Workers’ Compensation Perspective
All of the feature articles in the September issue of the Contra Costa Lawyer relate to the fact pattern for this issue. Read it here.
Injured workers are not entitled to the array of benefits of the civil court system, such as pain and suffering and punitive damages. Benefits are limited to medical care, temporary disability, permanent disability, money for retraining, and death benefits in the event of death. Veronica is entitled to both civil and workers’ compensation benefits.
The threshold issue is whether Veronica’s injuries meet the compensability requirements of Labor Code Section 3600, which provides for liability for injury “arising out of” and in the “course of employment.” This is a two-pronged requirement, referred to as AOE/COE. If both prongs are met, the injury is compensable.
In an assault case, an employer’s liability depends on the nature of the risk: industrial, personal, or neutral. An industrial risk is related to the employment, and would include an attack by a disgruntled ex-employee, SCIF v. WCAB (Hale) (1981) 46CCC259 (writ denied), shooting a clerk by a robber, Roberts v. Pup ‘N.’, Taco Driveup (1984) 160 Cal. App. 3d 78 or a bartender injured by an intoxicated customer, Gardner v. IAC (Ballinger) (1946) 11 CCC 54.
A personal risk is an assault wholly unrelated to the employment, that just happened to occur on the employer’s premises, and is not compensable. Many cases finding no compensability involve a woman shot at work by a jealous husband. Contaure v. WCAB (1983) 48 CCC 795 (writ denied); Paredes v. WCAB 33 CCC 205.) The theory is that the assault could occur anywhere, rendering the injuries non-compensable.
If a personal motivation for assault is somehow connected with work it may be compensable. But there must be some employment connection or contribution. The California Supreme Court has found a causal connection for an employee’s death while working even though she was killed by her ex-husband. The victim’s job involved measuring customer’s tables to make table pads. The ex-husband telephoned the employer to have someone sent to measure his table. His ex-wife was sent, and he shot her dead. The Court held that the nature of the work was a factor in the husband’s plan. California Compensation & Fire Co v. WCAB (Schick) (1968) 33 CCC 38. The fact the conflict was personal did not change that conclusion.
However, the Court of Appeal in Transactron Inc., v. WCAB (1977) 42 CCC 235,240, held an employer not liable for an assault when the workplace was merely a stage for the assault.
The Court said:
Where the nature of the employee’s duties places her in no particular dangerous or isolated position, or where the risk of harm is not limited to the place of employment and where the attack occurs on the premises not because the victim was performing duties of employment at the time of the assault, but because she was merely there, and where the nature of the employment was not part of an assailant’s plan to isolate or trap the victim, the injury does not arise out of the employment.
Defendants here will argue that this was a merely personal matter that could have occurred anywhere. Veronica will contend that there is a connection with work because Veronica and Albert worked for Family Co. before they were married, and they worked together for significant periods of time every day in the shipping and receiving office. Albert used the working relationship as a scheme to rekindle the marriage. Because he worked in the shipping department with Veronica, he was able to track her movement throughout the day and plan and scheme his assaults. They were isolated in the shipping department, since no one intervened in the first assault.
The company parking lot was certainly an isolated location he followed her to. He barraged her with texts and emails through her work email and work cell phone. Maybe he took the new job to harass her. All these facts need to be developed if the insurance company initially denies the case.
Notice Requirements
A workers’ compensation claim is made by the employee presenting the employer with a claim form. It is a one-page document that indicates the basic facts. Labor Code Section 5401 requires an employer to provide an employee with a claim form within one working day when an employer receives knowledge of an injury that caused lost work time or required medical treatment. In assault cases like this one, special notice is required described below. The filing of the claim form allows the injured worker to begin receiving worker’s compensation benefits and request a medical evaluation. It also triggers a 90-day period for the employer to investigate and evaluate the claim for acceptance or denial.
Labor Code Section 3553 requires that an employer provide an employee who is a victim of a crime that occurred at the place of employment written notice that the employee is eligible for workers’ compensation benefits for injuries, including psychiatric injuries, that may have resulted. The employer must provide this notice within one working day of the date of the crime or one (1) working day of the date the employer should have known of the crime. Notice is required in an assault case whether or not the employer has notice of injury as a result of the assault.
Albert committed both assault and battery against Veronica in early 2018 and on June 6, 2018. Blanch’s duty to provide Veronica with written notice that she is eligible for workers’ compensation benefits was triggered both when Veronica told Blanch in February 2018 of the early 2018 assault and battery at the workplace, and most certainly when Albert tried to choke Veronica and tried to rape her in the Family Co. parking lot. Blanch was required to give Veronica notice under Labor Code Section 3553 when Veronica called her.
When Veronica notified Blanch of the medical care and lost time from work on June 6, 2018, Blanch should have provided Veronica with the claim form. Since Blanch failed to provide Veronica with the required paperwork, Veronica should download the DWC-1 claim form from the Department of Industrial Relations website, and file a claim for cumulative trauma injury. She should then hire an experienced workers’ compensation attorney to represent her.