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.

 

REMOTE WORKERS’ COMPENSATION TRIALS VS. IN PERSON TESTIMONY: THE WORKERS’ COMPENSATION APPEALS BOARD SIGNIFICANT PANEL DECISION: A WORKERS’ COMPENSATION ATTORNEY’S VIEW: WHAT YOU NEED TO KNOW

In WCAB vs. Chevron (2021), the Workers’ Compensation Appeals Board issued a Significant Panel Decision on with respect to how California Workers’ Compensation Appeals Board have trials done remotely. Currently, the WCAB uses a “zoom” like product called Lifesize to conduct their trials.

What Was the Chevron Case issue?

In Chevron, in person testimony was taken. After the change to remote testimony, there was additional witness testimony. The Workers’ Compensation Judge on the matter did not want to proceed. The issue was essentially whether all testimony be taken in the same manner.  Thus, there was the argument that the matter be delayed until “in person” testimony could take place.

The Applicant wished the matter to proceed with remote testimony rather than wait.

What Was the Ruling?

In the particular case, the WCAB ordered the trial to proceed with remote testimony.

The WCAB, ruled that “each case must be resolved according to its own particular circumstances, and it would therefore be inappropriate to institute a blanket rule that it is per se unreasonable to continue a case to allow for in-person testimony.”

“However, in consideration of Executive Order N-63-20, the purposes of the workers’ compensation system, and current conditions, the default position should be that trials proceed remotely, in the absence of some clear reason why the facts of a specific case require a continuance. Moreover, as the party seeking the continuance, the burden should be on defendant in this case to demonstrate why a continuance is required.” [emphasis added]

What Facts Would Required for “In Person” Testimony?

 At trials, Judges have the opportunity to view Injured Workers when they are not testifying.  They see them  sitting and observing the trial, and they see them walking up to take the stand to testify, and they see them during break time.  Additionally, they are able to view the Injured Worker’s posture during testimony.  Thus, it is possible to view whether someone is exhibiting pain behavior.

Based upon my 29 year Trial Attorney experience, an Applicant’s live testimony is  important when there is an allegation of marked or profound  disability.  Thus, if an Injured Worker has a severe limp, a Judge would be able to observe it if there was live testimony.   This observation is not possible with remote testimony.

Thus, matters in which observation of the Applicant is of import would be the cases upon which a party may wish to have “in person” testimony.

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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