There have been a number of incidents in both California and the United States which can arguably be called acts of “Domestic Terrorism.” In recent years, there have been incidents in Gilroy, California, San Bernardino, California, and Poway, California which could arguably be labeled as “Domestic Terrorism.” Essentially, these acts have impacted Northern, Central, and Southern California.
Frequently, these terrorist acts occur in areas or locations at which workers are present. These workers are at risk of sustaining work-related injuries. This article will discuss various Labor Code Sections which may be applicable in the event of “Domestic Terrorism.”
Recently, there was the enactment of Labor Code Section 4600.05. This specific Labor Code Section addresses acts of “Domestic Terrorism.” There are other relevant Labor Code Sections as well.
What is “Domestic Terrorism?”
“Domestic Terrorism” is a term that is defined by the United State Code. Per 18 U.S. Code § 2331(5), the term “domestic terrorism” means activities that (A) involve acts dangerous to human life that is a violation of the criminal laws of the United States or of any State; (B )appear to be intended (i) to intimidate or coerce a civilian population; (ii) to influence the policy of a government by intimidation or coercion; or (iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping; and (C) occur primarily within the territorial jurisdiction of the United States.
Why is the Definition of “Domestic Terrorism” important?
The definition is important because Labor Code Section 4600.05, is triggered by events of “Domestic Terrorism.”
What is Labor Code Section 4600.05? What Does It Do?
Labor Code Section 4600.05 provides that:
“(a) An employer, as defined in Section 3300 , shall provide immediate support from a nurse case manager for employees injured by an act of domestic terrorism, as defined in Section 2331 of Title 18 of the United States Code , whose injuries arise out of and in the course of employment, to assist injured employees in obtaining medically necessary medical treatment, as defined by the medical treatment utilization schedule adopted pursuant to Section 5307.27 , and to assist providers of medical services in seeking authorization of medical treatment.
(b)(1) This section shall apply only if the Governor has declared a state of emergency pursuant to subdivision (b) of Section 8558 of the Government Code in connection with the act of domestic terrorism.
(2) Upon the issuance of a declaration pursuant to paragraph (1), an employer that has been notified of a claim for compensation arising out of the acts that resulted in the declaration shall provide notice within three days to the claimant advising the claimant of medically necessary services provided pursuant to subdivision (a). In the case of a claim for compensation subject to this section that is filed after the declaration, the employer shall provide the notice to the claimant within three days. The notice shall be in the form adopted by the administrative director pursuant to subdivision (d).
(c) This section shall not alter the conditions for compensability of an injury, as described in Sections 3208.3 and 3600.
(d) The administrative director shall adopt regulations to implement this section, including, but not limited to, the definition of a nurse case manager’s qualifications, the scope, and timing of immediate support from a nurse case manager, and the contents of the notice that employers shall provide to claimants.”
It is important to note that this Section only takes effect if the Governor of the State of California declares a state of emergency pursuant to the Labor Code Section.
- This Section provides IMMEDIATE ASSIGNMENT OF NURSE CASE MANAGERS
- This Section provides that claimants SHALL BE NOTIFIED WITHIN THREE DAYS OF THAT FACT
Essentially, this Section allows for Nurse Case Managers who can potentially facilitate the provision of medical care to injured workers.
What are Nurse Case Managers?
Nurse Case Managers are generally Registered Nurses who assist in the coordination of services for a patient. These services can involve attending medical evaluations, reporting medical status to the parties involved, and meeting and coordinating services with the various parties involved. Some Nurse Case Managers go out in the field and attend various medical appointments or visit the claimant at their home, hospital or rehabilitation facility where they are located. Some Nurse Case Managers limit their duties to only providing services telephonically.
How Does “Domestic Terrorism” impact Psychiatric Work Injuries?
Assuming that “Domestic Terrorism” involves violent acts, there may be a lowering of the causation threshold for a psychiatric work injury. The general standard for proving the psychiatric injury is the predominant cause, greater than 50 percent. The standard for violent acts is lowered to a substantial cause, 35 to 40 percent.
Per Labor Code Section 3208.3(b)(2) “[n]otwithstanding paragraph (1), in the case of employees whose injuries resulted from being a victim of a violent act or from direct exposure to a significant violent act, the employee shall be required to demonstrate by a preponderance of the evidence that actual events of employment were a substantial cause of the injury.
Substantial Cause is defined in 3208.3(b)(3) as that it “means at least 35 to 40 percent of the causation from all sources combined.”
In sum, the standard of causation to prove a psychiatric injury from a violent act may be lowered to 35 to 40 percent, from 51 percent.
How Does “Domestic Terrorism” impact Psychiatric Work Injuries with the First Six Month of Employment?
Generally, there is a bar from Psychiatric Injuries claimed within the first six months of employment. [Please, however, consult an attorney with respect to this issue. There are exceptions. This issue, however, is not subject of this article.]
There is an exception to the six months of employment bar which applies if “if the psychiatric injury is caused by a sudden and extraordinary employment condition.”
It can be argued that an act of “Domestic Terrorism” should constitute a “sudden and extraordinary” employment condition.
How Does “Domestic Terrorism:” impact Psychiatric Work Injuries that are Post-Termination?
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.
Again, it can be argued that an act of “Domestic Terrorism” can constitute a “sudden and extraordinary employment” condition.
How Does “ Domestic Terrorism” involve The California Victims Compensation Board?
The State of California has a California Victims Compensation Board. In order, “[t]o be eligible for compensation, a person must be a victim of a qualifying crime involving physical injury, the threat of physical injury or death. For certain crimes, emotional injury alone is enough to qualify. Certain family members and loved ones who suffer an economic loss from an injury to, or death of, a victim of a crime may also be eligible for compensation.”
It is possible that the Injured Worker may be eligible for benefits through this Board. There are restrictions and limitations which apply.
Assuming that the act of “Domestic Terrorism” was a crime, the Victims Compensation Board may provide assistance.
What If I Need Advice?
If you would like a free consultation regarding your workers’ compensation claim, please contact the Law Offices of Edward J. Singer, A Professional Law Corporation. They have been helping people in Central and Southern California deal with their workers’ compensation cases for 26 years. Contact us today for more information.