Larsen v. Securitas and Violence in the Work Place

The Occupational Safety and Health Administration reports that over two million workers are victims of workplace violence every year.  This often comes in the form of a worker being assaulted by another employee or a client or customer.  When this occurs, in some cases, a worker may seek to receive compensation for injuries through workers’ compensation.  The workers’ compensation system has certain exceptions and rules for work place violence.  One of these special provisions can be found in California Labor Code 4660.1.  This code provision provides that the impairment rating for a worker’s injury shall not be increased for sleep dysfunction, sexual dysfunction, or psychiatric disorder.  An exception to this rule is if the worker was a victim of a violent act.

In the May 2016 case of Deborah Larsen v. Securitas Security Services, the issue became what constitutes a violent act for purposes of the exception under 4660.1.  In that case, Deborah Larsen was acting as a security guard under the employ of Securitas.  She was performing her typical duty of walking patrol through a parking lot when she was hit by a car and sustained injuries.  She claimed that part of the injury included psychiatric disorder.  The employer did not contest that she sustained a work-related physical injury or that she was entitled to compensation as a result.  Instead, the employer argued that she was not entitled to compensation for the psychiatric injury.  Ms. Larsen argued that she was entitled to compensation under the violent act exception contained in 4660.1(c).  The WCAB noted that Ms. Larsen was “hit from behind with enough force to cause her to fall, hit her head, and lose consciousness.”  The Workers’ Compensation Appeals Board determined that this was sufficient to constitute a violent act.  The WCAB also determined that a violent act under 4660.1(c) is not required to be an act that is criminal or quasi-criminal in nature.  Instead, “it may include other acts that are characterized by either strong physical force, extreme or intense physical force, or are vehemently or passionately threatening.”

Another recent case also spoke to the issue of violent injury, and found that the violent act exception did not apply where the psychiatric injury was the result of the industrial accident and not as a result of the compensable physical injury.

If you are an employer and have questions about violence in the workplace in relation to workers’ compensation, call me today at (714) 516-8188. We can discuss your business, workplace violence, and workers’ compensation.

Overview of New Laws from the DIR

In 2016, many new labor laws were passed in California, many of which dealt directly with issues impacting workers’ compensation. The Department of Industrial Relations propagated a new digest at the end of 2016 with a brief overview of some of these laws.

SB 1160 was passed on August 31, 2016, and reforms the utilization review process that is used as the process to contest the type of care being received by injured workers. The purpose of the legislation is to reduce or eliminate any utlilization review in the first thirty days following the injury. The idea behind this legislation is to allow workers to quickly obtain the treatment that they need in order to recover more quickly and to return to work. The bill also prevents any liens from being filed by providers who have been criminal charged with workers’ compensation, insurance, or medical fraud. In addition, AB 2503 requires when the utilization review process is being used, a treating physician must send any request for authorization for medical treatment to the employer’s claim administrator, insurer, or “other entity according to rules adopted by the Division of Workers’ Compensation.”

SB 1167 requires that Cal/OSHA create and propose new standards to help minimize heat-related injuries and illnesses among workers in indoor conditions. These must be proposed by January 1, 2019. This law is in response to the fact that there are already laws in place protecting workers in outdoor conditions. The new recommendations must be based on environmental temperatures and work activity levels. In addition, the guidelines for specified heat stress and heat strain guidelines must also be considered. Also addressing improved worker health is AB 1978. This law protects janitorial workers by requiring their employers to register beginning July 1, 2018. It also mandates that the Labor Commissioner establish an in-person sexual violence and harassment prevention training requirement.

Several workers’ compensation related bills were also vetoed. Among them was AB 2493 that provided a firefighter who is injured during his or her duty could take a leave of absence without loss of pay for up to one year instead of receiving workers’ compensation benefits. Also vetoed was AB 2086, which would have changed the qualification requirements for appointment as a QME for doctors and osteopaths.

Understanding the changing landscape of the law is essential to keeping your business in compliance. Call me today at (714) 516-8188 for an appointment to discuss your business’s future and how we can make sure you remain in compliance.

Post-Injury Drug Testing

All employers should have policies in place when it comes to procedures after an employee is injured. Many employers take the step of also having particular procedures in place for drug testing employees after they sustain a work-related injury. In light of new rules from the United States Occupational Safety and Health Administration (OSHA), employers may need to re-examine and re-evaluate the rules they have in place.

In May 2016, OSHA propagated a rule that prohibits employers from using drug tests, or the threat of drug tests, as adverse action against injured employees. This rule took effect on January 1, 2017. This rule states that employers are no longer permitted to have a blanket requirement for every injured employee to submit to drug testing. Instead, the rule is now that drug testing should be limited to injuries where employee drug use is likely to have contributed to the accident or injury and “for which the drug test can accurately identify impairment caused by drug use.”  For example, if an employee contracts carpel tunnel syndrome from repetitive movement, it is unlikely that drug use would have caused or contributed to this injury. Under the OSHA rules, it would be inappropriate to drug test such an employee after the employee reported the work-related injury. It should be noted that the rule does not require that the employer specifically suspects that drug use was involved; there should be a reasonable possibility that drug use contributed to the injury. The policy reason behind this rule is that OSHA is of the opinion that blanket drug-testing requirements post-injury reporting is a deterrent to workers otherwise reporting their injuries.

The rule has received criticism from some employers. The most obvious argument against such a rule is that the interest in preventing an injury to other workers or to the public at large from an intoxicated worker should outweigh the concern that a worker may be deterred from reporting a work-related injury. Employers also complain that OSHA instituted this rule without sufficient evidence that drug-testing policies actually created any deterrent effect.

For employers, this means that it is now necessary to review their drug-testing policies and make sure they are in compliance with the new rules. As it is now past January 1, 2017, this review needs to be conducted immediately, if it has not already been accomplished.

If you are an employer and have questions about drug-testing policies, call me today at (714) 516-8188. We can discuss your business and whether the policies in place are in compliance with current rules and laws.

OSHA to Publish Injury and Illness Reports Starting This Month

The United States Occupational Safety and Health Administration (OSHA) was established to “assure safe and healthful working conditions for working men and women by setting and enforcing standards and by providing training, outreach, education, and assistance.”  To achieve this goal, OSHA will conduct inspections of workplaces, report injury rates, and in some cases, propagate new rules to help accomplish its goal of workplace safety. A new rule was announced on May 11, 2016, and took effect on August 10, 2016, which creates new reporting requirements for employers.

According to the new requirement, beginning January 1, 2017, electronic reports of injury and illnesses will be reported online. Historically, this information has been only reported to OSHA and kept confidential by OSHA. Now, however, this information will be redacted to keep identifying information confidential, and then posted online. Firms that are covered by OSHA’s record-keeping regulations, and are therefore required to file these reports, are those that have more than 250 employees. In addition, these regulations will also cover other businesses in certain high-risk industries if the employer has more than 20 employees. The data must now be reported annually, which is a change from the previous rule, which required quarterly reporting. Moreover, the rules include additional penalties for employers who take retaliatory action against injured employees.

Some authorities are critical of this new rule. These critics are concerned that the posting of the illness and injuries sustained by workers will lead to underreporting by employers. They are concerned that the fear of shame or adverse action will lead employers to not want to accurately report. In response, an OSHA spokesperson has stated the purpose of the rule is to help “nudge” employers into safer working environments. The hope is that if employers are really so hesitant to publicly report work-related injuries or illnesses in a public manner, they will work harder to make sure their employees have the safest possible work conditions.  Labor Unions have come out in support of the regulation for this exact purpose. They favor transparency and making sure that employers can be held accountable for their work conditions.

If you have questions about these new regulations, contact me today at (714) 516-8188. We can review your business and make sure that you are in compliance with the reporting requirements.

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