neutral party which is the Workers’ Compensation Appeals Board. The WCAB provides  Judges who are capable of hearing disputes and rendering opinions, decisions, orders and awards.  Applications are important to file because WCAB cases have a statute of limitation with respect to the filing of cases.

This article will discuss the various Applications for Adjudication of Claim, and their purpose.

What is an Application for Adjudication of Claim Form?

The Application for Adjudication of Claim is a form which is currently used as the initiating document at  the WCAB.   An Application filed properly at the WCAB will be assigned a case number. These case numbers are commonly known as ADJ numbers.  In sum, the Application is the beginning for formal proceedings.

In essence, the Application document is similar to a Civil Court Complaint.

Is There are Charge for Filing an Application?

For injured Workers, there is no charge to file an Application.

Are There Different Types of Applications for Adjudication?

Yes. There are different Applications.   The most common Application is for injuries which do not involve the death of the injured worker.  The other Application is for death cases and it is to be used by the dependents of the deceased worker.

Do You Have to Be a Certain Age to File an Application?

Yes. You must be 18 years of age.  Thus, for underaged Injured Workers or Dependents, they must have a Guardian Ad Litem file the Application on their behalf.

Are Applications Difficult to Prepare? Can You Make Mistakes?

Applications are not difficult to prepare.   For Injured Workers without attorneys, they can fill the Application out the best was possible.   They should however, contact the Information and Assistance Officer to make sure that it will be filed properly and be assigned a case number.  Otherwise, Injured Workers can employ an attorney and they can file the Application on their behalf.

If mistakes are made on the initial Application filing or new information becomes available, an Application can be amended.

Is an Application Different from a Claim Form?

Yes. An Application is different than a Claim Form.  A Claim Form is the opening document for the claims administrator.   In other words, a claim form will initiate the insurance company to start investigating a claim of injury.  A claim form can trigger entitlement for the Injured Worker to collect benefits and receive medical treatment.   The claim form, however, is not the form used to initiate dispute resolution before the WCAB.

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 over 28 years. Contact us today for more information.

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