NO PEACE, NO MCNUGGETS AT A MCDONALDS: INJURED WORKER IN THE NEWS, #33

There was no “Happy Meal” at a Boston McDonalds when minors allegedly terrorized the store.  The minors alleged conduct was so horrible that the Manager closed the restaurant.

It is alleged that these minors threw rocks and water bottles as customers and employees.

It is reported that “[a]fter the worker tossed a cup of Coke that got on one of the kids’ jeans, the group ran inside to look for the employee. That’s when one of the juveniles is accused of striking the employee “with a closed fist, causing a bump underneath (their) left eye,” the police report states. Boston EMS evaluated the worker, who refused to be transported to the hospital.” Bostonherald.com

This case will be analyzed under California Workers’ Compensation Law.

If the Worker Tossed the Cup of Coke, and Started the Incident, Would That Impact A Workers’ Compenation Claim?

Maybe. Labor Code Section 3600(a) (7) provides “[w]here the injury does not arise out of an altercation in which the injured employee is the initial physical aggressor.” This is a factual determination.  Prior to the coke cup toss by the Injured Worker, the minors may have already been throwing objects at the worker.  Thus, the minor may be considered as the initial aggressor.  Otherwise, the fact that the minor entered the store to search out the employee may give rise to that event as the initial physically aggressive act.  Alternatively, the tossing of the drink may not be ruled as to constitute a physical act.  Further, the nature of the physical injury may give rise to dismiss the initial aggressor defense.  A closed fist blow is truly a physical act as opposed to a tossed drink that got the minor’s pants.

If The Worker Initially Declined Medical Attention, Would That Impact A Workers’ Compensation Claim?

No.  There is no need to accept immediate medical attention.  Employers initially have medical control rights.  In this instance, McDonalds was responsible to provide the initial medical treatment.  At the time of the injury, the fact that the Injured Worker declined to go to the hospital would not bar the claim.  The Injured Worker, if they were in need of treatment, would be obligated to initially request treatment from McDonalds.

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.

MAIL CARRIERS ATTACKED IN SANTA MONICA: INJURED WORKERS IN THE NEWS #29

The United States Postal Service Mail Carriers have been assaulted and threatened in Santa Monica, California.  The situation is so bad that mail service has been suspended with respect to a certain area of the town. Foxnews.com Assuming that these workers sustained a medical injury as a result of the assaults,  Workers’ Compensation Benefits can be pursued for both medical treatment and compensation.

Can Mail Carriers File Claims at the California Workers’ Compensation Appeals Board?

No. Mail Carriers work for the United States Federal Government.  Therefore, they are not subject to California State Workers’ Compensation.  They are subject to FECA.

Per the USPOIG,  “in 1916, the Federal Employees’ Compensation Act (FECA) was enacted. FECA provides medical, compensation, death, and other benefits, such as vocational rehabilitation, and nursing services to federal employees who sustain injuries, including occupational diseases, as a result of their employment. All Postal Service employees are covered by FECA.” “The Department of Labor (DOL) administers FECA and makes all decisions regarding the eligibility of injured workers’ to receive workers’ compensation benefits. DOL provides direct  compensation to medical providers, claimants, and beneficiaries.“  uspoig.gov

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 Amazon’s Conduct Constitute Serious and Willful Misconduct When Amazon Employee Died at Work? Injured Worker in the News #27

An Amazon Distribution Center collapsed and a delivery driver died.  Governmental Officials noted “[w]e are concerned by recent reports that Amazon may be putting the health and safety of its workers at risk, including by requiring them to work in dangerous conditions during tornadoes, hurricanes, and other extreme weather.” Foxnews.com

How does the Workers’ Compensation System address questionable conduct by Employers?

What Is a Serious and Willful Misconduct Claim?

In California, there is increased workers’ compensation benefits that can be awarded if an Employer engages in serious and willful misconduct.  This term is a legal term.  The Labor Code, in Section 4553, provides that “[t]he amount of compensation otherwise recoverable shall be increased one-half, together with costs and expenses not to exceed two hundred fifty dollars ($250), where the employee is injured by reason of the serious and willful misconduct of any of the following:  (a) The employer, or his managing representative. (b) If the employer is a partnership, on the part of one of the partners or a managing representative or general superintendent thereof. (c) If the employer is a corporation, on the part of an executive, managing officer, or general superintendent thereof.

How Does One Prove It?

Claims of Serious and Willful Misconduct are highly factual.  These claims are either tried or settled.

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 POLICE OFFICER WITH A COVID-19 INJURY BEING RETALIATED AGAINST? INJURED WORKER IN THE NEWS, # 10

New York City Police Officer story is of upmost importance for all Safety Officers.  A Detective who sustained a work-related COVID-19 infection is in conflict with his department.  The department’s doctor has apparently forced him to try to return to work.  The Detective, however, claims that he is no longer able to drive and requires an oxygen tank.  His disease was reported so serious that he was hospitalized for eight days and told he had two to nine days to live.   He is involved in a lawsuit with respect to his return to work and that he is being forced to return to work.  Nypost.com  

This article will discuss the various issue of return to work.

What Is “Return to Work” and Why Is It So Important for Employers?

“Return to Work” is a term which is used with respect to an Injured Worker returning to work in some capacity.  In California, “Return to Work” can be in a full duty capacity, a modified duty capacity, i.e. can do regular job with a lifting limitation, and an alternative work capacity.  “Return To Work” is a means for an employer to cut-off the payment of temporary disability payments.  For certain law enforcement positions, these payments can be salary continuation or Labor Code Section 4850 time.

Who Determines Return to Work Status?

The determination of “Return to Work” status is controversial.  First, a doctor makes a determination concerning “return to work.”  This is using done by a medical note with a provision indicating “return to work.”  The note may include some limitation or restrictions, i.e. part-time hours, lifting  limitations, or sitting limitations. Second, the department makes a determination as to whether there can be an accommodation and that there is a position available.

“Return to Work” can be a source of controversy that there may be multiple medical opinions expressing different views as to work capacity and restrictions, i.e. a treating doctor, an examining doctor, and a department doctor.  Likewise, the Injured Worker may dispute the doctor’s opinion.  Further, there can be a dispute as to whether a modified or alternative position actually exists. Injured Workers have on occasion been return to an alleged modified position and been told to perform regular duties.

Within workers’ compensation, the issue with this controversy would be entitlement to temporary disability benefits.  Thus, the matter will be resolved by a Trier of Fact, a Workers’ Compensation Judge,

What If The Officer Can Never Return To Work Full Duty?

In the case of an Injured Worker not being able to return to work, the issue of disability retirement arises.   This is not a workers’ compensation issue.   It is a Retirement Board matter.

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 WATCHING TIK TOK VIDEOS CAUSE A PSYCHIATRIC WORK INJURY? INJURED WORKERS IN THE NEWS #6

A Tik Tok Moderator is suing the company for severe psychological trauma.

The facts reported are unique. The Moderator, while performing duties for TikTok, actually worked for a Third Party Contracting Firm called Telus International.

She is currently pursuing a civil action against Tik Tok.

She reports psychological trauma relates to watching hours of graphic content to moderate it to see if the videos meet community guidelines before they are placed on the platform.  Additionally, she reported that there was so much content that they would watch three and ten videos at the same time in order to keep up during their 12-hour shifts.  Additionally,  moderators were only allowed to take one 15 minute break in the first four hours of her shift, and then was only permitted to take additional 15 minute breaks every two hours afterwards. She reported that  TikTok ‘heavily punishes any time taken away from watching graphic videos.’  It is reported that as a result of her work, she suffers from depression, anxiety, and PTSD, which left her with ‘severe and debilitating’ panic attacks. Dailymail.com

Given the fact pattern, there are important issues concerning whether there is a valid workers’ compensation claim.

Who Was the Tik Tok Moderator’s Employer?

The facts indicate that she did not work for Tik Tok directly.   She worked for a Third Party Contracting Company.  For workers’ compensation purposes, her actual employer was the Third Party Contracting firm and not Tik Tok.  Since she is not an employee of Tik Tok, she reportedly is pursuing a civil action against them.

Is There a Basis for a Psychiatric Work Claim?

On an initial assessment, there is ample evidence to support a claim for a psychiatric injury.  To do so, however,  the predominant cause, must be work-related and a substantial cause, 35-40 percent, cannot be the result of a non-discriminatory good faith personnel action.

Therefore, two things must take place.   First, an assessment should be made concerning stressors outside of work.  Second, an assessment should be made as to the nature of the employment stressors.  Are the stressors to be considered as personnel actions?  If so, were they non-discriminatory and in good faith?

Thus, an analysis would be done as to the various sources of work stress: viewing disturbing content, viewing multiple videos at the same time, the demand to continue work duties viewing the content.  In the end, a Trier of Fact or Judge will determine issues of non-discriminatory good faith personnel action.

Does The Worker Have An Injury?

It is reported that she suffers from depression, anxiety and PTSD.   She reported that she suffered from severe and debilitation panic attacks.  If these diagnosis were confirmed by a medical health provider within the workers’ compensation system, the psychiatric injury is valid.  The causation factor, as described above, would determine whether it is to be considered as industrial or work-related.

What If I Need Legal Advice?

If you would like a free consultation concerning any workers’ compensation case, 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 worker’s compensation cases for 28 years. Contact us today for more information.

 

 

 

 

 

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